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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-18463 October 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. GREGORIO PERFECTOR, defendant-appellant. Alfonso E. Mendoza and the appellant in behalf of the latter. Attorney-General Villa-Real for appellee.

MALCOLM, J.: The important question is here squarely presented of whether article 256 of the Spanish Penal Code, punishing "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority . . .," is still in force. About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that certain documents which constituted the records of testimony given by witnesses in the investigation of oil companies, had disappeared from his office. Shortly thereafter, the Philippine Senate, having been called into special session by the Governor-General, the Secretary for the Senate informed that body of the loss of the documents and of the steps taken by him to discover the guilty party. The day following the convening of the Senate, September 7, 1920, the newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article reading as follows: Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of records which were kept and preserved in the iron safe of the Senate, yet up to this time there is not the slightest indication that the author or authors of the crime will ever be discovered. To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the persons in charge of the investigation of the case would not have to display great skill in order to succeed in their undertaking, unless they should encounter the insuperable obstacle of offical concealment. In that case, every investigation to be made would be but a mere comedy and nothing more. After all, the perpetration of the robbery, especially under the circumstances that have surrounded it, does not surprise us at all. The execution of the crime was but the natural effect of the environment of the place in which it was committed.

How many of the present Senators can say without remorse in their conscience and with serenity of mind, that they do not owe their victory to electoral robbery? How may? The author or authors of the robbery of the records from the said iron safe of the Senate have, perhaps, but followed the example of certain Senators who secured their election through fraud and robbery. The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its committee on elections and privileges to report as to the action which should be taken with reference to the article published in La Nacion. On September 15, 1920, the Senate adopted a resolution authorizing the President of the Senate to indorse to the Attorney-General, for his study and corresponding action, all the papers referring to the case of the newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a result, an information was filed in the municipal court of the City of Manila by an assistant city fiscal, in which the editorial in question was set out and in which it was alleged that the same constituted a violation of article 256 of the Penal Code. The defendant Gregorio Perfecto was found guilty in the municipal court and again in the Court of First Instance of Manila. During the course of the trial in the Court of First Instance, after the prosecution had rested, the defense moved for the dismissal of the case. On the subject of whether or not article 256 of the Penal Code, under which the information was presented, is in force, the trial judge, the Honorable George R. Harvey, said: This antiquated provision was doubtless incorporated into the Penal Code of Spain for the protection of the Ministers of the Crown and other representatives of the King against free speech and action by Spanish subjects. A severe punishment was prescribed because it was doubtless considered a much more serious offense to insult the King's representative than to insult an ordinary individual. This provision, with almost all the other articles of that Code, was extended to the Philippine Islands when under the dominion of Spain because the King's subject in the Philippines might defame, abuse or insult the Ministers of the Crown or other representatives of His Majesty. We now have no Ministers of the Crown or other persons in authority in the Philippines representing the King of Spain, and said provision, with other articles of the Penal Code, had apparently passed into "innocuous desuetude," but the Supreme Corut of the Philippine Islands has, by a majority decision, held that said article 256 is the law of the land to-day. . . . The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court until otherwise determined by proper authority. In the decision rendered by the same judge, he concluded with the following language: In the United States such publications are usually not punishable as criminal offense, and little importance is attached to them, because they are generally the result of political controversy and are usually regarded as more or less colored or exaggerated. Attacks of this character upon a legislative body are not punishable, under the Libel Law. Although such publications are reprehensible, yet this court feels some aversion to the application of the provision of law under which this case was filed. Our Penal Code has come to us from the Spanish regime. Article 256 of that Code prescribes punishment for persons who use insulting language about Ministers of the Crown or other "authority." The King of Spain doubtless left the need of such protection to his ministers and others in authority in the Philippines as well as in Spain. Hence, the article referred to was made applicable here. Notwithstanding the change of sovereignty, our Supreme Court, in a majority decision, has

held that this provision is still in force, and that one who made an insulting remark about the President of the United States was punishable under it. (U.S. vs. Helbig, supra.) If it applicable in that case, it would appear to be applicable in this case. Hence, said article 256 must be enforced, without fear or favor, until it shall be repealed or superseded by other legislation, or until the Supreme Court shall otherwise determine. In view of the foregoing considerations, the court finds the defendant guilty as charged in the information and under article 256 of their Penal Code sentences him to suffer two months and one day ofarresto mayor and the accessory penalties prescribed by law, and to pay the costs of both instances. The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and eloquent oral argument made in his own behalf and by his learned counsel, all reduce themselves to the pertinent and decisive question which was announced in the beginning of this decision. It will be noted in the first place that the trial judge considered himself bound to follow the rule announced in the case of United States vs. Helbig (R. G. No. 14705, 1 not published). In that case, the accused was charged with having said, "To hell with the President and his proclamations, or words to that effect," in violation of article 256 of the Penal Code. He was found guilty in a judgment rendered by the Court of First Instance of Manila and again on appeal to the Supreme Court, with the writer of the instant decision dissenting on two principal grounds: (1) That the accused was deprived of the constitutional right of cross-examination, and (2) that article 256 of the Spanish Penal Code is no longer in force. Subsequently, on a motion of reconsideration, the court, being of the opinion that the Court of First Instance had committed a prejudicial error in depriving the accused of his right to cross-examine a principal witness, set aside the judgment affirming the judgment appealed from and ordered the return of the record to the court of origin for the celebration of a new trial. Whether such a trial was actually had, is not known, but at least, the record in the Helbig case has never again been elevated to this court. There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view of the circumstances above described. This much, however, is certain: The facts of the Helbig case and the case before us, which we may term the Perfecto case, are different, for in the first case there was an oral defamation, while in the second there is a written defamation. Not only this, but a new point which, under the facts, could not have been considered in the Helbig case, is, in the Perfecto case, urged upon the court. And, finally, as is apparent to all, the appellate court is not restrained, as was the trial court, by strict adherence to a former decision. We much prefer to resolve the question before us unhindered by references to the Helbig decision. This is one of those cases on which a variety of opinions all leading to the same result can be had. A majority of the court are of the opinion that the Philippine Libel Law, Act No. 277, has had the effect of repealing so much of article 256 of the Penal Code as relates to written defamation, abuse, or insult, and that under the information and the facts, the defendant is neither guilty of a violation of article 256 of the Penal Code, nor of the Libel Law. The view of the Chief Justice is that the accused should be acquitted for the reason that the facts alleged in the information do not constitute a violation of article 156 of the Penal Code. Three members of the court believe that article 256 was abrogated completely by the change from Spanish to American sovereignty over the Philippines and is inconsistent with democratic principles of government. Without prejudice to the right of any member of the court to explain his position, we will discuss the two main points just mentioned.

1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code. The Libel Law, Act No. 277, was enacted by the Philippine Commission shortly after organization of this legislative body. Section 1 defines libel as a "malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead or to impeach the honesty, virtue, or reputation, or publish the alleged or natural deffects of one who is alive, and thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws and parts of laws now in force, so far as the same may be in conflict herewith, are hereby repealed. . . ." That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that the Libel Law abrogated certain portion of the Spanish Penal Code, cannot be gainsaid. Title X of Book II of the Penal Code, covering the subjects of calumny and insults, must have been particularly affected by the Libel Law. Indeed, in the early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme Court spoke of the Libel Law as "reforming the preexisting Spanish law on the subject of calumnia and injuria." Recently, specific attention was given to the effect of the Libel Law on the provisions of the Penal Code, dealing with calumny and insults, and it was found that those provisions of the Penal Code on the subject of calumny and insults in which the elements of writing an publicity entered, were abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.) The Libel Law must have had the same result on other provisions of the Penal Code, as for instance article 256. The facts here are that the editor of a newspaper published an article, naturally in writing, which may have had the tendency to impeach the honesty, virtue, or reputation of members of the Philippine Senate, thereby possibly exposing them to public hatred, contempt, or ridicule, which is exactly libel, as defined by the Libel Law. Sir J. F. Stephen is authority for the statement that a libel is indictable when defaming a "body of persons definite and small enough for individual members to be recognized as such, in or by means of anything capable of being a libel." (Digest of Criminal Law, art. 267.) But in the United States, while it may be proper to prosecute criminally the author of a libel charging a legislator with corruption, criticisms, no matter how severe, on a legislature, are within the range of the liberty of the press, unless the intention and effect be seditious. (3 Wharton's Criminal Law, p. 2131.) With these facts and legal principles in mind, recall that article 256 begins: Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority," etc. The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of statutory construction is, that where the later statute clearly covers the old subject-matter of antecedent acts, and it plainly appears to have been the purpose of the legislature to give expression in it to the whole law on the subject, previous laws are held to be repealed by necessary implication. (1 Lewis' Sutherland Statutory Construction, p. 465.) For identical reasons, it is evident that Act No. 277 had the effect so much of this article as punishes defamation, abuse, or insults by writing. Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article 256, but as to this point, it is not necessary to make a pronouncement. 2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article 256 of the Spanish Penal Code. Appellant's main proposition in the lower court and again energetically pressed in the appellate court was that article 256 of the Spanish Penal Code is not now in force because abrogated by the change from Spanish to American

sovereignty over the Philippines and because inconsistent with democratic principles of government. This view was indirectly favored by the trial judge, and, as before stated, is the opinion of three members of this court. Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of Book II punishes the crimes of treason, crimes that endanger the peace or independence of the state, crimes against international law, and the crime of piracy. Title II of the same book punishes the crimes of lese majeste, crimes against theCortes and its members and against the council of ministers, crimes against the form of government, and crimes committed on the occasion of the exercise of rights guaranteed by the fundamental laws of the state, including crime against religion and worship. Title III of the same Book, in which article 256 is found, punishes the crimes of rebellion, sedition, assaults upon persons in authority, and their agents, and contempts, insults, injurias, and threats against persons in authority, and insults, injurias, and threats against their agents and other public officers, the last being the title to Chapter V. The first two articles in Chapter V define and punish the offense of contempt committed by any one who shall be word or deed defame, abuse, insult, or threathen a minister of the crown, or any person in authority. The with an article condemning challenges to fight duels intervening, comes article 256, now being weighed in the balance. It reads as follows: "Any person who, by word, deed, or writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority, while engaged in the performance of official duties, or by reason of such performance, provided that the offensive minister or person, or the offensive writing be not addressed to him, shall suffer the penalty of arresto mayor," that is, the defamation, abuse, or insult of any Minister of the Crown of the Monarchy of Spain (for there could not be a Minister of the Crown in the United States of America), or other person in authority in the Monarchy of Spain. It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such subjects as treason, lese majeste, religion and worship, rebellion, sedition, and contempts of ministers of the crown, are not longer in force. Our present task, therefore, is a determination of whether article 256 has met the same fate, or, more specifically stated, whether it is in the nature of a municipal law or political law, and is consistent with the Constitution and laws of the United States and the characteristics and institutions of the American Government. It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated. "Political" is here used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign. (American Insurance Co. vs. Canter [1828], 1 Pet., 511; Chicago, Rock Island and Pacific Railway Co. vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United States Supreme Court stated the obvious when in the course of his opinion in the case of Chicago, Rock Island and Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of course, all laws, ordinances and regulations in conflict with the political character, institutions and Constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power and the latter is involved in the former to the United States, the laws of the country in support of an established religion or abridging the freedom of the press, or authorizing cruel and unusual punishments, and he like, would at once cease to be of obligatory force without any declaration to that effect." To quote again from the United States Supreme Court: "It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the Constitution and laws of its own government, and not according to those of the government ceding it." (Pollard vs. Hagan [1845], 3 Hos., 210.) On American occupation of the Philippines, by instructions of the President to the Military Commander dated May 28, 1898, and by proclamation of the latter, the municipal laws of the

conquered territory affecting private rights of person and property and providing for the punishment of crime were nominally continued in force in so far as they were compatible with the new order of things. But President McKinley, in his instructions to General Merritt, was careful to say: "The first effect of the military occupation of the enemy's territory is the severance of the former political relation of the inhabitants and the establishment of a new political power." From that day to this, the ordinarily it has been taken for granted that the provisions under consideration were still effective. To paraphrase the language of the United States Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there was not and could not be, except as precise questions were presented, a careful consideration of the codal provisions and a determination of the extent to which they accorded with or were repugnant to the "'great principles of liberty and law' which had been 'made the basis of our governmental system.' " But when the question has been squarely raised, the appellate court has been forced on occasion to hold certain portions of the Spanish codes repugnant t democratic institutions and American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil., 18; U.S. vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533; Weems vs. U.S., supra.) The nature of the government which has been set up in the Philippines under American sovereignty was outlined by President McKinley in that Magna Charta of Philippine liberty, his instructions to the Commission, of April 7, 1900. In part, the President said: In all the forms of government and administrative provisions which they are authorized to prescribe, the Commission should bear in mind that he government which they are establishing is designed not for our satisfaction or for the expression of our theoretical views, but for the happiness, peace, and prosperity of the people of the Philippine Islands, 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. At the same time the Commission should bear in mind, and the people of the Islands should be made plainly to understand, that there are certain great principles of government which have been made the basis of our governmental system, which we deem essential to the rule of law and the maintenance of individual freedom, and of which they have, unfortunately, been denied the experience possessed by us; that there are also certain practical rules of government which we have found to be essential to the preservation of these great principles of liberty and law, and that these principles and these rules of government must be established and maintained in their islands for the sake of their liberty and happiness, however much they may conflict with the customs or laws of procedure with which they are familiar. It is evident that the most enligthened thought of the Philippine Islands fully appreciates the importance of these principles and rules, and they will inevitably within a short time command universal assent. The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme Court, in the case of United States vs. Bull ([1910], 15 Phil., 7), said: "The President and Congress framed the government on the model with which American are familiar, and which has proven best adapted for the advancement of the public interests and the protection of individual rights and privileges." Therefore, it has come with somewhat of a shock to hear the statement made that the happiness, peace, and prosperity of the people of the Philippine Islands and their customs, habits, and prejudices, to follow the language of President McKinley, demand obeisance to authority, and royal protection for that authority. According to our view, article 256 of the Spanish Penal Code was enacted by the Government of Spain to protect Spanish officials who were the representatives of the King. With the change of

sovereignty, a new government, and a new theory of government, as set up in the Philippines. It was in no sense a continuation of the old, although merely for convenience certain of the existing institutions and laws were continued. The demands which the new government made, and makes, on the individual citizen are likewise different. No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man. We have no rank or station, except that of respectability and intelligence as opposed to indecency and ignorance, and the door to this rank stands open to every man to freely enter and abide therein, if he is qualified, and whether he is qualified or not depends upon the life and character and attainments and conduct of each person for himself. Every man may lawfully do what he will, so long as it is notmalum in se or malum prohibitum or does not infringe upon the qually sacred rights of others." (State vs. Shepherd [1903], 177 Mo., 205; 99 A. S. R., 624.) It is true that in England, from which so many of the laws and institutions of the United States are derived, there were once statutes of scandalum magnatum, under which words which would not be actionable if spoken of an ordinary subject were made actionable if spoken of a peer of the realm or of any of the great officers of the Crown, without proof of any special damage. The Crown of England, unfortunately, took a view less tolerant that that of other sovereigns, as for instance, the Emperors Augustus, Caesar, and Tiberius. These English statutes have, however, long since, become obsolete, while in the United States, the offense of scandalum magnatum is not known. In the early days of the American Republic, a sedition law was enacted, making it an offense to libel the Government, the Congress, or the President of the United States, but the law met with so much popular disapproval, that it was soon repealed. "In this country no distinction as to persons is recognized, and in practice a person holding a high office is regarded as a target at whom any person may let fly his poisonous words. High official position, instead of affording immunity from slanderous and libelous charges, seems rather to be regarded as making his character free plunder for any one who desires to create a senation by attacking it." (Newell, Slander and Libel, 3d ed., p. 245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.) Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American character and system of government. The gulf which separates this article from the spirit which inspires all penal legislation of American origin, is as wide as that which separates a monarchy from a democratic Republic like that of the United States. This article was crowded out by implication as soon as the United States established its authority in the Philippine Islands. Penalties out of all proportion to the gravity of the offense, grounded in a distorted monarchical conception of the nature of political authority, as opposed to the American conception of the protection of the interests of the public, have been obliterated by the present system of government in the Islands.
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From an entirely different point of view, it must be noted that this article punishes contempts against executive officials, although its terms are broad enough to cover the entire official class. Punishment for contempt of non-judicial officers has no place in a government based upon American principles. Our official class is not, as in monarchies, an agent of some authority greater than the people but it is an agent and servant of the people themselves. These officials are only entitled to respect and obedience when they are acting within the scope of their authority and jurisdiction. The American system of government is calculated to enforce respect and obedience where such respect and obedience is due, but never does it place around the individual who happens to occupy an official position by mandate of the people any official halo, which calls for drastic punishment for contemptuous remarks. The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris. Ministers of the Crown have no place under the American flag.

To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that the judgment should be reversed and the defendant and appellant acquitted, with costs de officio. So ordered. Ostrand and Johns, JJ., concur. Separate Opinions ARAULLO, C.J., concurring: I concur with the dispositive part of the foregoing decision, that is, with the acquittal of the accused, for the sole reason that the facts alleged in the information do not constitute a violation of article 256 of the Penal Code; for although that article is in force with respect to calumny, injuria, or insult, by deed or word, against an authority in the performance of his duties or by reason thereof, outside of his presence, it is repealed by the Libel Law in so far as it refers to calumny, injuria, or insult committed against an authority by writing or printing, as was that inserted in the said information. ROMUALDEZ, J., concurring: I concur with the result. I believe that the responsibility of the accused has not been shown either under article 256 of the Penal Code or under the Libel Law. I am of the opinion that article 256 of the Penal Code is still in force, except as it refers to "Ministers of the Crown," whom we do not have in our Government, and to calumny, injuria, or insult, by writing or printing, committed against an authority in the performance of his duties or by reason thereof, which portion was repealed by the Libel Law. Johnson, Street, Avancea and Villamor, JJ., concur.

THE DIRECTOR OF PRISONS, respondent. William F. Peralta in his own behalf. Office of the Solicitor General Taada for respondent. City Fiscal Mabanag as amicus curiae. FERIA, J.: Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the supervision and control of the production, procurement and distribution of goods and other necessaries as defined in section 1 of Act No. 9 of the National Assembly of the so-called Republic of the Philippines, was prosecuted for the crime of robbery as defined and penalized by section 2 (a) of Act No. 65 of the same Assembly. He was found guilty and sentenced to life imprisonment, which he commenced to serve on August 21, 1944, by the Court of Special and Exclusive Criminal Jurisdiction, created in section 1 of Ordinance No. 7 promulgated by the President of the so-called Republic of the Philippines, pursuant to the authority conferred upon him by the Constitution and laws of the said Republic. And the procedure followed in the trial was the summary one established in Chapter II of Executive Order

No. 157 of the Chairman of the Executive Commission, made applicable to the trial violations of said Act No. 65 by section 9 thereof and section 5 of said Ordinance No. 7. The petition for habeas corpus is based on the ground that the Court of Special and Executive Criminal Jurisdiction created by Ordinance No. 7 "was a political instrumentality of the military forces of the Japanese Imperial Army, the aims and purposes of which are repugnant to those aims and political purposes of the Commonwealth of the Philippines, as well as those of the United States of America, and therefore, null and void ab initio," that the provisions of said Ordinance No. 7 are violative of the fundamental laws of the Commonwealth of the Philippines and "the petitioner has been deprived of his constitutional rights"; that the petitioner herein is being punished by a law created to serve the political purpose of the Japanese Imperial Army in the Philippines, and "that the penalties provided for are much (more) severe than the penalties provided for in the Revised Penal Code." The Solicitor General, in his answer in behalf of the respondent, states that, in his own opinion, for the reasons expressed in his brief in the case of People of the Philippines, plaintiff-appellant, vs. Benedicto Jose y Santos, defendant-appellee, G. R. No. L-22 (p. 612, post), the acts and proceedings taken and had before the said Court of Special and Exclusive Criminal Jurisdiction which resulted in the conviction and imprisonment of the herein petitioner, should now be denied force and efficacy, and therefore the petition for habeas corpus should be granted. The reasons advanced by the Solicitor General in said brief and in his reply memorandum in support of his contention are, that the Court of Special and Exclusive Criminal Jurisdiction created, and the summary procedure prescribed therefor, by said Ordinance No. 7 in connection with Executive Order No. 157 of the Chairman of the Executive Commission are tinged with political complexion; that the procedure prescribed in Ordinance No. 7 does not afford a fair trial, violates the Constitution of the Commonwealth, and impairs the Constitutional rights of accused persons under their legitimate Constitution. And he cites, in support of this last proposition, the decisions of the Supreme Court of the United States in the cases of Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart (17 Wall., 570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104); Sprott vs.United States (20 Wall., 459). The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum he submits that the petition for habeas corpus be denied on the following grounds: That the Court of Special and Exclusive Criminal Jurisdiction and the Acts, Ordinances and Executive Orders, creating it are not of a political complexion, for said Court was created, and the crimes and offenses placed under its jurisdiction were penalized heavily, in response to an urgent necessity, according to the preamble of Ordinance No. 7; that the right to appeal in a criminal case is not a constitutional right; and that the summary procedure established in said Ordinance No. 7 is not violative of the provision of Article III, section 1 (18) of the Constitution of the Commonwealth, to the effect that no person shall be compelled to be a witness against himself, nor of the provision of section 1 (1) of the same Article that no person shall be deprived of life, liberty, or property without due process of law. The features of the summary procedure adopted by Ordinance No. 7, assailed by the petitioner and the Solicitor General as impairing the constitutional rights of an accused are: that court may interrogate the accused and witnesses before trial in order to clarify the points in dispute; that the refusal of the accused to answer the questions may be considered unfavorable to him; that if from the facts admitted at the preliminary interrogatory it appears that the defendant is guilty, he may be immediately convicted; and that the sentence of the sentence of the court is not appealable, except in case of death penalty which cannot be executed unless and until reviewed and affirmed by a special division of the Supreme Court composed of three Justices. Before proceeding further, and in order to determine the law applicable to the questions involved in the present case, it is necessary to bear in mind the nature and status of the government established in these Islands by the Japanese forces of occupation under the designation of Republic of the Philippines. In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113, 127, ante), recently decided, this Court, speaking through the Justice who pens this decision, held: In view of the foregoing, it is evident that the Philippines Executive Commission, which was organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government established by the military forces of occupation and therefore a de facto government of the second kind. It

was not different from the government established by the British in Castine, Maine, or by the United States in Tanpico, Mexico. As Halleck says, "the government established over an enemy's territory during the military occupation may exercise all the powers given by the laws of war to the conqueror over the conquered, and is subject to all restrictions which that code imposes. It is of little consequence whether such government be called a military or civil government. Its character is the same and the source of its authority the same. In either case it is a government imposed by the laws of war and so far as 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. And speaking of the so-called Republic of the Philippines in the same decision, this Court said: The so-called Republic of the Philippines, apparently established and organized as a sovereign state independent from any other government by the Filipino people, was, in truth and reality, a government established by the belligerent occupant or the Japanese forces of occupation. It was of the same character as the Philippine Executive Commission, and the ultimate source of its authority was the same the Japanese military authority and government. As General MacArthur stated in his proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy duress, a so-called government styled as the 'Republic of the Philippines' was established on October 14, 1943, based upon neither the free expression of the peoples" will nor the sanction of the Government of the United States.' Japan had no legal power to grant independence to the Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of the Filipino people, before its military occupation and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of nations. As the so-called Republic of the Philippines was a de facto government of the second kind (of paramount force), as the government established in Castine, Maine, during its occupation by the British forces and as that of Tampico, Mexico, occupied during the war with that the country by the United State Army, the question involved in the present case cannot be decided in the light of the Constitution of the Commonwealth Government; because the belligerent occupant was totally independent of the constitution of the occupied territory in carrying out the administration over said territory; and the doctrine laid down by the Supreme Court of the United States in the cases involving the validity of judicial and legislative acts of the Confederate States, considered as de factogovernments of the third kind, does not apply to the acts of the so-called Republic of the Philippines which is a de facto government of paramount force. The Constitution of the so-called Republic of the Philippines can neither be applied, since the validity of an act of a belligerent occupant cannot be tested in the light of another act of the same occupant, whose criminal jurisdiction is drawn entirely from the law martial as defined in the usages of nations. In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United States held that, by the military occupation of Castine, Maine, the sovereignty of the United States in the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there or be obligatory upon the inhabitants who remained and submitted to the belligerent occupant. By the surrender the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. And Oppenheim, in his Treatise on International Law, says that, in carrying out the administration over the occupied territory and its inhabitants, "the (belligerent) occupant is totally independent of the constitution and the laws of the territory, since occupation is an aim of warfare, and the maintenance and safety of his forces, and the purpose of war, stand in the foreground of his interest and must be promoted under all circumstances or conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.) The doctrine laid down in the decisions of the Supreme Court of the United States (in the cases of Texas vs.White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570; Williams vs. Bruffy, 96 U. S., 176 United States vs. Home Insurance Co., 20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and others) that the judicial and legislative acts of the Confederate States which impaired the rights of the citizens under the Constitution of the United States or of the States, or were in conflict with those constitutions, were null and void, is not applicable to the present case. Because that doctrine rests on the propositions that "the concession (of belligerency) made to the Confederate Government . . . sanctioned no hostile legislation . . . and it impaired in no respect the rights of loyal and citizens as they existed at

the commencement of hostilities" (Williams vs. Bruffy, supra);that the Union is perpetual and indissoluble, and the obligation of allegiance to the to the estate and obedience to her laws and the estate constitution, subject to the Constitution of the United States, remained unimpaired during the War of Secession (Texas vs. White, supra) and that the Confederate States "in most, if not in all instances, merely transferred the existing state organizations to the support of a new and different national head. the same constitution, the same laws for the protection of the property and personal rights remained and were administered by the same officers." (Sprott vs. United States, supra). In fine, because in the case of the Confederate States, the constitution of each state and that of the United States or the Union continued in force in those states during the War of Secession; while the Constitution of the Commonwealth Government was suspended during the occupation of the Philippines by the Japanese forces of the belligerent occupant at regular war with the United States. The question which we have to resolve in the present case in the light of the law of nations are, first, the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction, and of the summary procedure adopted for that court; secondly, the validity of the sentence which imprisonment during the Japanese military occupation; and thirdly, if they were then valid, the effect on said punitive sentence of the reoccupation of the Philippines and the restoration therein of the Commonwealth Government. (1) As to the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction by Ordinance No. 7, the only factor to be considered is the authority of the legislative power which promulgated said law or ordinance. It is well established in International Law that "The criminal jurisdiction established by the invader in the occupied territory finds its source neither in the laws of the conquering or conquered state, it is drawn entirely form the law martial as defined in the usages of nations. The authority thus derived can be asserted either through special tribunals, whose authority and procedure is defined in the military code of the conquering state, or through the ordinary courts and authorities of the occupied district." (Taylor, International Public Law, p. 598.) The so-called Republic of the Philippines, being a governmental instrumentality of the belligerent occupant, had therefore the power or was competent to create the Court of Special and Exclusive Criminal Jurisdiction. No question may arise as to whether or not a court is of political complexion, for it is mere a governmental agency charged with the duty of applying the law to cases falling within its jurisdiction. Its judgments and sentences may be of political complexion, or not depending upon the nature or character of the law so applied. There is no room for doubt, therefore, as to the validity of the creation of the court in question. With respect to the Summary procedure adopted by Ordinance No. 7, and followed in the trial of the case which resulted in the conviction of the herein petitioner, there is also no question as to the power or competence of the belligerent occupant to promulgate the law providing for such procedure. For "the invader deals freely with the relations of the inhabitants of the occupied territory towards himself . . . for his security also, he declares certain acts, not forbidden by the ordinary laws of the country, to be punishable; and he so far suspends the laws which guard personal liberty as is required for the summary punishment of any one doing such acts." (Hall's International Law, seventh ed., p. 5000). A belligerent "occupant may where necessary, set up military courts instead of the ordinary courts; and in case, and in so far as, he admits the administration of justice by the ordinary courts, he may nevertheless, so far as is necessary for military purposes, or for the maintenance of public order and safetytemporarily alter the laws, especially the Criminal Law, on the basis of which justice is administered as well as the laws regarding procedure." (Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.) No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwealth Constitution relating to the rights of accused under that Constitution, because the latter was not in force during the period of the Japanese military occupation, as we have already stated. Nor may said Constitution be applied upon its revival at the time of the re-occupation of the Philippines by virtue of the principle of postliminium because "a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect" (Cooley's Constitutional Limitations, seventh edition, page 97, and cases quoted and cited in the footnote), especially as regards laws of procedure applied to cases already terminated completely. The only restrictions or limitations imposed upon the power of a belligerent occupant to alter the laws or promulgate new ones, especially the criminal law as well as the laws regarding procedure, so far as it is necessary for military purposes, that is, for his control of the territory and the safety and protection of his army, are those imposed by the Hague Regulations, the usages established by civilized nations, the laws of humanity and the requirements of public

conscience. It is obvious that the summary procedure under consideration does not violate those precepts. It cannot be considered as violating the laws of humanity and public conscience, for it is less objectionable, even from the point of view of those who are used to the accusatory system of criminal procedure than the procedural laws based on the semi-inquisitorial or mixed system prevailing in France and other countries in continental Europe. (2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction which imposes life imprisonment upon the herein petitioner, depends upon the competence or power of the belligerent occupant to promulgate Act No. 65 which punishes the crime of which said petitioner was convicted. Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907 "indicates that the laws to be enforced by the occupant consist of, first, the territorial law in general, as that which stands to the public order and social and commercial life of the district in a relation of mutual adaptation, so that any needless displacement of it would defeat the object which the invader is enjoined to have in view, and secondly, such variations of the territorial law as may be required by real necessity and are not expressly prohibited by any of the rules which will come before us. Such variations will naturally be greatest in what concerns the relation of the communities and individuals within the district to the invading army and its followers, it being necessary for the protection of the latter, and for the unhindered prosecution of the war by them, that acts committed to their detriment shall not only lose what justification the territorial law might give them as committed against enemies, but shall be repressed more severely than the territorial law would repress acts committed against fellow subjects. Indeed the entire relation between the invaders and the invaded, so far as it may fall within the criminal department whether by the intrinsic nature of the acts done or in consequence of the regulations made by the invaders, may be considered as taken out of the territorial law and referred to what is called martial law." (Westlake, International Law, Part II, War, p. 96.) According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so far as it is used to describe any fact in relation to belligerent occupation, does not refer to a particular code or system of law, or to a special agency entrusted with its administration. The term merely signifies that the body of law actually applied, having the sanction of military authority, is essentially martial. All law, by whomsoever administered, in an occupied district martial law; and it is none the less so when applied by civil courts in matters devoid of special interest to the occupant. The words "martial law" are doubtless suggestive of the power of the occupant to share the law as he sees fit; that is, to determine what shall be deemed lawful or unlawful acts, to establish tests for ascertaining the guilt of offenders, to fix penalties, and generally to administer justice through such agencies as the found expedient. And the United States Rules of Land Warfare provide that the belligerent occupant may promulgate such new laws and regulations as military necessity demands, and in this class will be included those laws which come into being as a result of military rule; that is, those which establish new crimes and offenses incident to a state of war and are necessary for the control of the country and the protection of the army, for the principal object of the occupant is to provide for the security of the invading army and to contribute to its support and efficiency and the success of its operations. (Pub. 1940, pp. 76, 77.) From the above it appears clear that it was within the power and competence of the belligerent occupant to promulgate, through the National Assembly of the so-called Republic of the Philippines, Act No. 65 of the said Assembly, which penalizes the crimes of robbery and other offenses by imprisonment ranging from the maximum period of the imprisonment prescribed by the laws and ordinances promulgated by the President of the so-called Republic as minimum, to life imprisonment or death as maximum. Although these crimes are defined in the Revised Penal Code, they were altered and penalized by said Act No. 65 with different and heavier penalties, as new crimes and offenses demanded by military necessity, incident to a state of war, and necessary for the control of the country by the belligerent occupant, the protection and safety of the army of occupation, its support and efficiency, and the success of its operations. They are not the same ordinary offenses penalized by the Revised Penal Code. The criminal acts penalized by said Act No. 65 are those committed by persons charged or connected with the supervision and control of the production, procurement and distribution of foods and other necessaries; and the penalties imposed upon the violators are different from and much heavier than those provided by the Revised Penal Code for the same ordinary crimes. The acts penalized by said Act were taken out of the territorial law or Revised Penal Code, and referred to what is called martial law by international jurists, defined above by Hyde, in order, not only to prevent food and

other necessaries from reaching the "guerrillas" which were harassing the belligerent occupant from every nook and corner of the country, but also to preserve the food supply and other necessaries in order that, in case of necessity, the Imperial Japanese forces could easily requisition them, as they did, and as they had the right to do in accordance with the law of nations for their maintenance and subsistence (Art. LII, Sec. III, Hague Conventions of 1907). Especially taking into consideration the fact, of which this court may take judicial notice, that the Imperial Japanese Army had depended mostly for their supply upon the produce of this country. The crimes penalized by Act No. 65 as well as the crimes against national security and the law of nations, to wit: treason, espionage, inciting war, violation of neutrality, correspondence with hostile country, flight to enemy's country, piracy; and the crimes against public order, such as rebellion, sedition and disloyalty, illegal possession of firearms and other, penalized by Ordinance No. 7 and placed under jurisdiction of the Court of Special and Exclusive Criminal Jurisdiction are all of a political complexion, because the acts constituting those offenses were punished, as are all political offenses, for public rather than private reasons, and were acts in aid or favor of the enemy and against the welfare, safety and security of the belligerent occupant. While it is true that these offenses, when committed against the Commonwealth or United States Government, are defined and also penalized by the territorial law Revised Penal Code, they became inapplicable as crimes against the occupier upon the occupation of the Islands by the Japanese forces. And they had to be taken out of the territorial law and made punishable by said Ordinance No. 7, for they were not penalized before under the Revised Penal Code when committed against the belligerent occupant or the government established by him in these Island. They are also considered by some writers as war crimes in a broad sense. In this connection Wheaton observes the following: "Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to time ordered to be done or forbidden to be done in the martial law proclamation or regulations of the invading or occupying commander. Thus, in the Anglo-Boer war, the British military authorities proclaimed the following to be offenses against their martial law; Being in possession of arms, ammunition, etc.; traveling without a permit; sending prohibited goods; holding meetings other than those allowed; using seditious language; spreading alarmist reports; overcharging for goods; wearing uniforms without due authority; going out of doors between certain hours; injuring military animals or stores; being in possession, without a permit, of horses, vehicles, cycles, etc.; hindering those in execution of military orders; trespassing on defense works. Such offenses, together with several others, were specified in the Japanese regulations made in the Russo-Japanese war." (Wheaton's International Law, War, seventh edition, 1944, p. 242.) It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction against the petitioner, imposing upon him the penalty of life imprisonment, was good and valid, since it was within the admitted power or competence of the belligerent occupant to promulgate the law penalizing the crime of which petitioner was convicted. (3) The last question is the legal effect of the reoccupation of the Philippines and restoration of the Commonwealth Government; that is whether or not, by the principle of postliminy, the punitive sentence which petitioner is now serving fell through or ceased to be valid from that time. In order to resolve this last question, it is not necessary to enter into an elaborate discussion on the matter. It is sufficient to quote the opinion on the subject of several international jurists and our recent decision in the case ofCo Kim Cham vs. Valdez Tan Keh and Dizon, supra. Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals continued or created by the belligerent occupant, opines "that judicial acts done under this 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. . . . Political acts on the other hand fall through as of course, whether they introduce any positive change into the organization of the country, or whether they only suspend the working of that already in existence. The execution also of punitive sentences ceases as of course when they have had reference to acts not criminal by the municipal law of the state, such for example as acts directed against the security or control of the invader." (Hall's International Law, seventh edition, p. 518.)

