Cases in International Law

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 173034
October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE

PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER
SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY.
ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT
SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND
DR. NEMESIO T. GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for
an infant is mother's milk. There is nothing greater than for a mother to nurture
her beloved child straight from her bosom. The ideal is, of course, for each and
every Filipino child to enjoy the unequaled benefits of breastmilk. But how should
this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court,
seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised
Implementing Rules and Regulations of Executive Order No. 51, Otherwise
Known as The "Milk Code," Relevant International Agreements, Penalizing
Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the
RIRR is not valid as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and
Assistant Secretaries of the Department of Health (DOH). For purposes of herein
petition, the DOH is deemed impleaded as a co-respondent since respondents
issued the questioned RIRR in their capacity as officials of said executive
agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on
October 28, 1986 by virtue of the legislative powers granted to the president
under the Freedom Constitution. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Article 112 of the International Code of
Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World
Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be supported, promoted and
protected, hence, it should be ensured that nutrition and health claims are not
permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the
Child. Article 24 of said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are informed of the
advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect
on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition
for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH
acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and in violation of the provisions of
the Constitution in promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining
respondents from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral
arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral
Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised
Implementing Rules and Regulations (RIRR) issued by the Department of
Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order
No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into by the
Philippines are part of the law of the land and may be implemented by the
DOH through the RIRR; If in the affirmative, whether the RIRR is in accord
with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the
due process clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient
standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO
and Unicef "2002 Global Strategy on Infant and Young Child Feeding;" and
(3) various World Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real
party-in-interest, the Court adopts the view enunciated in Executive Secretary v.
Court of Appeals,4 to wit:
The modern view is that an association has standing to complain of injuries
to its members. This view fuses the legal identity of an association with that
of its members. An association has standing to file suit for its workers
despite its lack of direct interest if its members are affected by the
action. An organization has standing to assert the concerns of its
constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was
organized x x x to act as the representative of any individual, company,
entity or association on matters related to the manpower recruitment
industry, and to perform other acts and activities necessary to accomplish
the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and

its members are in every practical sense identical. x x x The
respondent [association] is but the medium through which its
individual members seek to make more effective the expression of
their voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where
the Court ruled that an association has the legal personality to represent its
members because the results of the case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision
just like in Executive Secretary, that the association is formed "to represent
directly or through approved representatives the pharmaceutical and health care
industry before the Philippine Government and any of its agencies, the medical
professions and the general public."8 Thus, as an organization, petitioner
definitely has an interest in fulfilling its avowed purpose of representing members
who are part of the pharmaceutical and health care industry. Petitioner is duly
authorized9to take the appropriate course of action to bring to the attention of
government agencies and the courts any grievance suffered by its members
which are directly affected by the RIRR. Petitioner, which is mandated by its
Amended Articles of Incorporation to represent the entire industry, would be
remiss in its duties if it fails to act on governmental action that would affect any of
its industry members, no matter how few or numerous they are. Hence,
petitioner, whose legal identity is deemed fused with its members, should be
considered as a real party-in-interest which stands to be benefited or injured by
any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by
respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk
Code, thereby amending and expanding the coverage of said law. The defense
of the DOH is that the RIRR implements not only the Milk Code but also various
international instruments10 regarding infant and young child nutrition. It is
respondents' position that said international instruments are deemed part of the
law of the land and therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by
respondents, namely: (1) The United Nations Convention on the Rights of the
Child; (2) The International Covenant on Economic, Social and Cultural Rights;
and (3) the Convention on the Elimination of All Forms of Discrimination Against
Women, only provide in general terms that steps must be taken by State Parties
to diminish infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and ensure that
women are provided with services and nutrition in connection with pregnancy and
lactation. Said instruments do not contain specific provisions regarding the use or
marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding
breastmilk substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either bytransformation or incorporation.11 The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the Constitution which provides that "[n]o treaty or
international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate." Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it
to be transformed into municipal law that can be applied to domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been
concurred in by at least two-thirds of all members of the Senate as required
under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been
transformed into domestic law through local legislation, the Milk Code.
Consequently, it is the Milk Code that has the force and effect of law in this
jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
emphasize at this point that the Code did not adopt the provision in the ICMBS
absolutely prohibiting advertising or other forms of promotion to the general
public of products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing
materials may be allowed if such materials are duly authorized and
approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national

policy, adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.
(Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations. The classical formulation
in international law sees those customary rules accepted as binding result
from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring
it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or
customary international law which are binding on all states,17 i.e., renunciation of
war as an instrument of national policy, the principle of sovereign immunity,18 a
person's right to life, liberty and due process,19 and pacta sunt servanda,20 among
others. The concept of "generally accepted principles of law" has also been
depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a
primary source of international law because they have the "character of jus
rationale" and are "valid through all kinds of human societies." (Judge
Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J.
296). O'Connell holds that certain priniciples are part of international law
because they are "basic to legal systems generally" and hence part of the
jus gentium. These principles, he believes, are established by a process of
reasoning based on the common identity of all legal systems. If there should be
doubt or disagreement, one must look to state practice and determine whether
the municipal law principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and

consistent practice of states followed by them from a sense of legal
obligation [opinio juris]." (Restatement) This statement contains the two
basic elements of custom: the material factor, that is, how states
behave, and the psychological orsubjective factor, that is, why they
behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual
behavior of states. This includes several elements: duration, consistency,
and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes
necessary to determine why states behave the way they do. Do states
behave the way they do because they consider it obligatory to behave
thus or do they do it only as a matter of courtesy? Opinio juris, or the
belief that a certain form of behavior is obligatory, is what makes
practice an international rule. Without it, practice is not
law.22 (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic
system.23
WHA Resolutions have not been embodied in any local legislation. Have they
attained the status of customary law and should they then be deemed
incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized
agencies allied with the United Nations (UN) by virtue of Article 57,24 in relation to
Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the WHA
which determines the policies of the WHO,26 and has the power to adopt
regulations concerning "advertising and labeling of biological, pharmaceutical
and similar products moving in international commerce,"27 and to "make
recommendations to members with respect to any matter within the competence

of the Organization."28 The legal effect of its regulations, as opposed to
recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the
WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions
or agreements with respect to any matter within the competence of the
Organization. A two-thirds vote of the Health Assembly shall be required for
the adoption of such conventions or agreements, which shall come into
force for each Member when accepted by it in accordance with its
constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months
after the adoption by the Health Assembly of a convention or
agreement, take action relative to the acceptance of such convention
or agreement. Each Member shall notify the Director-General of the action
taken, and if it does not accept such convention or agreement within the
time limit, it will furnish a statement of the reasons for non-acceptance. In
case of acceptance, each Member agrees to make an annual report to the
Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations
concerning: (a) sanitary and quarantine requirements and other
procedures designed to prevent the international spread of disease; (b)
nomenclatures with respect to diseases, causes of death and public health
practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and
potency of biological, pharmaceutical and similar products moving in
international commerce; (e) advertising and labeling of biological,
pharmaceutical and similar products moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force
for all Members after due notice has been given of their adoption by the
Health Assembly except for such Members as may notify the DirectorGeneral of rejection or reservations within the period stated in the
notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not
come into force for members, in the same way that conventions or agreements
under Article 19 and regulations under Article 21 come into force. Article 23 of
the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make

recommendations to Members with respect to any matter within the
competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the
recommendation would come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they "carry moral and political
weight, as they constitute the judgment on a health issue of the collective
membership of the highest international body in the field of health."29 Even the
ICMBS itself was adopted as a mere recommendation, as WHA Resolution No.
34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of
Article 23 of the Constitution, the International Code of Marketing of
Breastmilk Substitutes annexed to the present resolution." (Emphasis
supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at
its sixty-seventh session, considered the fourth draft of the code, endorsed
it, and unanimously recommended to the Thirty-fourth World Health
Assembly the text of a resolution by which it would adopt the code in the
form of a recommendation rather than a regulation. x x x (Emphasis
supplied)
The legal value of WHA Resolutions as recommendations is summarized in
Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with
respect to recommendations made to it by the Organization, and with
respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA
Resolutions urging member states to implement the ICMBS are merely
recommendatory and legally non-binding. Thus, unlike what has been done
with the ICMBS whereby the legislature enacted most of the provisions into
law which is the Milk Code, the subsequent WHA Resolutions,30 specifically
providing for exclusive breastfeeding from 0-6 months, continued
breastfeeding up to 24 months, and absolutely prohibiting advertisements
and promotions of breastmilk substitutes, have not been adopted as a

domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding
norms, principles and practices that influence state behavior.31
"Soft law" does not fall into any of the categories of international law set forth in
Article 38, Chapter III of the 1946 Statute of the International Court of Justice.32 It
is, however, an expression of non-binding norms, principles, and practices that
influence state behavior.33 Certain declarations and resolutions of the UN General
Assembly fall under this category.34 The most notable is the UN Declaration of
Human Rights, which this Court has enforced in various cases,
specifically, Government of Hongkong Special Administrative Region v.
Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Raada37 and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency
attached to the UN with the mandate to promote and protect intellectual property
worldwide, has resorted to soft law as a rapid means of norm creation, in order
"to reflect and respond to the changing needs and demands of its
constituents."39 Other international organizations which have resorted to soft law
include the International Labor Organization and the Food and Agriculture
Organization (in the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe
Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law
binding on WHO member states, it provides an excellent example of
the power of "soft law" in international relations. International
lawyers typically distinguish binding rules of international law-"hard
law"-from non-binding norms, principles, and practices that influence
state behavior-"soft law." WHO has during its existence generated
many soft law norms, creating a "soft law regime" in international
governance for public health.
The "soft law" SARS and IHR Resolutions represent significant steps in
laying the political groundwork for improved international cooperation on
infectious diseases. These resolutions clearly define WHO member states'
normative duty to cooperate fully with other countries and with WHO in
connection with infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the
SARS epidemic, the duty is powerful politically for two reasons. First,
the SARS outbreak has taught the lesson that participating in, and
enhancing, international cooperation on infectious disease controls is in a
country's self-interest x x x if this warning is heeded, the "soft law" in the
SARS and IHR Resolution could inform the development of general and
consistent state practice on infectious disease surveillance and outbreak
response, perhaps crystallizing eventually into customary international law
on infectious disease prevention and control.41
In the Philippines, the executive department implemented certain measures
recommended by WHO to address the outbreaks of SARS and Avian flu by
issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on
February 2, 2004, delegating to various departments broad powers to close down
schools/establishments, conduct health surveillance and monitoring, and ban
importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the
duty of a state to implement the IHR Resolution was still considered not binding
or enforceable, although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary
law, it must be established that such rule is being followed by states because
they consider it obligatory to comply with such rules (opinio juris). Respondents
have not presented any evidence to prove that the WHA Resolutions, although
signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any
compliance by member states with said WHA Resolutions was obligatory in
nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions
are customary international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA
Resolutions into domestic law. The provisions of the WHA Resolutions cannot
be considered as part of the law of the land that can be implemented by
executive agencies without the need of a law enacted by the legislature.
Second, the Court will determine whether the DOH may implement the
provisions of the WHA Resolutions by virtue of its powers and functions under
the Revised Administrative Code even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987

