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Co Kim Chan v. Valdez Tan Keh
Summary Cases:
Co Kim Chan vs. Valdez Tan Keh 75 Phil 113
G
Subject: De Facto Government; Postliminy in International Law; Belligerent Occupation
Facts:
This involves a petition for mandamus praying that the respondent judge of the lower court be ordered
to continue the proceedings in a civil case before said court. The proceedings were initiated under the
regime of the government (called Republic of the Philippines) established during the Japanese military
occupation.
The respondent judge refused to take cognizance of and continue the proceedings in the said case on
the ground that the proclamation issued by General Douglas MacArthur, upon American re-occupation,
had the effect of invalidating all judicial proceedings and judgements of the court of the Philippines
under the Japanese military occupation, and that, the lower courts have no jurisdiction to take
cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the
Philippines in the absence of an enabling law granting such authority.
The respondent judge likewise contends that the government established in the Philippines during the
Japanese occupation were not de facto governments.
Held:
De Facto Government
All acts and proceedings of the legislative, executive, and judicial departments of a de facto
government are good and valid.There are three kinds of de facto governments.(a) Government de
facto in the proper legal sense-- that government that gets possession and control of, or usurps, by
force or by the voice of the majority, the rightful legal governments and maintains itself against the will
of the latter.
(b) Government of paramount force-- that which is established and maintained by military forces who
invade and occupy a territory of the enemy in the course of war.
(c) That established as an independent government by the inhabitants of a country who rise in
insurrection against the parent state
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The Philippine Executive Commission and the Republic of the Philippines, both governments
established during the Japanese military occupation, are de facto governments of the second kind.
The fact that they were a civil and not a military government and was run by Filipinos and not by
Japanese nationals, is of no consequence. The ultimate source of its authority was the same ? the
Japanese military authority and government.
Being de facto governments, it necessarily follows that the judicial acts and proceedings of the courts
of justice of those governments, which are not of a political complexion, were good and valid, and, by
virtue of the well-known principle of postliminy (postliminium) in international law, remained good and
valid after the liberation or reoccupation of the Philippines under the leadership of General Douglas
MacArthur.
Courts are creatures of statutes and such laws, not being a political nature, are not abrogated by a
change of sovereignty, and continue in force "ex proprio vigore" unless and until repealed by
legislative acts. A proclamation that said laws and courts are expressly continued is not necessary.
Principle of Postliminy
According to that principle in international law, the fact that a territory which has been occupied by an
enemy comes again into the power of its legitimate government of sovereignty, does not, except in a
very few cases, wipe out the effects of acts done by an invader, which for one reason or another it is
within his competence to do. Thus judicial acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that they take effect during the continuance of
his control, and the various acts done during the same time by private persons under the sanction of
municipal law, remain good.
Effects of a belligerent occupation
According to the precepts of the Hague Conventions, the belligerent occupant:(i) possesses all the
powers of a de facto government;
(ii) can suspend the old laws and promulgate new ones and make such changes in the old as he may
see fit;
(iii) the municipal laws in force in the country must be respected, unless absolutely prevented by the
circumstances prevailing in the occupied territory.
(i.e. affect private rights of person and property and provide for the punishment of crime);
(iv) laws of a political nature or affecting political relations are considered as suspended during the
military occupation
(i.e. right of assembly, the right to bear arms, the freedom of the press, and the right to travel freely in
the territory occupied);
(v) local ordinary tribunals are authorized to continue administering justice; judges and other judicial
officers are kept in their posts if they accept the authority of the belligerent occupant or are required to
continue in their positions under the supervision of the military or civil authorities appointed.
(vi) There is no transfer of sovereignty during a belligerent occupation. The occupation, being
essentially provisional, does not serve to transfer sovereignty over the territory controlled. The de jure
government, during the period of occupancy, is deprived of the power to exercise its rights as such.
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(Note: There is no suspension of sovereignty during a belligerent occupation, but merely the
suspension of the exercise of sovereignty by the de jure government)