Westlake, speaking of the duration of the validity of punitive sentences for offenses such as the one in question, which is within the admitted power or competence of the belligerent occupant to punish, says that: "To the extent to which the legal power of the occupant is admitted he can make law for the duration of his occupation. Like any other legislator he is morally subject to the duty of giving sufficient notice of his enactments or regulations, not indeed so as to be debarred from carrying out his will without notice, when required by military necessity and so far as practically carrying out his will can be distinguished from punishment, but always remembering that to punish for breach of a regulation a person who was justifiably ignorant of it would be outrageous. But the law made by the occupant within his admitted power, whether morally justifiable or not, will bind any member of the occupied population as against any other member of it, and will bind as between them all and their national government, so far as it produces an effect during the occupation. When the occupation comes to an end the authority of the national government is restored, either by the progress of operations during the war or by the conclusion of a peace, no redress can be had for what has been actually carried out but nothing further can follow from the occupant's legislation. A prisoner detained under it must be released, and no civil right conferred by it can be further enforced. The enemy's law depends on him for enforcement as well as for enactment. The invaded state is not subject to the indignity of being obliged to execute his commands. (Westlake, International Law, Part II, War, pp. 97, 98.) And Wheaton, who, as above stated, considers as war crimes such offenses as those penalized in Ordinance No. 7 and Act No. 65, says: "In general, the cast of the occupant possess legal validity, and under international law should not be abrogated by the subsequent government. But this rule does not necessarily apply to acts that exceed the occupant's power (e.g., alienation of the domains of the State or the sovereign), to sentences for 'war treason' and 'war crimes,' to acts of a political character, and to those that beyond the period of occupation. When occupation ceases, no reparation is legally due for what has already been carried out." (Wheaton's International Law, supra, p. 245.) We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra, that all judgments of political complexion of the courts during the Japanese regime, ceased to be valid upon the reoccupation of the islands by virtue of the principle or right of postliminium. Applying that doctrine to the present case, the sentence which convicted the petitioner of a crime of a political complexion must be considered as having ceased to be valid ipso facto upon the reoccupation or liberation of the Philippines by General Douglas MacArthur. It may not be amiss to say in this connection that it is not necessary and proper to invoke the proclamation of General Douglas MacArthur declaring null and void all laws, among them Act No. 65, of the so-called Republic of the Philippines under which petitioner was convicted, in order to give retroactive effect to the nullification of said penal act and invalidate sentence rendered against petitioner under said law, a sentence which, before the proclamation, had already become null and of no effect. We therefore hold that the punitive sentence under consideration, although good and valid during the military occupation of the Philippines by the Japanese forces, ceased to be good and valid ipso facto upon the reoccupation of these Island and the restoration therein of the Commonwealth Government. In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and it is ordered that the petitioner be released forthwith, without pronouncement as to costs. So ordered. Jaranilla, Pablo and Bengzon, JJ., concur. Moran, C.J., concurs in the result.

Separate Opinions OZAETA, J., concurring:

Amidst the forest of opinions that have cropped up in this case it would seem unnecessary to plant an additional tree. To justify our effort lest we seem intent to bring coal to Newcastle we ought to state that the following opinion had been prepared before the others were tendered. It has been impossible for the Court to reconcile and consolidate the divergent views of its members although they arrive at practically the same result. Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction of Manila, the petitioner was found guilty and sentenced to life imprisonment. He commenced to serve the sentence on August 21, 1944. He now petitions this Court for the writ of habeas corpus, alleging that Ordinance No. 7, by which the Court of Special and Exclusive Criminal Jurisdiction was created and which was promulgated on March 8, 1944, by the President of the "Republic of the Philippines," was null and void ab initio. The Solicitor General, answering the petition on behalf of the respondent Director of Prisons, expressed the opinion that "the acts and proceedings taken and before the said Court of Special and Exclusive Criminal Jurisdiction which resulted in the conviction and imprisonment of the herein prisoner should now be denied force and efficacy," and recommended "that the writ of habeas corpusprayed for be granted and that the City Fiscal be instructed to prepare and file the corresponding information for robbery against the petitioner herein in the Court of First Instance of Manila." The case was argued before us on September 21 and 22, 1945, by the First Assistant Solicitor General on behalf of the respondent and the City Fiscal as amicus curiae the former impugning and the latter sustaining the validity of said Ordinance No. 7. Section 1 of the ordinance in question reads as follows: SECTION 1. There is hereby created in every province and city throughout the Philippines one or more courts of special criminal jurisdiction as the President of the Republic of the Philippines may determine upon recommendation of the Minister of Justice, which courts shall have exclusive jurisdiction to try and determine crimes and offenses penalized by Act No. 65 entitled "An Act imposing heavier penalties for crimes involving robbery, bribery, falsification, frauds, illegal exactions and transactions, malversation of public funds and infidelity as defined in the Revised Penal Code and violations of food control laws, when committed by public officers and employees, and for similar offenses when committed by private individuals or entities, and providing for a summary procedure for the trial of such offenders." Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction also to try the following crimes as defined in the Revised Penal Code: crimes against national security and the law of nations, crimes against public order, brigandage, arson and other crimes involving destruction, illegal detention committed by private individuals and kidnapping of minors; and illegal possession of firearms, as defined in an executive order. Section 3 provides for the appointment of one judge of first instance to preside over the court above mentioned and of a special prosecutor in each special court. Section 4 authorizes the court to impose a longer term of imprisonment than that fixed by law, or imprisonment for life or death where not already fixed by law, for the crimes and offenses mentioned in section 2. The remaining sections read as follows: SEC. 5. The trial of the cases arising sections 1 and 2 hereof shall be started within two days after the filing of the corresponding information, shall be summary in procedure, and shall aim at their expeditious and prompt disposition. Technicalities shall be avoided and all measures calculated to serve this end shall be taken by the trial judge. Said cases shall be decided within four days after the same are submitted for decision. The summary procedure provided in Act No. 65 insofar as not inconsistent with the provisions of this Ordinance, shall govern the trial of the cases enumerated in said sections 1 and 2 hereof. SEC. 6. The decisions of the special courts herein created shall be final except where the penalty imposed is death, in which case the records of the particular case shall be elevated en consulta to a special division of the Supreme Court composed of the three members to be designated by the President of the Republic of the Philippines. The clerk of each special court, upon the promulgation of a decision imposing the death penalty, shall immediately forward the records of the case to the special division of the Supreme Court herein created, which shall decide the case within fifteen days from the receipt of the records thereof.

SEC. 7. The interest of public safety so requiring it, the privileges of the writ of habeas corpus are hereby suspended with respect to persons accused of, or under investigations for, any of the crimes and offenses enumerated in sections 1 and 2 hereof. SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the provisions hereof, are hereby repealed or modified accordingly. SEC. 9. This Ordinance shall take effect immediately upon its promulgation. The summary procedure provided in Act No. 65 of the "Republic," as referred to in section 5 above quoted, is in turn that established by Chapter II of Executive Order No. 157 of the Chairman of the Philippine Executive Commission, dated May 18, 1943. Under said procedure (section 17) "search warrants may be issued by the court or by any prosecuting officer, authorizing peace officers to search for and seize any articles or objects described in the warrant, including those which may be regarded as evidence of an offense under this Order even if such articles or objects are not included among those described in section 2, Rule 122, of the Rules of Court." Section 18 reads as follows: SEC. 18. The accused or his representative may be examined by the court, and with the permission of the court, by the fiscal or other prosecuting officer as to any matters favorable or unfavorable to him or his principal; and either may apply to the judge for the examination of the co-accused or the representative of the latter in matters related to the defense of the accused. Statements made by the accused, his co-accused, or the representative of the accused or a person acting in a similar capacity, irrespective of the circumstances under which they were made, shall be admissible in evidence if material to the issue. Section 21 provides for the summary trial in the following manner: Such trials shall be conducted according to the following rules: (a) After arraignment and plea, the court shall immediately cause to be explained to the accused the facts constituting the offenses with which he is charged, and the judge shall interrogate the accused and the witnesses as to the facts and circumstances of the case in order to clarify the points in dispute and those which are admitted. (b) Refusal of the accused to answer any questions made or allowed by the court may be considered unfavorable to him. (c) Except for justifiable reasons, the accused shall not be allowed to plead and assert defenses that are inconsistent with each other. (d) If from the facts admitted at the preliminary interrogation, it should appear that the accused is guilty of the crime charged in the information, or in any other information, or in any other information, or in any other information subsequently filed by the prosecuting officer, a sentence of conviction may be immediately rendered against the accused. Otherwise, the judge shall dictate an order distinctly specifying the facts admitted by the accused and those which are in dispute, and the trial shall be limited to the latter, unless the judge, for special reasons, otherwise directs. (e) Unjustified absence of an accused who has been released on bail, or of his representative shall not be a ground for interrupting the proceedings or attacking the validity of the judgment. The provisions of Rules 115 to 117 of the Rules of Court shall be suppletory to the foregoing insofar as they are not in conflict therewith.

The records shows that during their existence the courts of special and exclusive criminal jurisdiction created by the ordinance in question convicted and sentenced a total of 94 individuals, 55 of whom had been prosecuted for illegal possession of firearms and 15 for robbery; and that of the 94 convicts only 3, including the herein petitioner, remain in confinement, 21 having escaped, 37 having been released, and 33 having died. In synthesis, the argument of the Solicitor General is as follows: Acts of the military occupant which exceed his power tested by the criterion set forth in article 43 of the Hague Regulations, are null and without effect as against the legitimate government. (Wheaton's International Law, 7th ed., p. 245.) Acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other Acts of like nature, must, in general, be regarded as invalid and void. (Texas vs. White, 74 U. S., 733; 19 Law. ed., 240.) Judicial or legislative acts in the insurrectionary states were valid 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. (Horn vs. Lockhart, 17 Wall., 570-581; 21 Law. ed., 660.) All the enactment of the de factolegislatures in the insurrectionary states during the war, which were not hostile to the Union or to the authority of the General Government and which were not in conflict with the Constitution of the United States, or of the states, have the same validity as if they had been enactments of legitimate legislatures. (United States vs. The Home Insurance Co., 22 Wall., 99-104; 22 Law. ed., 818.) Tested by these principles of international law, Ordinance No. 7 must be declared void (1) because it favored the forces of occupation and the civilian Japanese inasmuch as it provided an excessively heavy penalty for the summary trial of possession of firearms and violations of food control regulations and (2) because it impaired the rights of citizens under the Constitution inasmuch as the procedure therein prescribed withdrew the privilege of the accused against self-incrimination and his right to appeal to the Supreme Court even where the penalty imposed was life imprisonment or death. In substance, the City Fiscal argues that the heavier penalty for the illegal possession of firearms than that fixed by the Administrative Code was not directed toward the suppression of underground activities against the Japanese army, and the rigid enforcement of the food control measures was not intended to insure the procurement of supplies by said army, because in any event the Japanese military occupant freely exercised the power to go after and punish his enemies directly without recurring to the agencies of the "Republic," for there were even cases where the offenders were already in the hands of the police or courts of the "Republic" but they were unceremoniously taken from said agencies by the Japanese military police and punished or liquidated by it at Fort Santiago or elsewhere; and as regards food control, the Japanese forces did not have any need of the measures or agencies established by the "Republic" because the Japanese forces themselves commandeered what they needed or sent out their own agents to purchase it for them at prices even much higher than those fixed by the "Republic"; that the procedure prescribed afforded a fair trial and did not violate any fundamental rights; that the military occupant was not in duty bound to respect the constitution and the laws of the occupied territory; that he could abrogate all of them and promulgate new ones if he so chose; that the cases cited by the Solicitor General are not applicable because they deal with the validity of acts and processes of the governments of the rebel states during the Civil War and are based upon the indissolubility of the Union; that the validity or nullity of the ordinance in question should be judged in the light of the provisions of the Constitution and the laws of the "Republic" and of generally accepted principles of international law; that even assuming that it should be judged by the standard or the Constitution of the Commonwealth, the ordinance satisfies all the requirements of said Constitution; that the right to appeal in a criminal case is not a constitutional but a purely statutory right which may be granted or withheld at the pleasure of the state; and, finally, that the supposed invalidity of the sentence imposed against the petitioner cannot be raised by habeas corpus. There is no question that in virtue of that of the proclamation of General MacArthur of October 23, 1944 (41 Off. Gaz., 147, 148), Ordinance No. 7 is no longer of any force and effect since the restoration of the Government of the Common wealth of the Philippines. The question before us is whether said ordinance ever acquired any force and effect or was null and void ab initio. Invoking decisions of the Supreme Court of the United States in cases involving the validity of Acts of the Confederacy and of a rebel state as a de facto government during the Civil War, the Solicitor General maintains that the ordinance in question was null and void because it impaired the rights of citizens under the Constitution and because it was hostile in its purpose to the United States and the Commonwealth of the Philippines.

The decisions invoked would be applicable if the so-called Republic of the Philippines should be considered as a government established by the Filipino people in rebellion against the Commonwealth and the Sovereignty of the United States. The decisions of the Supreme Court of the United States declaring invalid Acts of a rebel state or of the Confederacy which were in furtherance or support of rebellion against the United States or which impaired the rights of citizens under the Constitution, rest on the proposition that the Union is perpetual and indissoluble and that the obligations of allegiance to the state, and obedience to her laws, subject to the Constitution of the United States, remained unimpaired during the War of Secession. (See Texas vs. White, 74 U.S., 700; 19 Law. ed., 227, 237; William vs. Bruffy, 96 U.S., 176; 24 Law. ed. 716.) Obviously, that proposition does not hold true with respect to a de facto government established by the enemy in an invaded and occupied territory in the course of a war between two independent nations. Such territory is possessed temporarily so possessed temporarily by lawful government at war with the country of which the territory so possessed is a part, and during that possession the obligations of the inhabitants to their country are suspended, although not abrogated (United States vs. Rice, 4 Wheat., 253; Fleming vs. Page 9 How., 614; Baldy vs. Hunter, 171 U.S., 388; 43 Law. ed., 208, 210.) In the case of Williams vs. Bruffy, supra, the court, speaking though Mr. Justice Field, observed: "The rule stated by Vattel, that the justice of the cause between two enemies being by law of nations reputed to be equal, whatsoever is permitted to the one in virtue of war is also permitted to the other, applies only to cases of regular war between independent nations. It has no application to the case of a war between an established government and insurgents seeking to withdraw themselves from its jurisdiction or to overthrow its authority. The court further stated that the concession of belligerent rights made to the Confederate Government sanctioned no hostile legislation and impaired in no respect the rights loyal citizens as they had existed at the commencement of hostilities. On the other hand, in a war between independent nations "the rights of the occupant as a law-giver have broad scope." He many "suspend the existing laws and promulgate new ones when the exigencies of the military service demand such action. According to the Rules of Land Warfare he will naturally alter or suspend all laws of a political nature as well as a political privileges, and laws which affect the welfare and safety of his command." (Hyde on International Law, vol. 2, p. 367.) It will be seen then that in a war between independent nation the army of occupation has the right to enact laws and take measures hostile to its enemy, for its purpose was to harass and subdue the latter; and it is not bound to respect or preserve the rights of the citizens of the occupied territory under their Constitution. Let us now look into the nature and status of the government styled "Republic of the Philippines "in order to determined the criterion by which the validity of its enactments should be tested. In the recent case of Co Kim Cham vs. Valdez Tan Keh Dizon (G.R. No. L-5, p. 113, ante), this Court speaking through Justice Feria, had occasion to comment upon the nature of said government in the following words: The so-called Republic of the Philippines, apparently established and organized as a sovereign state independent from any other government by the Filipino people, was, in truth and reality, a government established by the belligerent occupant or the Japanese forces of occupation. It was of the same character as the Philippines Executive Commission, and the ultimate source of its authority was the same the Japanese military authority and government. As General McArthur stated in his proclamation of October 23, 1944, a portion of which had been already quoted, "under enemy duress a was established on October 14, 1943, base upon neither the free expression of the peoples" 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 State to, or recognize the latent sovereignty of, the Filipino people, before its military occupation and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of nations. For it is a well-established doctrine in internal law, recognized in the law, recognized in Article 45 of the Hague Conventions of 1907 (which prohibits compulsion of the population of the occupied territory to swear allegiance to the hostile power), that belligerent occupation, being essentially provisional, does not severe 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 Statesvs. 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 of the Filipino people into believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the rights of governments into the hands of Filipinos. It was established under the mistaken belief that, by

doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people in her war against the United States and other allied nations. We reaffirmed those statements. To show further the fictitious character of much-propagandized "independence" which Japan purported to grant to the Philippines through the establishment of the "Republic", we may add that, as matter of contemporary history and of common knowledge, in practice the Japanese military authorities in the Philippines never treated the "Republic of the Philippines" as an independent government after its inauguration. They continued to impose their will on its executive officials when their interests so required. The Japanese military police arrested and punished various high officials of said government, including the First Assistant Solicitor General, and paid no attention to the protests and representations made on their behalf by the President of the "Republic." As a climax of their continual impositions, in December 1944 the Japanese military authorities placed the President and the members of his Cabinet under the "protective" custody of the military police, and on the 22nd of the month forced them to leave the seat of the government in Manila and hide with them in the mountains. The only measure they did not succeed in imposing upon the "Republic" was the conscription of the Filipino youth into an army to fight with the Japanese against the United States. So, while in theory and for the purpose of propaganda Japan professed to be a benefactor and liberator of the Filipinos, hoping thereby to secure their willing cooperation in her war efforts, in practice she continued to enslave and oppress the Filipinos, as she saw that the latter remained loyal to the United States. She found that the Filipinos merely feigned cooperation as their only means of selfpreservation and that those who could stay beyond the reach of her army of occupation manifested their hospitality by harassing and attacking that army. Thus Japan continued to oppress and tyrannize the Filipinos notwithstanding the former's grant of "independence" to the latter. It would therefore be preposterous to declare that the "Republic of the Philippines" was a government established by the Filipino people in rebellion against the Commonwealth and the sovereignty of the United States. The said government being a mere instrumentality of the Commander in Chief of the Japanese army as military occupant, the ordinance question promulgated by the President of the "Republic" must be deemed as an act emanating from the power or authority of said occupant. The question, therefore, is whether or not it was within the competence of the military occupant to pass such a law. Article 43 of the Hague Regulations provides as follows: ART. 43. The authority of the legitimate power having actually passed into the hands of the occupant, the latter 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. Commenting upon this article, Hyde in his work on International Law, volume 2, pages 366, 367, 368, says: In consequence of his acquisition of the power to control the territory concerned, the occupant enjoys the right and is burdened with the duty to take all the measures within his power to restore and insure public order and safety. In so doing he is given great freedom may be partly due to circumstance that the occupant is obliged to consider as a principal object the security, support, efficiency and success of his own force in a hostile land inhabited by nationals of the enemy. . . . xxx xxx xxx

The right to legislate is not deemed to be unlimited. According to the Hague Regulations of 1907, the occupant is called upon to respect, "unless absolutely prevented, the laws in force the ordinary civil and criminal laws which do not conflict with security of his army or its support, efficiency, and success." In the exercise of his powers the commander must be guided by his judgment and his experience and a high sense of justice. (President McKinley, Order to the Secretary of War, July 18, 1898, on the occupation of Santiago de Cuba by the American forces, Moore, Dig. VII, p. 261.)

Acts of the military occupant which exceed his power tested by the criterion set forth in article 43 of the Hague Regulations, are null and without effect as against the legitimate government. (Wheaton's International Law, 7th ed. [1944], p. 245.) Hall in his Treatise on Internal Law, (7th edition), discussing the extent of the right of a military occupant, states: If occupation is merely a phase in military operations, and implies no change in the legal position of the invader with respect to the occupied territory and its inhabitants, the rights which he possesses over them are those which in the special circumstances represent his general right to do whatever acts are necessary for the prosecution of his war; in other words he has the right of exercising such control, and such control only, within the occupied territory as is required for his safety and the success of his operations. . . . On occupying a country an invader at once invest himself with absolute authority; and the fact of occupation draws with it as of course the substitution of his will for previously existing law whenever such substitution is reasonably needed, and also the replacement of the actual civil judicial administration by the military jurisdiction. In its exercise however this ultimate authority is governed by the condition that the invader, having only a right to such control as is necessary for his safety and the success of his operations, must use his power within the limits defined by the fundamental notion of occupation, and with due reference to its transient character. He is therefore forbidden as a general rule to vary or suspend laws affecting property and private personal relations, or which regulate the moral order of the community. . . . (Pages 498, 499.) We deduce from the authorities that the power of the occupant is broad and absolute in matters affecting his safety. But in affairs which do not affect the security, efficacy, and success of his military operations, his power is qualified by the transient character of his administration. He is forbidden "to vary or suspend laws affecting property and private personal relations, or which regulate the moral order of the community." Unless absolutely prevented, he is bound to laws, and civil and criminal, in force in the country. Tested by this criterion, was it within the power or competence of the Commander in Chief of the Japanese army of occupation of the Philippines to promulgate Ordinance No. 7? In so far as said ordinance created new court of special criminal jurisdiction we think his power to promulgate and enforce it during the occupation cannot be seriously disputed; but in so far as that ordinance varied radically our law of criminal procedure and deprived the accused of certain rights which our people have always treasured and considered inviolate, we are of the that it transcended his power or competence. We base this opinion upon the following considerations: 1. The occupant was not absolutely prevented from respecting our law of criminal procedure and the Court of Special and Exclusive Criminal jurisdiction. The application or nonapplication of said law did not affect the security, efficacy, and success of his military operations. The crimes over which the said court was vested with jurisdiction were mostly crimes against property penalized in our Revised Penal Code, which crimes did not affect the army of occupation. As to the illegal possession of firearms the City Fiscal himself, who the validity of the ordinance, informs us that the occupant did not avail himself of said court but punished his enemies direct without recurring to the agencies of the "Republic"; and he further informs us that "as regards food control, the Japanese forces did not have any need of the measures or agencies established by "Republic", nor did they make use of them. 2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial, repugnant to the humanitarian method of administering criminal justice adopted by all progressive, democratic, and freedom-loving countries of the world, and, therefore, devoid of that high sense of justice by which the military occupant must be guided in the exercise of his powers. This concept is, we think, borne out by an examination of the following features of said procedure: (a) Under the rule of procedure embodied in said ordinance any prosecuting officer may, on his own volition and even without probable cause, issue a search warrant for the seizure of documents and articles which may be regarded as evidence of an offense in violation of section 2, Rule 122 of the Bill of Rights contained in the Constitution of the Commonwealth, which guarantees "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures," and prohibits the issuance of warrants except upon probable cause to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.

(b) The trial must be commenced within two days after the filing of the information in violation of section 7, Rule 114, which give the accused at least two days after the plea of not guilty within which to prepare fort trial. (c) The presumption of innocence in favor of the accused in all criminal prosecutions until the contrary is proved, which is likewise guaranteed by the Bill of Rights, is violated in that, after the arraignment and before the presentation of any proof for the prosecution, the accused is interrogated by the judge as to the facts and circumstances of the case, and if from the facts obtained by such interrogation it should appear (to the judge) that accused is guilty a sentence of conviction may be immediately rendered against him, thereby also depriving him of his right to meet the witnesses face to face and of his privilege against self-incrimination. The City Fiscal justifies this feature of the procedure by giving the following hypothetical case: "In the house of Juan and under his bed a policeman finds a revolver. Juan is arrested and an information for illegal possession of firearms is filed against him by the fiscal. He is brought before the judge of the corresponding special court for the preliminary interrogatory. He is asked whether or not he admits that the revolver was found in his house. He answers in the affirmative but says that he is not the owner of the revolver and he does not know how it placed there. Asked whether he knows of anybody who could have placed the revolver under his bed, he answers that it might have been place there by a guest who slept on his bed the night previous to its discovery by the polices. He is asked to give the name of the guest reffered to and his address, but he refuses to answers. Asked if he has other witnesses to support his claim, he answer that he has none. As may be seen, the evidence of guilt is complete, and there being no further evidence to be presented that may change the result the accused may be then and there sentenced by the court. In this case, the conviction of the accused is reasonable and fair, for his refusal to reveal the identity of his alleged guest may due, either to the fact that there was no such guest, or that the cause for concealing his identity is worth suffering for. Volente non fit injuria." But to us that hypothetical case is a good illustration of the injustice of such procedure. There the accused was convicted not because the prosecution had proved his guilt but because he was unable to prove his innocence. His inability to prove who the owner of the revolver was, did not to our mind prove him guilt, beyond reasonable doubt, under the circumstances. He was accused of illegal possession of firearm, an offense punishable under the ordinance in question with imprisonment for six to twelve years. He pleaded not guilty, for according to him the revolver was not his and he did not know how it got into his house. He had no time to investigate and try to find out whether the policeman himself or some the other person who wished to do him harm had planted it there, sooner was the revolver seized than he was brought before the court and interrogated about it when he was naturally dazed and in a state of alarm. If the law of criminal procedure had been followed, he would have had ample time to reflect and endeavor to unravel the mystery. He could have consulted a lawyer, and he would have been entitled to at least two days after the information was read to him to investigate the facts and prepare for the trial. At the trial he would not have been required to answer to any proof in his defense until the prosecution had presented its witness, principally the policeman. His lawyer could have cross-examined the policeman and found out from him whether he had any grudge against the accused and how he happened to search the latter's house. From the testimony of the policeman the accused might have been enlightened as to how and by whom the revolver was place in his house. Suppose that the policeman should say that his informant as to the presence of the revolver under the bed of the accused was a houseboy of the latter, and suppose that houseboy was really the one who planted the revolver because of some grievance he had against his master but that the latter had not suspected before that his houseboy had any revolver. In view of the revelation of the policeman he would had been able to investigate and ascertain that fact. In that he way he could have satisfactory explained how and by whom the revolver was placed under his bed. But under the procedure in question as outlined by the City Fiscal, the accused was of course utterly unable to do that and was consequently doomed to at least six years' imprisonment for a crime he had not committed. (d) Section 6 of the Ordinance in question provided: "The decisions of the special courts herein created shall be final except where the penalty imposed is death, in which case the records of the particular case shall be elevateden consulta to a special division of the Supreme Court composed of three members to be designated by the President of the Republic of the Philippines." Under our law of criminal procedure, which the military occupant was bound to respect unless absolutely prevented, all persons accused of any offense have the right to appeal to the Court Appeals or to the Supreme Court. It is true that as rule that right is statutory and may be withdrawn by the legislature except in certain cases where the right to appeal is provided in the Constitution itself, as in the cases involving life imprisonment and death penalty; but the question here is not whether the legislative department of the legitimate

government has the power to abrogate that right but whether it was within the competence of the military occupant to do so. (e) In the instant case the penalty imposed upon accused by the special court, after a summary trial was life imprisonment, and he was denied the right to have that sentence reviewed by the Supreme Court, altho under subsection 4, section 2, Article VIII of the Constitution of the Commonwealth, he could not have been deprived by law of that right. ( f ) Section 7 of the Ordinance suspended the privilege of the writ of habeas corpus with respect to persons accused of or under investigation for any of the crimes and offenses enumerated in sections 1 and 2. The Constitution of the Commonwealth prohibit the suspension of that privilege except in cases of invasion, insurrection, or rebellion when the public safety requires it. The suspension by the ordinance was not motivated by any one of these cases but by the necessity for waging a campaign against certain classes of crime; martial law was not declared; and the suspension of habeas corpus did not apply to all persons living in the specified territory (as should have been done if the public safety required such suspension) but only to those accused of or investigated for certain specified crimes or offenses. The result of such partial suspension was that persons accused of or under investigation for any of the offenses specified in section 1 and 2 could be held in detention indefinitely, whereas person accused of or under investigation for crimes other than those specified, such for example as theft, physical injuries, homicide, murder, and parricide, had the right to demand their release byhabeas corpus after the lapse of six hours. The same discrimination holds true with reference to the other features already noted above, namely, unreasonable searches and seizures, summary trial, denial of the presumption innocence, self-incrimination, and denial of the right to appeal. Such discrimination was unwarranted and unjust and was contrary to the concept of justice prevailing in all democratic countries, where every person is entitled to the equal protection of the laws. 3. It is apparent from the foregoing examination of the main features of the ordinance that while the methods thus adopted may not be unusual under totalitarian governments like those of the aggressor nations in the recent global war, they are strange and repugnant to the people of the democratic countries which united together to defeat said aggressors and "to reaffirm faith in fundamental human person, in the equal rights of men and women and of nations large and small, . . . and to promote social progress and better standards of life in larger freedom." (Preamble Charter for Peace adopted by the United Nations at San Francisco, California, June 26, 1945.) The recent global war was a clash between two antagonistic ways of life, between facism and democracy. It would be strange indeed if his Court, which functions under a democratic government that fought with the other democratic nations in that war, should sanction or approve the way of life, against which that war was fought and won the cost of million of lives and untold sacrifices. 4. The case involves the interpretation not of constitution but of international law, which "is based on usage and opinion"; and "he who in such a case bases his reasoning on high considerations of morality may succeed in resolving the doubt in accordance with humanity and justice." (Principles of International Lawrence, 7th ed., pp. 12, 13.) We think the contentions for the petitioner against the validity of the ordinance in question are in accord with humanity and justice. Before concluding this opinion we deem it pertinent to comment on the remark of the City Fiscal that, as stated in its preamble, the ordinance in question was promulgated in response to "an urgent necessity for waging an immediately and relentless campaign against certain classes and expediting the trail and determination thereof in order to hasten the re-establishment of peace and other throughout the country and promote a feeling of security among the people conducive to the earlier return of normalcy in our national life." We concede that the objective of the author of the ordinance was commendable, but we think and in this we are supported by the actual result it was unattainable thru the means and methods prescribed in said ordinance. Peace and order and normalcy could not be restored unless the root cause of their disturbance were eliminated first. That cause was the presence in the country of the Japanese army, which wrecked our political, social, and economic structures, destroyed our means of communication, robbed the people of their food, clothing, and medicine and other necessities of life, ejected them from their own homes, punished and tortured innocent men and women, and other wise made life unbearable. The relative rampancy of the crimes mentioned in said ordinance was but the effect of that cause. The cornering and hoarding of foodstuffs would not for the scarcity produced by the Japanese army and the disruption of our commerce and industries on account of the invasion. The possession of firearms was rendered desirable to many person to defend themselves against or

attack the invader. Robberies and other crimes against property increased as a resulted of hunger and privation to which the people were subjected by the rapacity of the Japanese. It was a delusion to expect peace and normalcy to return without eliminating the cause of their disturbance or destruction of the Japanese army in the Philippines an objective to which the ordinance was not addressed. So, even from the point of view of the Filipino people and not of the Japanese army of occupation, the ordinance in question results untenable. Having reached the conclusion that the enactment of the procedure embodied in said ordinance for the special court therein created was beyond the competence of the occupant, inasmuch as that procedure was inseparable from the first part of the ordinance which creates the special court and prescribes the jurisdiction thereof, we are constrained to declare the whole ordinance null and void ab initio. Consequently the proceedings in said court which resulted in the conviction and sentence of the petitioner are also void.