provides that the DOH shall define the national health policy and implement a
national health plan within the framework of the government's general policies
and plans, and issue orders and regulations concerning the implementation
of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other
forms of promotion of breastmilk substitutes provided in some WHA Resolutions
has been adopted as part of the national health policy.
Respondents submit that the national policy on infant and young child feeding is
embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the
Administrative Order declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of breastfeeding, exclusive
breastfeeding for the first six months, extended breastfeeding up to two years
and beyond; (2) appropriate complementary feeding, which is to start at age six
months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the
exercise of other feeding options; and (6) feeding in exceptionally difficult
circumstances. Indeed, the primacy of breastfeeding for children is emphasized
as a national health policy. However, nowhere in A.O. No. 2005-0014 is it
declared that as part of such health policy, the advertisement or promotion
of breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot
automatically be equated with a total ban on advertising for breastmilk
substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on
the advertising and promotion of breastmilk substitutes, but instead, specifically
creates an IAC which will regulate said advertising and promotion, it follows that
a total ban policy could be implemented only pursuant to a law amending the
Milk Code passed by the constitutionally authorized branch of government, the
legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Resolutions, can be validly implemented by the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in
accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner
alleges the following:
1. The Milk Code limits its coverage to children 0-12 months old, but the
RIRR extended its coverage to "young children" or those from ages two
years old and beyond:
MILK CODE
WHEREAS, in order to ensure that
safe and adequate nutrition for
infants is provided, there is a need to
protect and promote breastfeeding
and to inform the public about the
proper use of breastmilk substitutes
and supplements and related
products through adequate,
consistent and objective information
and appropriate regulation of the
marketing and distribution of the said
substitutes, supplements and related
products;
SECTION 4(e). "Infant" means a
person falling within the age bracket
of 0-12 months.
RIRR
Section 2. Purpose These Revised
Rules and Regulations are hereby
promulgated to ensure the provision
of safe and adequate nutrition for
infants and young children by the
promotion, protection and support of
breastfeeding and by ensuring the
proper use of breastmilk substitutes,
breastmilk supplements and related
products when these are medically
indicated and only when necessary,
on the basis of adequate information
and through appropriate marketing
and distribution.
Section 5(ff). "Young Child" means a
person from the age of more than
twelve (12) months up to the age of
three (3) years (36 months).
2. The Milk Code recognizes that infant formula may be a proper and
possible substitute for breastmilk in certain instances; but the RIRR
provides "exclusive breastfeeding for infants from 0-6 months" and
declares that "there is no substitute nor replacement for breastmilk":
MILK CODE
WHEREAS, in order to ensure that
safe and adequate nutrition
for infants is provided, there is a need
to protect and promote breastfeeding
and to inform the public about
the proper use of breastmilk
substitutes and supplements and
related products through adequate,
consistent and objective information
and appropriate regulation of the
marketing and distribution of the said
substitutes, supplements and related
RIRR
Section 4. Declaration of Principles
The following are the underlying
principles from which the revised rules
and regulations are premised upon:
a. Exclusive breastfeeding is for
infants from 0 to six (6) months.
b. There is no substitute or
replacement for breastmilk.
products;
3. The Milk Code only regulates and does not impose unreasonable
requirements for advertising and promotion; RIRR imposes an absolute
ban on such activities for breastmilk substitutes intended for infants from 024 months old or beyond, and forbids the use of health and nutritional
claims. Section 13 of the RIRR, which provides for a "total effect" in the
promotion of products within the scope of the Code, is vague:
MILK CODE
RIRR
SECTION 6. The General Public and Section 4. Declaration of Principles
Mothers.
(a) No advertising, promotion or other and regulations are premised upon:
marketing materials, whether written,
audio or visual, for products within the x x x x
scope of this Code shall be printed,
published, distributed, exhibited and f. Advertising, promotions, or sponsorbroadcast unless such materials are shipsof infant formula, breastmilk
duly authorized and approved by an substitutes and other related
inter-agency committee created
products are prohibited.
herein pursuant to the applicable
standards provided for in this Code. Section 11. Prohibition No
advertising, promotions,
sponsorships, or marketing materials
and activities for breastmilk
substitutes intended for infants and
young children up to twenty-four (24)
months, shall be allowed, because
they tend to convey or give subliminal
messages or impressions that
undermine breastmilk and
breastfeeding or otherwise
exaggerate breastmilk substitutes
and/or replacements, as well as
related products covered within the
scope of this Code.
Section 13. "Total Effect" Promotion of products within the
scope of this Code must be objective
and should not equate or make the
product appear to be as good or equal
to breastmilk or breastfeeding in the

advertising concept. It must not in any
case undermine breastmilk or
breastfeeding. The "total effect"
should not directly or indirectly
suggest that buying their product
would produce better individuals, or
resulting in greater love, intelligence,
ability, harmony or in any manner
bring better health to the baby or
other such exaggerated and
unsubstantiated claim.
Section 15. Content of Materials. The following shall not be included in
advertising, promotional and
marketing materials:
a. Texts, pictures, illustrations or
information which discourage or tend
to undermine the benefits or
superiority of breastfeeding or which
idealize the use of breastmilk
substitutes and milk supplements. In
this connection, no pictures of babies
and children together with their
mothers, fathers, siblings,
grandparents, other relatives or
caregivers (or yayas) shall be used in
any advertisements for infant formula
and breastmilk supplements;
b. The term "humanized,"
"maternalized," "close to mother's
milk" or similar words in describing
breastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the
use of infant and milk formula.
Section 16. All health and nutrition
claims for products within the scope of

the Code are absolutely prohibited.
For this purpose, any phrase or words
that connotes to increase emotional,
intellectual abilities of the infant and
young child and other like phrases
shall not be allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk
Code:
MILK CODE
SECTION 10. Containers/Label.
RIRR
Section 26. Content Each
container/label shall contain such
(a) Containers and/or labels shall be message, in both Filipino and English
designed to provide the necessary
languages, and which message
information about the appropriate use cannot be readily separated
of the products, and in such a way as therefrom, relative the following
not to discourage breastfeeding.
points:
(b) Each container shall have a clear, (a) The words or phrase "Important
conspicuous and easily readable and Notice" or "Government Warning" or
understandable message in Pilipino or their equivalent;
English printed on it, or on a label,
which message can not readily
(b) A statement of the superiority of
become separated from it, and which breastfeeding;
shall include the following points:
(c) A statement that there is no
(i) the words "Important Notice" or
substitute for breastmilk;
their equivalent;
(d) A statement that the product shall
(ii) a statement of the superiority of
be used only on the advice of a health
breastfeeding;
worker as to the need for its use and
the proper methods of use;
(iii) a statement that the product shall
be used only on the advice of a health (e) Instructions for appropriate
worker as to the need for its use and prepara-tion, and a warning against
the proper methods of use; and
the health hazards of inappropriate
preparation; and
(iv) instructions for appropriate
preparation, and a warning against
(f) The health hazards of unnecessary
the health hazards of inappropriate
or improper use of infant formula and
preparation.
other related products including
information that powdered infant

formula may contain pathogenic
microorganisms and must be
prepared and used appropriately.
5. The Milk Code allows dissemination of information on infant formula to
health professionals; the RIRR totally prohibits such activity:
MILK CODE
RIRR
SECTION 7. Health Care System. Section 22. No manufacturer,
distributor, or representatives of
(b) No facility of the health care
products covered by the Code shall
system shall be used for the purpose be allowed to conduct or be involved
of promoting infant formula or other in any activity on breastfeeding
products within the scope of this
promotion, education and production
Code. This Code does not, however, of Information, Education and
preclude the dissemination of
Communication (IEC) materials on
information to health professionals as breastfeeding, holding of or
provided in Section 8(b).
participating as speakers in classes or
seminars for women and children
SECTION 8. Health Workers. activities and to avoid the use of these
venues to market their brands or
(b) Information provided by
company names.
manufacturers and distributors to
SECTION 16. All health and nutrition
health professionals regarding
products within the scope of this Code claims for products within the scope of
the Code are absolutely prohibited.
shall be restricted to scientific and
factual matters and such information For this purpose, any phrase or words
shall not imply or create a belief that that connotes to increase emotional,
bottle-feeding is equivalent or superior intellectual abilities of the infant and
to breastfeeding. It shall also include young child and other like phrases
shall not be allowed.
the information specified in Section
5(b).
6. The Milk Code permits milk manufacturers and distributors to extend
assistance in research and continuing education of health professionals;
RIRR absolutely forbids the same.
MILK CODE
SECTION 8. Health Workers
RIRR
Section 4. Declaration of Principles
(e) Manufacturers and distributors of

products within the scope of this
Code may assist in the research,

scholarships and continuing
education, of health professionals,in
accordance with the rules and
regulations promulgated by the
Ministry of Health.

and regulations are premised upon:
i. Milk companies, and their
representatives,should not form part
of any policymaking body or entity in
relation to the advancement of
breasfeeding.
SECTION 22. No manufacturer,
distributor, or representatives of
products covered by the Code shall
be allowed to conduct or be involved
in any activity on breastfeeding
promotion, education and production
of Information, Education and
Communication (IEC) materials on
breastfeeding, holding of or
participating as speakers in classes or
seminars for women and children
activitiesand to avoid the use of these
venues to market their brands or
company names.
SECTION 32. Primary
Responsibility of Health Workers It is the primary responsibility of the
health workers to promote, protect
and support breastfeeding and
appropriate infant and young child
feeding. Part of this responsibility is to
continuously update their knowledge
and skills on breastfeeding. No
assistance, support, logistics or
training from milk companies shall be
permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely

prohibits it.
MILK CODE
RIRR
SECTION 6. The General Public and Section 51. Donations Within the
Mothers.
Scope of This Code - Donations of

products, materials, defined and
(f) Nothing herein contained shall
covered under the Milk Code and
prevent donations from manufacturers these implementing rules and
and distributors of products within the regulations, shall be strictly prohibited.
scope of this Code upon request by or
with the approval of the Ministry of
Section 52. Other Donations By
Health.
Milk Companies Not Covered by
this Code. - Donations of products,
equipments, and the like, not
otherwise falling within the scope of
this Code or these Rules, given by
milk companies and their agents,
representatives, whether in kind or in
cash, may only be coursed through
the Inter Agency Committee (IAC),
which shall determine whether such
donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk
Code.
MILK CODE
RIRR
Section 46. Administrative
Sanctions. The following
administrative sanctions shall be
imposed upon any person, juridical or
natural, found to have violated the
provisions of the Code and its
implementing Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of
a minimum of Ten Thousand
(P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on
the gravity and extent of the violation,
including the recall of the offending
product;
c) 3rd violation Administrative Fine of
a minimum of Sixty Thousand
(P60,000.00) to One Hundred Fifty