PARAS, J., concurring in the result: Charged with robbery, the petitioner herein was found guilty and sentence to suffer life imprisonment. He commenced to serve the term on August 21, 1944. Inasmuch as he was a member of the Metropolitan Constabulary, the basis of the information was Act No. 65, passed during the Japanese sponsored Republic of the Philippines and amending certain articles of the Revised Penal Code. The trial was held by the then existing Court of Special and Exclusive Criminal Jurisdiction which was authorized to conduct proceedings in a special manner. Ordinance No. 7 of the "Republic.") After General of the Army Douglas McArthur had issued the Proclamation dated October 23, 1944, the Act under which the petitioner was charged and convicted stands nullified, and the original provisions of the Revised Penal Code restored. By virtue of article 22 of the said Code, "Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." In the absence of other details, it may here be assumed that the offense committed is that defined in article 294, paragraph 5, which provides as follows: Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: The penalty of prision correccional to prision mayor in its medium period in other cases. In accordance with the provisions of the Indeterminate Sentence Law (Acts Nos. 4103 and 4225 ), the maximum penalty that can be imposed is six months of arresto mayor. This Court has already dismissed cases wherein the defendants were charge with the violation of law in force at the time of the commission and trial of the crime, after said laws have been repealed by subsequent legislation, People vs. Moran (Phil., 44 387); People vs. Tamayo (61 Phil., 226 ), and also repeatedly released on writs ofhabeas corpus prisoners who, were given the benefit of subsequent legislation either repealing statute under which they had been convicted or modifying the same by imposing lesser penalties, Escalante vs. Santos (56 Phil., 483); Directo vs. Director of Prisons (56 Phil., 692). Prisoners who behave well are almost always liberated upon the expiration of the minimum penalty fixed in the judgments of conviction or within a reasonable time thereafter. In the present case, there being no information that the double the period of the minimum penalty that could be imposed upon him, he should be released. As this is the effect of the decision of the majority, I concur in the result.

DE, JOYA, J., concurring: The principal question involved in this case is the validity of the judicial proceeding held in criminal case No. 66 of the Court of Special and Exclusive Criminal Jurisdiction, established in the City of Manila, during Japanese occupation, under the authority of Ordinance No. 7, issued by the President of the so-called Philippine Republic, and the effect on said proceeding of the proclamation of General Douglas McArthur, dated October 23, 1944. In said criminal case, herein petitioner was accused of the crime of robbery and sentenced to life imprisonment, on August 21, 1944. There can be doubt that the government established in this country by the Commander in Chief of the Japanese Imperial Forces, under the name of the Philippine Executive Commission, was a de facto government, as already held by this Court in civil case G.R. No. L-5 entitled Co Kim Cham vs. Valdez Tan Keh and Dizon, decided on September 17, 1945 (p. 133, ante). Said government possessed all the characteristics of a de facto government as defined by the Supreme Court of the United States, in the following language: But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and (2), that while it exist 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 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 administrated, also, by civil authority, supported more or less directly by military force. (MacLeod vs. United States [1913,] 229 U. S., 416.) Under a de facto government, the courts of the country, under military occupation, should be kept open, and whenever practicable, the subordinate officers of the local administration should be allowed to continue in their functions, supported by the military force of the invader, because the responsibility of maintaining peace and public order, and of punishing crime, falls directly upon the commander in chief of the occupying forces. And in the performance of this duty, he may proclaim martial law (Davis, Elements of International Law [3d.], pp. 330-332). In occupied territory, the conquering power has a right to displace the pre-existing authority, and to assume to such extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, according to its pleasure. It may prescribe the revenues to be paid, and apply them to its own use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases, save those which are found in the laws and customs and usages of war (Cross vs. Harrison, 16 How., 164 ; Leitensdorfer vs. Webb, 20 Id., 176; The Grapeshot, 9 Wall.[ U.S.], 129; New Orleans vs. Steamship Co., [1874], 20 Wall., [ U.S.], 287. It is generally the better course for the inhabitants of the territory, under military occupation, that they should continue to carry on the ordinary administration under the invader; but the latter has no right to force them to do so. If they decline, his only rights, and it is also his duty, is to replace them by appointees of his own, so far as necessary for maintaining order and the continuance of the daily life of the territory: other purposes, as these of the superior judicial offices, can bide their time (Westlake, International Law, Part II, War, 2d ed., pp. 121-123). Though the fact of occupation imposes no duties upon the inhabitants of the occupied territory, the invader himself is not left equally free. As it is a consequence of his acts that the regular government of the country is suspended, he is bound to take whatever means are required for the security of public order; and as his presence, so long as it is based upon occupation, is confessedly temporary, and his rights of control spring only from the necessity of the

case, he is also bound to alter or override the existing laws as little as possible (Hall, International Law, 6th ed., 476). The government established here under the Philippine Executive Commission was more in consonance with the general practice among civilized nations, in establishing governments for the maintenance of peace and order and the administration of justice, in territories of the enemy under military occupation; because said government was of a temporary character. The government subsequently established under the so-called Philippine Republic, with a new constitution, was also of the nature of a de facto government, in accordance with International Law, as it was established under the authority of the military occupant and supported by the armed forces of the latter. But it was somewhat different from that established under the Philippine Executive Commission, because the former apparently, at least, had the semblance of permanency, which however, is unusual in the practices among civilized nations, under similar circumstances. Under military occupation, the original national character of the soil and of the inhabitants of the territory remains unaltered; and although the invader is invested with quasisovereignity, which give him a claim as of right to the obedience of the conquered population, nevertheless, its exercise is limited by the qualification which has gradually become established, that he must not, as a general rule, modify the permanent institutions of the country (Hall, International Law, 6th ed., p. 460). The Convention Concerning the Laws and Customs of War on Land, adopted at The Hague in 1899, lays down (Arts. 42, 43) definite rules concerning military authority over the territory of a hostile state. In addition to codifying the accepted law, it provides that the occupant must respect, unless absolutely prevented, the laws in force in the country. It will thus be readily seen that the municipal law of the invaded state continues in force, in so far as it does not affect the hostile occupant unfavorably. The regular courts of the occupied territory continue to act in cases not affecting the military occupation; and it is not customary for the invader to take the whole administration into his own hands, as it is easier to preserve order through the agency of the native officials, and also because the latter are more competent to administer the laws of the territory; and the military occupant, therefore, generally keeps in their posts such of the judicial 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. United States, 97 U. S., 39; 24 Law. ed., 992; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118; MacLeod vs. United States, 229 U. S., 416; 33 Sup. Ct., 955; 57; Law. ed., 1260; Taylor, International Law, secs. 576, 578; Wilson, International Law, pp. 331337; Hall, International Law, 6th ed. (1909), pp. 464, 465,475,476; Lawrence, International Law, 7th ed., pp. 421413; Davis, Elements of International Law, 3rd ed., pp. 330-332, 335; Holland, International Law, pp. 356-57, 359; Westlake, International Law, Part II, War 2d ed., pp. 121-123). The judicial proceedings conducted, under the municipal law of the territory, before the court established by the military occupant are general considered legal and valid, even after the government established by the invader had been displaced by the legitimate government of said territory. Thus the judgment rendered by the Confederate courts, during the 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 legal, valid and binding (Coleman vs.Tennessee, 97 U. S 509., 24 Law. ed., 1118; Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21 Law. ed., 660; Sprott vs. United States, 20 Wall., 249; 22 Law. ed., 371) When the military forces of the Confederate states were destroyed, their government perished, and with it all its enactments. But the legislative acts of the several States forming the Confederacy stood on a different ground, and so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Federal constitution, they were considered as legal, valid and binding (Williams vs. Bruffy, 96 U. S., 177; 24 Law. ed., 716; Ford vs. Surget, 97 U. S., 594; 24 Law. ed., 1018; United States vs. Ins. Co., 22 Wall. [ U. S.], 99;

22 Law. ed., 816; Ketchum vs. Buckley [1878], 99 U. S.,188; Johnson vs. Atlantic G. & W. I. Transit Co., 156 U. S., 618; 15 Sup. Ct., 520). In the later case, the Supreme Court of the United States reaffirmed that the judicial and legislative acts of the rebellious States, as de facto governments, 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 Federal Constitution. (Baldy vs. Hunter, 171 U. S., 388; 18 Sup. Ct., 890; Law. ed., 208.) Under the proclamation of General Douglas MacArthur, dated October 23, 1944, declaring null and void all laws, regulations and processes issued and promulgated by the Philippine Executive Commission and the Philippine Republic, during Japanese occupation, said Ordinance No. 7 promulgated on March 8, 1944, creating the Court of Special and Exclusive Criminal Jurisdiction, ostensibly for the speedy reestablishment of peace and order, and Executive Commission, prescribing summary rules of procedure, and other allied laws, such as Act No. 65 of the puppet republic, prescribing heavier penalties, became null and void, once the Japanese armies in the Philippines had been defeated, as with them the de facto governments, successively established under them, perished, and with them all their enactments and processes of a hostile character. But there are other considerations equally important why judicial proceedings held and conducted before the courts established by said de facto governments, under laws promulgated by them, should be declared null and void, without violating, in the least, settled principles, judicial precedents or public policy. Said Ordinance No. 7 adopted as integral parts thereof said Executive Order No. 157, as well as said Act No. 65 of the National Assembly of the puppet republic, prescribing exceptionally heavy penalties for the crimes enumerated therein. The principal crimes mentioned in said Ordinance No. 7 and Act No. 65 of the puppet republic and the other allied laws are illegal possession of firearms, robbery, violations of food-control laws, falsification malversation and bribery; and it was under said laws that herein petitioner was prosecuted and sentenced to life imprisonment for the crime robbery. The penalty of life imprisonment or death for robbery was aimed principally at the underground forces resolute and determined to seize and remove stores of food provisions, whenever possible, to prevent them from falling into the hands of the enemy. The penalty of twelve years' imprisonment for illegal possession of firearms was directed mainly against those underground forces, that had been receiving arms from the forces of liberation across the seas. Violation of food-control laws were included and used as a pretext and justification for the seizure and confiscation of food provisions so badly needed by the invader. And the inclusion under said Ordinance No. 7 of the crime of bribery and other was used as a cloak to conceal its venom and make said law look innocent. By the imposition of excessive penalties , by the denial of the remedy of habeas corpus, by compelling the accused to testify against themselves, and by denying them the right of appeal to the highest court of the land, except where the death penalty was imposed, and by its summary procedure, said Ordinance No. 7 and the other allied laws impaired and defeated the just and legal rights of Filipino citizens under the Commonwealth Constitution, and the supremacy of the authority of the legitimate Government. Under said laws, the persons accused were deprived of liberty without due process of law. In the language of this Court, "the phrase 'due process of law' used in the Philippine Bill should receive a comprehensive interpretation, and no procedure should be treated as unconstitutional which makes due provision for the trial of alleged criminal before a court of competent jurisdiction, for bringing the accused into court and

notifying him of the cause he is required to meet, for giving him an opportunity to be heard, for the deliberation and judgement of the court, and for an appeal from such judgement to the highest tribunal" (United States vs.Kennedy, 18 Phil., 122). In their conception, in their purpose and mode of enforcement and execution said laws were hostile to the authority of the Commonwealth Government and that of the United States of America; as they had been promulgated in furtherance of the war aims of the enemy, and they are, therefore, of political character and complexion. Those repressive laws were aimed at the men and women who had kept the faith, and whose heroes and martyrs now lie in graves still unknown and whose names remain unsung; but whose heroic efforts and sacrifices have made immortal the legends of Filipino resistance, and made possible our participation in the councils of free and libertyloving peoples and nations. Said laws are contrary to the principles of Democracy, championed by North America, whose gigantic efforts and heroic sacrifices have vindicated human rights, human dignity and human freedom, and consecrated them anew all over the earth with the generous blood of her children. They violate the fundamental principles of Justice for which civilized Mankind stands, under the benign leadership of Totalitarianism and given all the nations of the earth a new birth as well as a new character of freedom, to enable each and everyone to live a nobler and more worthy life and realize the justice and prosperity of the future. For the foregoing reasons, I concur in the dispositive part of the opinion prepared by Mr. Justice Feria.

PERFECTO, J., concurring: On October 21, 1944, petitioner William F. Peralta began to serve, in the Muntinglupa Prison Camp, a sentence of life imprisonment imposed by the Court of Special and Exclusive Criminal Jurisdiction, created by Ordinance No. 7 issued by President Laurel of the Republic of the Philippines under the Japanese regime, and now seeks a writ ofhabeas corpus in order that his liberty may be restored to him, contending that said Ordinance No. 7 was null and void ab initio because it was of a political complexion and its provisions are violative of the fundamental laws of the Commonwealth of the Philippines. Petitioner alleges that sometime in the month of September, 1943, he joined the Constabulary forces as a private, against his will, and before joining it, he was for several times arrested and maltreated as a guerrilla member, he being then a minor only 17 years old, and that he was prosecuted, not because he committed any crime, but because he joined the guerrilla organization, deserted the Constabulary forces, and followed political and military activities in open allegiance to the Commonwealth Government and the United States of America. The Solicitor General, appearing in behalf of respondent Director of Prisons, answered the petition agreeing that the acts and proceedings taken and had before said Court of Special and Exclusive Criminal Jurisdiction should be denied force and efficacy, and therefore, recommended that the writ prayed for be granted. At the hearing held on September 21, and 22, 1945, there appeared to argue the First Assistant Solicitor General, impugning the validity of said Ordinance No. 7, and the City Fiscal of Manila, as amicus curiae, who sustained the validity if the said Ordinance and the proceeding by virtue of which petitioner was sentenced to life imprisonment. I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY THE OCTOBER PROCLAMATION OF GENERAL MACARTHUR

On October 23, 1944, General of the Army Douglas MacArthur, Commander in Chief of the Philippine-American Forces, which fought in Bataan and later liberated the whole Philippines, as an aftermath of the liberation, issued a proclamation declaring: 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. It appears that Ordinance No. 7 in question has been issued under the Japanese regime and that the judicial process under which petitioner has been sentenced to life imprisonment, having been held in a court not belonging to the Commonwealth of the Philippines but organized and established under the authority of the enemy, became null and void and without effect since October 23, 1944, by virtue of the above-quoted October Proclamation of General MacArthur. We have explained at length our position as to the effects of said October Proclamation in our dissenting opinion in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, 153, ante), and we deem it unnecessary to repeat what we stated in said opinion. It is fortunate that all the members of the Supreme Court arrived at a unanimous conclusion as to the absolute nullity of the process under which petitioner is now being held in prison. The shocking character of the provisions of Ordinance No. 7 and the processes held under it show once more how General MacArthur was absolutely right and justified in issuing the October Proclamation. There are indications that more processes held under the Japanese regime will come to our knowledge, revealing strong grounds for their annulment, justifying, like the process here in question, the wisdom of the decision of General MacArthur in nullifying in a sweeping manner all judicial processes held during enemy occupation. The October Proclamation is, in keeping with the following official statement of the President of the United States: On the fourteenth of this month, a puppet government was set up in the Philippine Islands with Jose P. Laurel, formerly a justice of the Philippine Supreme Court as president. Jorge Vargas, formerly a member of the Philippine 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 hypocritical appeal for American sympathy which was made in fraud and deceit, and was designed to confuse and mislead the Filipino people. I wish to make it clear that neither the former collaborationist "Philippine Executive Commission" nor the present Philippine Republic has the recognition or sympathy of the Government of the United States. . . . Our sympathy goes out to those who remain loyal to the United States and the Commonwealth that great majority of the Filipino people who have not been deceived by the promises of the enemy. . . . October 23, 1943

FRANKLIN DELANO ROOSEVELT President of the United States (From U. S. Naval War College, International Law Documents, 1943, pp. 93, 94.) Putting aside the October Proclamation, by a mere perusal of the ordinance in question, we will see immediately how such law and the processes held under it are incompatible with the fundamental principles and essential safeguards in criminal procedure, universally recognized in civilized modern nations and how such ordinance and processes can only be justified by a retrogressive and reactionary mentality developed under the social, cultural, and political atmosphere of the era of darkness. II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES Section 5 of Ordinance No. 7 provides that cases arising under it shall follow the summary procedure provided in Act No. 65 of the Laurel Philippine Republic, which, in turn, is the same as that established by Chapter II of Executive Order No. 157 of the Chairman of the Vargas Philippine Executive Commission, dated May 18, 1943. Under said procedure, "search warrants may be issued by the court or by any prosecuting officer, authorizing peace officers to search for and seize any articles or objects described in the warrant, including those which may be regarded as evidence of an offense under this order even if such articles or objects are not included among those described in section 2, Rule 122, of the Rules of Court." This provision is repugnant to the Filipino sense of right in the matter of warrants of search and seizure, sense of right which has been clearly and definitely stereotyped in the following words of our fundamental law: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complaint and witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Art. III, sec. 1, No. 3, Constitution of the Philippines.) This constitutional provision is violated by the summary, unreasonable, and arbitrary procedure provided under the authority of the ordinance in question: (1) By authorizing "any prosecuting officer" to issue search warrants, when under our Constitution such search warrants should be issued only by a judge; (2) By trespassing the limits established by section 2, Rule 122, of the Rules of Court, considered as a necessary element to make the warrant reasonable; (3) By authorizing the search and seizure of articles or objects not described in warrant, which is the real meaning of the words "including those which may be regarded as evidence of an offense under this Ordinance." III. DISCRIMINATORY AND INIQUITOUS SUSPENSION OF THE WRIT OF HABEAS CORPUS Section 7 of Ordinance No. 7 in question provides that "the privileges of the writ habeas corpus are hereby suspended with respect to persons accused of, or under investigation for, any of the crimes and offenses enumerated in sections 1 and 2 hereof." This provision is also violative of one of the fundamental guarantees established in the Constitution of the Philippines, which provides that the writ of habeas corpus may be suspended only in case of "invasion, insurrection, or rebellion" and only "when the public safety requires it."

The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist. (Art. III, sec. 1, No. 14, Constitution of the Philippines.) Again, it is evident that the ordinance in question is repugnant to the deep sense of right of our people. It is so, not only because it suspends the privilege of the writ of habeas corpus, without the circumstances which can only justify said suspension, but because it flagrantly violates the fundamental principle of equality before the law, by depriving the accused, in cases falling under the ordinance in question, of the privilege of the writ of habeas corpus, which is not denied to the accused in all other cases: No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. (Art. III, sec. 1, No. 1, Constitution of the Philippines.) IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST SELF- INCRIMINATION Under section 18 of Executive Order No. 157, above mentioned, "the accused or his representative may be examined by the court, and with the permission of the court, by the fiscal or other prosecuting officer as to any matters favorable or unfavorable to him of his principal." (Emphasis ours.) It is also provided that "statements made by the accused, his co-accused, or the representative of the accused or a person acting in a similar capacity, irrespective of the circumstances under which they were made shall be admissible in evidence if material to the issue." (Emphasis ours.) Under section 21 of Executive Order No. 157, after arraignment and plea, "the judge shall interrogate the accused . . . as to facts and circumstances of the case in order to clarify the points in dispute and those which are admitted." In the same section it is also provided that "refusal of the accused to answer any questions made or allowed by the court may be considered unfavorable to him." (Emphasis ours.) Under the same section the absence of an accused or of his representative "shall not be a ground for interrupting the proceedings or attacking the validity of the judgment." From the foregoing, it appears: (1) That the accused may be examined by the court or any prosecuting officer as to any matters favorable or unfavorable to him; (2) That the refusal of the accused to answer may be considered unfavorable to him; (3) That statements made by the accused, "irrespective of the circumstances under which they were made" (that is, even under third degree procedure, or exacted through brutal kempei tortures), shall be admissible in evidence; (4) That not only the accused, but "his representative" (his lawyer, whose personal security was jeopardized under the Japanese regime), may be examined by the court or by the fiscal or other prosecuting officer, as if said representative or attorney is facing the same criminal prosecution instituted against his client; (5) That the statement made by said representative or attorney, although exacted under duress, intimidation, or torture, shall be admissible in evidence; (6) That statements made by any person acting in a similar capacity as a representative of the accused which may be a relative or a friend or, even an impostor who might pose as a representative to assure the doom of the accused, "irrespective of the circumstances under which they were made (that is, even if made in the absence of the accused,

or in the same circumstances under which masked spies decreed the death of innocent citizens pointed by them during zoning concentrations), shall be admissible in evidence; (7) That trial shall proceed in the absence of the accused; (8) That trial shall proceed in the absence of his attorney or other representative. It is evident that the procedure established violates the following provisions of our fundamental code: In all criminal prosecutions the accused shall be presumed to be innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No. 17, Constitution of the Philippines.) No person shall be compelled to be a witness against himself. (Art. III, sec. 1, No. 18, Idem.) The procedure is so revolving, so nauseating, and so opposed to human nature, that it takes a real courage to keep our equanimity while we are compelled to analyze it. It is beyond our comprehension how a man, endowed with reason, could devise such an execrable system of judicial procedure, which is but a shameless mockery of the administration of justice. We must be very careful to retain zealously the constitutional guarantee against self-incrimination. We must not forget that that constitutional guarantee was acquired as a result of protest against all inquisitorial and third degree procedures. We must not forget how, not very long ago, in the thirteen colonies of America, alleged witches were burned at the stake, as a means of compelling them to confess their fantastic compacts with the devil. We must not forget how an institution created in the twelfth century was the cause of so much tortures and sufferings, and that the terroristic menace of its rakes was abolished in Spain, and therefore in Philippines, only in 1834. We must not forget that during normal times, under the twentieth century lights, just before the last global war started, in the United States of America and in the Philippines, denunciations of third degree procedures employed by agents the law were often heard. This very Supreme Court, not only once, had to deal with cases where such tactics were conclusively proved. Even today, among criminal cases we have under consideration, there is evidence of confessions exacted through cruel and brutal means. No matter what merits can be found, from the theoretical point of view, in the arguments of those who are championing the suppression of the constitutional guarantee against self-incrimination, the undeniable reality of human experience shows conclusively the absolute need of such guarantee if justice must be served. Even with the existence of such guarantee, there are officers of the law who cannot resist temptation of using their power to compel, through third degree methods, innocent or guilty persons to admit involuntarily real or imaginary offenses. Let us allow changes tending to nullify the protection against self-incrimination, and no man, however innocent he may be, shall be secure in his person, in his liberty, in his honor, in his life. V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON In section 6 of Ordinance No. 7, it is provided that "the decision of the special courts herein created shall be final except where the penalty imposed is death, in which case the records of the particular case shall be elevated en consulta to a special division of the Supreme Court composed of three members to be designated by the President of the Republic of the Philippines." This provision is a clear violation of the fundamental right of appeal, constitutionally guaranteed to all accused in the Philippines. Under the Constitution of the Philippines, all accused are entitled to appeal to the Supreme Court:

(1) In all cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulations is in question. (Art. VIII, sec. 2, No. 1, Constitution of the Philippines.) (2) In all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (Art. VIII, sec 2, No. 2, Idem.) (3) In all cases in which the jurisdiction of any trial court is in issue. (Art. VIII, sec. 2, No. 3, Idem.) (4) In all criminal cases in which the penalty imposed is death or life imprisonment. (Art. VIII, sec. 2, No. 4, Idem.) (5) In all cases in which an error or question of law is involved. (Art. VIII, sec. 2, No. 5, Idem.) Before the adoption of the Constitution of the Philippines, it was the prevailing theory in judicial decisions that the right of appeal is not a fundamental one, but it is a mere privilege or mere statutory grant. The drafters of our Constitution, taught by the unerring lessons of human experience, came to the conclusion that mistake is one of the most irretrievable human weaknesses. The drafters of our Constitution, therefore, considered it necessary to establish constitutional guarantees to reduce to its minimum the effects of such innate human weakness by providing that the appeal to the highest tribunal of the land may be enjoyed by any accused, who, under the specific provisions of the Constitution, believed himself to be the victim of a wrong in any inferior court. The fact that the provisions of section 2, of Article VIII, of the Constitution, instead of stating that the accused shall not be denied of the right of appeal in the cases mentioned therein, provide 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 the specified cases, does not impair nor diminish the fundamental character of the right of appeal of the accused to the Supreme Court. The provisions of section 2, of Article VIII, of the Constitution, have been enacted by our Constitutional Convention, not for the benefit and well-being of the people. In fact, the Supreme Court is just one of the instrumentalities created by the Constitution in the service of the people. The Supreme Court is not an entity or institution whose rights and privileges must be constitutionally guaranteed. It is only a means. It is one of the means considered necessary by our Constitution to better serve the supreme interest of the people. As a matter of fact, the Supreme Court of the United States itself declared that the elimination of said tribunal is not incompatible with the existence of a government of laws. In a case of denaturalization wherein the Government of the United States sought to deprive a person of his American citizenship, on the ground that the 1928 platform of the Communist Party of the United States, to which the respondent belonged, advocated the abolition of the supreme Court, of the Senate and the veto power of the President, and replacement of congressional districts with "councils of workers" in which legislative and executive powers would be united, the Federal Supreme Court declared: These would indeed be significant changes in our governmental structure changes which it is safe to say are not desired by the majority of the people in this country but whatever our personal views, as judges we cannot say that person who advocates their adoption through peaceful and constitutional means is not in fact attached to the Constitution those institutions are not enumerated as necessary in the government's test of "general political philosophy", and it is conceivable that "orderly liberty" could be maintained without them. The Senate has not gone free of criticism and one object of the Seventeenth Amendment was to make it more responsive to the popular will. The unicameral legislature is not unknown in the country. It is that this Court has played a large in the unfolding of the constitutional plan (sometimes too so in the opinion of some observers), but we be arrogant indeed if we presume that a government of laws, with

protection for minority groups would be impossible without it. Like other agencies of government, this Court at various lines its existence has not escaped the shafts of critics whose sincerity and attachment to the Constitution is beyond question critics who have accused it of assuming functions of judicial review not intended to be conferred upon it, or of abusing those function to thwart the popular will, and who advocated various remedies taking a wide range. (Schneiderman vs. United States of America, June 21, 1943.) VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION OF THE LAWS The constitutional guarantee of equal protection of the laws is evidently abridged in the summary procedure in criminal cases under Ordinance No. 7: (1) By the fact that the accused therein are victims of search warrants specially provided for them, where the guarantees against unreasonableness in search warrants issued against other accused are specially eliminated. (2) By depriving the accused, under the Ordinance No. 7, the privilege of the writ of habeas corpus enjoyed by the accused in other cases. (3) By depriving the accused, under Ordinance No. 7 of the fundamental right of appeal in all cases, except when sentenced of death is imposed. (4) By discriminating against the accused, under Ordinance No. 7, where the right of appeal is retained for them, that is, in cases where the sentenced imposed is death, by entrusting the power to revised said sentence to small minority of the Supreme Court, under the Japanese regime, and a minority of three justices to be specially called out by the President of the Laurel Philippine Republic, undoubtedly with the evident purpose of the confirmation of the conviction of the accused, and to make the appeal en consulta just an empty gesture to make the situation of the accused more pitiful by lengthening is days of agony. (5) By placing the accused, in the case in question, under the sword of Damocles of an unfavorable presumptions, should he refuse to answer any question that the court or any prosecuting officer might propound to him. Under our constitution, no one shall be deprived of the "equal protection of the laws". (Art. III, sec. 1, No. 1, Constitution of the Philippines.) VII. THE PRESUMPTION OF INNOCENCE OF THE ACCUSED IN ALL CRIMINAL PROSECUTIONS VIOLATED Since the American flag began to fly over our soil, the fundamental guarantee that in all criminal prosecution the accused shall be presumed innocent until the contrary is proved beyond all reasonable doubt, has been implanted in our country to remain forever. That guarantee was consecrated in our Constitution: In all criminal prosecution the accused shall be presumed to be innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and a public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf. (Art. III, sec. 1, No. 17, Constitution of the Philippines.) This guarantee is undoubtedly violated when, in the summary procedure established by Ordinance No. 7, it is provided that the refusal of the accused to answer any question, propounded by the court or any officer, "may raise unfavorable presumption against him."

If we have to keep democracy in our country, we must be vigilant in upholding the constitutional principle that all persons shall be presumed to be innocent until the contrary is proved beyond all reasonable doubt. This principle is the opposite of that prevailing under autocracies, or under facist or totalitarian regimes. During the Japanese occupation all persons who might fall under the suspicion of any Japanese or their spies and lackeys, were presumed to be guilty of any imaginary crime until they were able to convince their victimizers of the contrary, beyond any reasonable doubt. Even then, they were submitted to preventive tortures and long months of imprisonment, just in case they might think later of committing any offense against the Japanese or their collaborators. VIII. ORDINANCE NO. 7 VIOLATED THE HAGUE CONVENTION OF 1899 In the convention concerning the laws and customs of war on land, adopted by the Hague in 1899, it is provided that the military occupant must respect the laws in force in the occupied country, unless absolutely prevented. (Arts. 42 and 43.) The provision of the Convention has been flagrantly violated when, under the enemy occupation the Laurel Philippine Republic enacted Ordinance No. 7 which suspended our laws, including the fundamental one, by substantially subverting the judicial procedures in the special criminal cases instituted under said ordinance. For this reason, said ordinance, being violative of international law, was null and void ab initio. Under international law, under the most elemental principles of law, the legitimate government, once restored to its own territory, after expelling the enemy invader, enjoys the absolute freedom of not recognizing or of nullifying any and all acts of the invader, including those internationally legal ones. The situation is exactly the same as that of the owner of the house who can do anything in it that pleases him, after expelling the bandit who was able to usurp its possession for a while. General McArthur exercised correctly that power by the sweeping nullification decreed in his October Proclamation. But even without the October Proclamation, the judicial process maybe it is better to say injudicial process which resulted in the imprisonment of petitioner, must be shorn of all effects because it had taken place under the authority of an ordinance which was null and void ab initio. IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN RENDERED UNDER FOREIGN AUTHORITY IS UNENFORCEABLE The decision by which petitioner William F. Peralta was convicted and is being confined for life having been rendered by a tribunal created, functioning, and acting under the authority of a foreign State, the Emperor of the Imperial Government of Japan, is unenforceable. It has, therefore, the nature of a foreign decision or judgment. For that reason, it is unenforceable within the Philippines or under the Commonwealth, as we have shown in our opinion in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G.R. No. 5, p. 153, ante) Said decision, having been rendered under Ordinance No. 7, which was null and void ab initio, carries the same vice as the ordinance under which it was rendered. But even admitting arguendo that said decision is valid, because it is so under international law, and is not included in the nullification decreed by General Douglas MacArthur, still it cannot be enforced, being a foreign decision. A foreign decision can only be enforced through the institution of an action before our tribunals. Even decisions of a court of the United States or of any of its States or territories can be enforced in the Philippines only by the

institution of an action or special proceeding before our own courts. This theory is confirmed by sections 47 and 48, Rule 39, of the Rules of Court, which read: SEC. 47. Effect of record of a court of the United States. The effect of a judicial record of a court of the United States or of a court of one of the States or territories of the United States, is the same in the Philippines as in the United States, or in the States or territory where it was made, except that it can only be enforced here by an action or special proceeding, and except, also, that the authority of a guardian, or executor, or administrator does not extend beyond the jurisdiction of the Government under which he was invested with his authority. SEC. 48. Effect of foreign judgments. The effect of a judgement of a tribunal of a foreign country, having jurisdiction to pronounce the judgement, is as follows: (a) In case of a judgement against a specific thing, the judgment is conclusive upon the title to the thing; (b) In case of a judgement against a person, the judgement is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgement may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. X. THE STUNNING FACTS REVEALED IN THE REPORT OF THE DIRECTOR OF PRISONS. At the hearing of this case, respondent Director of Prisons was required to submit statistical data concerning the number of prisoners and the various crimes for which they were convicted by the Court of Special and Exclusive Criminal Jurisdiction. In submitting said statistical data, the Solicitor General, as counsel for respondent, calls our attention to the fact that, out of the 92 prisoners committed by said courts to the Bureau of Prisons for confinement, fifty-five (55), that is more than one-half, were convicted of illegal possession of firearms, and that only 3 are now actually in confinement serving sentences, among them the petitioner in this proceeding, thus dissipating the unfounded fear entertained by the City Fiscal of Manila, to the effect that a pronouncement by this Supreme Tribunal that the sentences of the courts in question are null and void, will signify the release of hundreds of criminals, whose liberty and mixing with society will endanger public peace and order. Of the other two remaining prisoners serving sentence, one has been committed for evasion of service of sentence, and the other for illegal possession of firearms. Of the 55 prisoners convicted for illegal possession of firearms, 25 died, 23 were released, and 6 escaped, and this is the reason why only one remains in confinement. It is striking that so many prisoners died, 25 of those convicted for illegal possession of firearms, that is, almost 50% of them, 33 of the total of 94 prisoners committed, or more than one-third of them. This unusual and shocking percentage of mortality is worth inquiring into and, certainly, cannot be counted very favorably to judicial proceedings which eventually lead to such wholesale death, if not outright massacre. The fact that a big number of the prisoners, 21 of them, were able to escape, was not explained to us. Is it reasonable to surmise, from the ruthless cruelty of the proceedings and of the penalties imposed, which exacted from the mouth of the First Assistant Solicitor General, who appeared to argue the case in behalf of the respondent, the adjective "ferocious", that the wardens themselves, moved by pity, directly or indirectly helped the escape? More than one-third of the prisoners committed by the said courts in confinement to the Bureau of Prisons, that is, 33 of them died. May we ask if they died because they were executed? Of those who died, one was convicted of profiteering in rice, one of robbery, one of kidnapping of minor, one of violation of certain sections of Act No. 66,

four of crimes against public order, and 25 of possession of firearms. If all of them were executed by virtue of sentences rendered by the courts in question, that fact does not speak very highly of their proceedings. If the accused died by natural death, there must be something physically or morally fatal in said proceedings. If a tree must be judged by the fruits it bears, how shall we judge proceedings so deadly, so fatal, so wantonly inhuman as the proceedings had in the special courts in question? The City Fiscal of Manila exerted great efforts to show that the fact that in the proceedings in question "the refusal of the accused to answer any question made or allowed by the court may be considered unfavorable to him," does not violate the constitutional guarantee against self-incrimination. He even goes to the extent of maintaining the theory that such constitutional guarantee is not essential for the protection of the substantial rights of an accused. His argument centered on the alleged freedom of the accused to refuse to answer any question made or allowed by the court, alleging that, if the accused chooses to refuse to answer, the court cannot compel him to answer under menace of punishment for contempt or through any other coercive or minatory measures. The City Fiscal seems to labor under the belief that the fact that the silence of the accused "may be considered unfavorable to him", is of no consequence at all. Such belief can logically be entertained alone by ignoring completely the lessons of experience in human conduct. If the refusal to answer can be considered unfavorably to the accused, is not that the same as placing him on the hard predicament of choosing between testifying self-incriminating and risking the fatal effects of a legal presumption of guilt? Is not that the same as placing him between the two steel cages of a dilemma: self-incrimination or presumption of guilt? Is not that the same as placing him between Scylla and Charybdis, between a dagger and a wall? Either way, he will always find himself under the inexorable sword of Damocles of sure punishment, whether he testifies or refuses to testify. It is not impossible to open a debate upon the abstract question whether the constitutional guarantee against self-incrimination should not remain. But the value of such a moot question, for purposes of this case, is nil. The constitutional guarantee had to be adopted as a protest against inquisitorial method of the past, when accused and suspects were submitted to the most brutal torture to compel them to confess real or imaginary crimes. That past is not far away. It seems that we are still smelling the stench of human flesh burned in the stakes, where suspected witches suffered iniquitous death. There is no doubt that the procedure in question shows the purpose of pandering to the most flagitious doctrines in criminal proceedings. The transgressions of the bill of rights in all its phases cannot be hidden even to a chela in constitutional law. It is the very negation of the administration of justice. Such procedure has absolutely no place in the framework of our juridical system. We will feel mere whifflers in our professed convictions, principles, and creed, if we should permit ourselves to fall into the weakness of abetting it even for a moment, which could only happen once the flambeau of reason has ceased completely to burn. No one but the truckling lackeys of the arrogant enemy could have the servility of applauding the implantation of the criminal procedure in question. All arguments and dissertations are useless to conceal the real fact. Behind and under said criminal process stealthily crawls and trundles the Nippon psychosis, like a cobra with fangs overflowing with venom. To ferret it out from the hole where it lurks, waiting for its victims, and crush its head with one hammer blow, is an imperative measure of national self-defense. XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE RIGHT, TO IMMEDIATE RELEASE After showing the absolute nullity of the judicial process under which petitioner has been convicted to suffer the penalty of life imprisonment, the inevitable consequence is that he is entitled, as a matter of absolute right, to be

immediately released, so that he can once again enjoy a life of freedom, which is the natural boon to law-abiding residents of our country, and of which he was unjustly deprived through means most abhorrent to human conscience. We must not hesitate for one moment to do our duty in this case. The sooner we comply with it, the better. The process and judgement under which petitioner has been convicted and is now undergoing an unjust imprisonment, is one of the hateful vestiges left in our country by the moral savagery of a people spiritually perverted and debased. The seriousness of this matter cannot be viewed with insouciance. We must not lose time to wipe out such vestiges if we must protect ourselves against their poisonous effects in our political, social, and cultural patrimony. We must erase those vestiges if we want to keep immune from all germs of decay the democratic institutions which are the pride of our people and country, under which we are enjoying the blessings of freedom and with which we hope to assure the well-being and happiness of the unending generations who will succeed us in the enjoyment of the treasures accumulated by a bountiful nature in this Pearl of the Orient. If we allow such vestiges to remain we are afraid that some historian may write about Philippine democracy, Philippine race, and Philippine culture, what, on ancient art, Hegel said in the "Phenomenology of the Spirit", according to Kohler, the greatest work of genius that the nineteenth century has produced: The statues set up are corpses in stone, whence the animating soul has flown; while the hymns of praise are words from which all belief has gone. The tables of the gods are bereft of spiritual food and drink, and from his games and festivals, man no more receives the joyful sense of his unity with the Divine Being. The works of the muse lack the force and energy of the Spirit which derived the certainty and assurance of itself just from the crushing ruin of goods and men. They are themselves now just what they are for us beautiful fruit broken off the tree, a kindly fate has passed on those works to us, as a maiden might offer such fruit off tree. It is not their actual life as they exist, that is given us, not the tree that bore them, not the earth and the elements, which constituted their substance, nor the climate that determined their constitutive character, nor the change of seasons which controlled the process of their growth. So, too, it is not their living world that fate preserves and gives us with those works of ancient art, not the spring and summer of that ethical life in which they bloomed and ripened, but the veiled remembrance alone of this reality. Our sense of national self-preservation compels us, as an imperative duty, not only to restore immediately the petitioner to his personal liberty, but, all possible means, to obliterate even the memory of the inquisitorial summary procedure depicted in the present case. Such procedure exhibits either inversion, retroversion, subversion, or perversion of elemental human concepts. It ignores completely and debases the high purposes of a judicial procedure. It represents a hylistic ideology which proclaims the supremacy of the state force over fundamental human rights. We must never allow the neck of our people to be haltered by the lethal string of that ideology. It is a virus that must be eliminated before it produces the logical disaster. Such ideology is a cancerous excrescence that must be sheared, completely extirpated, from the live tissues of our body politic, if the same must be saved. We cannot understand how any one can justify the summary process in question under the principles embodied in our Constitution. To profess attachment to those principles and, at the same time, to accept and justify such kind of criminal miscarriage of justice, is just sheer hypocrisy. It is a repetition of what Seneca did when, after preaching moral virtues, justified without any compunction the act of Nero, the sanguinary Roman Emperor, of murdering in cold blood his own mother. It is reproducing the crooked mentality of Torquemada, who, upon the pretext of combating and persecuting heresy to save souls from hell, conceived the diabolical idea of condemning their victims to an advanced version of hell in this life, and among those who suffered under the same spirit of intolerance and bigotry which was its very essence are counted some of the greatest human characters, such as Galileo, Giordano Bruno, and Girolamo Savonarola. That procedure might find justification in the thick heads of the Avars, Huns, Vandals, and Teutons, or in the stratified mentality of Japanese cullions, but not in a healthy mind of a cultured person of modern times. To allow any vestige any vestige of such procedure to remain is tantamount to reviving the situation during which our citizens endured sleepless nights in constant fear of the hobnail terror stalking in the darkness, when their personal security and their life were hanging by the thin of chance.

We wish a way could be found to free completely our people of the sense of shame, which they cannot help feeling, engendered by members of our race who justified such abhorrent summary procedure and allowed themselves to become a party to the execution of a scheme only acceptable to the undeveloped mentalities of the dark ages. It is a shame that makes our blood boil when we think that countrymen of Father Gomez, of Rizal, of Mabini, could accept procedures representing the brutal ideology which is the very opposite of the humane, lofty, and dignified ideology that placed said heroes and martyrs among the purest and noblest specimens that humanity produced in all countries, in all time, for all ones and light years to come. It is with joy and pride that we agree with all our brethren in unanimously granting petitioner the redress he seeks in his petition.

HILADO, J., concurring: I concur in the result, as well as in the reasons stated in the majority opinion not inconsistent with the views expressed in my dissenting opinion in G. R. No. L-5, Co Kim Cham vs. Valdez Tan Keh and Dizon (p. 199, ante). However, I would additionally base my conclusion upon broader grounds. Firstly, I reiterate here by reference the arguments advanced in said dissenting opinion in additional support of the conclusion that the writ of mandamus herein sought should be granted. Secondly, the importance and transcendence of the legal principles involved justify further elaboration. From the allegations of the petition herein, it can be deduced that the petitioner William F. Peralta was a "guerrillero" when he was arrested, tried and convicted; and that he had never voluntarily submitted to the Japanese forces in his civil capacity. No attempt is made in the Solicitor General's answer to controvert the facts alleged in the petition from which the foregoing deduction flows, and from the record nothing appears which may tend to gainsay them. Even when he was forced temporarily to join the Constabulary, which had been organized under orders of the Japanese Army in the Philippines, he did so against his will. Even granting for the sake of argument, and laying aside for the moment the reasons to the contrary set forth in my aforesaid dissenting opinion, that the rules of International Law regarding the power of a belligerent army of occupation to establish a provisional government in an occupied enemy territory, are still binding upon the United States and the Commonwealth of the Philippines, yet such rules would not be any avail to bind the herein petitioner by the laws, regulations, process and other acts of the so-called "Republic of the Philippines", under and by virtue of which said petitioner has been convicted to life imprisonment by the Court of Special and Exclusive Criminal Jurisdiction of Manila in Criminal Case No. 66 thereof. If we analyze the different adjudications and treatises which have been cited in support of the validity or binding force of the acts of such provisional governments, which have been variously called de facto governments, or governments of paramount force, with a view to finding the real ground and philosophical justification for the doctrine therein announced, we will see that reason and that justification are made to consist in the submission of the inhabitants upon whom the said acts have been held to be of obligatory or binding force, to the army of occupation. Thus, to cite just a few typical examples, we quote the following excerpts from three leading cases decided by the Supreme Court of the United States: Excerpts from Thorington vs. Smith (8 Wall. [U. S.], 1; 19 Law. ed., 361)

That while it (government of paramount force) 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 (p. 363; Emphasis ours). The authority of the United States over the territory was suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conqueror. (P. 364; Emphasis ours.). Excerpts from Fleming vs. Page (9 Howard. [U. S.], 603; 13 Law. ed., 276): While it (Tampico) was occupied by our troops, they were in an enemy's country, and not in their own; the inhabitants were still foreigners and enemies, and owed to the United States nothing more than thesubmission and obedience, sometimes called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force which he is unable to resist. (P. 281; Emphasis ours.) Excerpts from United States vs. Rice (4 Wheat. [U. S.], 246; 4 Law. ed., 562): The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants whoremained and submitted to the conquerors. (P. 564; Emphasis ours.) It results from the above-quoted pronouncements of the Supreme Court of the United States that the laws, regulations, processes and other acts of the government that the occupying belligerent establishes are made binding only and precisely upon those inhabitants from whom obedience could be effectively exacted, namely, those who remain within the effective reach of the occupying forces and submit to them. This is plain common sense. Those who conceived and developed the doctrine could not logically have thought of the army of occupation setting upon a civil government for those who still continued resistance. As to them, further military operations would be necessary to reduce them to submission, before one could think of civilly governing them. In the Philippines, during the occupation by the Japanese of Manila and certain other portions of the Archipelago, the overwhelming majority of the people never submitted to the Japanese invaders, and never recognized any legality in the invasion of their country, and to the very date of liberation refused to accept the alleged protection or benefits of the puppet governments of the "Philippine Executive Commission" and the "Republic of the Philippines." The majority of our people lived in the provinces, in the farms, hills and other places beyond the effective reach of the Japanese military garrisons. Only a small minority submitted to the invaders for various reasons, such as their having been caught in Manila or other parts of the Island occupying government positions, or residing therein without adequate facilities for escaping from or evading said invaders, reasons of ill health, disabling them from living the hard life of the mountains, hills, or country places, and the like. To have bound those of our people who constituted the great majority who never submitted to the Japanese oppressors, by the laws, regulations, processes and other acts of those two puppet governments, would not only have been utterly unjust and downright illegal, but would have placed them in the absurd and impossible condition of being simultaneously submitted to two mutually hostile governments, with their respective constitutional and legislative enactments and institutions on the one hand bound to continue owing allegiance to the United States and the Commonwealth Government, and, on the other, to owe allegiance, if only temporary, to Japan. Among them we find the petitioner William F. Peralta. The surrender of the Fil-American forces in Bataan and Corregidor did not matter so far as this was concerned. Much less did that surrender obligate all the civil population to submit to the Japanese, and obey all their future dictations. If it did, President Roosevelt and President Osmea would not have so heartily commended the Philippine resistance movement and so enthusiastically extolled the firm stand of those who participated therein, in the former's message of October 23, 1943, and in the latter's speech of February 27, 1945, cited in the writer's above mentioned dissenting opinion. If these historic utterances should seem incompatible with any provision of the Hague Convention, we should understand from them that both Presidents must have considered such provision as no longer applicable to, or binding upon, the United States and the Philippines. Who knows but

that their attitude was based upon the renunciation of war as an instrument of national policy by their respective peoples, which renunciation necessarily includes all the "rights" or "powers" which may be claimed to be delivered from war so employed? Or else, upon the ground that such provisions does not support the wrongful acts of Japan in the Philippines? Another reason advanced to justify the creation of a provisional civil government, with its courts and other departments, in occupied enemy territory, is the alleged convenience of the civil population. It can immediately be asserted in reply that the convenience of the above-mentioned overwhelming majority of our people, far from requiring the establishment of such government, was in the very nature of things positively opposed thereto. They not only did not need the supposed benefits of such a government, but they actually reputed them as inimical to the larger interest of the very ideology and cause for which they were continuing their resistance to those who would extend here the brutal power and pernicious influence of the now exploded "Greater East Asia Co-Prosperity Sphere." They suffered, yes, and suffered much but they placed that ideology and that cause high above their private comfort. Let us not penalize them for it. If this government is democratic, and when it comes to a question of convenience, whose will and whose convenience should prevail, that of the majority or that of the minority? Are we going to force those free citizens of this free country to accept the alleged benefits and assume the burdens of a government they have never consented to own? I am furthermore, of opinion that there is another important consideration which argues against the recognition of the said government as a de facto government or government of paramount force during the Japanese occupation of the Philippine Islands. Japan, in starting and prosecuting this war against the United States and her allies by breaking the most vital rules of civilized warfare as prescribed by International Law, must be deemed to have forfeited the right to invoke that law in so far as specific provisions thereof would favor her or her acts. Japan in treacherously attacking Pearl Harbor and the Philippines, successively on December 7 and 8, 1941, violated the rule providing for the necessity of declaring war as established at the Hague Conference of 1907 (Lawrence, Principles of International Law, 7th ed., pp. 321-322, 325); she has infringed the rule requiring that war prisoners be cared for and treated with humanity (Ibid, p. 377); the rule imposing the obligation to properly tend the sick and wounded (Ibid, 384), the rule interdicting bombing of open and defenseless cities (Ibid, 522, 523) when she bombed Manila after it had been declared an open city and all its military defenses had been removed; the rule exempting noncombatants from personal injury (Ibid, 397) her violations of one or the other of which were matters of daily occurrence, one might say, during her three and a half years of tyranny and oppression in this country, and were climaxed by the ignominious and indescribable atrocities of the mass massacre of innocent civilians during the battle for Manila. In the interpretation of doubtful provisions of International Law, Doctor Lawrence, in his work cited above, has the following to say: . . . If a point of Municipal Law is doubtful, men resort to supreme court for a decision, or to a supreme legislature for an interpreting statute; but if a point of International Law is doubtful, they can resort only to general reasoning for a convincing argument, unless, indeed, they settle the question by blows. And International Law in many of its details is peculiarly liable to disputes and doubts, because it is based on usage and opinion. He who in such a case bases his reasoning on high considerations of morality may succeed in resolving the doubt in accordance with humanity and justice. (Pp. 12, 13.). It would seem that to deny Japan benefits, because she has refused to carry the burdens of the law, is to base our reasoning "on high considerations of morality", and to resolve any doubt, there be, as to the point in question, "in accordance with humanity and justice." In other words (even if we applied said rules to the instant case), Japan, under the circumstances of this case, could not be heard to say that the government which she established here was a de facto government, or a government of paramount force, as in the cases where such a government was deemed to exist. In additional to what has been said above, let us see if the Japanese-sponsored "Republic of the Philippines" did not introduces such fundamental and drastic changes in the political organization of this country, as it existed upon the date of the Japanese invasion, as to vitiate with invalidity the acts of all its department, executive, judicial, and legislative. To begin with, the Commonwealth Constitution was completely overthrown. It was replaced by the socalled constitution of the "Republic." A casual comparison of these two instruments cannot fail to reveal a most revolutionary transformation of the political organization of the country. While under the Commonwealth

Constitution the retention of American sovereignty over the Philippines is expressly recognized, for the purposes specified in the ordinance appended thereto, in the very preamble of the constitution of the "Republic" the independence " of the Philippines is proclaim. While under the Commonwealth Constitution the President and VicePresident are elected "by direct vote of the people "Art. VII, sec. 2), under the constitution of the "Republic" the President (no Vice-President is provided for) was elected "by majority of all the members of the Assembly" (Art. II, sec. 2). While under Commonwealth Constitution the legislative power is vested in a bicameral Congress with a Senate and a House of Representatives (Art. VI, sec. 1), under the constitution of the "Republic" that power was vested in a unicameral National Assembly (Art. III, sec. 1). While under the Commonwealth Constitution the Senators are chosen at large by the qualified electors of the Philippines (Art. VI, sec. 2) and the Representatives by the qualified electors in the respective districts (Art. VI, sec. 2) and the Representative by the qualified electors in the respective districts (Art. VI, 5), under the constitution of the "Republic" the National Assembly was composed of the provincial governors and city mayors as members ex-oficio, and of delegate elected every three years, one from each and every province and chartered city (Art. III, sec. 2), While under the Commonwealth Constitution, respecting the Judicial Department, the members of Supreme Court and all judges of inferior courts are appointed by the President with the consent of the Commission on Appointments of the Congress (Art. VII, sec.), under the constitution of the "Republic" the members of the Supreme Court were appointed by the President with the advice of the Cabinet, and all judges of interior courts, by the President with the advice of the Supreme Court (Art. IV, sec. 4). These changes and innovations can be multiplied many times, but the foregoing will suffice for our purpose. It has been said constantly in this discussion that political acts, or acts of a political complexion of a de factogovernment of paramount force, are the only ones vitiated with nullity. Of course, I disagree with those who so hold. But even by this test the "Republic" or, which is the same, the Imperial Japanese Forces which gave it birth in thus introducing such positive changes in the organization of this country or suspending the working of that already in existence, executed a political act so fundamental and basic in nature and operation that all subsequent acts of the new government which of course had to be based thereon, inevitably had to be contaminated by the same vitiating defect. 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 various acts done during the same time by private persons under the sanction of municipal law, remain good.. Political acts on the other hand fall through as of course, whether they introduce any positive change into the organization of the country, or whether they only suspend the working of that already in existence. . . . (Hall, International Law, 6th ed., p. 483; Emphasis ours.) Finally, upon closed scrutiny, we will find that all of the de facto governments or governments of paramount force which have been cited in all this discussion were at the same time bona fide governments. The British established such a government in Castine, and ran it is a purely British organization. The Americans established another such government in Tampico, and ran it as an American organization. The Confederate States established a like government in the seceding States, and ran it as the Government of the Confederacy. They were all frank, sincere, and honest in their deeds as well as in their words. But what happened in this country during the Japanese occupation? When the "Republic of the Philippines" was established on October 14, 1943, under duress exerted by the Japanese Army, did the Japanese openly, frankly, and sincerely say that government was being established under their orders and was to be run subject to their direction and control? Far from it! They employed all the means they could conceive to deceive the Filipino people and the outside world that they had given the Filipinos their independence, and that "Republic" thereunder. But behind the curtain, from beginning to end, there was the Imperial Japanese Army giving orders and instructions and otherwise directing and controlling the activities of what really was their creature for the furtherance of their war aims. I cannot believe that those who conceived and developed the doctrine of de facto government or government of paramount force, ever intended to include therein such a counterfeit organization as the Japanese contrived here an organization which, like its counterparts in Manchukuo, Nanking, Burma, and Vichy, has been appropriately called "puppet" by the civilized government of the world.

BRIONES, M., concurrente: El mandamiento de habeas corpus que se solicita debe concederse. La proclama del General McArthur de 23 de Octubre de 1944, lanzada cuatro dias despues de su desembarco en Leyte con las fuerzas libertadoras, reza en parte lo siguiente: 3. Que todas las leyes, regulaciones y procesos de cualquier otro gobierno en Filipinas que no fuera el del Commonwealth son nulos e invalidos y carecen de efecto legal en areas de Filipinas liberadas de la ocupacion y control del enemigo. Recientemente se ha discutido mucho en esta jurisdiccion sobre si la anulacion de que trata dicha proclama puede referirse tambien a actuaciones judiciales ( judicial processes). En el asunto de Co Kim Cham contra Valdez Tan Keh y Dizon, R.G. No. L-5 (pag, 133, ante), he opinado afirmativamente, esto es, que el alcance de esa proclama puede extenderse a veces a ciertos actos o procesos judiciales. Reafirmo ahora mi opinion y con mayor vigor y enfasis si cabe. Porque, a mi juicio, la sentencia de reclusion perpetua impuesta al recurrente bajo la ocupacion militar japonesa es de aquellos actos judiciales del passado regimen que por su naturaleza y circunstancias reclaman una decidida y pronta accion de parte nuestra en el sentido de anularla y dejarla sin efecto. Mis razones se exponen a continuacion. Parece innegable que la ley procesal bajo la cual fue enjuiciado y convicto el recurrente durante la ocupacion japonesa era absolutamente incompatible con las salvaguardias y garantias de un proceso justo, imparcial y ordenado que la constitucion y legislacion procesal del Commonwealth de Filipinas otorgan a todo acusado en una causa criminal. Hay en dicha ley ciertos aspectos decididamente repulsivos para una conciencia disciplinada en las normas y pricipios de una democracia constitucional. Bajo nuestro sistema procesal el acusado tiene derecho a que no se le ponga en situacion de acriminarse. Tiene a derecho a callarse sin que esto pueda astribuirsele cargo inculpatorio alguno. Este es un derecho fundamental, garantido por la constitucion. Empero bajo el sistema procesal que se discute, "la negativa del acusado a constestar cualqueira pregunta formulada por el tribunal o permitida por el mismo, puede ser considerada en contra de dicho acusado." (Seccion 21, Orden Ejecutiva No. 157.) Bajo este mismo sistema el caracter sumarisimo del proceso llega a tal extremo que "una sentencia condenatoria puede dictarse inmediatemente contra el acusado siempre que los hechos discubiertos en el interrogatorio preliminar demuestren que el acusado es culpable." Bajo el sistema procesal del Commonwealth, cualquier acusado convicto ante el Juzgado de Primera Instancia tiene el derecho de apelar de la sentencia para ante el Tribunal superior de revision; y en los casos de condena areclusion perpetua o a muerte, el Tribunal Supremo es el llamado a revisar la causa, siendo compulsoria la revision en el caso de condena a muerte. Esta jurisdiccion del Tribunal Supremo en los casos de condena areclusion perpetua y a muerte no se halla estatuida simplemente por una ley ordinaria, sino que esta proveida en la misma constitucion del Commonwealth. Asi que el derecho del condenado a reclusion perpetua o a muerte para que se revise su cuasa por el Tribunal Supremo es constitucional y, por ende, no puede ser abolido por un simplefiat legislativo. En cambio, bajo el sistema procesal en controversia las sentencias de los tribunales o sumarias eran de caracter final, excepto cuando la pena impuesta fuera la de muerte, en cuyo caso los autos se elevaban en consulta a una division especial del Tribunal Supremo compuesta de tres miembros (Ordenanza No. 7 de la llamada Republica de Filipinas por la que se crearon las tribunales especiales o sumarios). De modo que en esta ordenanza no solo se suprimia de una plumada el derecho de apelar reconocido y establecido por la legislacion procesal del Commonwealth aun en los casos de delitos y penas ordinarios, sino que inclusive quedaba abolido el derecho de apelar otorgado por la constitucion del Commonwealth al acusado condenado a reclusion perpetua. Por este motivo el recurrente, a quien se le habia impuesto esta pena por el alergado delito de robo, no pudo apelar de al sentencia para ante el Tribunal Supremo.

La cuestion que ahora tenemos que determinar y resolver es si debemos reconocer validez y eficacia en la sentencia por la cual el recurrente se halla extinguiendo su condena de reclusion perpetua, o debemos anularla ahora que esta en nuestras manos el poder hacerlo, restablecida como esta enteramente la normalidad juridica y constitucional en nuestro pais. En favor de la validez de dicha sentencia se arguye que fue dictada por un tribunal creado por un gobierno de jure; que aun admitiendo el caracter inquisitorial, anti democratico de la ley procesal bajo la cual fue enjuiciado el acusado, el gobierno de facto era dueo de establecer los procedimientos legales que quisiera; y que, segun las reglas y doctrinas conocidas de derecho international, las sentencias por "crimenes de guerra" o delitos politicos" generalmente validas aun despues de restablecido el gobierno de jure. Se alega que en estos casos el derecho no tiene mas remedio que ceder a la fuerza, aceptando la realidad de los hechos consumados. Se admite, sin embargo, que la regla tiene sus excepciones. Una de allas esque "los actos del ocupante militar que rebasen su poder a tenor del criterio establecido en el articulo 43 de las Regulaciones de La Haya, son nulos y sin efecto con relacion al gobierno legitimo." (Wheaton's International Law, 7th ed. [1944], p. 245.) Segun esto, las sentencias por "crimenes de guerra" o "delitos politicos" cometidos durante la ocupacion son, por razones pecfetamente comprensibles, nulas e invalidas al restablecerse la soberania legitima. Tambien quedan comprendidos bajo esta excepcion los denominados actos de caracter o complexion politica. Otra limitacion a los poderes de un gobierno de ocupacion militar es que elejercicio de tales poderes debe extenderse tan solo hasta donde fuese necesario para su seguridad y el exito de sus operaciones, teniendo particularmente en cuental el caracter transeunte de su occupacion. Como regla general, al invasor se le prohibe alterar o suspender las leyes referentes a la propiedad y a las relaciones personales privadas, o las leyes que regulan el orden moral de la comunidad. (Hall, Treatise on International Law, 7th ed., 498,499). Lo que se hace fuera de estas limitaciones es en exceso de su competencia y es generalmente nulo al rstaurarse la soberania legitima. Otra excepcion es la que se refiere a los actos de un gobierno de facto resultante de una insurreccion, rebelion, revolucion o guerra civil. A esteefecto se ha declarado, peo ejemplo. que los actos en fomento o apoyo de unarebelion contra los Estados Unidos, o encaminados a anular los justos derechos de los ciudadanos, y otros actos de igual indole, deben ser considerados, por lo general, invalidos y nulos (Texas vs. White, 74 U. S.,733; 19 Law, ed., 240). En otro caso se ha declaro la validez de ciertos actos judiciales o legislativos en estados insurreccionados, siempre que su proposito o modo de operacion no fuerte hostil a la autoridad del gobierno nacional, o no conculcaren derechos de los ciudadanos bajo la Constitucion. Horn vs. Lockhart, 17 Well, 570581; 2 Law. ed., 660.) Visto el caso que nos ocupa a la luz de estas doctrinas, cual de ellas debemos adoptar para determinar si es o no valida la sentencia por la la cual el recurrente sufre ahora pena de reclusion perpetua y pide ser liberado mediante peticion de habeas corpus? Se aservera que no procede aplicar al presente caso la doctrina establecida en la jurisprudencia americana sobre gobiernos de facto resultantes de una insureccion, revolucion o guerra civil porque evidentemente la llamada Republica de Filipinas instaurada durante la ocupacion militar japonesa no tenia este caracter, sino que era mas bien un gobierno establecido mediantefuerza y coaccion por los mismos invasores para promover ciertos designios politicos relacionados con sus fines de guerra. En otras palabras, era el mismo gobierno militar de ocupacion con fachada filipina arreglada y arbitrada coercitivamente. Mientras estoy conforme con una parte de la asercion, esto es, que la aludida republica no tenia caracter insurreccional ni revolucionario, en disfrute de plena autonomia, sino que era simple producto de la coaccion y estaba mediatizada continuamente por el invasor, difiero de la otra parte, aquella que declara inaplicable la conocida doctrina americana mencionada arriba sobre gobiernos de facto establecidos en el curso de una insurreccion, revolucion o guerra civil. Y la razon es sencilla. Si a un gobierno de factode este ultimo tipo gobierno establecido, despues de todo, por compatriotas,por conciudadanos se le coarta con la restriccion de que sus actos legislativos o judiciales, en tanto son validos, al restaurarse el regimende jure, en cuanto no conculcaren los derechos justos de los ciudadanos, a los derechos garantidos por la constitucion, parece que no existe ninguna razon

por que no se ha de aplicar la misma restriccion al gobierno de facto establecido como incidente de una guerra entre dos naciones independientes y enemigas. En realidad, la razon de nulidad es mucho mas poderosa y fuertecuando, en su caso como el de Filipinas, el enemigo invasor incio la agresion de una manera inicua y traicionera y la ejecuto luego con vesania y sadismo que llegaron a extremos inconcebibles de barbarie. En este caso la conculcacion de los justos derechos de los ciudadanos, o de los derechos garantidos por la constitucion cobra proporciones de mucha mayor gravedad porque viene a ser tan solo parte de un vasto plan de rapia, devastacion y atrocidades de todo genero cometidas contra la humanidad y contra las leyes y usos de la guerra entre naciones civilizadas. El invasor, en este caso, es como el foragido que se coloca fuera de toda ley. Por tanto, no hay absolutamente ninguna razon para no aplicarle una restriccion que se estimabuena para el insurrecto o revolucionario. La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de facto resultantes de una insurreccion, rebelion o guerra civil a gobiernos de facto establecidos como incidente en el curso de una guerra entre dos naciones independeientes enemigas es que, frente a casos de conculcacion de los justos derechos de los ciudadanos, o de los garantidos por laconstitucion para los efectos de declararlos validos o nulos al restablecerse el gobierno de jure, ya no se hace preciso examinar si los actos conculcatorios fueron motivados por razones o exigencias de las seguridad y exito de las operaciones del ocupante militar, sino que la piedra de toque de la validez o nulidad viene a ser tan solo el acto positivo mismo de la conculcacion. Esta forma de racioncinio no solo no es heterodoxa a la luz de los pincipiosestablecidos de derecho internacional, sino parece ser una logica inferenciade los mismos. Ya hemos visto que al ocupante militar en el curso de unaguerra internacional se le prohibe, como regla general, alterar o suspenderlas leyes referentes a la propiedad y a las relaciones personales privadas, olas leyes que regulan el orden moral de la comunidad. (Hall, Treatise on International Law, supra.) Ahora cabe preguntar: Son los justos derechos de los ciudadanos, o los fundamentales garantidos por la constitucion inferiores en categoria a la propiedad, o las relaciones personales privadas, o al ordenmoral de la comunidad? No son en cierto sentido hasta superiores? Por tanto,a nadie debe chocar que la prohibicion se extienda a estas materias. Es unainclusion y perfectamente natural, mas que justificada por los avances y conquistas del moderno derecho internacional. Notese que en las fraguas de esta ultima guerra se han forjado unas modalidades juridicas harto originalesque denotan el esfuerzo supremo y gigante dela humanidad por superar la barbarie y por dar al traste con las formulas arcaicas, reaccionarias. Para citar solamente algunos ejemplos los mas destados, tenemos el enjuiciamento de los llamados criminales de la guerra, y la responsabilidad que se exige a los jefes militares por las atricidades cometidas por las tropas bajo su mando. Mi conclusion, por tanto, es que desde cualquier angulo que se mire la sentencia impuesta al recurrente por el tribunal sumario de la llamada republica de Filipinas debe ser declarada nula, acotando las palabras delProcurador General, "no solo por razones fundadas en principios de derecho internacional, sino tambien por la mas apremiante y poderosa de las razones,la de preservar y salvaguardar a nuestros ciudadanos de los actos del enemigo." Dar validez a esa sentencia ahora, en plena atmosfera de libertad que respiran a pulmon lleno de resto de nuestros conciudadanos menos el recurrente y otras que corrieron su suerte durante la ocupacion japonesa,equivaldria tanto como prolongar el regimen de opresion bajo el cual se tramito y se dicto la referida sentencia. Es mas, equivaldria a sancionar laideologia totalitaria, despotica, medieval contra la cual nuestro pueblo lucho tan heroicamente jugandose todo; vida libertad y bienes materiales. Ciertamente no nos hemos librado de la opresion para llegar a tan irrisorioresultado. Concedase el remedio pedido.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-1648