Thousand (P150,000.00) Pesos,
depending on the gravity and extent
of the violation, and in addition
thereto, the recall of the offending
product, and suspension of the
Certificate of Product Registration
(CPR);
d) 4th violation Administrative Fine of
a minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos,
depending on the gravity and extent
of the violation; and in addition
thereto, the recall of the product,
revocation of the CPR, suspension of
the License to Operate (LTO) for one
year;
e) 5th and succeeding repeated
violations Administrative Fine of
One Million (P1,000,000.00) Pesos,
the recall of the offending product,
cancellation of the CPR, revocation of
the License to Operate (LTO) of the
company concerned, including the
blacklisting of the company to be
furnished the Department of Budget
and Management (DBM) and the
Department of Trade and Industry
(DTI);
f) An additional penalty of Two Thousand Five Hundred (P2,500.00)
Pesos per day shall be made for
every day the violation continues after
having received the order from the
IAC or other such appropriate body,
notifying and penalizing the company
for the infraction.
For purposes of determining whether

or not there is "repeated" violation,
each product violation belonging or
owned by a company, including those
of their subsidiaries, are deemed to
be violations of the concerned milk
company and shall not be based on
the specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only
to children 0-12 months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code The Code applies to the marketing, and
practices related thereto, of the following products: breastmilk substitutes,
including infant formula; other milk products, foods and beverages,
including bottle-fed complementary foods, when marketed or otherwise
represented to be suitable, with or without modification, for use as a partial
or total replacement of breastmilk; feeding bottles and teats. It also applies
to their quality and availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child
but on the kind of product being marketed to the public. The law treats infant
formula, bottle-fed complementary food, and breastmilk substitute as separate
and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x
x x to satisfy the normal nutritional requirements of infants up to between four to
six months of age, and adapted to their physiological characteristics"; while under
Section 4(b), bottle-fed complementary food refers to "any food, whether
manufactured or locally prepared, suitable as a complement to breastmilk or
infant formula, when either becomes insufficient to satisfy the nutritional
requirements of the infant." An infant under Section 4(e) is a person falling within
the age bracket 0-12 months. It is the nourishment of this group of infants or
children aged 0-12 months that is sought to be promoted and protected by the
Milk Code.
But there is another target group. Breastmilk substitute is defined under Section
4(a) as "any food being marketed or otherwise presented as a partial or total
replacement for breastmilk, whether or not suitable for that purpose."This
section conspicuously lacks reference to any particular age-group of

children. Hence, the provision of the Milk Code cannot be considered
exclusive for children aged 0-12 months. In other words, breastmilk
substitutes may also be intended for young children more than 12 months of age.
Therefore, by regulating breastmilk substitutes, the Milk Code also intends to
protect and promote the nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk
Code as provided in Section 3, then it can be subject to regulation pursuant to
said law, even if the product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the
RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
does not recognize that breastmilk substitutes may be a proper and possible
substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be
considered and construed together. As held in De Luna v. Pascual,44 "[t]he
particular words, clauses and phrases in the Rule should not be studied as
detached and isolated expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts and in order to produce a
harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when
necessary, the use of breastmilk substitutes is proper if based on complete
and updated information." Section 8 of the RIRR also states that information and
educational materials should include information on the proper use of infant
formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain
cases, the use of breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as they
are interlinked with each other.
To resolve the question of whether the labeling requirements and advertising
regulations under the RIRR are valid, it is important to deal first with the nature,
purpose, and depth of the regulatory powers of the DOH, as defined in general
under the 1987 Administrative Code,47 and as delegated in particular under the
Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer
span of jurisprudence on that matter precludes the need to further discuss
it..48 However, health information, particularly advertising materials on apparently
non-toxic products like breastmilk substitutes and supplements, is a relatively
new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine
Islands,50 health information was already within the ambit of the regulatory powers
of the predecessor of DOH.51 Section 938 thereof charged it with the duty to
protect the health of the people, and vested it with such powers as "(g) the
dissemination of hygienic information among the people and especially the
inculcation of knowledge as to the proper care of infantsand the methods of
preventing and combating dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to
carry out the state policy pronounced under Section 15, Article II of the 1987
Constitution, which is "to protect and promote the right to health of the people
and instill health consciousness among them."52 To that end, it was granted
under Section 3 of the Administrative Code the power to "(6) propagate health
information and educate the populationon important health, medical and
environmental matters which have health implications."53
When it comes to information regarding nutrition of infants and young children,
however, the Milk Code specifically delegated to the Ministry of Health
(hereinafter referred to as DOH) the power to ensure that there is adequate,
consistent and objective information on breastfeeding and use of breastmilk
substitutes, supplements and related products; and the power to control such
information. These are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for the
implementation and enforcement of the provisions of this Code. For this
purpose, the Ministry of Health shall have the following powers and
functions:
(1) To promulgate such rules and regulations as are necessary or
proper for the implementation of this Code and the accomplishment
of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be
necessary for or incidental to the attainment of the purposes and
objectives of this Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for use by families
and those involved in the field of infant nutrition. This responsibility shall
cover the planning, provision, design and dissemination of information, and
the control thereof, on infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any
information on breastmilk vis--visbreastmilk substitutes, supplement and related
products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or
visual, dealing with the feeding of infants and intended to reach pregnant
women and mothers of infants, shall include clear information on all the
following points: (1) the benefits and superiority of breastfeeding; (2)
maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to
breastfeed; and (5) where needed, the proper use of infant formula,
whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they
shall include the social and financial implications of its use; the
health hazards of inappropriate foods or feeding methods; and, in
particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall
not use any picture or text which may idealize the use of breastmilk
substitutes.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be
restricted to scientific and factual matters, and such information shall

not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding. It shall also include the information
specified in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary
information about the appropriate use of the products, and in such a way
as not to discourage breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be
used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to
whom such information may be disseminated under Sections 6 through 9 of the
Milk Code54 to ensure that the information that would reach pregnant women,
mothers of infants, and health professionals and workers in the health care
system is restricted to scientific and factual matters and shall not imply or create
a belief that bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code
to control information regarding breastmilk vis-a-vis breastmilk substitutes is not
absolute as the power to control does not encompass the power to absolutely
prohibit the advertising, marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that
the control over information given to the DOH is not absolute and that absolute
prohibition is not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate
marketing and distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute
to the provision of safe and adequate nutrition for infants by the
protection and promotion of breastfeeding and by ensuring the
proper use of breastmilk substitutes and breastmilk supplements
when these are necessary, on the basis of adequate information and
through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the

marketing of and practices related to breastmilk substitutes, including
infant formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that
objective and consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational
and educational materials shall not use any picture or text which may
idealize the use of breastmilk substitutes and should include information on
the health hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers
the IAC to review and examine advertising, promotion, and other marketing
materials;
f) Section 8(b) which states that milk companies may provide information
to health professionals but such information should be restricted to factual
and scientific matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding; and
g) Section 10 which provides that containers or labels should not contain
information that would discourage breastfeeding and idealize the use of
infant formula.
It is in this context that the Court now examines the assailed provisions of the
RIRR regarding labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some
labeling requirements, specifically: a) that there be a statement that there is no
substitute to breastmilk; and b) that there be a statement that powdered infant
formula may contain pathogenic microorganisms and must be prepared and used
appropriately. Section 1657 of the RIRR prohibits all health and nutrition claims for
products within the scope of the Milk Code, such as claims of increased
emotional and intellectual abilities of the infant and young child.
These requirements and limitations are consistent with the provisions of Section
8 of the Milk Code, to wit:
SECTION 8. Health workers xxxx

professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters, and such
informationshall not imply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms
"humanized," "maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply
or create a belief that there is any milk product equivalent to breastmilk or which
is humanized or maternalized, as such information would be inconsistent with the
superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given
to health workers regarding breastmilk substitutes, not to containers and labels
thereof. However, such restrictive application of Section 8(b) will result in the
absurd situation in which milk companies and distributors are forbidden to claim
to health workers that their products are substitutes or equivalents of breastmilk,
and yet be allowed to display on the containers and labels of their products the
exact opposite message. That askewed interpretation of the Milk Code is
precisely what Section 5(a) thereof seeks to avoid by mandating that all
information regarding breastmilk vis-a-visbreastmilk substitutes be consistent, at
the same time giving the government control over planning, provision, design,
and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state
that the product offered is not a substitute for breastmilk, is a reasonable means
of enforcing Section 8(b) of the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in Section 260 of the Milk
Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It
implements Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
following points: x x x (5) where needed, the proper use of infant formula,
whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the health
hazards of unnecessary or improper use of infant formula and other
breastmilk substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the
buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and
Section 26 of the RIRR merely adds a fair warning about the likelihood of
pathogenic microorganisms being present in infant formula and other related
products when these are prepared and used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that
formula milk is prone to contaminations and there is as yet no technology that
allows production of powdered infant formula that eliminates all forms of
contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to
contain the message regarding health hazards including the possibility of
contamination with pathogenic microorganisms is in accordance with Section
5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-avis breastmilk substitutes and supplements and related products cannot be
questioned. It is its intervention into the area of advertising, promotion, and
marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether
written, audio or visual, for products within the scope of this Code shall be
printed, published, distributed, exhibited and broadcast unless such
materials are duly authorized and approved by an inter-agency committee
created herein pursuant to the applicable standards provided for in this
Code.
the Milk Code invested regulatory authority over advertising, promotional and
marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring (a) For purposes of Section 6(a) of this Code, an inter-agency committee
composed of the following members is hereby created:
Minister of Health
------------------
Chairman
Minister of Trade and Industry
------------------
Member
Minister of Justice
------------------
Member
Minister of Social Services and

Development
------------------
Member
The members may designate their duly authorized representative to every

meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other
marketing materials, whether written, audio or visual, on products
within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and
prohibit the printing, publication, distribution, exhibition and
broadcast of, all advertising promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this
Code;
(3) To prescribe the internal and operational procedure for the
exercise of its powers and functions as well as the performance of
its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary
or proper for the implementation of Section 6(a) of this Code. x
x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions, sponsorships, or
marketing materials and activities for breastmilk substitutes intended for
infants and young children up to twenty-four (24) months, shall be allowed,

because they tend to convey or give subliminal messages or impressions
that undermine breastmilk and breastfeeding or otherwise exaggerate
breastmilk substitutes and/or replacements, as well as related products
covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and
activities for breastmilk substitutes in line with the RIRRs declaration of principle
under Section 4(f), to wit:
SECTION 4. Declaration of Principles
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk
substitutes and other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the
regulatory authority given to the IAC but also imposed absolute prohibition on
advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk
Code in Section 6 thereof for prior approval by IAC of all advertising, marketing
and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and
repeatedly insisted, during the oral arguments on June 19, 2007, that the
prohibition under Section 11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is
whether or not there is an absolute prohibition on advertising making AO
2006-12 unconstitutional. We maintained that what AO 2006-12 provides is
not an absolute prohibition because Section 11 while it states and it is
entitled prohibition it states that no advertising, promotion, sponsorship or
marketing materials and activities for breast milk substitutes intended for
infants and young children up to 24 months shall be allowed because this
is the standard they tend to convey or give subliminal messages or
impression undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the
other Section, Section 12, provides for the inter agency committee that is
empowered to process and evaluate all the advertising and promotion
materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and
manufacture, it simply regulates the advertisement and the promotions of
breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together
with the provision on the Inter-Agency Committee that processes and
evaluates because there may be some information dissemination that are
straight forward information dissemination. What the AO 2006 is trying to
prevent is any material that will undermine the practice of breastfeeding,
Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority
or power to promulgate Rules and Regulations regarding the Advertising,
Promotion and Marketing of Breastmilk Substitutes?
Your Honor, please, it is provided that the Inter-Agency Committee, Your
Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule
making authority when it totally banned advertising and promotion under
Section 11 prescribed the total effect rule as well as the content of
materials under Section 13 and 15 of the rules and regulations?
Your Honor, please, first we would like to stress that there is no total
absolute ban. Second, the Inter-Agency Committee is under the
Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute
ban on advertising of breastmilk substitutes in the Revised Rules?
Yes, your Honor.
But, would you nevertheless agree that there is an absolute ban on
advertising of breastmilk substitutes intended for children two (2) years old
and younger?
It's not an absolute ban, Your Honor, because we have the Inter-Agency
Committee that can evaluate some advertising and promotional materials,
subject to the standards that we have stated earlier, which are- they should
not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation
with the other Sections, particularly 12 and 13 and 15, Your Honor,
because it is recognized that the Inter-Agency Committee has that power
to evaluate promotional materials, Your Honor.
So in short, will you please clarify there's no absolute ban on
advertisement regarding milk substitute regarding infants two (2) years
below?
We can proudly say that the general rule is that there is a prohibition,
however, we take exceptions and standards have been set. One of which
is that, the Inter-Agency Committee can allow if the advertising and
promotions will not undermine breastmilk and breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and
regulations for the approval or rejection of advertising, promotional, or other
marketing materials under Section 12(a) of the Milk Code, said provision must be
related to Section 6 thereof which in turn provides that the rules and regulations
must be "pursuant to the applicable standards provided for in this Code." Said
standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the
risk of being repetitious, and for easy reference, are quoted hereunder:
xxxx
following points: (1) the benefits and superiority of breastfeeding; (2)
maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to
breastfeed; and (5) where needed, the proper use of infant formula,
whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of
inappropriate foods of feeding methods; and, in particular, the health
hazards of unnecessary or improper use of infant formula and other
breastmilk substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
professionals regarding products within the scope of this Code shall be
restricted to scientific and factual matters and such information shall not
imply or create a belief that bottle feeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary
information about the appropriate use of the products, and in such a way
as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and
understandable message in Pilipino or English printed on it, or on a label,
which message can not readily become separated from it, and which shall
include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of
a health worker as to the need for its use and the proper methods of
use; and
(iv) instructions for appropriate preparation, and a warning against
the health hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing
agency for the enforcement of the provisions of the Code. In relation to such
responsibility of the DOH, Section 5(a) of the Milk Code states that:
(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for use by families
and those involved in the field of infant nutrition. This responsibility shall
cover the planning, provision, design and dissemination of information, and
the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into
operational terms the standards set forth in Sections 5, 8, and 10 of the
Milk Code, by which the IAC shall screen advertising, promotional, or other
marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section
13 in the RIRR which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this
Code must be objective and should not equate or make the product appear
to be as good or equal to breastmilk or breastfeeding in the advertising
concept. It must not in any case undermine breastmilk or breastfeeding.
The "total effect" should not directly or indirectly suggest that buying their
product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the
baby or other such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on
advertising, promotion, and marketing. Through that single provision, the DOH
exercises control over the information content of advertising, promotional and
marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements
and other related products. It also sets a viable standard against which the IAC
may screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the
following: "public interest," "justice and equity," "public convenience and
welfare," and "simplicity, economy and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with
public interest and welfare.
4. With regard to activities for dissemination of information to health
professionals, the Court also finds that there is no inconsistency between the
provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk Code, in
relation to Section 8(b)67 of the same Code, allows dissemination of information to
health professionals but suchinformation is restricted to scientific and factual
matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving
of information to health professionals on scientific and factual matters.
What it prohibits is the involvement of the manufacturer and distributor of the
products covered by the Code in activities for the promotion, education and
production of Information, Education and Communication (IEC) materials
regarding breastfeeding that are intended forwomen and children. Said
provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the
continuing education of health professionals, while Sections 22 and 32 of the
RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69 of the
RIRR prohibiting milk manufacturers' and distributors' participation in any
policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives
should not form part of any policymaking body or entity in relation to the
advancement of breastfeeding. The Court finds nothing in said provisions which
contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it
is the DOH which shall be principally responsible for the implementation and
enforcement of the provisions of said Code. It is entirely up to the DOH to decide
which entities to call upon or allow to be part of policymaking bodies on
breastfeeding. Therefore, the RIRR's prohibition on milk companies participation
in any policymaking body in relation to the advancement of breastfeeding is in
accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk
companies from giving reasearch assistance and continuing education to health
professionals. Section 2270 of the RIRR does not pertain to research
assistance to or the continuing education of health professionals; rather, it
deals with breastfeeding promotion and education for women and children.
Nothing in Section 22 of the RIRR prohibits milk companies from giving
assistance for research or continuing education to health professionals; hence,
petitioner's argument against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said
sections of the RIRR provide thatresearch assistance for health workers and
researchers may be allowed upon approval of an ethics committee, and
with certain disclosure requirements imposed on the milk company and on
the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research
or educational assistance may be given by milk companies or under what
conditions health workers may accept the assistance. Thus, Sections 9 and 10 of
the RIRR imposing limitations on the kind of research done or extent of
assistance given by milk companies are completely in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from
giving assistance, support, logistics or training to health workers. This provision is
within the prerogative given to the DOH under Section 8(e)74 of the Milk Code,
which provides that manufacturers and distributors of breastmilk
substitutes may assist in researches, scholarships and the continuing education,

of health professionals in accordance with the rules and regulations promulgated
by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent
with the Milk Code. Section 6(f) of the Milk Code provides that donations may be
made by manufacturers and distributors of breastmilk substitutesupon the
request or with the approval of the DOH. The law does not proscribe the
refusal of donations. The Milk Code leaves it purely to the discretion of the DOH
whether to request or accept such donations. The DOH then appropriately
exercised its discretion through Section 5175 of the RIRR which sets forth its
policy not to request or approve donations from manufacturers and distributors of
breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the
RIRR that any donation from milk companies not covered by the Code should be
coursed through the IAC which shall determine whether such donation should be
accepted or refused. As reasoned out by respondents, the DOH is not mandated
by the Milk Code to accept donations. For that matter, no person or entity can be
forced to accept a donation. There is, therefore, no real inconsistency between
the RIRR and the law because the Milk Code does not prohibit the DOH from
refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions
that are not found in the Milk Code, the Court upholds petitioner's objection
thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is
misplaced. The glaring difference in said case and the present case before the
Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration
(CAA) was expressly granted by the law (R.A. No. 776) the power to impose
fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by
the same law the power to review on appeal the order or decision of the CAA and
to determine whether to impose, remit, mitigate, increase or compromise such
fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing
administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines,
Inc.,77 the Court upheld the Department of Energy (DOE) Circular No. 2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for
the commission of prohibited acts. The Court found that nothing in the circular
contravened the law because the DOE was expressly authorized by B.P. Blg. 33
and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code
grants the DOH the authority to fix or impose administrative fines. Thus, without
any express grant of power to fix or impose such fines, the DOH cannot provide
for those fines in the RIRR. In this regard, the DOH again exceeded its authority
by providing for such fines or sanctions in Section 46 of the RIRR. Said provision
is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations.
Section 12(b) (3) of the Milk Code authorizes the DOH to "cause the prosecution
of the violators of this Code and other pertinent laws on products covered by this
Code." Section 13 of the Milk Code provides for the penalties to be imposed on
violators of the provision of the Milk Code or the rules and regulations issued
pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and
regulations issued pursuant to this Code shall, upon conviction, be
punished by a penalty of two (2) months to one (1) year imprisonment or a
fine of not less than One Thousand Pesos (P1,000.00) nor more than
Thirty Thousand Pesos (P30,000.00) or both. Should the offense be
committed by a juridical person, the chairman of the Board of Directors, the
president, general manager, or the partners and/or the persons directly
responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to
any health worker, distributor, manufacturer, or marketing firm or personnel
for the practice of their profession or occupation, or for the pursuit of their
business, may, upon recommendation of the Ministry of Health, be
suspended or revoked in the event of repeated violations of this Code, or
of the rules and regulations issued pursuant to this Code. (Emphasis
supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are
contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and
regulations or parts thereof inconsistent with these revised rules and
implementing regulations are hereby repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders,
issuances and rules and regulations. Thus, said provision is valid as it is within
the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rulemaking power or the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability and separability of
powers.78 Such express grant of rule-making power necessarily includes the
power to amend, revise, alter, or repeal the same.79 This is to allow administrative
agencies flexibility in formulating and adjusting the details and manner by which
they are to implement the provisions of a law,80 in order to make it more
responsive to the times. Hence, it is a standard provision in administrative rules
that prior issuances of administrative agencies that are inconsistent therewith are
declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the
DOH to promulgate and in contravention of the Milk Code and, therefore, null and
void. The rest of the provisions of the RIRR are in consonance with the Milk
Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the
Respondents is unnecessary and oppressive, and is offensive to the
due process clause of the Constitution, insofar as the same is in
restraint of trade and because a provision therein is inadequate to
provide the public with a comprehensible basis to determine whether or not
they have committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as
the provisions that suppress the trade of milk and, thus, violate the due process
clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to
some form of regulation for the public good. Public interest must be upheld over
business interests.90 In Pest Management Association of the Philippines v.
Fertilizer and Pesticide Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut
Desiccators v. Philippine Coconut Authority,despite the fact that "our
present Constitution enshrines free enterprise as a policy, it
nonetheless reserves to the government the power to intervene
whenever necessary to promote the general welfare." There can be no