August 17, 1949

PEDRO SYQUIA, GONZALO SYQUIA, and LEOPOLDO SYQUIA, petitioners, vs. NATIVIDAD ALMEDA LOPEZ, Judge of Municipal Court of Manila, CONRADO V. SANCHEZ, Judge of Court of First Instance of Manila, GEORGE F. MOORE, ET AL., respondents. Gibbs, Gibbs, Chuidian and Quasha for petitioner. J. A. Wolfson for respondent. MONTEMAYOR, J.: For the purposes of this decision, the following facts gathered from and based on the pleadings, may be stated. The plaintiffs named Pedro, Gonzalo, and Leopoldo, all surnamed Syquia, are the undivided joint owners of three apartment buildings situated in the City of Manila known as the North Syquia Apartments, South Syquia Apartments and Michel Apartments located at 1131 M. H. del Pilar, 1151 M. H. del Pilar and 1188 A. Mabini Streets, respectively. About the middle of the year 1945, said plaintiffs executed three lease contracts, one for each of the three apartments, in favor of the United States of America at a monthly rental of P1,775 for the North Syquia Apartments, P1,890 for the South Syquia Apartment, and P3,335 for the Michel Apartments. The term or period for the three leases was to be "for the duration of the war and six months thereafter, unless sooner terminated by the United States of America." The apartment buildings were used for billeting and quartering officers of the U. S. armed forces stationed in the Manila area. In March 1947, when these court proceedings were commenced, George F. Moore was the Commanding General, United States Army, Philippine Ryukus Command, Manila, and as Commanding General of the U. S. Army in the Manila Theatre, was said to control the occupancy of the said apartment houses and had authority in the name of the United States Government to assign officers of the U. S. Army to said apartments or to order said officers to vacate the same. Erland A. Tillman was the Chief, Real Estate Division, Office of the District Engineers, U. S. Army, Manila, who, under the command of defendant Moore was in direct charge and control of the lease and occupancy of said three apartment buildings. Defendant Moore and Tillman themselves did not occupy any part of the premises in question. Under the theory that said leases terminated six months after September 2, 1945, when Japan surrendered, plaintiffs sometime in March, 1946, approached the predecessors in office of defendants Moore and Tillman and requested the return of the apartment buildings to them, but were advised that the U. S. Army wanted to continue occupying the premises. On May 11, 1946, said plaintiffs requested the predecessors in office of Moore and Tillman to renegotiate said leases, execute lease contract for a period of three years and to pay a reasonable rental higher than those payable under the old contracts. The predecessors in office of Moore in a letter dated June 6, 1946, refused to execute new leases but advised that "it is contemplated that the United States Army will vacate subject properties prior to 1 February 1947." Not being in conformity with the continuance of the old leases because of the alleged comparatively low rentals being paid thereunder, plaintiffs formally requested Tillman to cancel said three leases and to release the apartment buildings on June 28, 1946. Tillman refused to comply with the request. Because of the alleged representation and assurance that the U.S. Government would vacate the premises before February 1, 1947, the plaintiffs took no further steps to secure possession of the buildings and accepted the monthly rentals tendered by the predecessors in office of Moore and Tillman on the basis of a month to month lease subject to cancellation upon thirty days notice. Because of the failure to comply with the alleged representation and assurance that the three apartment buildings will be vacated prior to February 1, 1947, plaintiffs on February 17, 1947, served formal notice upon defendants Moore and Tillman and 64 other army officers or members of the United States Armed Forces who were then occupying apartments in said three buildings, demanding (a) cancellation of said leases; (b) increase in rentals to P300 per month per apartment effective thirty days from notice; (c) execution of new leases for the three or any one or two of the said apartment buildings for a definite term, otherwise, (d) release of said apartment buildings within thirty days of said notice in the event of the failure to comply with the foregoing demands. The

thirty-day period having expired without any of the defendants having complied with plaintiffs' demands, the plaintiffs commenced the present action in the Municipal Court of Manila in the form of an action for unlawful detainer (desahucio) against Moore and Tillman and the 64 persons occupying apartments in the three buildings for the purpose of having them vacate the apartments, each occupants to pay P300 a month for his particular apartment from January 1, 1947 until each of said particular defendant had vacated said apartment; to permit plaintiffs access to said apartment buildings for the purpose of appraising the damages sustained as the result of the occupancy by defendants; that defendants be ordered to pay plaintiffs whatever damages may have been actually caused on said property; and that in the event said occupants are unable to pay said P300 a month and/or the damages sustained by said property, the defendants Moore and Tillman jointly and severally be made to pay said monthly rentals of P300 per month per apartment from January 1, 1947 to March 19, 1947, inclusive, and/or the damages sustained by said apartments, and that defendants Moore and Tillman be permanently enjoined against ordering any additional parties in the future from entering and occupying said premises. Acting upon a motion to dismiss filed through the Special Assistant of the Judge Advocate, Philippine Ryukus Command on the ground that the court had no jurisdiction over the defendants and over the subject matter of the action, because the real party in interest was the U.S. Government and not the individual defendants named in the complaint, and that the complaint did not state a cause of action, the municipal court of Manila in an order dated April 29, 1947, found that the war between the United States of America and her allies on one side and Germany and Japan on the other, had not yet terminated and, consequently, the period or term of the three leases had not yet expired; that under the well settled rule of International Law, a foreign government like the United States Government cannot be sued in the courts of another state without its consent; that it was clear from the allegations of the complaint that although the United States of America has not been named therein as defendant, it is nevertheless the real defendant in this case, as the parties named as defendants are officers of the United States Army and were occupying the buildings in question as such and pursuant to orders received from that Government. The municipal court dismissed the action with costs against the plaintiffs with the suggestion or opinion that a citizen of the Philippines, who feels aggrieved by the acts of the Government of a foreign country has the right to demand that the Philippine Government study his claim and if found meritorious, take such diplomatic steps as may be necessary for the vindication of rights of that citizen, and that the matter included or involved in the action should be a proper subject matter of representations between the Government of the Government of the United States of America and the Philippines. Not being satisfied with the order, plaintiffs appealed to the Court of Manila, where the motion to dismiss was renewed. The Court of First Instance of Manila in an order dated July 12, 1947, affirmed the order of the municipal court dismissing plaintiffs' complaint. It conceded that under the doctrine laid down in the case of U. S. vs. Lee, 106 U. S., 196 and affirmed in the case of Tindal vs. Wesley, 167 U. S., 204 ordinarily, courts have jurisdiction over cases where private parties sue to recover possession of property being held by officers or agents acting in the name of the U. S. Government even though no suit can be brought against the Government itself, but inasmuch as the plaintiffs in the present case are bringing this action against officers and agents of the U. S. Government not only to recover the possession of the three apartment houses supposedly being held illegally by them in the name of their government, but also to collect back rents, not only at the rate agreed upon in the lease contracts entered into by the United States of America but in excess of said rate, to say nothing of the damages claimed, as a result of which, a judgment in these proceedings may become a charge against the U. S. Treasury, then under the rule laid down in the case of Land vs. Dollar, 91 Law. ed., 1209, the present suit must be regarded as one against the United States Government itself, which cannot be sued without its consent, specially by citizens of another country. The plaintiffs as petitioners have brought this case before us on a petition for a writ of mandamus seeking to order the Municipal Court of Manila to take jurisdiction over the case. On October 30, 1947, counsel for respondents Almeda Lopez, Sanchez, Moore and Tillman filed a motion to dismiss on several grounds. The case was orally argued on November 26, 1947. On March 4, 1948, petitioners filed a petition which, among other things, informed this Court that the North Syquia Apartments, the South Syquia Apartments and Michel Apartments would be vacated by their occupants on February 29, March 31, and May 31, 1948, respectively. As a matter of fact, said apartments were actually vacated on the dates already mentioned and were received by the plaintiff-owners. On the basis of this petition and because of the return of the three apartment houses to the owners, counsel for respondents Almeda Lopez, Sanchez, Moore and Tillman filed a petition to dismiss the present case on the ground

that it is moot. Counsel for the petitioners answering the motion, claimed that the plaintiffs and petitioners possession of the three apartment houses, reserving all of their rights against respondents including the right to collect rents and damages; that they have not been paid rents since January 1, 1947; that respondents admitted that there is a total of P109,895 in rentals due and owing to petitioners; that should this case be now dismissed, the petitioners will be unable to enforce collection; that the question of law involved in this case may again come up before the courts when conflicts arise between Filipino civilian property owners and the U.S. Army authorities concerning contracts entered into in the Philippines between said Filipinos and the U.S. Government. Consequently, this Court, according to the petitioners, far from dismissing the case, should decide it, particularly the question of jurisdiction. On June 18, 1949, through a "petition to amend complaint" counsel for the petitioners informed this court that petitioners had already received the U. S. Army Forces in the Western Pacific the sum of P109,895 as rentals for the three apartments, but with the reservation that said acceptance should not be construed as jeopardizing the rights of the petitioners in the case now pending in the courts of the Philippines or their rights against the U. S. Government with respect to the three apartment houses. In view of this last petition, counsel for respondents alleging that both respondent Moore and Tillman had long left the Islands for other Army assignments, and now that both the possession of the three apartments in question as well as the rentals for their occupation have already been received by the petitioners renew their motion for dismissal on the ground that this case has now become moot. The main purpose of the original action in the municipal court was to recover the possession of the three apartment houses in question. The recovery of rentals as submitted by the very counsel for the petitioner was merely incidental to the main action. Because the prime purpose of the action had been achieved, namely, the recovery of the possession of the premises, apart from the fact that the rentals amounting to P109,895 had been paid to the petitioners and accepted by them though under reservations, this Court may now well dismiss the present proceedings on the ground that the questions involved therein have become academic and moot. Counsel for the petitioners however, insists that a decision be rendered on the merits, particularly on the question of jurisdiction of the municipal court over the original action, not only for the satisfaction of the parties involved but also to serve as a guide in future cases involving cases of similar nature such as contracts of lease entered into between the Government of the United States of America on one side and Filipino citizens on the other regarding properties of the latter. We accept the suggestion of petitioners and shall proceed to discuss the facts and law involved and rule upon them. We shall concede as correctly did the Court of First Instance, that following the doctrine laid down in the cases ofU. S. vs. Lee and U. S. vs. Tindal, supra, a private citizen claiming title and right of possession of a certain property may, to recover possession of said property, sue as individuals, officers and agents of the Government who are said to be illegally witholding the same from him, though in doing so, said officers and agents claim that they are acting for the Government, and the court may entertain such a suit altho the Government itself is not included as a partydefendant. Of course, the Government is not bound or concluded by the decision. The philosophy of this ruling is that unless the courts are permitted to take cognizance and to assume jurisdiction over such a case, a private citizen would be helpless and without redress and protection of his rights which may have been invaded by the officers of the government professing to act in its name. In such a case the officials or agents asserting rightful possession must prove and justify their claim before the courts, when it is made to appear in the suit against them that the title and right of possession is in the private citizen. However, and this is important, where the judgment in such a case would result not only in the recovery of possession of the property in favor of said citizen but also in a charge against or financial liability to the Government, then the suit should be regarded as one against the government itself, and, consequently, it cannot prosper or be validly entertained by the courts except with the consent of said Government. (See case of Land vs. Dollar, 91 Law. ed., 1209.) From a careful study of this case, considering the facts involved therein as well as those of public knowledge of which we take judicial cognizance, we are convinced that the real party in interest as defendant in the original case is the United States of America. The lessee in each of the three lease agreements was the United States of America and the lease agreement themselves were executed in her name by her officials acting as her agents. The considerations or rentals was always paid by the U. S. Government. The original action in the municipal court was brought on the basis of these three lease contracts and it is obvious in the opinion of this court that any back rentals or increased rentals will have to be paid by the U. S. Government not only because, as already stated, the contracts of lease were

entered into by such Government but also because the premises were used by officers of her armed forces during the war and immediately after the terminations of hostilities. We cannot see how the defendants and respondents Moore and Tillman could be held individually responsible for the payments of rentals or damages in relation to the occupancy of the apartment houses in question. Both of these army officials had no intervention whatsoever in the execution of the lease agreements nor in the initial occupancy of the premises both of which were effected thru the intervention of and at the instance of their predecessors in office. The original request made by the petitioners for the return of the apartment buildings after the supposed termination of the leases, was made to, and denied not by Moore and Tillman but by their predecessors in office. The notice and decision that the U. S. Army wanted and in fact continued to occupy the premises was made not by Moore and Tillman but by predecessors in office. The refusal to renegotiate the leases as requested by the petitioners was made not by Moore but by his predecessors in office according to the very complaint filed in the municipal court. The assurance that the U. S. Army will vacate the premises prior to February 29, 1947, was also made by the predecessors in office of Moore. As to the defendant Tillman, according to the complaint he was Chief, Real State Division, Office of the District Engineer, U. S. Army, and was in direct charge and control of the leases and occupancy of the apartment buildings, but he was under the command of defendant Moore, his superior officer. We cannot see how said defendant Tillman in assigning new officers to occupy apartments in the three buildings, in obedience to order or direction from his superior, defendant Moore, could be held personally liable for the payment of rentals or increase thereof, or damages said to have been suffered by the plaintiffs. With respect to defendant General Moore, when he assumed his command in Manila, these lease agreement had already been negotiated and executed and were in actual operation. The three apartment buildings were occupied by army officers assigned thereto by his predecessors in office. All that he must have done was to assign or billet incoming army officers to apartments as they were vacated by outgoing officers due to changes in station. He found these apartment buildings occupied by his government and devoted to the use and occupancy of army officers stationed in Manila under his command, and he had reasons to believe that he could continue holding and using the premises theretofore assigned for that purpose and under contracts previously entered into by his government, as long as and until orders to the contrary were received by him. It is even to be presumed that when demand was made by the plaintiffs for the payment of increased rentals or for vacating the three apartment buildings, defendant Moore, not a lawyer by profession but a soldier, must have consulted and sought the advise of his legal department, and that his action in declining to pay the increased rentals or to eject all his army officers from the three buildings must have been in pursuance to the advice and counsel of his legal division. At least, he was not in a position to pay increased rentals above those set and stipulated in the lease agreements, without the approval of his government, unless he personally assumed financial responsibility therefor. Under these circumstances, neither do we believe nor find that defendant Moore can be held personally liable for the payment of back or increased rentals and alleged damages. As to the army officers who actually occupied the apartments involved, there is less reason for holding them personally liable for rentals and supposed damages as sought by the plaintiffs. It must be remembered that these army officers when coming to their station in Manila were not given the choice of their dwellings. They were merely assigned quarters in the apartment buildings in question. Said assignments or billets may well be regarded as orders, and all that those officers did was to obey them, and, accordingly, occupied the rooms assigned to them. Under such circumstances, can it be supposed or conceived that such army officers would first inquire whether the rental being paid by the government for the rooms or apartments assigned to them by order of their superior officer was fair and reasonable or not, and whether the period of lease between their government and the owners of the premises had expired, and whether their occupancy of their rooms or apartments was legal or illegal? And if they dismissed these seemingly idle speculations, assuming that they ever entered their minds, and continued to live in their apartments unless and until orders to the contrary were received by them, could they later be held personally liable for any back rentals which their government may have failed to pay to the owners of the building, or for any damages to the premises incident to all leases of property, specially in the absence of proof that such damages to property had been caused by them and not by the previous occupants, also army officers who are not now parties defendant to this suit? Incidentally it may be stated that both defendants Moore and Tillman have long left these Islands to assume other commands or assignments and in all probability none of their 64 co-defendants is still within this jurisdiction.

On the basis of the foregoing considerations we are of the belief and we hold that the real party defendant in interest is the Government of the United States of America; that any judgment for back or increased rentals or damages will have to be paid not by defendants Moore and Tillman and their 64 co-defendants but by the said U. S. Government. On the basis of the ruling in the case of Land vs. Dollar already cited, and on what we have already stated, the present action must be considered as one against the U. S. Government. It is clear that the courts of the Philippines including the Municipal Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the very beginning of the action. The U. S. Government has not given its consent to the filing of this suit which is essentially against her, though not in name. Moreover, this is not only a case of a citizen filing a suit against his own Government without the latter's consent but it is of citizen filing an action against a foreign government without said government's consent, which renders more obvious the lack of jurisdiction of the courts of his country. The principles of the law behind this rule are so elementary and of such general acceptance that we deem it unnecessary to cite authorities in support thereof. In conclusion we find that the Municipal Court of Manila committed no error in dismissing the case for lack of jurisdiction and that the Court of First Instance acted correctly in affirming the municipal court's order of dismissal. Case dismissed, without pronouncement as to costs. Moran, C.J., Paras, Feria, Bengzon, Tuason and Reyes, JJ., concur.

Separate Opinions PERFECTO, J., dissenting: The petition must be granted. This is the conclusion we have arrived at long ago, soon after this case had been submitted for our decision. We regret that, to avoid further delay in the promulgation of the decision in this case, we are constrained to limit ourselves to a synthesis of the reasons for our stand. So that this opinion may be released immediately, we are making it as short as possible. To said effect we have to waive the opportunity of elaborating on our arguments. We are of the opinion that both the municipal court and the Court of First Instance of Manila erred in dismissing petitioners' complaint and the majority of the Supreme Court have given their exequatur to such grievous error. There is no question that the Municipal Court of Manila had and has completed jurisdiction to take cognizance of and decide the case initiated by petitioners. That jurisdiction is the same whether the true defendants are those specifically mentioned in the complaint or the Government of the United States. The contention that the Government of the United States of America is the real party defendant does not appear to be supported either by the pleadings or by the text of the contract of lease in question. If said government is the real property defendant and had intended to impugn the jurisdiction of the Municipal Court of Manila, it must have done so through its diplomatic representative in the Philippines, i. e., the American Ambassador. It does not appear that the American Ambassador had intervened in the case in any way and we believe no one appearing in the case has the legal personality to represent said government. In the hypothesis that the Government of the United States of America is the lessee in the contract in question and, therefore, should be considered as the real party defendant in the ejectment case, that simple fact does not deprive our courts of justice of their jurisdiction to try any legal litigation relating to said contract of lease. The very fact that the government of the United States of America had entered into a private contract with private citizens of the Philippines and the deed executed in our country concerns real property located in Manila, place said government, for purposes of the jurisdiction of our courts, on the same legal level of the lessors.

Although, generally, foreign governments are beyond the jurisdiction of domestic courts of justice, such rule is inapplicable to cases in which the foreign government enters into private contracts with the citizens of the court's jurisdiction. A contrary view would simply run against all principles of decency and violative of all tenets of morals. Moral principles and principles of justice are as valid and applicable as well with regard to private individuals as with regard to governments either domestic or foreign. Once a foreign government enters into a private contract with the private citizens of another country, such foreign government cannot shield its non-performance or contravention of the terms of the contract under the cloak of non-jurisdiction. To place such foreign government beyond the jurisdiction of the domestic courts is to give approval to the execution of unilateral contracts, graphically described in Spanish as "contratos leoninos," because one party gets the lion's share to the detriment of the other. To give validity to such contract is to sanctify bad faith, deceit, fraud. We prepare to adhere to the thesis that all parties in a private contract, including governments and the most powerful of them, are amenable to law, and that such contracts are enforceable through the help of the courts of justice with jurisdiction to take cognizance of any violation of such contracts if he same had been entered into only by private individuals. To advance the proposition that the Government of the United States of America, soon after liberating the Philippines from the invading Japanese forces, had entered with the petitioners in to the lease contract in question with the knowledge that petitioners could not bring an action in our courts of justice to enforce the terms of said contract is to hurl against said government the blackest indictment. Under such situation, all the vociferous avowals of adherence to the principles of justice, liberty, democracy, of said Government would appear as sham. We cannot believe that the Government of the United States of America can in honest conscience support the stand of respondents in this case. We cannot believe that said government is so callous as not to understand the meaning of the shame entailed in the legal stand of non-jurisdiction intended to place said government beyond the reach of our courts of justice. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101949 December 1, 1994 THE HOLY SEE, petitioner, vs. THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents. Padilla Law Office for petitioner. Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-183, while the Order dated September 19, 1991 denied the motion for reconsideration of the June 20,1991 Order. Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the Philippines by the Papal Nuncio. Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate business. This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A, Transfer Certificate of Title No. 390440) located in the Municipality of Paraaque, Metro Manila and registered in the name of petitioner. Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108 and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC). The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his rights to the sale to private respondent. In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana). I On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance and damages against petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No. 90-183). The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the agreement to sell was made on the condition that earnest money of P100,000.00 be paid by Licup to the sellers, and that the sellers clear the said lots of squatters who were then occupying the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the property to private respondent and informed the sellers of the said assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that the sellers fulfill their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private respondent of the squatters' refusal to vacate the lots, proposing instead either that private respondent undertake the eviction or that the earnest money be returned to the latter; (6) private respondent counterproposed that if it would undertake the eviction of the squatters, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 and wrote private respondent giving it seven days from receipt of the letter to pay the original purchase price in cash; (8) private respondent sent the earnest money back to the sellers, but later discovered that on March 30, 1989, petitioner and the PRC, without notice to private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate of title over the lots were cancelled, transferred and registered in the name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at the expense of private respondent; (10) private respondent demanded the rescission of the sale to Tropicana and the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply with the terms of the contract to sell and has actually made plans to develop the lots into a townhouse project, but in view of the sellers' breach, it lost profits of not less than P30,000.000.00. Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3) specific performance of the agreement to sell between it and the owners of the lots; and (4) damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint petitioner for lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition to the motion was filed by private respondent. On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss after finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in question" (Rollo, pp. 2021). On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity, petitioner prayed that a hearing be conducted to allow it to establish certain facts upon which the said defense is based. Private respondent opposed this motion as well as the motion for reconsideration. On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22). Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio. On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs, claiming that it has a legal interest in the outcome of the case as regards the diplomatic immunity of petitioner, and that it "adopts by reference, the allegations contained in the petition of the Holy See insofar as they refer to arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87). Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the resolution of this Court, both parties and the Department of Foreign Affairs submitted their respective memoranda. II A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule 65 of the Revised Rules of Court can be availed of to question the order denying petitioner's motion to dismiss. The general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts, the remedy of the movant being to file his answer and to proceed with the hearing before the trial court. But the general rule admits of exceptions, and one of these is when it is very clear in the records that the trial court has no alternative but to dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to require the parties to undergo the rigors of a trial. The other procedural question raised by private respondent is the personality or legal interest of the Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190). In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. In the United States, the procedure followed is the process of "suggestion," where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. InWorld Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae. In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioner's claim of sovereign immunity. In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved. III The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a cloak when, of its own free will, it entered into a commercial transaction for the sale of a parcel of land located in the Philippines. A. The Holy See Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state is in order. Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was considered a subject of International Law. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became controversial (Salonga and Yap, Public International Law 36-37 [1992]). In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to International Law (Garcia, Questions and Problems In International Law, Public and Private 81 [1948]). The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations" (O'Connell, I International Law 311 [1965]). In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two international persons the Holy See and Vatican City (Salonga and Yap, supra, 37). The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must be made in a sense different from that in which it is applied to other states (Fenwick, International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states, the Vatican City represents an entity

organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense an "international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]). One authority wrote that the recognition of the Vatican City as a state has significant implication that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality (Kunz, The Status of the Holy See in International Law, 46 The American Journal of International Law 308 [1952]). Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person. The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations. B. Sovereign Immunity As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted principles of International Law. Even without this affirmation, such principles of International Law are deemed incorporated as part of the law of the land as a condition and consequence of our admission in the society of nations (United States of America v. Guinto, 182 SCRA 644 [1990]). There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis (United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law 194 [1984]). Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976, which defines a commercial activity as "either a regular course of commercial conduct or a particular commercial transaction or act." Furthermore, the law declared that the "commercial character of the activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. The Act defines a "commercial activity" as any particular transaction, act or conduct or any regular course of conduct that by reason of its nature, is of a "commercial character." The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries which follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a private party is an act jure gestionis or an act jure imperii. The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental functions. This is particularly true with respect to the Communist states which took control of nationalized business activities and international trading. This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station (United

States of America v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]). On the other hand, this Court has considered the following transactions by a foreign state with private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general public is undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment contract with the cook in the discharge of its proprietary function, the United States government impliedly divested itself of its sovereign immunity from suit. In the absence of legislation defining what activities and transactions shall be considered "commercial" and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be. Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. As held in United States of America v. Guinto, (supra): There is no question that the United States of America, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim. Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965. In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See. The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by private respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines' foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country (Rollo, pp. 156-157). The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic Migration Commission and in World Health Organization, we abide by the certification of the Department of Foreign Affairs. Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to establish the facts alleged by petitioner in its motion. In view of said certification, such procedure would however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25, 1994). IV Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause. According to the Permanent Court of International Justice, the forerunner of the International Court of Justice: By taking up the case of one of its subjects and by reporting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights its right to ensure, in the person of its subjects, respect for the rules of international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]). WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner is DISMISSED. SO ORDERED. Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Padilla, J., took no part. Feliciano, J., is on leave.

Republic of the Philippines SUPREME COURT Baguio EN BANC

G.R. No. 100295 April 26, 1994 PLACIDO L. MAPA, JR., and J. LORENZO VERGARA, petitioners, vs. SANDIGANBAYAN, respondent. Estelito P. Mendoza for Placido L. Mapa, Jr. Filemon Flores for J. Lorenzo Vergara.

PUNO, J.: The denial of the right to be free from further prosecution of a cooperative witness who has been granted immunity is the core issue posed in this petition. On balance are important rights in conflict: the right of an individual who has surrendered his constitutional prerogative to be silent to the State to be exempt from further prosecution; the right of the State to prosecute all persons who appear to have committed a crime and its prerogative to revoke the immunity it has granted to an accused for breach of agreement; and the extent of the jurisdiction of the Sandiganbayan as an impartial tribunal to review the grant of immunity extended by the PCGG to an accused. First, the facts. On January 20, 1987, petitioners Placido L. Mapa and Lorenzo Vergara, together with Gregorio Ma. Araneta III, Fernando Balatbat, Ramon Aviado, Jr., Dominador Lopez, Jr., Fernando Maramag, Jr., and Jose Crisanto, Jr., were charged with violation of the Anti-Graft and Corrupt Practices Act (R.A. 3019) as amended, docketed as Case No. 11960 in the respondent court, as follows: That on or about and during the period from March 1985 and March 1986, in Metro Manila, Philippines, and within the jurisdiction of the Honorable Sandiganbayan, accused Placido L. Mapa, Jr., J. Lorenzo Vergara, Ramon F. Aviado, Jr., Dominador Lopez, Jr., Fernando Maramag, Jr., Jose C. Crisanto, Jr., acting in various capacities as management officials of the Philippine National Bank (PNB), National Investment and Development Corporation (NIDC) and/or Pantranco North Express Inc. (PNEI), all government-owned and controlled corporations, as well as Dolores Potenciano of BLTB, acting in concert in the performance of their duties, in utter neglect of their fiduciary responsibilities, and with intent to gain, conspiring and confederating with one another and with accused Gregorio Ma. Araneta III, son-in-law of former President Ferdinand E. Marcos and therefore related to the deposed President by affinity within the third degree, and Fernando Balatbat, did then and there, willfully and unlawfully, with manifest partiality and evident bad faith, without proper board resolution and in disregard of better offers, promote and facilitate the sale of a major portion of the public utility assets of the Pantranco Express, Inc., for a consideration of SEVEN HUNDRED SEVENTY-FIVE MILLION (P775,000,000.00) PESOS, Philippine Currency, to the North Express Transport, Inc. (NETI), which the accused knew to be a newly organized paper corporation with a purported paid-up capital of only FIVE MILLION (P5,000,000.00) PESOS and owned and controlled by accused

Gregorio Ma. Araneta III, by misleading, inducing and/or unduly influencing the Board of Directors of PNB, NIDC and PNEI into approving a Memorandum of Agreement and later a Purchase Agreement with manifestly and grossly disadvantageous terms and conditions which made possible the premature delivery of said PNEI assets to NETI without any down payment, and which, inter alia, allowed NETI to operate PNEI's franchises and utilize, even before the execution of the said Purchase Agreement, not only the PNEI assets subject of the proposed sale, but also other utility buses and properties of PNEI not covered by the sale, thereby allowing NETI to derive an income from said operation between the period of actual delivery and execution of the Purchase Agreement of the sum of EIGHTY-FIVE MILLION SIX HUNDRED EIGHTY-NINE THOUSAND, ONE HUNDRED EIGHTY (P85,689,180.00) PESOS before the actual payment of the agreed FIFTY-FIVE MILLION (P55,000,000.00) PESOS down payment, thereby giving accused Gregorio Ma. Araneta III unwarranted benefits, advantages and/or preferences and causing undue injury to the damage and prejudice of the Government in the amount of FOUR HUNDRED MILLION (P400,000,000.00) PESOS, and such other amounts as may be awarded by the Court. CONTRARY TO LAW. Except for petitioner Araneta, all the accused in Criminal Case No. 11960 were arraigned. Their trial started on September 20, 1988. In the interim, the late President Ferdinand E. Marcos and Mrs. Imelda R. Marcos were charged in New York with violations of the Racketeer Influenced and Corrupt Organization Act (RICO) by transporting to the United States and concealing the investment of money through cronies and offshore organizations. To insure the conviction of the Marcoses, the prosecution solicited the testimonies of witnesses. Among these witnesses were petitioners Vergara and Mapa. Petitioner Vergara was interviewed in 1987 by PCGG lawyers Kendall and Severina Rivera and by United States Prosecutor Charles La Bella. Petitioner Mapa was interviewed on November 14, 1988 and August 11, 1989 also by Prosecutor La Bella at the behest of former Secretary of Justice Sedfrey Ordonez and former PCGG Chairman Mateo Caparas. After their interviews, petitioners were requested to testify in the said RICO cases against the former First Couple. They were promised immunity from further criminal prosecution. They agreed. On May 16, 1990, the Philippine Government through the PCGG, and the petitioners formalized their separate agreements in writing. The agreement with petitioner Mapa provided: WHEREAS, REPUBLIC has requested MAPA to make himself available as a witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et al.," more particularly in the ongoing trial of the case; WHEREAS, MAPA is a defendant or respondent in several civil and criminal cases which the REPUBLIC has filed or intends to file in relation to this participation in various contracts that are alleged to have resulted in the accumulation of ill-gotten wealth by Ferdinand and Imelda Marcos in violation of Philippine laws, rules and regulations; WHEREAS, on the basis of MAPA's express intent to make himself available as witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et al.," and in light of REPUBLIC's re-appraisal of the civil and criminal cases which it has filed or intends to file against MAPA under the terms and conditions herein below set forth. NOW, THEREFORE, for and in consideration of the foregoing premises, the parties agree as follows: 1. MAPA shall make himself available as a witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et al."

2. In consideration of the same, REPUBLIC grants MAPA immunity from investigation, prosecution and punishment for any offense with reference to which his testimony and information are given, including any offense and commission of which any information, directly or indirectly derived from such testimony or other information is used as basis thereof, except a prosecution for perjury and/or giving false testimony. 3. Likewise, in consideration of such cooperation, and in light of REPUBLICs review of the cases both civil and criminal which it has filed or intends to file against MAPA within the purview of Executive Orders Nos. 1, 2, 14 and 14-A, the REPUBLIC shall cause the dismissal or exclusion of MAPA as party defendant or respondent in all PCGG initiated civil cases and criminal proceeding or investigation. 4. The immunity has been granted by the REPUBLIC to MAPA on the basis of and relying on MAPA's promise of cooperation as described herein. In case of breach of his commitment to fully cooperate and make himself available as a witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et al.", the immunity herein granted shall forthwith be deemed revoked, and of no force and effect. 5. The parties agree that the grant of immunity from criminal prosecution to MAPA and his exclusion from PCGG initiated civil cases and criminal proceeding or investigations has been undertaken in the exercise of the PCGG's authority under Executive Order Nos. 1, 2, 14 and 14-A. Accordingly, nothing herein shall be construed as an admission by MAPA of any criminal or civil liability. The agreement with petitioner Vergara stated: WHEREAS, REPUBLIC has requested VERGARA to make himself available as a witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et al.," more particularly in the on-going trial of the case; WHEREAS, Vergara is a defendant in Criminal Case No. 11960 entitled "People vs. Gregorio Ma. Araneta, et al.", now pending before the Sandiganbayan, Second Division; WHEREAS, on the basis of VERGARAs express intent to make himself available as witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et al.," and in the light of REPUBLIC's re-appraisal of VERGARA's participation in Criminal Case No. 11960, the REPUBLIC approved to grant immunity to VERGARA under the terms and conditions hereinbelow set forth. NOW, THEREFORE, for and in consideration of the foregoing premises, the parties agree as follows: 1. VERGARA shall make himself available as a witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et al." 2. In consideration of the same, REPUBLIC grants VERGARA immunity from investigation, prosecution and punishment for any offense with reference to which his testimony and information are given, including any offense and commission of which any information, directly or indirectly derived from such testimony or other information is used as basis thereof, except a prosecution for perjury and/or giving false testimony.

3. Likewise, in consideration of such cooperation, and in light of REPUBLICs review of VERGARAs participation in Criminal Case No. 11960, the REPUBLIC shall cause the dismissal of VERGARA from Criminal Case No. 11960. 4. The immunity has been granted by the REPUBLIC to VERGARA on the basis of and relying on VERGARA's promise of cooperation as described herein. In case of breach of h is commitment to fully cooperate and make himself available as a witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et al.", the immunity herein granted shall forthwith be deemed revoked, and of no force and effect. 5. The parties agree that the grant of immunity from civil and criminal prosecution to VERGARA and his exclusion from Criminal Case No. 11960 has been undertaken in the exercise of the PCGG's authority under Executive Orders Nos. 1, 2, 14 and 14-A. Accordingly, nothing herein shall be construed as a admission by VERGARA of any criminal liability. On the same day, May 16, 1990, former PCGG Chairman Mateo Caparas wrote to petitioner Mapa the following letter: Dear Sir: With reference to the agreement executed between yourself and the Republic of the Philippines on May 16, 1990, we would like to confirm that among the criminal cases which the Republic agrees to cause the dismissal of the case entitled "People of the Philippines vs. Mr. Gregorio Ma. Araneta III, et. al., " Criminal Case No. 11960 of the Sandiganbayan. We understand that in that case the prosecution is in the process of closing its evidence with the submission of its offer of documentary evidence and that it is your intention thereupon to submit a Motion to Dismiss for failure of the prosecution to prove its case. We affirm that if, because of the situation of the case, it would not be possible for the Republic to file the necessary motion to cause the dismissal thereof, then we shall upon submission of your Motion to Dismiss offer no objection to its favorable consideration by the court in relation to you. We also affirm our understanding that we shall arrange with the U.S. prosecutors the grant of immunity in your favor no less broad or extensive than that granted to Mr. Jaime C. Laya. V e r y t r u l y y o u r s , (SGD.) M.A.T. Caparas

A similar letter was sent to petitioner Vergara. The petitioners complied with their respective undertaking. They travelled to New York to testify against the Marcoses. Their travel fare and hotel accommodations were even furnished by the PCGG. But despite their availability and willingness to testify, the US prosecutors decided not to call them to the witness stand. The result was a debacle for the US prosecutors and the PCGG. Mrs.Imelda Marcos was acquitted by the jury. Earlier, former President Marcos was delisted as an accused as he died in the course of the proceedings. The legal struggle shifted back to the prosecution of petitioners in Criminal Case No. 11960 before the respondent court. On the basis of the immunity granted to them, petitioners filed a Joint Motion to Dismiss on October 22, 1990. Deputized PCGG prosecutors Vivencio B. Dionido and Angel J. Parazo filed a Manifestation interposing no objection to petitioners' Motion, viz: That herein accused Placido L. Mapa, Jr. and J. Lorenzo Vergara were granted immunity by the Presidential Commission on Good Government from criminal liability arising from cases which PCGG had or intends to file against them; The PCGG, therefore, interposes no objection to the Joint Motion to Dismiss filed by accused Placido L. Mapa, Jr. and J. Lorenzo Vergara in Criminal Case No. 11960-PCGG by reason of the immunity aforestated. Despite PCGG's concurrence, the respondent court denied the Joint Motion to Dismiss, by a vote of 4-1. 1Petitioners were undaunted. On April 8, 1991, they filed a Motion for Reconsideration. This was followed on May 23, 1991, by a Supplement to the Motion for Reconsideration. The deputized prosecutors again filed a Manifestation reiterating PCGG's acquiescence to petitioners' Motion for Reconsideration. Respondent court, however, refused to budge from its prior position. It denied petitioners' motions. Hence, this recourse where petitioners charge the respondent court with grave abuse of discretion in denying their Motion to Dismiss and Motion for Reconsideration. They pose the following issues: 2.00.a. Does the fact that the information provided by petitioners to the Presidential Commission on Good Government (PCGG) did not refer to Criminal Case No. 11960 make the immunity granted to them inapplicable to Criminal Case No. 11960? 2.00.b. Is it necessary that information furnished the PCGG, which would become basis of the grant of immunity, be submitted to the Sandiganbayan in order that it may determine whether such information is necessary to ascertain or prove the guilt or liability of a respondent, defendant or an accused in an action involving the recovery of ill-gotten wealth? 2.00.c. Does the fact that the prosecution in the RICO cases did not actually present petitioners as witnesses abrogate the immunity granted to them? 2.00.d. Was the immunity granted to petitioners too late considering that when it was granted, the prosecution in Criminal Case No. 11960 had already rested its case?" The proceedings before us took a new wrinkle with the appointment of Atty. David Castro as Chairman of PCGG. In its Comment dated January 6, 1992, the PCGG somersaulted from its stance supporting the petitioners. Its Comment states: 1. The Presidential Commission on Good Government has indeed granted Messrs. Placido L. Mapa, Jr., and Jesus Lorenzo Vergara immunity from investigation, prosecution and punishment

for any offense for which civil and criminal cases have been or to be filed against them within the purview of Executive Orders Nos. 1, 2, 14 and 14-A but such immunity is conditional. 2. The conditions for giving such immunity is the cooperation said petitioners shall give to said Commission by way of information and testimony in cases now pending or to be filed before the Sandiganbayan against other defendants therein to prove the latter's acquisition or accumulation of property or properties in violation of existing laws. 3. Failure on the part of petitioners Placido Mapa, Jr. and Jesus Vergara to testify in favor of the government and against other defendants on matters referred to in the immediately preceding paragraph nullifies the immunity granted to both defendants (emphasis supplied). It reiterated its breakaway from petitioners in its Comment to the Reply of petitioners dated June 10, 1992, where it adopted the respondent Sandiganbayan's questioned Resolution and Concurring Opinions dated March 6, 1991. It further stressed that "[T]he granting of 'Immunity' from criminal liability and/or prosecution is a matter subject to the court's judicious determination and approval, after applying the test of compliance and the standard of reasonableness with the rigid requirements for such grant under Section 5 of Executive Order No. 14-A, as amended." The Solicitor General defended the stance of the PCGG and the respondent court. We find merit in the petition. The practice of granting government, its officials, and some accused or respondents immunity from suits, has a long history. We begin with the Constitution which expressly grants some of these immunities. Article XVI, section 3 provides that "the State may not be sued without its consent." The classic justification for the non-suability of the State is that provided by Mr. Justice Oliver Wendell Holmes: ". . . there can be no legal right against the authority which makes the law on which the right depends." 2 Article VI, section 11 of the Constitution also grants parliamentary immunities, viz: "A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof." Mr. Justice Isagani A. Cruz explains the rationale for this immunity in the following manners: ". . . The first is intended to ensure representation of the constituents of the member of the Congress by preventing attempts to keep him from attending its sessions. The second enables the legislator to express views bearing upon the public interest without fear of accountability outside the halls of the legislature for his inability to support his statements with the usual evidence required in the court of justice. In other words, he is given more leeway than the ordinary citizen in the ventilation of matters that ought to be divulged for the public good." 3 The President was also immunized from suit during his tenure in the 1973 Constitution. Aside from the Constitution, Congress has enacted laws giving immunity to witnesses to facilitate the solution of crimes with high political, social and economic impact against the people. Some of these statutory grants are related in the impugned Resolution. Thus, PD 749 provides: Section 1. Any person who voluntarily gives information about any violation of Articles 210, 211, 212 of the Revised Penal Code, Republic Act No. 3019, as amended; Section 345 of the Internal Revenue Code and Section 3604 of the Tariff and Customs Code and other provisions of the said codes penalizing abuse or dishonesty on the part of the public officials concerned; and other laws, rules and regulations punishing acts of graft, corruption and other forms of official abuse; and who willingly testified, such violator shall be exempt from prosecution or punishment for the offense with reference to which his information and testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution: Provided, That this immunity may be enjoyed even in cases where the information and the testimony are given against a person who is not a public official but who is a principal or accomplice, or accessory in the commission of any of the above-mentioned violations: Provided, further, That this immunity may be enjoyed

by such informant or witness notwithstanding that he offered or gave bribe or gift to the public official or is an accomplice for such gift or bribe-giving; And, Provided, finally, That the following conditions concur: 1. The information must refer to consummated violations of any of the above- mentioned provisions of law, rules and regulations; 2. The information and testimony are necessary for the conviction of the accused public officer; 3. Such information and testimony are not yet in the possession of the State; 4. Such information and testimony can be corroborated on its material points; and 5. The informant or witness has not been previously convicted of a crime involving moral turpitude. Likewise, under PD No. 1886, the Agrava Fact Finding Board, created to conduct a fact-finding inquiry in the Aquino-Galman double murder case, was given the power to compel testimony of a witness. In exchange for his testimony, such a witness was extended transactional immunity from later prosecution. Section 5 of said PD No. 1886 states: No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against self-incrimination to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from office. Indeed, as early as April 16, 1951, R.A. 602, establishing a minimum wage law, extended transactional immunity to persons who testify or produce books, papers or other records and documents before the Secretary of Labor or a Wage Board. A similar but not identical power is given to the prosecution under section 9, Rule 119 of the 1985 Rules on Criminal Procedure to discharge an accused to be utilized as a state witness. Our immunity statutes are of American origin. In the United States, there are two types of statutory immunity granted to a witness. They are the transactional immunity and the used-and-derivative-use immunity. Transactional immunity is broader in the scope of its protection. By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. 4 In contrast, by the grant of use-and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution. 5 In Kastigar vs. US, 6the rationale of these immunity grants is well explained, viz: The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence . . . The power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor. . . xxx xxx xxx

But the power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege. Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible with these values. Rather, they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime. Indeed, their origins were in the context of such offenses, and their primary use has been to investigate such offenses . . . (E)very State in the Union, as well as the District of Columbia and Puerto Rico, has one of more such statutes. The commentators, and this Court on several occasions, have characterized immunity statutes as essential to the effective enforcement of various criminal statutes. . . We shall now examine the powers granted to PCGG by Executive Order No. 14, as amended, to grant immunity from criminal prosecution. The pertinent sections provide: xxx xxx xxx Sec. 2. Section 4 of Executive Order No. 14 dated May 7, 1986 is hereby amended to read as follows: Sec. 4. A witness may refuse on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before the Sandiganbayan if the witness believes that such testimony or provision of information would tend to incriminate him or subject him to prosecution. Upon such refusal, the Sandiganbayan may order the witness to testify or provide information. The witness may not refuse to comply with the order on the basis of his privilege against selfincrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony, or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the other.' Sec. 3. Section 5 of Executive Order No. 14 dated May 7, 1986 is hereby amended to read as follows: Sec. 5. The Presidential Commission on Good Government is authorized to grant immunity from criminal prosecution to any person who provides information or testifies in any investigation conducted by such Commission to establish the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in any case where such information or testimony is necessary to ascertain or prove the latter's guilt or his civil liability. The immunity thereby granted shall be continued to protect the witness who repeats such testimony before the Sandiganbayan when required to do so by the latter or by the Commission.

There are obvious differences between the powers granted to the PCGG under sections 4 and 5. Section 4 deals with the power which PCGG can use to compel an unwilling witness to testify. On the other hand, section 5 speaks of the power which PCGG can wield to secure information from a friendly witness. Under section 4, the hostile witness compelled to testify is not immunized from prosecution. He can still be prosecuted but "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case . . . ." In contrast, under section 5, the friendly witness is completely immunized from prosecution. The case at bench involves an exercise of power by PCGG under section 5, supra. Petitioners are not hostile but friendly witnesses. It is not disputed that they furnished information to the PCGG during their interviews conducted by PCGG lawyers and US prosecutor La Bella. Due to their cooperation, they were extended immunity from prosecution by the PCGG. In return, they flew to New York to testify in the RICO trial of Imelda Marcos. As they were witnesses for the prosecution, their expenses were shouldered by the PCGG itself. At the last minute, however, US prosecutor La Bella decided to dispense with their testimony. The rest is history. The prosecution failed to convict Mrs. Marcos. The first issue is whether the respondent court has jurisdiction to review the immunity granted by PCGG in favor of the petitioners. We sustain the jurisdiction of the respondent court. To be sure, we have grappled with this once slippery issue in the case of Republic vs. Sandiganbayan, 173 SCRA 76, 80-81, and we held: We first ascertain whether or not the Sandiganbayan has jurisdiction to look into the validity of the immunity granted by the PCGG to Jose Y. Campos which was extended to his son, petitionerintervenor herein, Jose Campos, Jr. xxx xxx xxx The powers of the PCGG are not unlimited. Its jurisdiction over cases involving ill-gotten wealth must be within the parameters stated in Executive Order No. 14. Necessarily, the jurisdiction of the Sandiganbayan which is tasked to handle the ill-gotten wealth cases must include the jurisdiction to determine whether or not the PCGG exceeded its power to grant immunity pursuant to the provisions of Executive Order No.14. It should also be noted that the respondent court has already acquired jurisdiction to try and decide Case No. 11960 where petitioners stand accused of violating RA 3019. It has started receiving the evidence of the prosecution against the petitioners. Petitioners, with the conformity of PCGG, then claimed their immunity via a motion to dismiss addressed to the respondent court. The motion to dismiss is thus a mere incident well within the jurisdiction of the respondent court to resolve. The next issue is a finer and more difficult one, i.e., gauging the range of the power of the respondent court to review the exercise of discretion of the PCGG granting immunity to petitioners pursuant to section 5 of E.O. No. 14, as amended. Respondent court, thru the Solicitor General, pushes the proposition that said power of review is plenary in reach. It is urged that its plenitude and panoply empower the respondent court to reverse the grant of immunity made by the PCGG by supplanting the latter's judgment. The submission will warrant the respondent court in examining the intrinsic quality of the given information or testimony, i.e., whether it truly establishes the "unlawful manner" in which the respondent, defendant or accused has acquired or accumulated the property or properties in question. Likewise, it will give a warrant to the respondent court to change the judgment made by the PCGG that the witness' information or testimony is "necessary" to ascertain or prove the guilt or civil liability of the respondent, defendant or accused. We are not prepared to concede the correctness of this proposition. Neither the text nor the texture of E.O. No. 14, as amended, lends color to the suggested interpretation. Section 5 of E.O. No. 14, as amended, vests no such role in

respondent court. In instances, where the intent is to endow courts of justice with the power to review and reverse tactical moves of the prosecution, the law confers the power in clear and certain language. Thus, under section 9 of Rule 119, the prosecution in the exercise of its discretion may tactically decide to discharge an accused to be a state witness but its decision is made subject to the approval of the court trying the case. It has to file a proper motion and the motion may be denied by the court if the prosecution fails to prove that it has satisfied the requirements of the rule on discharge of a witness. The rule is crafted as to leave no iota of doubt on the power of the court to interfere with the discretion of the prosecution on the matter. In the case at bench, E.O. 14, as amended, is eloquently silent with regard to the range and depth of the power of the respondent court to review the exercise of discretion by the PCGG granting a section 5 immunity. This silence argues against the thesis that the respondent court has full and unlimited power to reverse PCGG's exercise of discretion granting a section 5 immunity. Legitimate power can not arise from a vacuum. We observe that in contrast to our other laws on immunity, section 5 of E.O. No. 14, as amended, confers on the PCGG the power to grant immunity alone and on its own authority. The exercise of the power is not shared with any other authority. Nor is its exercise subject to the approval or disapproval of another agency of government. The basic reason for vesting the power exclusively on the PCGG lies in the principles of separation of power. The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to forego prosecution of a person for government to achieve a higher objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate power should be exercised, who should be extended the privilege, the timing of its grant, are questions addressed solely to the sound judgment of the prosecution. The power to prosecute includes the right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute. In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense. For fairness demands that courts keep the scales of justice at equipoise between and among all litigants. Due process demands that courts should strive to maintain the legal playing field perfectly even and perpetually level. Prescinding from these baseline propositions, we hold that in reviewing the grant of a section 5 immunity made by the PCGG to the petitioners, the power of the respondents court can go no further than to pass upon itsprocedural regularity. The respondent court should only ascertain: (a) whether the person claiming immunity has provided information or testimony in any investigation conducted by the PCGG in the discharge of its functions; (b) whether in the bona fide judgment of the PCGG, the information or testimony given would establish the unlawful manner in which the respondent, defendant or accused has acquired or accumulated the property or properties in question; and (c) whether in the bona fide judgment of the PCGG, such information or testimony is necessary to ascertain or prove the guilt or civil liability of the respondent, defendant or accused. Respondent court cannot substitute its judgment to the discretion of the PCGG without involving itself in prosecution and without ceasing to be a court catering untilted justice. Applying this standard, we hold that the respondent court committed grave abuse of discretion when it denied petitioners' motion to dismiss based on a claim of immunity granted by the PCGG under section 5 of E.O. 14, as amended. The records show that petitioners provided information to the PCGG relating to the prosecution of the RICO cases against the Marcoses in New York. They gave the information in the course of interviews conducted by PCGG lawyers Kendall and Severina Rivera and US prosecutor Charles La Bella. They collaborated with the prosecution. Sec. 5 requires that the information should relate to "any case" which PCGG can prosecute as mandated by the Constitution and E.O. Nos. 1, 2, 14 and 14-A. It does not limit said information to be given only in a case where the informant is himself an accused or a respondent. Such a reading adopted by the respondent court is unduly

restrictive of the intendment of section 5 of E.O. No. 14, as amended, even as it is clearly in contravention of its plain language. It is also fairly established that the pieces of information given by the petitioners would in the judgment of the PCGG, establish the "unlawful manner" with which the Marcoses acquired or accumulated their properties and were "necessary" to prove their guilt. The totality of the circumstances of the case established this element. Thus, after their interview, the PCGG was obviously convinced of the evidentiary value of the information given by the petitioners. It forthwith signed and sealed an agreement with petitioners extending them immunity from prosecution. In the case of petitioner Mapa, "the Republic shall cause the dismissal or exclusion of MAPA as party defendant or respondent in all PCGG initiated civil cases and criminal proceeding or investigation." In the case of petitioner Vergara, "the Republic shall cause the dismissal of Vergara from Criminal Case No. 11960." This commitment was reiterated by former Chairman Mateo Caparas of PCGG in his May 16, 1990 letters to the petitioners, as related above. The parties' agreements were then implemented. Petitioners travelled to New York to testify in the RICO cases against the Marcoses. It was even the PCGG that shouldered their expenses. All these circumstances prove the judgment of the PCGG that the pieces of information given by petitioners would establish the "unlawful manner" with which the Marcoses acquired their wealth. Contrary to the ruling of the respondent court, the failure of petitioners to testify in the RICO cases against the Marcoses in New York can not nullify their immunity. They have satisfied the requirements both of the law and the parties' implementing agreements. Under section 5 of E.O. No. 14, as amended, their duty was to give information to the prosecution, and they did. Under their Memorandum of Agreement, they promised to make themselves available as witnesses in the said RICO cases, and they did. Petitioners were ready to testify but they were not called to testify by the US prosecutors of the RICO case. Their failure to testify was not of their own making. It was brought about by the decision of the US prosecutors who may have thought that their evidence was enough to convict the Marcoses. Since petitioners' failure to testify was not of their own choosing nor was it due to any fault of their own, justice and equity forbid that they be penalized by the withdrawal of their immunity. Indeed, initially, the PCGG itself adopted the posture that the immunity of petitioners stayed and should not be disturbed. It joined the motion to dismiss filed by petitioners in the respondent court. When the respondent court denied the motion, PCGG stuck to its previous position as it again joined the petitioners in their motion for reconsideration. It is only in this petition for review on certiorari that PCGG, after a change of Chairman, flip-flopped in its position. We also rule that there was nothing irregular when PCGG granted a section 5 immunity to petitioners while they were already undergoing trial in Criminal Case No. 11960. Section 5 of E.O. 14, as amended, does not prohibit the PCGG from granting immunity to persons already charged in court and undergoing trial. As long as the privilege of immunity so given will in the judgment of the PCGG assist it in attaining its greater objectives, the PCGG is well within legal grounds to exercise this power at any stage of the proceedings. This section 5 immunity frees and releases one from liability, and as it inures to the benefit of an accused, it can be invoked at any time after its acquisition and before his final conviction. Our regard for the rights of an accused dictates this result. Thus, we have consistently held that laws that decriminalize an act or a grant of amnesty may be given retroactive effect. They constitute a bar against the further prosecution of their beneficiaries' regardless of the appearance of their guilt. To be sure, the guilt of the petitioners in Criminal Case No. 11960 has yet to be established beyond doubt. The PCGG itself does not appear certain and confident of the strength of its evidence against the petitioners in said criminal case. The records show that petitioners Mapa was granted immunity not only because of the information he gave to the prosecution but also ". . . in light of Republic's review of the cases both civil and criminal which it has filed or intends to file against . . ." him. Similarly, petitioner Vergara was granted immunity ". . . in light of Republic's review of Vergara's participation in Criminal Case No. 11960 . . . ." After reviewing its evidence against the petitioners, PCGG appears to have sensed the sterility of its efforts of continuing their prosecution. Its former chairman, M.A.T. Caparas, learned that petitioners would file a Motion to Dismiss Criminal Case No. 11960 after PCGG rest its evidence, "for failure of the prosecution to prove its case." In his May 16, 1990 letters to the petitioners, he assured them that "we shall . . . offer no objection to its favorable consideration." This is a patent admission that petitioners' Motion to Dismiss has merit and that the PCGG cannot prove its case against the petitioners in Criminal Case No. 11960. Finally, we reject respondent court's ruling that the grant of section 5 immunity must be strictly construed against the petitioners. It simplistically characterized the grant as special privilege, as if it was gifted by the government, ex

gratia. In taking this posture, it misread the raison d'etre and the long pedigree of the right against selfincrimination vis-a-vis immunity statutes. The days of inquisitions brought about the most despicable abuses against human rights. Not the least of these abuses is the expert use of coerced confessions to send to the guillotine even the guiltless. To guard against the recurrence of this totalitarian method, the right against self-incrimination was ensconced in the fundamental laws of all civilized countries. Over the years, however, came the need to assist government in its task of containing crime for peace and order is a necessary matrix of public welfare. To accommodate the need, the right against self-incrimination was stripped of its absoluteness. Immunity statutes in varying shapes were enacted which would allow government to compel a witness to testify despite his plea of the right against self-incrimination. To insulate these statutes from the virus of unconstitutionality, a witness is given what has come to be known as transactional or a use-derivative-use immunity, as heretofore discussed. Quite clearly, these immunity statutes are not a bonanza from government. Those given the privilege of immunity paid a high price for it the surrender of their precious right to be silent. Our hierarchy of values demands that the right against selfincrimination and the right to be silent should be accorded greater respect and protection. Laws that tend to erode the force of these preeminent rights must necessarily be given a liberal interpretation in favor of the individual. The government has a right to solve crimes but it must do it, rightly. IN VIEW WHEREOF, the resolutions of the respondent court dated March 7, and June 3, 1991 are annulled and set aside and the Amended Information against the petitioners in Criminal Case No. 11960 is ordered dismissed. No costs. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno Vitug, and Kapunan, JJ., concur.
#Footnotes

1 The Resolution was written by Associate Justice Romeo M. Escareal. Associate Justices Jose S. Balajadia, Cipriano A. del Rosario and Sabino R. de Leon, Jr., wrote separate concurring opinions. Associate Justice Nathanael M. Grospe dissented. 2 Kawanakoa vs. Polybank, 205 US 349. 3 Philippine Political Law, 1993 ed., p. 115. 4 Dr. Rolando del Carmen, Criminal Law and Procedure, Brooks/Cole Publishing Co., p. 336. 5 Ibid. 6 406 US 441 [1992]. See also Joseph Varon, Searches, Seizures and Immunities, Dobbs-Merrill Co., pp. 731-733.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 91649 May 14, 1991 ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO SANCHEZ,petitioners, vs. PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent. H.B. Basco & Associates for petitioners. Valmonte Law Offices collaborating counsel for petitioners. Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:p A TV ad proudly announces: "The new PAGCOR responding through responsible gaming." But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the Philippine Amusement and Gaming Corporation (PAGCOR) Charter PD 1869, because it is allegedly contrary to morals, public policy and order, and because A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived the Manila City government's right to impose taxes and license fees, which is recognized by law; B. For the same reason stated in the immediately preceding paragraph, the law has intruded into the local government's right to impose local taxes and license fees. This, in contravention of the constitutionally enshrined principle of local autonomy; C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR conducted gambling, while most other forms of gambling are outlawed, together with prostitution, drug trafficking and other vices; D. It violates the avowed trend of the Cory government away from monopolistic and crony economy, and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo) In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared national policy of the "new restored democracy" and the people's will as expressed in the 1987 Constitution. The decree is said to have a "gambling objective" and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo). The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being also the Chairman of the Committee on Laws of the City Council of Manila), can question and seek the annulment of PD 1869 on the alleged grounds mentioned above.

The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A dated January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to establish, operate and maintain gambling casinos on land or water within the territorial jurisdiction of the Philippines." Its operation was originally conducted in the well known floating casino "Philippine Tourist." The operation was considered a success for it proved to be a potential source of revenue to fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to fully attain this objective. Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to regulate and centralize all games of chance authorized by existing franchise or permitted by law, under the following declared policy Sec. 1. Declaration of Policy. It is hereby declared to be the policy of the State to centralize and integrate all games of chance not heretofore authorized by existing franchises or permitted by law in order to attain the following objectives: (a) To centralize and integrate the right and authority to operate and conduct games of chance into one corporate entity to be controlled, administered and supervised by the Government. (b) To establish and operate clubs and casinos, for amusement and recreation, including sports gaming pools, (basketball, football, lotteries, etc.) and such other forms of amusement and recreation including games of chance, which may be allowed by law within the territorial jurisdiction of the Philippines and which will: (1) generate sources of additional revenue to fund infrastructure and socio-civic projects, such as flood control programs, beautification, sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population Control and such other essential public services; (2) create recreation and integrated facilities which will expand and improve the country's existing tourist attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices and corruptions that are normally prevalent on the conduct and operation of gambling clubs and casinos without direct government involvement. (Section 1, P.D. 1869) To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are accordingly repealed, amended or modified. It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly remitted to the National Government a total of P2.5 Billion in form of franchise tax, government's income share, the President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored other socio-cultural and charitable projects on its own or in cooperation with various governmental agencies, and other private associations and organizations. In its 3 1/2 years of operation under the present administration, PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families. But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and void" for being "contrary to morals, public policy and public order," monopolistic and tends toward "crony economy", and is violative of the equal protection clause and local autonomy as well as for running counter to the state policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution. This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate consideration by the Court, involving as it does the exercise of what has been described as "the highest and most delicate function which belongs to the judicial department of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).

As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the government We need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its constitutionality. This is not to say that We approach Our task with diffidence or timidity. Where it is clear that the legislature or the executive for that matter, has over-stepped the limits of its authority under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on the offending statute (Lozano v. Martinez, supra). In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar underscored the . . . thoroughly established principle which must be followed in all cases where questions of constitutionality as obtain in the instant cases are involved. All presumptions are indulged in favor of constitutionality; one who attacks a statute alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheld and the challenger must negate all possible basis; that the courts are not concerned with the wisdom, justice, policy or expediency of a statute and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521, 540) Of course, there is first, the procedural issue. The respondents are questioning the legal personality of petitioners to file the instant petition. Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371) With particular regard to the requirement of proper party as applied in the cases before us, We hold that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an immediate injury as a result of the acts or measures complained of. And even if, strictly speaking they are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised. In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must technicalities of procedure." We have since then applied the exception in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343). Having disposed of the procedural issue, We will now discuss the substantive issues raised. Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling does not mean that the Government cannot regulate it in the exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386). Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra) It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has been credited, refers to it succinctly as the plenary power of the state "to govern its citizens". (Tribe, American Constitutional Law, 323, 1978). The police power of the State is a power co-extensive with self-protection and is most aptly termed the "law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic force that enables the state to meet the agencies of the winds of change. What was the reason behind the enactment of P.D. 1869? P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations in one corporate entity the PAGCOR, was beneficial not just to the Government but to society in general. It is a reliable source of much needed revenue for the cash strapped Government. It provided funds for social impact projects and subjected gambling to "close scrutiny, regulation, supervision and control of the Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct intervention of the Government, the evil practices and corruptions that go with gambling will be minimized if not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896. Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They must be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any "tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local." (2) Income and other taxes. a) Franchise Holder: No tax of any kind or form, income or otherwise as well as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and collected under this franchise from the Corporation; nor shall any form or tax or charge attach in any way to the earnings of the Corporation, except a franchise tax of five (5%) percent of the gross revenues or earnings derived by the Corporation from its operations under this franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description, levied, established or collected by any municipal, provincial or national government authority (Section 13 [2]). Their contention stated hereinabove is without merit for the following reasons: (a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to a legislative act which is

superior having been passed upon by the state itself which has the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445). (b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and abolish municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power. (c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus: Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other local governments to issue license, permit or other form of franchise to operate, maintain and establish horse and dog race tracks, jai-alai and other forms of gambling is hereby revoked. Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks, jai-alai and other forms of gambling shall be issued by the national government upon proper application and verification of the qualification of the applicant . . . Therefore, only the National Government has the power to issue "licenses or permits" for the operation of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the issuance of "licenses or permits" is no longer vested in the City of Manila. (d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers thus: Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the affiliated entities, and shall exercise all the powers, authority and the responsibilities vested in the Securities and Exchange Commission over such affiliating entities mentioned under the preceding section, including, but not limited to amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure, capitalization and other matters concerning the operation of the affiliated entities, the provisions of the Corporation Code of the Philippines to the contrary notwithstanding, except only with respect to original incorporation. PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which places it in the category of an agency or instrumentality of the Government. Being an instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local government. The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the operation of constitutional laws enacted by Congress to carry into execution the powers vested in the federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579) This doctrine emanates from the "supremacy" of the National Government over local governments. Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power on the part of the States to touch, in that way (taxation) at least, the instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it can be agreed that no state or political subdivision

can regulate a federal instrumentality in such a way as to prevent it from consummating its federal responsibilities, or even to seriously burden it in the accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied) Otherwise, mere creatures of the State can defeat National policies thru extermination of what local authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42). The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity which has the inherent power to wield it. (e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D. 1869. This is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides: Sec. 5. Each local government unit shall have the power to create its own source of revenue and to levy taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government. (emphasis supplied) The power of local government to "impose taxes and fees" is always subject to "limitations" which Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative but rather is consistent with the principle of local autonomy. Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III Records of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign within the state or an "imperium in imperio." Local Government has been described as a political subdivision of a nation or state which is constituted by law and has substantial control of local affairs. In a unitary system of government, such as the government under the Philippine Constitution, local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government. (emphasis supplied) As to what state powers should be "decentralized" and what may be delegated to local government units remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539). What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern and hence, it is the sole prerogative of the State to retain it or delegate it to local governments. As gambling is usually an offense against the State, legislative grant or express charter power is generally necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant of power to enact, ordinance provisions on this subject which are inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)

Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because "it legalized PAGCOR conducted gambling, while most gambling are outlawed together with prostitution, drug trafficking and other vices" (p. 82, Rollo). We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-accepted meaning of the clause "equal protection of the laws." The clause does not preclude classification of individuals who may be accorded different treatment under the law as long as the classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal force on all persons or things to be conformable to Article III, Section 1 of the Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989). The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not require situations which are different in fact or opinion to be treated in law as though they were the same (Gomez v. Palomar, 25 SCRA 827). Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not clearly explained in the petition. The mere fact that some gambling activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are legalized under certain conditions, while others are prohibited, does not render the applicable laws, P.D. 1869 for one, unconstitutional. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827) The equal protection clause of the 14th Amendment does not mean that all occupations called by the same name must be treated the same way; the state may do what it can to prevent which is deemed as evil and stop short of those cases in which harm to the few concerned is not less than the harm to the public that would insure if the rule laid down were made mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651). Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away from monopolies and crony economy and toward free enterprise and privatization" suffice it to state that this is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's policies then it is for the Executive Department to recommend to Congress its repeal or amendment. The judiciary does not settle policy issues. The Court can only declare what the law is and not what the law should be. Under our system of government, policy issues are within the domain of the political branches of government and of the people themselves as the repository of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA 256). On the issue of "monopoly," however, the Constitution provides that: Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National Economy and Patrimony) It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the Constitution. The state must still decide whether public interest demands that monopolies be regulated or prohibited. Again, this is a matter of policy for the Legislature to decide. On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles and, policies. As such,

they are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such principles. In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcement through the courts. They were rather directives addressed to the executive and the legislature. If the executive and the legislature failed to heed the directives of the articles the available remedy was not judicial or political. The electorate could express their displeasure with the failure of the executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2) Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful and equivocal one. In other words, the grounds for nullity must be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration. Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the presumption. The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization as well as the state principles on social justice, role of youth and educational values" being raised, is up for Congress to determine. As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521 Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the presumption of validity and constitutionality which petitioners Valmonte and the KMU have not overturned. Petitioners have not undertaken to identify the provisions in the Constitution which they claim to have been violated by that statute. This Court, however, is not compelled to speculate and to imagine how the assailed legislation may possibly offend some provision of the Constitution. The Court notes, further, in this respect that petitioners have in the main put in question the wisdom, justice and expediency of the establishment of the OPSF, issues which are not properly addressed to this Court and which this Court may not constitutionally pass upon. Those issues should be addressed rather to the political departments of government: the President and the Congress. Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the gambling resorted to is excessive. This excessiveness necessarily depends not only on the financial resources of the gambler and his family but also on his mental, social, and spiritual outlook on life. However, the mere fact that some persons may have lost their material fortunes, mental control, physical health, or even their lives does not necessarily mean that the same are directly attributable to gambling. Gambling may have been the antecedent,but certainly not necessarily the cause. For the same consequences could have been preceded by an overdose of food, drink, exercise, work, and even sex. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring: I concur in the result of the learned decision penned by my brother Mr. Justice Paras. This means that I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy." It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy. The courts, as the decision states, cannot inquire into the wisdom, morality or expediency of policies adopted by the political departments of government in areas which fall within their authority, except only when such policies pose a clear and present danger to the life, liberty or property of the individual. This case does not involve such a factual situation. However, I hasten to make of record that I do not subscribe to gambling in any form. It demeans the human personality, destroys self-confidence and eviscerates one's self-respect, which in the long run will corrode whatever is left of the Filipino moral character. Gambling has wrecked and will continue to wreck families and homes; it is an antithesis to individual reliance and reliability as well as personal industry which are the touchstones of real economic progress and national development. Gambling is reprehensible whether maintained by government or privatized. The revenues realized by the government out of "legalized" gambling will, in the long run, be more than offset and negated by the irreparable damage to the people's moral values. Also, the moral standing of the government in its repeated avowals against "illegal gambling" is fatally flawed and becomes untenable when it itself engages in the very activity it seeks to eradicate. One can go through the Court's decision today and mentally replace the activity referred to therein as gambling, which is legal only because it is authorized by law and run by the government, with the activity known asprostitution. Would prostitution be any less reprehensible were it to be authorized by law, franchised, and "regulated" by the government, in return for the substantial revenues it would yield the government to carry out its laudable projects, such as infrastructure and social amelioration? The question, I believe, answers itself. I submit that the sooner the legislative department outlaws all forms of gambling, as a fundamental state policy, and the sooner the executive implements such policy, the better it will be for the nation. Melencio-Herrera, J., concur.