question that the unregulated use or proliferation of pesticides would be
hazardous to our environment. Thus, in the aforecited case, the Court
declared that "free enterprise does not call for removal of protective
regulations." x x x It must be clearly explained and proven by
competent evidence just exactly how such protective regulation
would result in the restraint of trade. [Emphasis and underscoring
supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers
participation in any policymaking body (Section 4(i)), classes and seminars for
women and children (Section 22); the giving of assistance, support and logistics
or training (Section 32); and the giving of donations (Section 52) would
unreasonably hamper the trade of breastmilk substitutes. Petitioner has not
established that the proscribed activities are indispensable to the trade of
breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned
provisions of the RIRR are unreasonable and oppressive for being in restraint of
trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is
unreasonable and oppressive. Said section provides for the definition of the term
"milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner,
manufacturer, distributor of infant formula, follow-up milk, milk formula, milk
supplement, breastmilk substitute or replacement, or by any other
description of such nature, including their representatives who promote or
otherwise advance their commercial interests in marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the
public or private sector engaged in the business (whether directly or
indirectly) of marketing at the wholesale or retail level a product within the
scope of this Code. A "primary distributor" is a manufacturer's sales agent,
representative, national distributor or broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public or
private sector engaged in the business or function (whether directly or
indirectly or through an agent or and entity controlled by or under contract
with it) of manufacturing a products within the scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk
company" the entities defined separately under the Milk Code as "distributor" and
"manufacturer." The RIRR also enumerated in Section 5(w) the products
manufactured or distributed by an entity that would qualify it as a "milk company,"
whereas in the Milk Code, what is used is the phrase "products within the scope
of this Code." Those are the only differences between the definitions given in the
Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR providing for
just one term to encompass both entities. The definition of "milk company" in the
RIRR and the definitions of "distributor" and "manufacturer" provided for under
the Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the
RIRR would bring about any change in the treatment or regulation of
"distributors" and "manufacturers" of breastmilk substitutes, as defined under the
Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code, constituting
reasonable regulation of an industry which affects public health and welfare and,
as such, the rest of the RIRR do not constitute illegal restraint of trade nor are
they violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46
of Administrative Order No. 2006-0012 dated May 12, 2006 are
declared NULL and VOID for being ultra vires. The Department of Health and
respondents are PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar
as the rest of the provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.
Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco,
Jr., Nachura, Reyes, JJ., concur.

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 110120 March 16, 1994

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO, Presiding Judge RTC,
Branch 127, Caloocan City, HON. MACARIO A. ASISTIO, JR., City Mayor of
Caloocan and/or THE CITY GOVERNMENT OF CALOOCAN,respondents.
Alberto N. Hidalgo and Ma. Teresa T. Oledan for petitioner.
The City Legal Officer & Chief, Law Department for Mayor Macario A. Asistio, Jr.
and the City Government of Caloocan.
ROMERO, J.:
The clash between the responsibility of the City Government of Caloocan to
dispose off the 350 tons of garbage it collects daily and the growing concern and
sensitivity to a pollution-free environment of the residents of Barangay Camarin,
Tala Estate, Caloocan City where these tons of garbage are dumped everyday is
the hub of this controversy elevated by the protagonists to the Laguna Lake
Development Authority (LLDA) for adjudication.
The instant case stemmed from an earlier petition filed with this Court by Laguna
Lake Development Authority (LLDA for short) docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In the Resolution of
November 10, 1992, this Court referred G.R. No. 107542 to the Court of Appeals
for appropriate disposition. Docketed therein as CA-G.R. SP
No. 29449, the Court of Appeals, in a decision 1 promulgated on January 29, 1993 ruled that
the LLDA has no power and authority to issue a cease and desist order enjoining the dumping of garbage
in Barangay Camarin, Tala Estate, Caloocan City. The LLDA now seeks, in this petition, a review of the
decision of the Court of Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of Lourdes
Parish, Barangay Camarin, Caloocan City, filed a letter-complaint 2 with the Laguna
Lake Development Authority seeking to stop the operation of the 8.6-hectare open garbage dumpsite in
Tala Estate, Barangay Camarin, Caloocan City due to its harmful effects on the health of the residents
and the possibility of pollution of the water content of the surrounding area.
On November 15, 1991, the LLDA conducted an on-site investigation, monitoring

and test sampling of the leachate 3 that seeps from said dumpsite to the nearby creek which is a
tributary of the Marilao River. The LLDA Legal and Technical personnel found that the City Government of
Caloocan was maintaining an open dumpsite at the Camarin area without first securing an Environmental
Compliance Certificate (ECC) from the Environmental Management Bureau (EMB) of the Department of
Environment and Natural Resources, as required under Presidential Decree No. 1586, 4 and clearance
from LLDA as required under Republic Act No. 4850, 5 as amended by Presidential Decree No. 813 and
Executive Order No. 927, series of 1983. 6
After a public hearing conducted on December 4, 1991, the LLDA, acting on the
complaint of Task Force Camarin Dumpsite, found that the water collected from
the leachate and the receiving streams could considerably affect the quality, in
turn, of the receiving waters since it indicates the presence of bacteria, other than
coliform, which may have contaminated the sample during collection or
handling. 7 On December 5, 1991, the LLDA issued a Cease and Desist Order 8 ordering the City
Government of Caloocan, Metropolitan Manila Authority, their contractors, and other entities, to
completely halt, stop and desist from dumping any form or kind of garbage and other waste matter at the
Camarin dumpsite.
The dumping operation was forthwith stopped by the City Government of

Caloocan. However, sometime in August 1992 the dumping operation was
resumed after a meeting held in July 1992 among the City Government of
Caloocan, the representatives of Task Force Camarin Dumpsite and LLDA at the
Office of Environmental Management Bureau Director Rodrigo U. Fuentes failed
to settle the problem.
After an investigation by its team of legal and technical personnel on August 14,
1992, the LLDA issued another order reiterating the December 5, 1991, order
and issued an Alias Cease and Desist Order enjoining the City Government of
Caloocan from continuing its dumping operations at the Camarin area.
On September 25, 1992, the LLDA, with the assistance of the Philippine National
Police, enforced its Alias Cease and Desist Order by prohibiting the entry of all
garbage dump trucks into the Tala Estate, Camarin area being utilized as a
dumpsite.
Pending resolution of its motion for reconsideration earlier filed on September 17,
1992 with the LLDA, the City Government of Caloocan filed with the Regional
Trial Court of Caloocan City an action for the declaration of nullity of the cease
and desist order with prayer for the issuance of writ of injunction, docketed as
Civil Case No. C-15598. In its complaint, the City Government of Caloocan
sought to be declared as the sole authority empowered to promote the health
and safety and enhance the right of the people in Caloocan City to a balanced
ecology within its territorial jurisdiction. 9
On September 25, 1992, the Executive Judge of the Regional Trial Court of
Caloocan City issued a temporary restraining order enjoining the LLDA from
enforcing its cease and desist order. Subsequently, the case was raffled to the
Regional Trial Court, Branch 126 of Caloocan which, at the time, was presided
over by Judge Manuel Jn. Serapio of the Regional Trial Court, Branch 127, the
pairing judge of the recently-retired presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the
ground, among others, that under Republic Act No. 3931, as amended by
Presidential Decree No. 984, otherwise known as the Pollution Control Law, the
cease and desist order issued by it which is the subject matter of the complaint is
reviewable both upon the law and the facts of the case by the Court of Appeals
and not by the Regional Trial Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating
Civil Case No. C-15598 with Civil Case No. C-15580, an earlier case filed by the
Task Force Camarin Dumpsite entitled "Fr. John Moran, et al. vs. Hon. Macario
Asistio." The LLDA, however, maintained during the trial that the foregoing cases,
being independent of each other, should have been treated separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to
dismiss, issued in the consolidated cases an order 11 denying LLDA's motion to dismiss
and granting the issuance of a writ of preliminary injunction enjoining the LLDA, its agent and all persons
acting for and on its behalf, from enforcing or implementing its cease and desist order which prevents
plaintiff City of Caloocan from dumping garbage at the Camarin dumpsite during the pendency of this
case and/or until further orders of the court.
On November 5, 1992, the LLDA filed a petition for certiorari, prohibition and
injunction with prayer for restraining order with the Supreme Court, docketed as
G.R. No. 107542, seeking to nullify the aforesaid order dated October 16, 1992
issued by the Regional Trial Court, Branch 127 of Caloocan City denying its
motion to dismiss.
The Court, acting on the petition, issued a Resolution 12 on November 10, 1992 referring
the case to the Court of Appeals for proper disposition and at the same time, without giving due course to
the petition, required the respondents to comment on the petition and file the same with the Court of
Appeals within ten (10) days from notice. In the meantime, the Court issued a temporary restraining order,
effective immediately and continuing until further orders from it, ordering the respondents: (1) Judge
Manuel Jn. Serapio, Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to cease and
desist from exercising jurisdiction over the case for declaration of nullity of the cease and desist order
issued by the Laguna Lake Development Authority (LLDA); and (2) City Mayor of Caloocan and/or the
City Government of Caloocan to cease and desist from dumping its garbage at the Tala Estate, Barangay
Camarin, Caloocan City.
Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr.

filed on November 12, 1992 a motion for reconsideration and/or to quash/recall
the temporary restraining order and an urgent motion for reconsideration alleging
that ". . . in view of the calamitous situation that would arise if the respondent city
government fails to collect 350 tons of garbage daily for lack of dumpsite (i)t is
therefore, imperative that the issue be resolved with dispatch or with sufficient
leeway to allow the respondents to find alternative solutions to this garbage
problem."
On November 17, 1992, the Court issued a Resolution 13 directing the Court of Appeals to
immediately set the case for hearing for the purpose of determining whether or not the temporary
restraining order issued by the Court should be lifted and what conditions, if any, may be required if it is to
be so lifted or whether the restraining order should be maintained or converted into a preliminary
injunction.
The Court of Appeals set the case for hearing on November 27, 1992, at 10:00 in
the morning at the Hearing Room, 3rd Floor, New Building, Court of
Appeals. 14 After the oral argument, a conference was set on December 8, 1992 at 10:00 o'clock in the
morning where the Mayor of Caloocan City, the General Manager of LLDA, the Secretary of DENR or his
duly authorized representative and the Secretary of DILG or his duly authorized representative were
required to appear.
It was agreed at the conference that the LLDA had until December 15, 1992 to
finish its study and review of respondent's technical plan with respect to the
dumping of its garbage and in the event of a rejection of respondent's technical
plan or a failure of settlement, the parties will submit within 10 days from notice
their respective memoranda on the merits of the case, after which the petition
shall be deemed submitted for resolution. 15 Notwithstanding such efforts, the parties failed to
settle the dispute.
On April 30, 1993, the Court of Appeals promulgated its decision holding that: (1)
the Regional Trial Court has no jurisdiction on appeal to try, hear and decide the
action for annulment of LLDA's cease and desist order, including the issuance of
a temporary restraining order and preliminary injunction in relation thereto, since
appeal therefrom is within the exclusive and appellate jurisdiction of the Court of
Appeals under Section 9, par. (3), of Batas Pambansa Blg. 129; and (2) the
Laguna Lake Development Authority has no power and authority to issue a cease
and desist order under its enabling law, Republic Act No. 4850, as amended by
P.D. No. 813 and Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the preliminary
injunction issued in the said case was set aside; the cease and desist order of
LLDA was likewise set aside and the temporary restraining order enjoining the
City Mayor of Caloocan and/or the City Government of Caloocan to cease and
desist from dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan
City was lifted, subject, however, to the condition that any future dumping of
garbage in said area, shall be in conformity with the procedure and protective
works contained in the proposal attached to the records of this case and found
on pages 152-160 of the Rollo, which was thereby adopted by reference and
made an integral part of the decision, until the corresponding restraining and/or
injunctive relief is granted by the proper Court upon LLDA's institution of the
necessary legal proceedings.
Hence, the Laguna Lake Development Authority filed the instant petition for
review on certiorari, now docketed as G.R. No. 110120, with prayer that the
temporary restraining order lifted by the Court of Appeals be re-issued until after
final determination by this Court of the issue on the proper interpretation of the
powers and authority of the LLDA under its enabling law.
On July, 19, 1993, the Court issued a temporary restraining order 16 enjoining the City
Mayor of Caloocan and/or the City Government of Caloocan to cease and desist from dumping its
garbage at the Tala Estate, Barangay Camarin, Caloocan City, effective as of this date and containing
until otherwise ordered by the Court.
It is significant to note that while both parties in this case agree on the need to
protect the environment and to maintain the ecological balance of the
surrounding areas of the Camarin open dumpsite, the question as to which
agency can lawfully exercise jurisdiction over the matter remains highly open to
question.
The City Government of Caloocan claims that it is within its power, as a local
government unit, pursuant to the general welfare provision of the Local
Government Code, 17 to determine the effects of the operation of the dumpsite on the ecological
balance and to see that such balance is maintained. On the basis of said contention, it questioned, from
the inception of the dispute before the Regional Trial Court of Caloocan City, the power and authority of
the LLDA to issue a cease and desist order enjoining the dumping of garbage in the Barangay Camarin
over which the City Government of Caloocan has territorial jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan on the theory
that Section 7 of Presidential Decree No. 984, otherwise known as the Pollution
Control law, authorizing the defunct National Pollution Control Commission to
issue an ex-parte cease and desist order was not incorporated in Presidential
Decree No. 813 nor in Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic Act
No. 4850, as amended, the LLDA is instead required "to institute the necessary
legal proceeding against any person who shall commence to implement or
continue implementation of any project, plan or program within the Laguna de

Bay region without previous clearance from the Authority."
The LLDA now assails, in this partition for review, the abovementioned ruling of
the Court of Appeals, contending that, as an administrative agency which was
granted regulatory and adjudicatory powers and functions by Republic Act No.
4850 and its amendatory laws, Presidential Decree No. 813 and Executive Order
No. 927, series of 1983, it is invested with the power and authority to issue a
cease and desist order pursuant to Section 4 par. (c), (d), (e), (f) and (g) of
Executive Order No. 927 series of 1983 which provides, thus:
Sec. 4. Additional Powers and Functions. The authority shall have
the following powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel compliance with the
provisions of this Executive Order and its implementing rules and
regulations only after proper notice and hearing.
(d) Make, alter or modify orders requiring the discontinuance of
pollution specifying the conditions and the time within which such
discontinuance must be accomplished.
(e) Issue, renew, or deny permits, under such conditions as it may
determine to be reasonable, for the prevention and abatement of
pollution, for the discharge of sewage, industrial waste, or for the
installation or operation of sewage works and industrial disposal
system or parts thereof.
(f) After due notice and hearing, the Authority may also revoke,
suspend or modify any permit issued under this Order whenever the
same is necessary to prevent or abate pollution.
(g) Deputize in writing or request assistance of appropriate
government agencies or instrumentalities for the purpose of
enforcing this Executive Order and its implementing rules and
regulations and the orders and decisions of the Authority.
The LLDA claims that the appellate court deliberately suppressed and totally
disregarded the above provisions of Executive Order No. 927, series of 1983,
which granted administrative quasi-judicial functions to LLDA on pollution
abatement cases.
In light of the relevant environmental protection laws cited which are applicable in
this case, and the corresponding overlapping jurisdiction of government agencies
implementing these laws, the resolution of the issue of whether or not the LLDA
has the authority and power to issue an order which, in its nature and effect was
injunctive, necessarily requires a determination of the threshold question: Does
the Laguna Lake Development Authority, under its Charter and its amendatory
laws, have the authority to entertain the complaint against the dumping of
garbage in the open dumpsite in Barangay Camarin authorized by the City
Government of Caloocan which is allegedly endangering the health, safety, and
welfare of the residents therein and the sanitation and quality of the water in the
area brought about by exposure to pollution caused by such open garbage
dumpsite?
The matter of determining whether there is such pollution of the environment that
requires control, if not prohibition, of the operation of a business establishment is
essentially addressed to the Environmental Management Bureau (EMB) of the
DENR which, by virtue of Section 16 of Executive Order No. 192, series of
1987, 18 has assumed the powers and functions of the defunct National Pollution Control Commission
created under Republic Act No. 3931. Under said Executive Order, a Pollution Adjudication Board (PAB)
under the Office of the DENR Secretary now assumes the powers and functions of the National Pollution
Control Commission with respect to adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally pertains to the

Pollution Adjudication Board (PAB), except in cases where the special law
provides for another forum. It must be recognized in this regard that the LLDA, as
a specialized administrative agency, is specifically mandated under Republic Act
No. 4850 and its amendatory laws to carry out and make effective the declared
national policy 20 of promoting and accelerating the development and balanced growth of the Laguna
Lake area and the surrounding provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay,
Quezon and Caloocan 21 with due regard and adequate provisions for environmental management and
control, preservation of the quality of human life and ecological systems, and the prevention of undue
ecological disturbances, deterioration and pollution. Under such a broad grant and power and authority,
the LLDA, by virtue of its special charter, obviously has the responsibility to protect the inhabitants of the
Laguna Lake region from the deleterious effects of pollutants emanating from the discharge of wastes
from the surrounding areas. In carrying out the aforementioned declared policy, the LLDA is mandated,
among others, to pass upon and approve or disapprove all plans, programs, and projects proposed by
local government offices/agencies within the region, public corporations, and private persons or
enterprises where such plans, programs and/or projects are related to those of the LLDA for the
development of the region. 22
In the instant case, when the complainant Task Force Camarin Dumpsite of Our
Lady of Lourdes Parish, Barangay Camarin, Caloocan City, filed its lettercomplaint before the LLDA, the latter's jurisdiction under its charter was validly
invoked by complainant on the basis of its allegation that the open dumpsite
project of the City Government of Caloocan in Barangay Camarin was
undertaken without a clearance from the LLDA, as required under Section 4, par.
(d), of Republic Act. No. 4850, as amended by P.D. No. 813 and Executive Order
No. 927. While there is also an allegation that the said project was without an
Environmental Compliance Certificate from the Environmental Management
Bureau (EMB) of the DENR, the primary jurisdiction of the LLDA over this case
was recognized by the Environmental Management Bureau of the DENR when
the latter acted as intermediary at the meeting among the representatives of the
City Government of Caloocan, Task Force Camarin Dumpsite and LLDA
sometime in July 1992 to discuss the possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then narrows down to
the following issue: Does the LLDA have the power and authority to issue a
"cease and desist" order under Republic Act No. 4850 and its amendatory laws,
on the basis of the facts presented in this case, enjoining the dumping of garbage
in Tala Estate, Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City Government of
Caloocan to stop dumping its garbage in the Camarin open dumpsite found by
the LLDA to have been done in violation of Republic Act No. 4850, as amended,
and other relevant environment laws, 23 cannot be stamped as an unauthorized exercise by the
LLDA of injunctive powers. By its express terms, Republic Act No. 4850, as amended by P.D. No. 813 and
Executive Order No. 927, series of 1983, authorizes the LLDA to "make, alter or modify order requiring
the discontinuance or pollution." 24(Emphasis supplied) Section 4, par. (d) explicitly authorizes the LLDA
to make whatever order may be necessary in the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue and exparte cease and desist order" in a language, as suggested by the City
Government of Caloocan, similar to the express grant to the defunct National
Pollution Control Commission under Section 7 of P.D. No. 984 which, admittedly
was not reproduced in P.D. No. 813 and E.O. No. 927, series of 1983. However,
it would be a mistake to draw therefrom the conclusion that there is a denial of
the power to issue the order in question when the power "to make, alter or modify
orders requiring the discontinuance of pollution" is expressly and clearly
bestowed upon the LLDA by Executive Order No. 927, series of 1983.
Assuming arguendo that the authority to issue a "cease and desist order" were
not expressly conferred by law, there is jurisprudence enough to the effect that
the rule granting such authority need not necessarily be express.25 While it is a
fundamental rule that an administrative agency has only such powers as are expressly granted to it by
law, it is likewise a settled rule that an administrative agency has also such powers as are necessarily
implied in the exercise of its express powers. 26 In the exercise, therefore, of its express powers under its
charter as a regulatory and quasi-judicial body with respect to pollution cases in the Laguna Lake region,
the authority of the LLDA to issue a "cease and desist order" is, perforce, implied. Otherwise, it may well
be reduced to a "toothless" paper agency.
In this connection, it must be noted that in Pollution Adjudication Board v. Court

of Appeals, et al., 27 the Court ruled that the Pollution Adjudication Board (PAB) has the power to
issue an ex-parte cease and desist order when there is prima facie evidence of an establishment
exceeding the allowable standards set by the anti-pollution laws of the country. Theponente, Associate
Justice Florentino P. Feliciano, declared:
Ex parte cease and desist orders are permitted by law and