Separate Opinions PADILLA, J., concurring: I concur in the result of the learned decision penned by my brother Mr. Justice Paras. This means that I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy." It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy.

The courts, as the decision states, cannot inquire into the wisdom, morality or expediency of policies adopted by the political departments of government in areas which fall within their authority, except only when such policies pose a clear and present danger to the life, liberty or property of the individual. This case does not involve such a factual situation. However, I hasten to make of record that I do not subscribe to gambling in any form. It demeans the human personality, destroys self-confidence and eviscerates one's self-respect, which in the long run will corrode whatever is left of the Filipino moral character. Gambling has wrecked and will continue to wreck families and homes; it is an antithesis to individual reliance and reliability as well as personal industry which are the touchstones of real economic progress and national development. Gambling is reprehensible whether maintained by government or privatized. The revenues realized by the government out of "legalized" gambling will, in the long run, be more than offset and negated by the irreparable damage to the people's moral values. Also, the moral standing of the government in its repeated avowals against "illegal gambling" is fatally flawed and becomes untenable when it itself engages in the very activity it seeks to eradicate. One can go through the Court's decision today and mentally replace the activity referred to therein as gambling, which is legal only because it is authorized by law and run by the government, with the activity known asprostitution. Would prostitution be any less reprehensible were it to be authorized by law, franchised, and "regulated" by the government, in return for the substantial revenues it would yield the government to carry out its laudable projects, such as infrastructure and social amelioration? The question, I believe, answers itself. I submit that the sooner the legislative department outlaws all forms of gambling, as a fundamental state policy, and the sooner the executive implements such policy, the better it will be for the nation. Melencio-Herrera, J., concurs.

Co Kim Chan v Valdez Tan Keh


Posted on December 4, 2008 by danabatnag

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)

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 95770 December 29, 1995 ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents, MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father, AMOS TANTOG, JEMIL OYAO & JOEL OYAO, represented by their parents MR. & MRS. ELIEZER OYAO, JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. & MRS. GODOFREDO DIAMOS, SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS. FAUSTO OSTIA, IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO SEQUINO, NAPTHALE TUNACAO represented by his parents MR. & MRS. MANUEL TUNACAO PRECILA PINO represented by her parents MR. & MRS. FELIPE PINO, MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR, FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents ABDON ALFAR ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO ALFAR, MARTINO VILLAR, represented by their parents MR. & MRS. GENARO VILLAR, PERGEBRIEL GUINITA & CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA, ALVIN DOOP represented by his parents MR. & MRS. LEONIDES DOOP, RHILYN LAUDE represented by her parents MR. & MRS. RENE LAUDE, LEOREMINDA MONARES represented by her parents MR. & MRS. FLORENCIO MONARES, MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO, ROBERTO TANGAHA, represented by his parent ILUMINADA TANGAHA, EVELYN MARIA & FLORA TANGAHA represented by their parents MR. & MRS. ALBERTO TANGAHA, MAXIMO EBRALINAG represented by his parents MR. & MRS. PAQUITO EBRALINAG, JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented by their father RAFAEL CUMON, EVIE LUMAKANG and JUAN LUMAKANG, represented by their parents MR. & MRS. LUMAKANG, EMILIO SARSOZO & PAZ AMOR SARSOZO, & IGNA MARIE SARSOZO represented by their parents MR. & MRS. VIRGILIO SARSOZO, MICHAEL JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH, EMERSON TABLASON & MASTERLOU TABLASON, represented by their parents EMERLITO TABLASON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and MR. MANUEL F. BIONGCOG, Cebu District Supervisor, respondents. G.R. No. 95887 December 29, 1995 MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO, REDFORD ALSADO, JOEBERT ALSADO, & RUDYARD ALSADO represented by their parents MR. & MRS. ABELARDO ALSADO, NESIA ALSADO, REU ALSADO and LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO ALSADO, SUZETTE NAPOLES, represented by her parents ISMAILITO NAPOLES and OPHELIA NAPOLES, JESICA CARMELOTES, represented by her parents MR. & MRS. SERGIO CARMELOTES, BABY JEAN MACAPAS, represented by her parents MR. & MRS. TORIBIO MACAPAS, GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL ALSADO, RAQUEL DEMOTOR, and LEAH DEMOTOR, represented by their parents MR. & MRS. LEONARDO DEMOTOR, JURELL VILLA and MELONY VILLA, represented by their parents MR. & MRS. JOVENIANO VILLA, JONELL HOPE MAHINAY, MARY GRACE MAHINAY, and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY, JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIPE ANTIOLA and ANECITA ANTIOLA, MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO CABUYAO and ESTRELLITA CABUYAO, NOEMI

TURNO represented by her parents MANUEL TURNO and VEVENCIA TURNO, SOLOMON PALATULON, SALMERO PALATULON and ROSALINA PALATULON, represented by their parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and ANTONIO A. SANGUTAN, respondents. R E SO L U T I O N

KAPUNAN, J.: The State moves for a reconsideration of our decision dated March 1, 1993 granting private respondents' petition for certiorari and prohibition and annulling the expulsion orders issued by the public respondents therein on the ground that the said decision created an exemption in favor of the members of the religious sect, the Jehovah's Witnesses, in violation of the "Establishment Clause" of the Constitution. The Solicitor General, on behalf of the public respondent, furthermore contends that: The accommodation by this Honorable Court to a demand for special treatment in favor of a minority sect even on the basis of a claim of religious freedom may be criticized as granting preference to the religious beliefs of said sect in violation of the "non-establishment guarantee" provision of the Constitution. Surely, the decision of the Court constitutes a special favor which immunizes religious believers such as Jehovah's Witnesses to the law and the DECS rules and regulations by interposing the claim that the conduct required by law and the rules and regulation (sic) are violative of their religious beliefs. The decision therefore is susceptible to the very criticism that the grant of exemption is a violation of the "non-establishment" provision of the Constitution. Furthermore, to grant an exemption to a specific religious minority poses a risk of collision course with the "equal protection of the laws" clause in respect of the nonexempt, and, in public schools, a collision course with the "non-establishment guarantee." Additionally the public respondent insists that this Court adopt a "neutral stance" by reverting to its holding in Gerona declaring the flag as being devoid of any religious significance. He stresses that the issue here is not curtailment of religious belief but regulation of the exercise of religious belief. Finally, he maintains that the State's interests in the case at bench are constitutional and legal obligations to implement the law and the constitutional mandate to inculcate in the youth patriotism and nationalism and to encourage their involvement in public and civic affairs, referring to the test devised by the United States Supreme Court in U.S. vs. O'Brien. 1 II All the petitioners in the original case 2 were minor school children, and members of the sect, Jehovah's Witnesses (assisted by their parents) who were expelled from their classes by various public school authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955 and by Department Order No. 8, dated July 21, 1955 issued by the Department of Education. Aimed primarily at private educational institutions which did not observe the flag ceremony exercises, Republic Act No. 1265

penalizes all educational institutions for failure or refusal to observe the flag ceremony with public censure on first offense and cancellation of the recognition or permit on second offense. The implementing regulations issued by the Department of Education thereafter detailed the manner of observance of the same. Immediately pursuant to these orders, school officials in Masbate expelled children belonging to the sect of the Jehovah's Witnesses from school for failing or refusing to comply with the flag ceremony requirement. Sustaining these expulsion orders, this Court in the 1959 case of Gerona vs. Secretary of Education 3 held that: The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Considering the complete separation of church and state in our system of government, the flag is utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious ceremony. . . . After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and meanings to be given to a certain ritual or ceremony as there are religious groups or sects or followers. Upholding religious freedom as a fundamental right deserving the "highest priority and amplest protection among human rights," this Court, in Ebralinag vs. Division Superintendent of Schools of Cebu 4 re-examined our over two decades-old decision in Gerona and reversed expulsion orders made by the public respondents therein as violative of both the free exercise of religion clause and the right of citizens to education under the 1987 Constitution. 5 From our decision of March 1, 1993, the public respondents filed a motion for reconsideration on grounds hereinabove stated. After a careful study of the grounds adduced in the government's Motion For Reconsideration of our original decision, however, we find no cogent reason to disturb our earlier ruling. The religious convictions and beliefs of the members of the religious sect, the Jehovah's Witnesses are widely known and are equally widely disseminated in numerous books, magazines, brochures and leaflets distributed by their members in their house to house distribution efforts and in many public places. Their refusal to render obeisance to any form or symbol which smacks of idolatry is based on their sincere belief in the biblical injunction found in Exodus 20:4,5, against worshipping forms or idols other than God himself. The basic assumption in their universal refusal to salute the flags of the countries in which they are found is that such a salute constitutes an act of religious devotion forbidden by God's law. This assumption, while "bizarre" to others is firmly anchored in several biblical passages. 6 And yet, while members of Jehovah's Witnesses, on the basis of religious convictions, refuse to perform an act (or acts) which they consider proscribed by the Bible, they contend that such refusal should not be taken to indicate disrespect for the symbols of the country or evidence that they are wanting in patriotism and nationalism. They point out that as citizens, they have an excellent record as law abiding members of society even if they do not demonstrate their refusal to conform to the assailed orders by overt acts of conformity. On the contrary, they aver that they show their respect through less demonstrative methods manifesting their allegiance, by their simple obedience to the country's laws, 7 by not engaging in antigovernment activities of any kind, 8 and by paying their taxes

and dues to society as self-sufficient members of the community. 9 While they refuse to salute the flag, they are willing to stand quietly and peacefully at attention, hands on their side, in order not to disrupt the ceremony or disturb those who believe differently. 10 The religious beliefs, practices and convictions of the members of the sect as a minority are bound to be seen by others as odd and different and at divergence with the complex requirements of contemporary societies, particularly those societies which require certain practices as manifestations of loyalty and patriotic behavior. Against those who believe that coerced loyalty and unity are mere shadows of patriotism, the tendency to exact "a hydraulic insistence on conformity to majoritarian standards," 11 is seductive to the bureaucratic mindset as a shortcut to patriotism. No doubt, the State possesses what the Solicitor General describes as the responsibility "to inculcate in the minds of the youth the values of patriotism and nationalism and to encourage their involvement in public and civic affairs." The teaching of these values ranks at the very apex of education's "high responsibility" of shaping up the minds of the youth in those principles which would mold them into responsible and productive members of our society. However, the government's interest in molding the young into patriotic and civic spirited citizens is "not totally free from a balancing process" 12 when it intrudes into other fundamental rights such as those specifically protected by the Free Exercise Clause, the constitutional right to education and the unassailable interest of parents to guide the religious upbringing of their children in accordance with the dictates of their conscience and their sincere religious beliefs. 13 Recognizing these values, Justice Carolina Grino-Aquino, the writer of the original opinion, underscored that a generation of Filipinos which cuts its teeth on the Bill of Rights would find abhorrent the idea that one may be compelled, on pain of expulsion, to salute the flag sing the national anthem and recite the patriotic pledge during a flag ceremony. 14 "This coercion of conscience has no place in a free society". 15 The State's contentions are therefore, unacceptable, for no less fundamental than the right to take part is the right to stand apart. 16 In the context of the instant case, the freedom of religion enshrined in the Constitution should be seen as the rule, not the exception. To view the constitutional guarantee in the manner suggested by the petitioners would be to denigrate the status of a preferred freedom and to relegate it to the level of an abstract principle devoid of any substance and meaning in the lives of those for whom the protection is addressed. As to the contention that the exemption accorded by our decision benefits a privileged few, it is enough to re-emphasize that "the constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity." 17 The essence of the free exercise clause is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. 18 Moreover, the suggestion implicit in the State's pleadings to the effect that the flag ceremony requirement would be equally and evenly applied to all citizens regardless of sect or religion and does not thereby discriminate against any particular sect or denomination escapes the fact that "[a] regulation, neutral on its face, may in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." 19 III The ostensible interest shown by petitioners in preserving the flag as the symbol of the nation appears to be integrally related to petitioner's disagreement with the message conveyed by the refusal of members of the Jehovah's Witness sect to salute the flag or participate actively in flag ceremonies on religious grounds. 20 Where the governmental interest clearly appears to be unrelated to the suppression of an idea, a religious doctrine or practice or an expression or form of expression, this Court will not find it difficult to sustain a regulation. However, regulations involving this area are generally held against the most exacting standards, and the zone of protection

accorded by the Constitution cannot be violated, except upon a showing of a clear and present danger of a substantive evil which the state has a right to protect. 21 Stated differently, in the case of a regulation which appears to abridge a right to which the fundamental law accords high significance it is the regulation, not the act (or refusal to act), which is the exception and which requires the court's strictest scrutiny. In the case at bench, the government has not shown that refusal to do the acts of conformity exacted by the assailed orders, which respondents point out attained legislative cachet in the Administrative Code of 1987, would pose a clear and present danger of a danger so serious and imminent, that it would prompt legitimate State intervention. In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court held that the "State's asserted interest in preserving the fag as a symbol of nationhood and national unity was an interest related to the suppression of free expression . . . because the State's concern with protecting the flag's symbolic meaning is implicated only when a person's treatment of the flag communicates some message. 22 While the very concept of ordered liberty precludes this Court from allowing every individual to subjectively define his own standards on matters of conformity in which society, as a whole has important interests, the records of the case and the long history of flag salute cases abundantly supports the religious quality of the claims adduced by the members of the sect Jehovah's Witnesses. Their treatment of flag as a religious symbol is well-founded and welldocumented and is based on grounds religious principle. The message conveyed by their refusal to participate in the flag ceremony is religious, shared by the entire community of Jehovah's Witnesses and is intimately related to their theocratic beliefs and convictions. The subsequent expulsion of members of the sect on the basis of the regulations assailed in the original petitions was therefore clearly directed against religious practice. It is obvious that the assailed orders and memoranda would gravely endanger the free exercise of the religious beliefs of the members of the sect and their minor children. Furthermore, the view that the flag is not a religious but a neutral, secular symbol expresses a majoritarian view intended to stifle the expression of the belief that an act of saluting the flag might sometimes be to some individuals so offensive as to be worth their giving up another constitutional right the right to education. Individuals or groups of individuals get from a symbol the meaning they put to it. 23 Compelling members of a religious sect to believe otherwise on the pain of denying minor children the right to an education is a futile and unconscionable detour towards instilling virtues of loyalty and patriotism which are best instilled and communicated by painstaking and non-coercive methods. Coerced loyalties, after all, only serve to inspire the opposite. The methods utilized to impose them breed resentment and dissent. Those who attempt to coerce uniformity of sentiment soon find out that the only path towards achieving unity is by way of suppressing dissent. 24 In the end, such attempts only find the "unanimity of the graveyard." 25 To the extent to which members of the Jehovah's Witnesses sect assiduously pursue their belief in the flag's religious symbolic meaning, the State cannot, without thereby transgressing constitutionally protected boundaries, impose the contrary view on the pretext of sustaining a policy designed to foster the supposedly far-reaching goal of instilling patriotism among the youth. While conceding to the idea adverted to by the Solicitor General that certain methods of religious expression may be prohibited 26 to serve legitimate societal purposes, refusal to participate in the flag ceremony hardly constitutes a form of religious expression so offensive and noxious as to prompt legitimate State intervention. It is worth repeating that the absence of a demonstrable danger of a kind which the State is empowered to protect militates against the extreme disciplinary methods undertaken by school authorities in trying to enforce regulations designed to compel attendance in flag ceremonies. Refusal of the children to participate in the flag salute ceremony would not interfere with or deny the rights of other school children to do so. It bears repeating that their absence from the ceremony hardly constitutes a danger so grave and imminent as to warrant the state's intervention.

Finally, the respondents' insistence on the validity of the actions taken by the government on the basis of their averment that "a government regulation of expressive conduct is sufficiently justified if it is within the constitutional power of the government (and) furthers an important and substantial government interest" 27 misses the whole point of the test devised by the United States Supreme Court in O'Brien, cited by respondent, because the Court therein was emphatic in stating that "the government interest (should be) unrelated to the suppression of free expression." We have already stated that the interest in regulation in the case at bench was clearly related to the suppression of an expression directly connected with the freedom of religion and that respondents have not shown to our satisfaction that the restriction was prompted by a compelling interest in public order which the state has a right to protect. Moreover, if we were to refer (as respondents did by referring to the test in O'Brien) to the standards devised by the US Supreme Court in determining the validity or extent of restrictive regulations impinging on the freedoms of the mind, then the O'Brien standard is hardly appropriate because the standard devised in O'Brien only applies if the State's regulation is not related to communicative conduct. If a relationship exists, a more demanding standard is applied. 28 The responsibility of inculcating the values of patriotism, nationalism, good citizenship, and moral uprightness is a responsibility shared by the State with parents and other societal institutions such as religious sects and denominations. The manner in which such values are demonstrated in a plural society occurs in ways so variable that government cannot make claims to the exclusivity of its methods of inculcating patriotism so all-encompassing in scope as to leave no room for appropriate parental or religious influences. Provided that those influences do not pose a clear and present danger of a substantive evil to society and its institutions, expressions of diverse beliefs, no matter how upsetting they may seem to the majority, are the price we pay for the freedoms we enjoy. WHEREFORE, premises considered, the instant Motion is hereby DENIED. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Francisco and Hermosisima, Jr., JJ., concur. Panganiban, J., took no part. Padilla, J., I reiterate my Separate Opinion in G.R. No. 95770 (Ebralinag vs. The Division Superintendent of Schools of Cebu), 1 March 1993, 219 SCRA 276.

Separate Opinions

MENDOZA, J., concurring: The value of the national flag as a symbol of national unity is not in question in this case. The issue rather is whether it is permissible to compel children in the Nation's schools to salute the flag as a

means of promoting nationhood considering that their refusal to do so is grounded on a religious belief. Compulsory flag salute lies in a continuum, at one end of which is the obligation to pay taxes and, at the other, a compulsion to bow down before a graven image. Members of a religious sect cannot refuse to pay taxes, 1 render military service, 2 submit to vaccination 3 or give their children elementary school education 4 on the ground of conscience. But public school children may not be compelled to attend religious instruction 5 or recite prayers or join in bible reading before the opening of classes in such schools. 6 In determining the validity of compulsory flag salute, we must determine which of these polar principles exerts a greater pull. The imposition of taxes is justified because, unless support for the government can be exacted, the existence of the State itself may well be endangered. The compulsory vaccination of children is justified because unless the State can compel compliance with vaccination program there is danger that a disease will spread. But unlike the refusal to pay taxes or to submit to compulsory vaccination, the refusal to salute the flag threatens no such dire consequences to the life or health of the State. Consequently, there is no compelling reason for resorting to compulsion or coercion to achieve the purpose for which flag salute is instituted. Indeed schools are not like army camps where the value of discipline justifies requiring a salute to the flag. Schools are places where diversity and spontaneity are valued as much as personal discipline is. They are places for the nurturing of ideals and values, not through compulsion or coercion but through persuasion, because thought control is a negation of the very values which the educational system seeks to promote. Persuasion and not persecution is the means for winning the allegiance of free men. That is why the Constitution provides that the development of moral character and the cultivation of civic spirit are to be pursued through education that includes a study of the Constitution, an appreciation of the role of national heroes in historical development, teaching the rights and duties of citizenship and, at the option of parents and guardians, religious instruction to be taught by instructors designated by religious authorities of the religion to which they belong. It is noteworthy that while the Constitution provides for the national flag, 7 it does not give the State the power to compel a salute to the flag. On the other hand, compelling flag salute cannot be likened to compelling members of a religious sect to bow down before a graven image. The flag is not an image but a secular symbol. To regard it otherwise because a religious minority regards it so would be to put in question many regulations that the State may constitutionally enact or measures which it may adopt to promote civic virtues which the Constitution itself enjoins the State to promote. 8 It trivializes great principles to assimilate compulsory flag salute to a form of command to worship strange idols not only because the flag is not a religious symbol but also because the salute required involves nothing more than standing at attention or placing one's right hand over the right breast as the National Anthem is played and of raising the right hand as the following pledge is recited: Ako'y nanunumpang magtatapat sa watawat ng Pilipinas at sa Republikang kanyang kinakatawan isang bansang nasa kalinga ng Dios buo at hindi mahahati, na may kalayaan at katarungan para sa lahat. (I pledge allegiance to the flag and to the nation for which it stands one nation under God indivisible, with liberty and justice for all.) In sum compulsory flag salute violates the Constitution not because the aim of the exercise is doubtful but because the means employed for accomplishing it is not permitted. Legitimate ends

cannot be pursued by methods which violate fundamental freedoms when the ends may be achieved by rational ones. For this reason I join in holding that compulsory flag salute is unconstitutional.

Separate Opinions MENDOZA, J., concurring: The value of the national flag as a symbol of national unity is not in question in this case. The issue rather is whether it is permissible to compel children in the Nation's schools to salute the flag as a means of promoting nationhood considering that their refusal to do so is grounded on a religious belief. Compulsory flag salute lies in a continuum, at one end of which is the obligation to pay taxes and, at the other, a compulsion to bow down before a graven image. Members of a religious sect cannot refuse to pay taxes, 1 render military service, 2 submit to vaccination 3 or give their children elementary school education 4 on the ground of conscience. But public school children may not be compelled to attend religious instruction 5 or recite prayers or join in bible reading before the opening of classes in such schools. 6 In determining the validity of compulsory flag salute, we must determine which of these polar principles exerts a greater pull. The imposition of taxes is justified because, unless support for the government can be exacted, the existence of the State itself may well be endangered. The compulsory vaccination of children is justified because unless the State can compel compliance with vaccination program there is danger that a disease will spread. But unlike the refusal to pay taxes or to submit to compulsory vaccination, the refusal to salute the flag threatens no such dire consequences to the life or health of the State. Consequently, there is no compelling reason for resorting to compulsion or coercion to achieve the purpose for which flag salute is instituted. Indeed schools are not like army camps where the value of discipline justifies requiring a salute to the flag. Schools are places where diversity and spontaneity are valued as much as personal discipline is. They are places for the nurturing of ideals and values, not through compulsion or coercion but through persuasion, because thought control is a negation of the very values which the educational system seeks to promote. Persuasion and not persecution is the means for winning the allegiance of free men. That is why the Constitution provides that the development of moral character and the cultivation of civic spirit are to be pursued through education that includes a study of the Constitution, an appreciation of the role of national heroes in historical development, teaching the rights and duties of citizenship and, at the option of parents and guardians, religious instruction to be taught by instructors designated by religious authorities of the religion to which they belong. It is noteworthy that while the Constitution provides for the national flag, 7 it does not give the State the power to compel a salute to the flag. On the other hand, compelling flag salute cannot be likened to compelling members of a religious sect to bow down before a graven image. The flag is not an image but a secular symbol. To regard it otherwise because a religious minority regards it so would be to put in question many regulations that the State may constitutionally enact or measures which it may adopt to promote civic virtues which the Constitution itself enjoins the State to promote. 8

It trivializes great principles to assimilate compulsory flag salute to a form of command to worship strange idols not only because the flag is not a religious symbol but also because the salute required involves nothing more than standing at attention or placing one's right hand over the right breast as the National Anthem is played and of raising the right hand as the following pledge is recited: Ako'y nanunumpang magtatapat sa watawat ng Pilipinas at sa Republikang kanyang kinakatawan isang bansang nasa kalinga ng Dios buo at hindi mahahati, na may kalayaan at katarungan para sa lahat. (I pledge allegiance to the flag and to the nation for which it stands one nation under God indivisible, with liberty and justice for all.) In sum compulsory flag salute violates the Constitution not because the aim of the exercise is doubtful but because the means employed for accomplishing it is not permitted. Legitimate ends cannot be pursued by methods which violate fundamental freedoms when the ends may be achieved by rational ones. For this reason I join in holding that compulsory flag salute is unconstitutional. Footnotes 1 "To this end," the motion states, "a government regulation of expressive religious conduct which debases the constitutional mandate for citizenship training is justifiable. As succinctly outlined in one U.S. case: A government regulation of expressive conduct is sufficiently justified if it is within the Constitutional power of this government; it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression and if the incidental restriction on alleged First Amendment freedom is greater than is essential to the furtherance of that interest. (United States v. O'Brien, 391 U.S. 367)" 2 G.R. No. 95770, and G.R. No. 95887 March 1, 1993. 219 SCRA 256 (1993). 3 106 Phil. 2 (1959). 4 Supra, note 2. 5 Id., at 272-273 (1993). 6 See, for e.g. Daniel 3: 1-30. 7 Rollo, p. 8. 8 Id. 9 Id. 10 Rollo, p. 10.

11 State of Wisconsin v. Yoder 40 LW 4476 (1972). 12 Id. 13 Id., See also, Pierce v. Society of Sisters 268 U.S. 510, 534 (1925). 14 Ebralinag, supra, at 270. 15 Id., at 275, Cruz J. (Concurring). 16 L. TRIBE, GOD SAVE THIS HONORABLE COURT: HOW THE CHOICE OF SUPREME COURT JUSTICES SHAPES OUR HISTORY, 31 (1985). 17 See supra note 15, citing Justice Frankfurter. 18 Id. 19 Sherbert v. Verner, 374 U.S. 398 (1963). 20 For instance, the Motion for Reconsideration characterizes the practices and observations of the sect as "bizarre," Rollo, p. 229, "seditious" Id., p. 240 and "anti-social" Id. (emphasis supplied). In making these points, the Motion makes this tongue-in-cheek observation. "Because of their religious conviction that they" are not part of this world, and being allegedly concerned "about the adverse effect that the world's influence can have on our children", the Jehovah's Witnesses ask that their children . . . be exempted from participating in almost all school activities and social function (sic) which, as they pointed out below are contrary to Bible (sic) principles. Id. The statement, "not part of this world" was deliberately taken out of context. Here is what the paragraph from the sect's manual says: As one might expect, this view of the future also had a significant effect on the first Christians. It caused them to be a distinctive people, separate from the world. As the historian E.G. Hardy noted in his book Christianity and the Roman Government: "The Christians were strangers and pilgrims in the world around them; their citizenship was in heaven; the kingdom to which they looked was not part of this world. The consequent want of interest in public affairs came thus from the outset to be a noticeable feature in Christianity. Annex "B", p. 7. 21 West Virginia v. Barnette 319 US 624, at 339 (1942). 22 U.S. v. Eichman 496 US 310, 313; 110 L ed 2d 287 (1990). 23 Supra, note 4. 24 Id., at 640. 25 Id., at 641. "Recognizing that the right to differ is the centerpiece of our First Amendment . . . a government cannot mandate by fiat a feeling of unity

in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent." See, Texas v. Johnson, 491 US 397 at 400 (1989). 26 Raising the "Children of God" caper, the Solicitor General's brief states: How about the Children of God, also known as Future Visions of Family which engages in free love and sex sharing among its members by way of obedience to the biblical injunction "to love your neighbor and love yourself" as interpreted by its founder, Moses David Berg, through his writings entitled "The Law of Love" and "Growing in Faith." Despite the crusades of Cardinal Sin and the Aquino government, this self-styled sex cult has gain (sic) foothold and spread in numbers in this country, offering free sex, cutely termed as "flirty fishing to win people for the Lord." Will this Honorable Court also recognize and allow their communal free love and sex orgies to continue unabated as part of their religious belief and protected by their constitutional right of freedom of religion, thereby sideswiping the present Government's program to prevent the spread of venereal diseases and the dreaded AIDS through the use of condoms?" Rollo, p. 245. 27 Supra, note 1. 28 Referring to the test devised in O'Brien the U.S. Supreme Court in Texas v. Johnson, supra, held: We must first determine whether Johnson's burning of the flag constituted expressive conduct permitting him to invoke the First Amendment in challenging his conviction. If his conduct was expressive, we next decide whether the State's regulation is related to the suppression of free expression. If the state's regulation is not related to expression, then the less stringent standard we announced in United States vs. O'Brien for regulations of noncommunicative conduct controls. If it is then we are outside O'Brien's test, and we must ask whether this interest justifies Johnson's conviction under a more demanding standard. Id., at 403. MENDOZA, J., concurring: 1 United States v. Lee, 455 U.S. 25 (1982). 2 Gillette v. United States, 401 U.S. 437 (1971); Hamilton v. Regents of the University of California, 293 U.S. 245 (1934). Cf. People v. Lagman and People v. Sosa, 66 Phil. 13 (1938). 3 Jacobson v. Massachusetts, 197 U.S. 11 (1904); People v. Abad Lopez, 62 Phil. 835 (1936); Lorenzo v. Director, 50 Phil. 595 (1927). 4 Wisonsin v. Yoder, 406 U.S. 205 (1972). PHIL. CONST., Art. XIV, 2(2) provides that "elementary education is compulsory for all children of school age." 5 Art. XIV, 3 (3) only provides "for optional religious instruction on public elementary and high education is compulsory for all children of school age."

6 Engel v. Vitale, 307 U.S. 421 (1962); Abington School Dist. v. Schempp, 374 U.S. 203 (1963);cf. Wallace v. Jaffree, 472 U.S. 38 (1985). 7 CONST., Art. XVI, 1. 8 See Art. II, 13; Art. XIV, 3(2).

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 118910 November 16, 1995 KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO TAADA, REP. JOKER P. ARROYO, petitioners, vs. MANUEL L. MORATO, in his capacity as Chairman of the Philippine Charity Sweepstakes Office, and the PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents. RESOLUTION

MENDOZA, J.: Petitioners seek reconsideration of our decision in this case. They insist that the decision in the first case has already settled (1) whether petitioner Kilosbayan, Inc. has a standing to sue and (2) whether under its charter (R.A. No. 1169, as amended) the Philippine Charity Sweepstakes Office can enter into any form of association or collaboration with any party in operating an on-line lottery. Consequently, petitioners contend, these questions can no longer be reopened. Because two members of the Court did not consider themselves bound by the decision in the first case, petitioners suggest that the two, in joining the dissenters in the first case in reexamining the questions in the present case, acted otherwise than according to law. They cite the following statement in the opinion of the Court: The voting on petitioners' standing in the previous case was a narrow one, with seven (7) members sustaining petitioners' standing and six (6) denying petitioners' right to bring the suit. The majority was thus a tenuous one that is not likely to be maintained in any subsequent litigation. In addition, there have been changes in the membership of the Court, with the retirement of Justices Cruz and Bidin and the

appointment of the writer of this opinion and Justice Francisco. Given this fact it is hardly tenable to insist on the maintenance of the ruling as to petitioners' standing. Petitioners claim that this statement "conveys a none too subtle suggestion, perhaps a Freudian slip, that the two new appointees, regardless of the merit of the Decision in the first Kilosbayan case against the lotto (Kilosbayan, et al. v. Guingona, 232 SCRA 110 (1994)) must of necessity align themselves with all the Ramos appointees who were dissenters in the first case and constitute the new majority in the second lotto case." And petitioners ask, "why should it be so?" Petitioners ask a question to which they have made up an answer. Their attempt at psychoanalysis, detecting a Freudian slip where none exists, may be more revealing of their own unexpressed wish to find motives where there are none which they can impute to some members of the Court. For the truth is that the statement is no more than an effort to explain rather than to justify the majority's decision to overrule the ruling in the previous case. It is simply meant to explain that because the five members of the Court who dissented in the first case (Melo, Quiason, Puno, Vitug and Kapunan, JJ.) and the two new members (Mendoza and Francisco, JJ.) thought the previous ruling to be erroneous and its reexamination not to be barred by stare decisis, res judicata or conclusiveness of judgment, or law of the case, it was hardly tenable for petitioners to insist on the first ruling. Consequently to petitioners' question "What is the glue that holds them together," implying some ulterior motives on the part of the new majority in reexamining the two questions, the answer is: None, except a conviction on the part of the five, who had been members of the Court at the time they dissented in the first case, and the two new members that the previous ruling was erroneous. The eighth Justice (Padilla, J.) on the other hand agrees with the seven Justices that the ELA is in a real sense a lease agreement and therefore does not violate R.A. No. 1169. The decision in the first case was a split decision: 7-6. With the retirement of one of the original majority (Cruz, J.) and one of the dissenters (Bidin, J.) it was not surprising that the first decision in the first case was later reversed. It is argued that, in any case, a reexamination of the two questions is barred because the PCSO and the Philippine Gaming Management Corporation made a " formal commitment not to ask for a reconsideration of the Decision in the first lotto case and instead submit a new agreement that would be in conformity with the PCSO Charter (R.A. No. 1169, as amended) and with the Decision of the Supreme Court in the first Kilosbayan case against on-line, hi-tech lotto." To be sure, a new contract was entered into which the majority of the Court finds has been purged of the features which made the first contract objectionable. Moreover, what the PCSO said in its manifestation in the first case was the following: 1. They are no longer filing a motion for reconsideration of the Decision of this Honorable Court dated May 5, 1994, a copy of which was received on May 6, 1994. 2. Respondents PCSO and PGMC are presently negotiating a new lease agreement consistent with the authority of PCSO under its charter (R.A. No. 1169, as amended by B.P. Blg. 42) and conformable with the pronouncements of this Honorable Court in its Decision of May 5, 1995. The PGMC made substantially the same manifestation as the PCSO.