regulations in situations like that here presented precisely because
stopping the continuous discharge of pollutive and untreated
effluents into the rivers and other inland waters of the Philippines
cannot be made to wait until protracted litigation over the ultimate
correctness or propriety of such orders has run its full course,
including multiple and sequential appeals such as those which Solar
has taken, which of course may take several years. The relevant
pollution control statute and implementing regulations were enacted
and promulgated in the exercise of that pervasive, sovereign power
to protect the safety, health, and general welfare and comfort of the
public, as well as the protection of plant and animal life, commonly
designated as the police power. It is a constitutional commonplace
that the ordinary requirements of procedural due process yield to the
necessities of protecting vital public interests like those here
involved, through the exercise of police power. . . .
The immediate response to the demands of "the necessities of protecting vital
public interests" gives vitality to the statement on ecology embodied in the
Declaration of Principles and State Policies or the 1987 Constitution. Article II,
Section 16 which provides:
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.
As a constitutionally guaranteed right of every person, it carries the correlative
duty of non-impairment. This is but in consonance with the declared policy of the
state "to protect and promote the right to health of the people and instill health
consciousness among them." 28 It is to be borne in mind that the Philippines is party to the
Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 which recognize
health as a fundamental human right. 29
The issuance, therefore, of the cease and desist order by the LLDA, as a
practical matter of procedure under the circumstances of the case, is a proper
exercise of its power and authority under its charter and its amendatory laws.
Had the cease and desist order issued by the LLDA been complied with by the
City Government of Caloocan as it did in the first instance, no further legal steps
would have been necessary.
The charter of LLDA, Republic Act No. 4850, as amended, instead of conferring
upon the LLDA the means of directly enforcing such orders, has provided under
its Section 4 (d) the power to institute "necessary legal proceeding against any
person who shall commence to implement or continue implementation of any
project, plan or program within the Laguna de Bay region without previous
clearance from the LLDA."
Clearly, said provision was designed to invest the LLDA with sufficiently broad
powers in the regulation of all projects initiated in the Laguna Lake region,
whether by the government or the private sector, insofar as the implementation of
these projects is concerned. It was meant to deal with cases which might
possibly arise where decisions or orders issued pursuant to the exercise of such
broad powers may not be obeyed, resulting in the thwarting of its laudabe
objective. To meet such contingencies, then the writs of mandamus and
injunction which are beyond the power of the LLDA to issue, may be sought from
the proper courts.
Insofar as the implementation of relevant anti-pollution laws in the Laguna Lake
region and its surrounding provinces, cities and towns are concerned, the Court
will not dwell further on the related issues raised which are more appropriately
addressed to an administrative agency with the special knowledge and expertise
of the LLDA.
WHEREFORE, the petition is GRANTED. The temporary restraining order issued
by the Court on July 19, 1993 enjoining the City Mayor of Caloocan and/or the
City Government of Caloocan from dumping their garbage at the Tala Estate,
Barangay Camarin, Caloocan City is hereby made permanent.
SO ORDERED.
Feliciano, Bidin, Melo and Vitug, JJ., concur.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-41518 June 30, 1976
GUERRERO'S TRANSPORT SERVICES, INC., petitioner,

vs.
BLAYLOCK TRANSPORTATION SERVICES EMPLOYEES ASSOCIATIONKILUSAN (BTEA-KILUSAN), LABOR ARBITER FRANCISCO M. DE LOS
REYES and JOSE CRUZ, respondents.
Eladio B. Samson petitioner.
Francisco Angeles for private respondents.
ANTONIO, J.:
Certiorari and prohibition with preliminary injunction to annul the Orders of the
National Labor Relations Commission, of March 26, June 20 and September 25,
1975, as well as the Writ of Execution of September 26, 1975, issued in NLRC
Case No. 214, and to restrain respondent Deputy Sheriff of Manila from
implementing said writ.
On June 1, 1972, the United states Naval Base authorities at Subic, Zambales,
conducted a public bidding for a five-year contract for the right to operate and/or
manage the transportation services inside the naval base. This bidding was won
by Santiago Guerrero, owner- operator of Guerrero's Transport Services, Inc.,
herein petitioner, over Concepcion F. Blaylock, the then incumbent
concessionaire doing business under the name of "Blaylock Transport Services",
whose 395 employees are members of respondent union BTEA-KILUSAN. When
petitioner, after the commencement of its operation on January 1, 1973, refused
to employ the members of the respondent union, the latter. On January, 12,
1975, filed a complaint 1 with the National Labor Relations Commission 2 docketed as NLRC Case
No. 214, against Guerrero's Transport Services, Inc. and Santiago Guerrero, to compel them to employ its
members pursuant to Article 1, Section 2 of the RP-US Base Agreement dated May 27, 1968. 3 This case
was dismissed by the National Labor Relations Commission on March 13, 1973, upon petitioner's motion
to dismiss on jurisdictional grounds, there being no employer-employee relationship between the
parties. 4
Respondent union then appealed said Order on March 26,1973 to the Secretary
of the Department of Labor, who, instead of deciding the appeal, remanded the
case for review to the NLRC which, subsequently, summoned both parties to a
series of conferences. Thereafter, or on October .11, 1973, the NLRC issue a
Resolution 5ordering petitioner, among others, "to absorb all the complainants who filed their
applications on or before the deadline" set by petitioner "on 15 November 1972 except those who may
have derogatory records with the U.S. Naval Authorities in Subic, Zambales" and directing the Officer-incharge of the provincial office of the Department of Labor in Olongapo City to "oversee the preparation of
the list of those qualified for absorption in accordance with this resolution."
Petitioner appealed to Secretary of Labor Blas F. Ople who, in turn, rendered a

Decision on December 27, 1973, affirming said Resolution. 6 On January 22, 1974,
Santiago A. Guerrero) appealed the decision to the President of the Philippines, 7 but on July 9, 1974, the
President, through Assistant Executive Secretary Ronaldo B. Zamora, returned the case to the Secretary
of Labor for appropriate action on the appeal, it appearing, that the same does not involve national
interest. 8
In the meantime, the Provincial Director of the Labor Office in Zambales

furnished, on August 2, 1974, petitioner 9a list of forty-six (46) members of respondent union
BTEA-KILUSAN and former drivers of the Blaylock Transport Service, 10 who are within the coverage of
the decision of the Secretary of Labor, and requesting petitioner to report its action on the matter directly
to the Chairman, NLRC, Manila. Subsequently, Santiago A. Guerrero received a letter dated September
24, 1974 11 from Col. Levi L. Basilla, PC (GSC) Camp Olivas, San Fernando, Pampanga, requesting
compliance with the Order dated July 19, 1974 of the NLRC in NLRC Case No. 214. In his reply letter
dated October 4, 1974, Guerrero informed Col. Basilia that he had substantially complied with the
decision of the Secretary of Labor affirming the NLRC Resolution of October 31, 1974 in NLRC Case No.
214, and that any apparent non-compliance therewith was attributable to the individual complainants who
failed to submit themselves for processing and examination as requested by the authorities of the U.S.
Naval Base in Subic, Zambales, preparatory to their absorption by petitioner.
On January 18, 1975, Acting Executive Secretary Roberto V. Reyes, pursuant to

Section 10 of Presidential Decree No. 21, directed the Chief of Constabulary to
arrest the executive officers of petitioner. 12 On February 20, 1975, petitioner informed
Secretary Reyes that it has substantially complied with the NLRC Resolution of October 31, 1975 as out
of those listed by the Regional Labor Director, only a few passed the examination given and some of
those who passed failed to comply with the final requirements of the U.S. Naval Base Authority; that only
those who passed and complied with the requirements of the U.S. Naval Base Authority were extended
appointments as early as December 16, 1974, but none of them, for evident lack of interest, has reported
for work. 13 In his 1st endorsement dated March 26, 1975, Secretary Zamora required the Secretary of
Labor to verify petitioner's allegations. 14 On the same date, respondent Labor Arbiter Francisco M. de los
Reyes, upon a motion for execution filed by respondent union, issued an Order stating that "upon the
finality thereof and by way of implementing any writ of execution that might be issued in this case, further
hearings shall be held to determine the members of respondent union who are entitled to reinstatement in
accordance with the basic guidelines finally determined in this case." 15
On June 20, 1975, respondent Labor Arbiter De los Reyes ordered the
reinstatement of 129 individuals "to their former or substantially equivalent
positions without loss of seniority and other rights and privileges". 16
On July 16,1975, respondent BTEA-KILUSAN filed a Motion for Issuance of Writ
of Execution with respondent Labor Arbiter, 17 but this was objected to by petitioner
contending that the Labor Arbiter has no jurisdiction over NLRC Case No. 214 and, therefore, his
proceedings and orders resulting therefrom are null and void. 18
On September 1, 1975, the Provincial Director of the Zambales Labor Office,