There was thus no "formal commitment" but only a manifestation that the parties were not filing a motion for reconsideration. Even if the parties made a "formal commitment," the six (6) dissenting Justices certainly could not be bound thereby not to insist on their contrary view on the question of standing. Much less were the two new members bound by any "formal commitment" made by the parties. They believed that the ruling in the first case was erroneous. Since in their view reexamination was not barred by the doctrine of stare decisis, res judicata or conclusiveness of judgment or law of the case, they voted the way they did with the remaining five (5) dissenters in the first case to form a new majority of eight. Petitioners ask, "Why should this be so?" Because, as explained in the decision, the first decision was erroneousand no legal doctrine stood in the way of its reexamination. It can, therefore, be asked "with equal candor": "Why should this not be so?" Nor is this the first time a split decision was tested, if not reversed, in a subsequent case because of change in the membership of a court. In 1957, this Court, voting 6-5, held in Feliciano v. Aquinas, G.R. No. L-10201, Sept. 23, 1957 that the phrase "at the time of the election" in 2174 of the Revised Administrative Code of 1917 meant that a candidate for municipal elective position must be at least 23 years of age on the date of the election. On the other hand, the dissenters argued that it was enough if he attained that age on the day he assumed office. Less than three years later, the same question was before the Court again, as a candidate for municipal councilor stated under oath in her certificate of candidacy that she was eligible for that position although she attained the requisite age (23 years) only when she assumed office. The question was whether she could be prosecuted for falsification. In People v. Yang, 107 Phi. 888 (1960), the Court ruled she could not. Justice, later Chief Justice, Benison, who dissented in the first case, Feliciano v. Aquinas, supra, wrote the opinion of the Court, holding that while the statement that the accused was eligible was "inexact or erroneous, according to the majority in the Feliciano case," the accused could not be held liable for falsification, because the question [whether the law really required candidates to have the required age on the day of the election or whether it was sufficient that they attained it at the beginning of the term of office] has not been discussed anew, despite the presence of new members; we simply assume for the purpose of this decision that the doctrine stands. Thus because in the meantime there had been a change in the membership of the Court with the retirement of two members (Recess and Flex, JJ.) who had taken part in the decision in the first case and their replacement by new members (Barrera and Gutierrez-David, JJ.) and the fact that the vote in the first case was a narrow one (6 to 5), the Court allowed that the continuing validity of its ruling in the first case might well be doubted. For this reason it gave the accused the benefit of the doubt that she had acted in the good faith belief that it was sufficient that she was 23 years of age when she assumed office. In that case, the change in the membership of the Court and the possibility of change in the ruling were noted without anyone much less would-be psychoanalysts finding in the statement of the Court any Freudian slip. The possibility of change in the rule as a result of change in membership was accepted as a sufficient reason for finding good faith and lack of criminal intent on the part of the accused. Indeed, a change in the composition of the Court could prove the means of undoing an erroneous decision. This was the lesson of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender Acts, which were passed during the Civil War, made U.S. notes (greenbacks) legal tender for the payment of

debts, public or private, with certain exceptions. The validity of the acts, as applied to preexisting debts, was challenged in Hepburn v. Griswold, 8 Wall. 603 (1869). The Court was then composed of only eight (8) Justices because of Congressional effort to limit the appointing power of President Johnson. Voting 5-3, the Court declared the acts void. Chief Justice Chase wrote the opinion of the Court in which four others, including Justice Grier, concurred. Justices Miller, Swayne and Davis dissented. A private memorandum left by the dissenting Justices described how an effort was made "to convince an aged and infirm member of the court [Justice Grier] that he had not understood the question on which he voted," with the result that what was originally a 4-4 vote was converted into a majority (5-3) for holding the acts invalid. On the day the decision was announced, President Grant nominated to the Court William Strong and Joseph P. Bradley to fill the vacancy caused by the resignation of Justice Grier and to restore the membership of the Court to nine. In 1871, Hepburn v. Griswold was overruled in the Legal Tender Cases, as Knox v. Lee came to be known, in an opinion by Justice Strong, with a dissenting opinion by Chief Justice Chase and the three other surviving members of the former majority. There were allegations that the new Justices were appointed for their known views on the validity of the Legal Tender Acts, just as there were others who defended the character and independence of the new Justices. History has vindicated the overruling of the Hepburn case by the new majority. The Legal Tender Cases proved to be the Court's means of salvation from what Chief Justice Hughes later described as one of the Court's "self-inflicted wounds." 1 We now consider the specific grounds for petitioners' motion for reconsideration. I. We have held that because there are no genuine issues of constitutionality in this case, the rule concerning real party in interest, applicable to private litigation rather than the more liberal rule on standing, applies to petitioners. Two objections are made against that ruling: (1) that the constitutional policies and principles invoked by petitioners, while not supplying the basis for affirmative relief from the courts, may nonetheless be resorted to for striking down laws or official actions which are inconsistent with them and (2) that the Constitution, by guaranteeing to independent people's organizations "effective and reasonable participation at all levels of social, political and economic decision-making" (Art. XIII, 16), grants them standing to sue on constitutional grounds. The policies and principles of the Constitution invoked by petitioner read: Art. II, 5. The maintenance of peace and order, the protection life, liberty, and property, and thepromotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. Id., 12. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Id., 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. Id., 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

As already stated, however, these provisions are not self-executing. They do not confer rights which can be enforced in the courts but only provide guidelines for legislative or executive action. By authorizing the holding of lottery for charity, Congress has in effect determined that consistently with these policies and principles of the Constitution, the PCSO may be given this authority. That is why we said with respect to the opening by the PAGCOR of a casino in Cagayan de Oro, "the morality of gambling is not a justiciable issue. Gambling is not illegalper se. . . . It is left to Congress to deal with the activity as it sees fit." (Magtajas v. Pryce Properties Corp., Inc., 234 SCRA 255, 268 [1994]). It is noteworthy that petitioners do not question the validity of the law allowing lotteries. It is the contract entered into by the PCSO and the PGMC which they are assailing. This case, therefore, does not raise issues of constitutionality but only of contract law, which petitioners, not being privies to the agreement, cannot raise. Nor does Kilosbayan's status as a people's organization give it the requisite personality to question the validity of the contract in this case. The Constitution provides that "the State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means," that their right to "effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged." (Art. XIII, 15-16) These provisions have not changed the traditional rule that only real parties in interest or those with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving constitutional questions, is limited by the "case and controversy" requirement of Art. VIII, 5. This requirement lies at the very heart of the judicial function. It is what differentiates decision-making in the courts from decision-making in the political departments of the government and bars the bringing of suits by just any party. Petitioners quote extensively from the speech of Commissioner Garcia before the Constitutional Commission, explaining the provisions on independent people's organizations. There is nothing in the speech, however, which supports their claim of standing. On the contrary, the speech points the way to the legislative and executive branches of the government, rather than to the courts, as the appropriate fora for the advocacy of petitioners' views. 2 Indeed, the provisions on independent people's organizations may most usefully be read in connection with the provision on initiative and referendum as a means whereby the people may propose or enact laws or reject any of those passed by Congress. For the fact is that petitioners' opposition to the contract in question is nothing more than an opposition to the government policy on lotteries. It is nevertheless insisted that this Court has in the past accorded standing to taxpayers and concerned citizens in cases involving "paramount public interest." Taxpayers, voters, concerned citizens and legislators have indeed been allowed to sue but then only (1) in cases involving constitutional issues and (2) under certain conditions. Petitioners do not meet these requirements on standing. Taxpayers are allowed to sue, for example, where there is a claim of illegal disbursement of public funds. (Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Comelec, 73 SCRA 333 (1976); Bugnay Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325 [1972]) or where a tax measure is assailed as unconstitutional. (VAT Cases [Tolentino v. Secretary of Finance], 235 SCRA 630 [1994])Voters are allowed to question the validity of election laws because of their obvious interest in the validity of such laws. (Gonzales v. Comelec, 21 SCRA 774 [1967]) Concerned citizens can bring suits if the constitutional question they raise is of "transcendental importance" which must be settled early. (Emergency Powers Cases [Araneta v. Dinglasan], 84 Phi. 368 (1949); Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121 Phi. 358

(1965); Philconsa v. Gimenez, 122 Phi. 894 (1965); CLU v. Executive Secretary, 194 SCRA 317 [1991]) Legislators are allowed to sue to question the validity of any official action which they claim infringes their prerogatives qua legislators. (Philconsa v. Enriquez, 235 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452 (1990); Tolentino v. Comelec, 41 SCRA 702 (1971); Tatad v. Garcia, G.R. No. 114222, April 16, 1995 (Mendoza,J., concurring)) Petitioners do not have the same kind of interest that these various litigants have. Petitioners assert an interest as taxpayers, but they do not meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v.Comelec, 95 SCRA 392, 403 (1980), to wit: While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. (Emphasis added) Petitioners' suit does not fall under any of these categories of taxpayers' suits. Neither do the other cases cited by petitioners support their contention that taxpayers have standing to question government contracts regardless of whether public funds are involved or not. In Gonzales v. National Housing, Corp., 94 SCRA 786 (1979), petitioner filed a taxpayer's suit seeking the annulment of a contract between the NHC and a foreign corporation. The case was dismissed by the trial court. The dismissal was affirmed by this Court on the grounds of res judicata and pendency of a prejudicial question, thus avoiding the question of petitioner's standing. On the other hand, in Gonzales v. Raquiza, 180 SCRA 254 (1989), petitioner sought the annulment of a contract made by the government with a foreign corporation for the purchase of road construction equipment. The question of standing was not discussed, but even if it was, petitioner's standing could be sustained because he was a minority stockholder of the Philippine National Bank, which was one of the defendants in the case. In the other case cited by petitioners, City Council of Cebu v. Cuizon, 47 SCRA 325 (1972), members of the city council were allowed to sue to question the validity of a contract entered into by the city government for the purchase of road construction equipment because their contention was that the contract had been made without their authority. In addition, as taxpayers they had an interest in seeing to it that public funds were spent pursuant to an appropriation made by law. But, in the case at bar, there is an allegation that public funds are being misapplied or misappropriated. The controlling doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975) where it was held that funds raised from contributions for the benefit of the Cultural Center of the Philippines were not public funds and petitioner had no standing to bring a taxpayer's suit to question their disbursement by the President of the Philippines.

Thus, petitioners' right to sue as taxpayers cannot be sustained. Nor as concerned citizens can they bring this suit because no specific injury suffered by them is alleged. As for the petitioners, who are members of Congress, their right to sue as legislators cannot be invoked because they do not complain of any infringement of their rights as legislators. Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22, 1987, we threw out a petition questioning another form of lottery conducted by the PCSO on the ground that petitioner, who claimed to be a "citizen, lawyer, taxpayer and father of three minor children," had no direct and personal interest in the lottery. We said: "He must be able to show, not only that the law is invalid, but also that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute complained of." In the case at bar, petitioners have not shown why, unlike petitioner in the Valmonte case, they should be accorded standing to bring this suit. The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is different. Citizens' standing to bring a suit seeking the cancellation of timber licenses was sustained in that case because the Court considered Art. II, 16 a right-conferring provision which can be enforced in the courts. That provision states: The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. (Emphasis) In contrast, the policies and principles invoked by petitioners in this case do not permit of such categorization. Indeed, as already stated, petitioners' opposition is not really to the validity of the ELA but to lotteries which they regard to be immoral. This is not, however, a legal issue, but a policy matter for Congress to decide and Congress has permitted lotteries for charity. Nevertheless, although we have concluded that petitioners do not have standing, we have not stopped there and dismissed their case. For in the view we take, whether a party has a cause of action and, therefore, is a real party in interest or one with standing to raise a constitutional question must turn on whether he has a right which has been violated. For this reason the Court has not ducked the substantive issues raised by petitioners. II. R.A. No. 1169, as amended by B.P No . 42, states: 1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office, hereinafter designated the Office, shall be the principal government agency for raising and providing for funds for health programs, medical assistance and services and charities of national character, and as such shall have the general powers conferred in section thirteen of Act Numbered One Thousand Four Hundred Fifty-Nine, as amended, and shall have the authority: A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such frequency and manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board of Directors. B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfare-related investments, programs, projects and activities which may be

profit-oriented, by itself or in collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign, except for the activities mentioned in the preceding paragraph (A), for the purpose of providing for permanent and continuing sources of funds for health programs, including the expansion of existing ones, medical assistance and services, and/or charitable grants: Provided, That such investments will not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority. Petitioners insist on the ruling in the previous case that the PCSO cannot hold and conduct charity sweepstakes, lotteries and other similar activities in collaboration, association or joint venture with any other party because of the clause "except for the activities mentioned in the preceding paragraph (A)" in paragraph (B) of 1. Petitioners contend that the ruling is the law of this case because the parties are the same and the case involves the same issue, i.e., the meaning of this statutory provision. The "law of the case" doctrine is inapplicable, because this case is not a continuation of the first one. Petitioners also say that inquiry into the same question as to the meaning of the statutory provision is barred by the doctrine of res judicata. The general rule on the "conclusiveness of judgment," however, is subject to the exception that a question may be reopened if it is a legal question and the two actions involve substantially different claims. This is generally accepted in American law from which our Rules of Court was adopted. (Montana v. United States, 440 U.S. 59 L.Ed.2d 147, 210 (1979); RESTATEMENT OF THE LAW 2d, ON JUDGMENTS, 28; P. BATOR, D. MELTZER, P. MISHKIN AND D. SHAPIRO, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There is nothing in the record of this case to suggest that this exception is inapplicable in this jurisdiction. Indeed, the questions raised in this case are legal questions and the claims involved are substantially different from those involved in the prior case between the parties. As already stated, the ELA is substantially different from the Contract of Lease declared void in the first case. Borrowing from the dissenting opinion of Justice Feliciano, petitioners argue that the phrase "by itself or in collaboration, association or joint venture with any other party" qualifies not only 1 (B) but also 1 (A), because the exception clause ("except for the activities mentioned in the preceding paragraph [A]") "operates, as it were, as a renvoi clause which refers back to Section 1(A) and in this manner avoids the necessity of simultaneously amending the text of Section 1(A)." This interpretation, however, fails to take into account not only the location of the phrase in paragraph (B), when it should be in paragraph (A) had that been the intention of the lawmaking authority, but also the phrase "by itself." In other words, under paragraph (B), the PCSO is prohibited from "engag[ing] in . . . investments, programs, projects and activities" if these involve sweepstakes races, lotteries and other similar activities not only "in collaboration, association or joint venture" with any other party but also "by itself." Obviously, this prohibition cannot apply when the PCSO conducts these activities itself. Otherwise, what paragraph (A) authorizes the PCSO to do, paragraph (B) would prohibit. The fact is that the phrase in question does not qualify the authority of the PCSO under paragraph (A), but rather the authority granted to it by paragraph (B). The amendment of paragraph (B) by B.P. Blg. 42 was intended to enable the PCSO to engage in certain investments, programs, projects and activities for the purpose of raising funds for health programs and charity. That is why the law provides that such investments by the PCSO should "not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development

Authority." Justice Davide, then an Assemblyman, made a proposal which was accepted, reflecting the understanding that the bill they were discussing concerned the authority of the PCSO to invest in the business of others. The following excerpt from the Record of the Batasan Pambansa shows this to be the subject of the discussion: MR. DAVIDE. May I introduce an amendment after "adequate". The intention of the amendment is not to leave the determination of whether it is adequate or not to anybody. And my amendment is to add after "adequate" the words AS MAY BE DETERMINED BY THE NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY. As a mater of fact, it will strengthen the authority to invest in these areas, provided that the determination of whether the private sector's activity is already adequate must be determined by the National Economic and Development Authority. Mr. ZAMORA. Mr. Speaker, the committee accepts the proposed amendment. MR. DAVIDE. Thank you, Mr. Speaker. (2 RECORD OF THE BATASAN PAMBANSA, Sept. 6, 1979, p. 1007) Thus what the PCSO is prohibited from doing is from investing in a business engaged in sweepstakes races, lotteries and other similar activities. It is prohibited from doing so whether "in collaboration, association or joint venture" with others or "by itself." This seems to be the only possible interpretation of 1 (A) and (B) in light of its text and its legislative history. That there is today no other entity engaged in sweepstakes races, lotteries and the like does not detract from the validity of this interpretation. III. The Court noted in its decision that the provisions of the first contract, which were considered to be features of a joint venture agreement, had been removed in the new contract. For instance, 5 of the ELA provides that in the operation of the on-line lottery, the PCSO must employ "its own competent and qualified personnel." Petitioners claim, however, that the "contemporaneous interpretation" of PGMC officials of this provision is otherwise. They cite the testimony of Glen Barroga of the PGMC before a Senate committee to the effect that under the ELA the PGMC would be operating the lottery system "side by side" with PCSO personnel as part of the transfer of technology. Whether the transfer of technology would result in a violation of PCSO's franchise should be determined by facts and not by what some officials of the PGMC state by way of opinion. In the absence of proof to the contrary, it must be presumed that 5 reflects the true intention of the parties. Thus, Art. 1370 of the Civil Code says that "If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control." The intention of the parties must be ascertained from their "contemporaneous and subsequent acts." (Art. 1371; Atlantic Gulf Co. v. Insular Government, 10 Phil. 166 [1908]) It cannot simply be judged from what one of them says. On the other hand, the claim of third parties, like petitioners, that the clause on upgrading of equipment would enable the parties after a while to change the contract and enter into something else in violation of the law is mere speculation and cannot be a basis for judging the validity of the contract. IV. It is contended that 1 of E.O. No. 301 covers all types of "contract[s] for public services or for furnishing of supplies, materials and equipment to the government or to any of its branches, agencies or instrumentalities" and not only contracts of purchase and sale. Consequently, a lease of

equipment, like the ELA, must be submitted to public bidding in order to be valid. This contention is based on two premises: (1) that 1 of E.O. No. 301 applies to any contract whereby the government acquires title to or the use of the equipment and (2) that the words "supplies," "materials," and "equipment" are distinct from each other so that when an exception in 1 speaks of "supplies," it cannot be construed to mean "equipment." Petitioners' contention will not bear analysis. For example, the term "supplies" is used in paragraph (a), which provides that a contract for the furnishing of "supplies" in order to meet an emergency is exempt from public bidding. Unless "supplies" is construed to include "equipment," however, the lease of heavy equipment needed for rescue operations in case of a calamity will have to be submitted to public bidding before it can be entered into by the government. In dissent Justice Feliciano says that in such a situation the government can simply resort to expropriation, paying compensation afterward. This is just like purchasing the equipment through negotiation when the question is whether the purchase should be by public bidding, not to mention the fact that the power to expropriate may not be exercised when the government can very well negotiate with private owners. Indeed, there are fundamental difficulties in simultaneously contending (1) that E.O. No. 301, 1 covers both contracts of sale and lease agreements and (2) that the words "supplies," "materials" and "equipment" can not be interchanged. Thus, under paragraph (b) of 1, public bidding is not required "whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service." Following petitioners' theory, there should be a public bidding before the government can enter into a contract for the lease of bulldozers and dredging equipment even if these are urgently needed in areas ravaged by lahar because, first, lease contracts are covered by the general rule and, second, the exception to public bidding in paragraph (b) covers only "supplies" but not equipment. To take still another example. Paragraph (d), which does away with the requirement of public bidding "whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or nonconforming to specifications." Again, following the theory of the petitioners, a contract for the lease of equipment cannot be entered into even if there are no bids because, first, lease contracts are governed by the general rule on public bidding and, second, the exception to public bidding in paragraph (d) applies only to contracts for the furnishing of "supplies." Other examples can be given to show the absurdity of interpreting 1 as applicable to any contract for the furnishing of supplies, materials and equipment and of considering the words "supplies," "materials" and "equipment" to be not interchangeable. Our ruling that 1 of E.O. No. 301 does not cover the lease of equipment avoids these fundamental difficulties and is supported by the text of 1, which is entitled "Guidelines for Negotiated Contracts" and by the fact that the only provisions of E.O. No. 301 on leases, namely, 6 and 7, concern the lease of buildings by or to the government. Thus the text of 1 reads: 1. Guidelines for Negotiated Contracts. Any provision of law, decree, executive order or other issuances to the contrary notwithstanding, no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities shall be renewed or entered into without public bidding, except under any of the following situations: a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property;

b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service; c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government; d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exhorbitant or non-conforming to specifications; e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; and f. Whenever the purchase is made from an agency of the government. Indeed, the purpose for promulgating E.O. No. 301 was merely to decentralize the system of reviewing negotiated contracts of purchase for the furnishing of supplies, materials and equipment as well as lease contracts of buildings. Theretofore, E.O. No. 298, promulgated on August 12, 1940, required consultation with the Secretary of Justice and the Department Head concerned and the approval of the President of the Philippines before contracts for the furnishing of supplies, materials and equipment could be made on a negotiated basis, without public bidding. E.O. No. 301 changed this by providing as follows: 2. Jurisdiction over Negotiated Contracts. In line with the principles of decentralization and accountability, negotiated contracts for public services or for furnishing supplies, materials or equipment may be entered into by the department or agency head or the governing board of the government-owned or controlled corporation concerned, without need of prior approval by higher authorities, subject to availability of funds, compliance with the standards or guidelines prescribed in Section 1 hereof, and to the audit jurisdiction of the commission on Audit in accordance with existing rules and regulations. Negotiated contracts involving P2,000,000 up to P10,000,000 shall be signed by the Secretary and two other Undersecretaries. xxx xxx xxx 7. Jurisdiction Over Lease Contracts. The heads of agency intending to rent privately-owned buildings or spaces for their use, or to lease out government-owned buildings or spaces for private use, shall have authority to determine the reasonableness of the terms of the lease and the rental rates thereof, and to enter into such lease contracts without need of prior approval by higher authorities, subject to compliance with the uniform standards or guidelines established pursuant to Section 6 hereof by the DPWH and to the audit jurisdiction of COA or its duly authorized representative in accordance with existing rules and regulations.

In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and equipment, and it was merely to change the system of administrative review of emergency purchases, as theretofore prescribed by E.O. No. 298, that E.O. No. 301 was issued on July 26, 1987. Part B of this Executive Order applies to leases of buildings, not of equipment, and therefore does not govern the lease contract in this case. Even if it applies, it does not require public bidding for entering into it. Our holding that E.O. No. 301, 1 applies only to contracts of purchase and sale is conformable to P.D. No. 526, promulgated on August 2, 1974, which is in pari materia. P.D. No. 526 requires local governments to hold public bidding in the "procurement of supplies." By specifying "procurement of supplies" and excepting from the general rule "purchases" when made under certain circumstances, P.D. No. 526, 12 indicates quite clearly that it applies only to contracts of purchase and sale. This provision reads: 12. Procurement without public bidding. Procurement of supplies may be made without the benefit of public bidding in the following modes: (1) Personal canvass of responsible merchants; (2) Emergency purchases; (3) Direct purchases from manufacturers or exclusive distributors; (4) Thru the Bureau of Supply Coordination; and (5) Purchase from other government entities or foreign governments. Sec. 3 broadly defines the term "supplies" as including everything except real estate, which may be needed in the transaction of public business, or in the pursuit of any undertaking, project, or activity, whether of the nature of equipment, furniture, stationery, materials for construction, or personal property of any sort, including non-personal or contractual services such as the repair and maintenance of equipment and furniture, as well as trucking, hauling, janitorial, security, and related or analogous services. Thus, the texts of both E.O. No. 301, 1 and of P.D. No. 526, 1 and 12, make it clear that only contracts for the purchase and sale of supplies, materials and equipment are contemplated by the rule concerning public biddings. Finally, it is contended that equipment leases are attractive and commonly used in place of contracts of purchase and sale because of "multifarious credit and tax constraints" and therefore could not have been left out from the requirement of public bidding. Obviously these credit and tax constraints can have no attraction to the government when considering the advantages of sale over lease of equipment. The fact that lease contracts are in common use is not a reason for implying that the rule on public bidding applies not only to government purchases but also to lease contracts. For the fact also is that the government leases equipment, such as copying machines, personal computers and the like, without going through public bidding.

FOR THE FOREGOING REASONS, the motion for reconsideration of petitioners is DENIED with finality. SO ORDERED.

Melo, Puno, Kapunan, Francisco and Hermosisima, Jr., JJ., concur. Narvasa, C.J. and Panganiban , JJ., took no part. Padilla and Vitug, JJ., maintained their separate concurring opinion. Feliciano, Regalado, Davide, Jr., Romero and Bellosillo, JJ., maintained their dissenting opinion. Footnotes 1 The two other cases were Dred Scott v. Sanford, 19 How. 393 (1857) (which invalidated an act of Congress forbidding slavery in the South) and Pollack v. Farmers Loan & Trust Co., 157 U.S. 429, 158 U.S. 601 (1895) (which held a tax on income derived from property to be a tax on the property itself which had to be apportioned according to population under the U.S. Constitution) C. HUGHES, THE SUPREME COURT OF THE UNITED STATES 50-54 (1928). 2 That is why in the main decision it was pointed out that petitioners might try the Commission on Audit, the Ombudsman or the Solicitor General (except that in this case the latter has found nothing wrong with the contract) in airing their grievances, a point apparently overlooked by Davide, J. in his dissent noting an alleged inconsistency in the majority's ruling that petitioners have no standing in the courts but that they can complain to the COA, the Ombudsman or the Solicitor General. The rules on standing do not obtain in these agencies; petitioners can file their complaints there ex relatione.

SUPREME COURT FIRST DIVISION MAXIMO CALALANG, Petitioner, -versus- G.R. No. 47800 December 2, 1940 A. D. WILLIAMS, ET AL., Respondents. x--------------------------------------------------x DECISION LAUREL, J.: Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before this court this petition for a writ of prohibition against the respondents, A. D. Williams, as Chairman of the

National Traffic Commission; Vicente Fragante, as Director of Public Works; Sergio Bayan, as Acting Secretary of Public Works and Communications; Eulogio Rodriguez, as Mayor of the City of Manila; and Juan Dominguez, as Acting Chief of Police of Manila. chanroblespublishingcompany It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940, resolved to recommend to the Director of Public Works and to the Secretary of Public Works and Communications that animal-drawn vehicles be prohibited from passing along Rosario Street extending from Plaza Calderon de la Barca to Dasmarias Street, from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and along Rizal Avenue extending from the railroad crossing at Antipolo Street to Echague Street, from 7 a.m. to 11 p.m., from a period of one year from the date of the opening of the Colgante Bridge to traffic; that the Chairman of the National Traffic Commission, on July 18, 1940 recommended to the Director of Public Works the adoption of the measure proposed in the resolution aforementioned, in pursuance of the provisions of Commonwealth Act No. 548 which authorizes said Director of Public Works, with the approval of the Secretary of Public Works and Communications, to promulgate rules and regulations to regulate and control the use of and traffic on national roads; that on August 2, 1940, the Director of Public Works, in his first indorsement to the Secretary of Public Works and Communications, recommended to the latter the approval of the recommendation made by the Chairman of the National Traffic Commission as aforesaid, with the modification that the closing of Rizal Avenue to traffic to animal-drawn vehicles be limited to the portion thereof extending from the railroad crossing at Antipolo Street to Azcarraga Street; that on August 10, 1940, the Secretary of Public Works and Communications, in his second indorsement addressed to the Director of Public Works, approved the recommendation of the latter that Rosario Street and Rizal Avenue be closed to traffic of animal-drawn vehicles, between the points and during the hours as above indicated, for a period of one year from the date of the opening of the Colgante Bridge to traffic; that the Mayor of Manila and the Acting Chief of Police of Manila have enforced and caused to be enforced the rules and regulations thus adopted; that as a consequence of such enforcement, all animaldrawn vehicles are not allowed to pass and pick up passengers in the places above-mentioned to the detriment not only of their owners but of the riding public as well. chanroblespublishingcompany It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public Works, with the approval of the Secretary of Public Works and Communications, is authorized to promulgate rules and regulations for the regulation and control of the use of and traffic on national roads and streets is unconstitutional because it constitutes an undue delegation of legislative power. This contention is untenable. As was observed by this court in Rubi vs. Provincial Board of Mindoro (39 Phil, 660, 700), The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in a multitude of cases, namely: The true distinction therefore is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. (Cincinnati, W. & Z. R. Co. vs. Commrs. Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard (10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may make decisions of executive departments or subordinate officials thereof, to whom it has committed the execution of certain acts, final on questions of fact. (U.S. vs. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to give prominence to the necessity of the case. chanroblespublishingcompany Section 1 of Commonwealth Act No. 548 reads as follows: SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads by acts of the National Assembly or by executive orders of the President of the Philippines, the Director of Public Works, with the approval of the Secretary of Public Works and Communications, shall promulgate the necessary rules and regulations to regulate and control the use of and traffic on such roads and streets. Such rules and regulations, with the approval of the President, may contain provisions controlling or regulating the construction of buildings or other structures within a reasonable distance from along the national roads. Such roads may be temporarily closed to any or all classes of traffic by the Director of Public Works and his duly authorized representatives whenever the condition of the road or the traffic thereon makes such action necessary or advisable in the public convenience and interest, or for a specified period, with the approval of the Secretary of Public Works and Communications. chanroblespublishingcompany

The above provisions of law do not confer legislative power upon the Director of Public Works and the Secretary of Public Works and Communications. The authority therein conferred upon them and under which they promulgated the rules and regulations now complained of is not to determine what public policy demands but merely to carry out the legislative policy laid down by the National Assembly in said Act, to wit, to promote safe transit upon and avoid obstructions on, roads and streets designated as national roads by acts of the National Assembly or by executive orders of the President of the Philippines and to close them temporarily to any or all classes of traffic whenever the condition of the road or the traffic makes such action necessary or advisable in the public convenience and interest. The delegated power, if at all, therefore, is not the determination of what the law shall be, but merely the ascertainment of the facts and circumstances upon which the application of said law is to be predicated. To promulgate rules and regulations on the use of national roads and to determine when and how long a national road should be closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public convenience and interest, is an administrative function which cannot be directly discharged by the National Assembly. It must depend on the discretion of some other government official to whom is confided the duty of determining whether the proper occasion exists for executing the law. But it cannot be said that the exercise of such discretion is the making of the law. As was said in Lockes Appeal (72 Pa. 491): To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know. The proper distinction the court said was this: The Legislature cannot delegate its power to make the law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and, must, therefore, be a subject of inquiry and determination outside of the halls of legislation. (Field vs. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.) In the case of People vs. Rosenthal and Osmea, G.R. Nos. 46076 and 46077, promulgated June 12, 1939, and in Pangasinan Transportation vs. The Public Service Commission, G.R. No. 47065, promulgated June 26, 1940, this Court had occasion to observe that the principle of separation of powers has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of subordinate legislation, not only in the United States and England but in practically all modern governments. Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the laws, the rigidity of the theory of separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of greater powers by the legislative and vesting a larger amount of discretion in administrative and executive officials, not only in the execution of the laws, but also in the promulgation of certain rules and regulations calculated to promote public interest. chanroblespublishingcompany The petitioner further contends that the rules and regulations promulgated by the respondents pursuant to the provisions of Commonwealth Act No. 548 constitute an unlawful interference with legitimate business or trade and abridge the right to personal liberty and freedom of locomotion. Commonwealth Act No. 548 was passed by the National Assembly in the exercise of the paramount police power of the state. chanroblespublishingcompany Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to promote safe transit upon and avoid obstructions on national roads, in the interest and convenience of the public. In enacting said law, therefore, the National Assembly was prompted by considerations of public convenience and welfare. It was inspired by a desire to relieve congestion of traffic. which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state (U.S. vs. Gomez Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then

the individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through education and personal discipline, so that there may be established the resultant equilibrium, which means peace and order and happiness for all. The moment greater authority is conferred upon the government, logically so much is withdrawn from the residuum of liberty which resides in the people. The paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its preservation. chanroblespublishingcompany The scope of police power keeps expanding as civilization advances. As was said in the case of Dobbins vs. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), the right to exercise the police power is a continuing one, and a business lawful today may in the future, because of the changed situation, the growth of population or other causes, become a menace to the public health and welfare, and be required to yield to the public good. And in People vs. Pomar (46 Phil., 440), it was observed that advancing civilization is bringing within the police power of the state today things which were not thought of as being within such power yesterday. The development of civilization, the rapidly increasing population, the growth of public opinion, with an increasing desire on the part of the masses and of the government to look after and care for the interests of the individuals of the state, have brought within the police power many questions for regulation which formerly were not so considered. chanroblespublishingcompany The petitioner finally avers that the rules and regulations complained of infringe upon the constitutional precept regarding the promotion of social justice to insure the well-being and economic security of all the people. The promotion of social justice, however, is to be achieved not through a mistaken sympathy towards any given group. Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. chanroblespublishingcompany Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about the greatest good to the greatest number. chanroblespublishingcompany IN VIEW OF THE FOREGOING, the Writ of Prohibition Prayed for is hereby denied, with costs against the petitioner. So ordered. Avancea, C.J., Imperial, Diaz and Horrilleno, JJ., concur.