pursuant to the directive of the Secretary of Labor, 19 and the NLRC Resolution dated
October 21, 1975 20 submitted a detailed information to the Assistant Secretary of the Department of
Labor on petitioner's compliance, "to enable the Department of Labor to formally close" NLRC Case No.
214. 21
On September 25, 1975, respondent Labor Arbiter, acting on the motion for
execution filed by respondent union BTEA-KILUSAN, and finding that both the
Orders, dated March 26 and June 20, 1975, have not been appealed pursuant to
Article 223 of the Labor Code, declared said Orders final and executory and
directed petitioner Guerrero's Transport Services, Inc. to reinstate the 129
complainants and to pay them the amount of P4,290.00 each, or a total of
P592,110.00 as back wages covering the period from August 22, 1974 to
September 20, 1975.22
On September 26, 1975, respondent Labor Arbiter issued a writ directing the
respondent Deputy Sheriff of Manila levy on the moneys and/or properties of
petitioner, 23 and on the same date respondent Sheriff immediately serve said writ on petitioner who
was given a period of five (5) days within which to comply therewith.
It was on this factual environment that petitioner instituted the present petition for
certiorari and prohibition with preliminary injunction on October 6, 1975.
Petitioner asserts that the afore-mentioned Orders were issued by respondent
Labor Arbiter without jurisdiction.
As prayed for, this Court, on October 6, 1975, issued a temporary restraining
order and required the respondents to file an answer within ten (10) days from
notice.
On October 11, 1975, respondent Labor Arbiter De los Reyes and Sheriff Jose
Cruz filed their Comment by way of answer to the petition, explaining the legal
justifications of their action on the premises.
Upon motion filed on October 11, 1975 by respondent union BTEA-KILUSAN for
reconsideration and to lift the temporary restraining order of October 6, 1975, this
Court, on October 15, 1975, lifted said restraining order and set the case for
hearing on Monday, October 20, 1975 at 3:00 p.m.
At the hearing of this case on October 20, 1975, a Compromise Agreement was
arrived at by the parties wherein they agreed to submit to the Office of t he
Secretary of Labor the determination of members of the respondent union BTEAKILUSAN who shall be reinstated or absorbed by the herein petitioner in the
transportation service inside the naval base, which determination shall be
considered final. This Court approved this agreement and enjoined "all the
parties to strictly observe the terms thereof." This agreement is deemed to have
superseded the Resolution of the National Labor Relations Commission of
October 31, 1973, as affirmed by the Secretary of Labor on December 27, 1973.
Pursuant to this agreement which was embodied in the Resolution of this Court
of October 24, 1975, Secretary of Labor Blas F. Ople issued an Order dated
November 13, 1975, the pertinent portion of which reads as follows:
The issue submitted for resolution hinges on the credibility of the
alleged applications. Considering that the employees are
economically dependent on their jobs, they have all the reasons and
zealousness to pursue their jobs within the legitimate framework of
our laws. The applicant are no strangers to the pains and difficulties
of unemployment. Because of these factors we cannot ignore the
affidavits of proof presented by the employees concerned as against
the declaration of the herein respondent. Firmly entrenched is the
rule in this jurisdiction that doubts arising from labor disputes must
be construed and interpreted in favor of the workers.
RESPONSIVE TO THE FOREGOING, the National Labor Relations
Commission through Arbiter Francisco delos Reyes is hereby
directed to implement the absorption of the 175 members of the
Blaylock Transport Employees Association (BTEA-KILUSAN) into
the Guerrero Transport Services, subject to the following terms and
conditions:
1) that they were bona fide employees of the Blaybock
Transportation Service at the time its concession expired:
2) that the appellants shall pass final screening and approval by the
appropriate authorities of the U.S. Base concerned.
The applicants to be processed for absorption shall be those in the
list of 46 submitted by OIC Liberator (Carino on 2 August 1974, and
the list of 129 determined by Arbiter de los Reyes as embodied in
the Writ of Execution issued on 25 September 1975.
The Regional Director of Regional Office No. II, San Fernando,
Pampanga, shall make available to the parties the facilities of that
Office in the implementation of the aforesaid absorption process. 24
On November 24, 1975, in compliance with the aforesaid directive of the
Secretary of Labor, Labor Arbiter Francisco M. delos Reyes conducted a hearing
to receive evidence as to who were the bona fide employees of the former
concessionaire at the "time of its concession expire". Thereafter, Labor Arbiter De
los Reyes issued an Order, dated November 25, 1975, listing in Annex "A"
thereof, 174 employees who were bona fide employees of the private
respondent, and transmitting a copy of said Order to the Base Commander, U.S.
Naval Base, Olongapo City, with the request for the immediate screening and
approval of their applications in accordance with applicable rules of said
command. The pertinent portion of said Order reads as follows:
As far as this Labor Arbiter is concerned, his only participation in this
case refers to that portion of the Secretary of Labor's Order directing
him to implement "* * * the absorption of the 175 members of the
Blaylock Transport Employees Association (BTEA-KILUSAN) into
the Guerrero Transport Services," subject to certain terms and
conditions. Hence, any question of "prematurity" as espoused by
respondent's counsel may not he entertained by this Labor Arbiter.
Going now to the applicants who should be entitled to absorption,
the Honorable Secretary of Labor specified that the same should be
composed of the 46 submitted by OIC Liberator Carino on 2 August
1974 and the 129 applicants determined by this Labor Arbiter. Of the
latter, only 128 will be named. A perusal of said list show that the
name "Renato Carriaga" has been doubly listed. For convenience,
these two listings have now been consolidated and alphabetically
arranged and as an integral part of this Order has been made as
Annex "A" (pp 1 to 6).
For purposes of implementation, the initial step to be undertaken is
for the submission of the name of the applicants to the U.S. Navy
authorities concerned, which means the U. S. Naval Base at
Olongapo City for the screening and approval by the appropriate
authorities.
Regarding the determination of whether the applicants are bona
fide employees of the Blaylock Transportation Service at the time its
concession expired, the parties appear to be in agreement that the
records of this case will eventually show whether the applicants are
such employees. Further, we feel that such employment will likewise
appear in the records of the U. S. Naval Base at Olongapo City
since persons connected with the Base like the applicants, have to
undergo processing by naval authority.
WHEREFORE, in view of the foregoing considerations, copies of
this Order together with Annex "A" hereof are hereby transmitted to
the Base Commander, U. S. Naval Base , Olongapo City with the
request for the immediate screening and approval of said applicants,
in accordance with applicable rules of that command. 25
Pursuant to Section 6 of Article I of the Philippine-U S. Labor Agreement of May

27, 1968, the United States Armed Forces undertook, consistent with military
requirements, "to provide security for employment, and, in the event certain
services are contracted out, the United States Armed Forces shall require the
contractor or concessioner to give priority consideration to affected
employees for employment. (Emphasis supplied.)
A treaty has two (2) aspects as an international agreement between states,
and as municipal law for the people of each state to observe. As part of the
municipal law, the aforesaid provision of the treaty enters into and forms part of
the contract between petitioner and the U.S. Naval Base authorities. In view of
said stipulation, the new contractor is, therefore, bound to give "priority" to the
employment of the qualified employees of the previous contractor. It is obviously
in recognition of such obligation that petitioner entered into the afore-mentioned
Compromise Agreement.
As above indicated, under the Compromise Agreement as embodied in the
Resolution of this Court dated October 24, 1975, the parties agreed to submit to
the Secretary of Labor the determination as to who of the members of the
respondent union BTEA-KILUSAN shall be absorbed or employed by the herein
petitioner Guerrero's Transport Services, Inc., and that such determination shall
be considered as final. In connection therewith, the Secretary of Labor issued an
Order dated November 13, 1975, directing the National Labor Relations
Commission, through Labor Arbiter Francisco de los Reyes, to implement the
absorption of the 175 members 26into the Guerrero's Transport Services, subject to the following
conditions, viz.: (a) that they were bona fide employees of the Blaylock Transport Service at the time its
concession expired; and (b) that they should pass final screening and approval by the appropriate
authorities of the U.S. Naval Base concerned. According to private respondent, however, Commander
Vertplaetse of the U.S. Navy Exchange declined to implement the order of the Labor Arbiter, as it is the
petitioner who should request for the screening and approval of the applicants.
Considering that the afore-mentioned Compromise-Agreement of the parties, as

approved by this Court, is more than a mere contract and has the force and
effect of any other judgment, it is, therefore, conclusive upon the [parties and
their privies. 27 For it is settled that a compromise has, upon the parties, the effect and authority of res
judicata and is enforceable by execution upon approval by the court. 28 Since the resolution of the NLRC
of October 31, 1973 required the absorption of the applicants subject to the conditions therein contained,
and there being no showing that such conditions were complied with, the Labor Arbiter exceeded his
authority in awarding back wages to the 129 complainants.
ACCORDINGLY, judgment is hereby rendered ordering petitioner to employ

members of respondent labor union BTEA-KILUSAN referred to in the Order of
the Secretary of Labor dated November 13, 1975 who satisfy the criteria
enunciated viz.: (a) those who were bona fide employees of the Blaylock
Transport Services at the time its concession expired; and (b) those who pass
the final screening and approval by the appropriate authorities of the U.S. Naval
Base. For this purpose, petitioner is hereby ordered to submit to and secure from
the appropriate authorities of the U.S. naval Base at Subic, Zambales the
requisite screening and approval, the names of the afore-mentioned members of
respondent union.
The Order dated September 25, 1975 of respondent Labor Arbiter Francisco M.
de los Reyes, awarding back wages to the 129 complainants in the total amount
of P592,110.00, is hereby set aside. No pronouncement as to costs.
Barredo, Aquino and Martin, JJ., concur.
Concepcion, Jr., J., is on leave.
Separate Opinions
FERNANDO, J., concurring:

The opinion of the Court penned by Justice Antonio in his usual comprehensive
and lucid manner manifests fealty to the mandates of the law. It is entitled to full
concurrence. The parties, duly represented by counsel, entered on a
compromise. Its terms are thus binding on them. They should be adhered to.
Accordingly, there must be compliance with what was ordained by the Secretary
of Labor in his order of November 13, 1975. So it has been decided by us. We
have no choice on the matter. Unfortunately for respondent Labor Union, no
provision was made for backpay. That was an omission that ought to have been
remedied before the compromise was entered into. This Court, however
sympathetic it may be to the claims of labor, cannot go further than what was
assented to by the parties themselves. So the law prescribes.
Nontheless, the writer is impelled to write this brief concurrence because of his
belief that while this Court is precluded from granting additional relief to the
members of respondent Labor Union who, in the meanwhile, had been laid off,
still their situation is not necessarily devoid of any hope for improvement. The
present Labor Code stresses administrative rather than judicial redress. It has
the advantage of greater flexibility, of more discretion on the part of the Secretary
of Labor. That could be utilized on their behalf. Certainly, from what appears of
record, the course of conduct pursued by petitioner left much to be desired, and
not only from their standpoint. It yields the impression, to me at least, that there
was no fidelity to the basic policy on labor as prescribed by the present
Constitution. Petitioner commenced its operation on January 1, 1973. It refused
to employ the members of respondent Union, prompting the latter to file a
complaint with the National Labor Relations Court against it and one Santiago
Guerrero to compel them to employ its members pursuant to Article 1, Section 2
of the RP-US Bases Agreement dated May 27, 1968. Five days thereafter, or on
January 17, 1973, the present Constitution came into effect. Time and time
again, this Court has correctly stressed how far the present Constitution has
gone in seeing to it that the welfare of the economically underprivileged receive
full attention. All that has to be done is to refer to the expanded scope of social
justice 1 and the specific guarantees intended to vitalize the rights of labor. 2Security of tenure is one of
the basic features. Had that provision been lived up to, the members of respondent Labor Union would
not be in the sad plight they are in at present.
It is to be admitted that what complicated matters is that the service to be

rendered is inside the U.S. Naval Base of Olongapo City. Accordingly, the
intervention of the authorities therein cannot be avoided. That is quite
understandable. At the same time, in line with what was held in Reagan v.
Commissioner of Internal Revenue 3and People v. Gozo, 4 the jurisdiction vested in this
government over every inch of soil of its territory compels the conclusion that its laws are operative even
inside a military base or naval reservation except as limited by the Military Bases Agreement. Moreover,
the interpretation of such a provision should be most restrictive to assure that there be the least
derogation of the rights of the territorial sovereign. 5 The thought cannot be entertained that the naval
authorities concerned would be insensible to the fundamental public policy of according the utmost
consideration to the claims of labor. This observation is made with the hope that if paid attention to,
respondent Labor Union, through the efforts of the administrative officials, could still reasonably hope that
the financial burden long sustained by its members could be eased all in accordance with law.
Separate Opinions
FERNANDO, J., concurring:

The opinion of the Court penned by Justice Antonio in his usual comprehensive
and lucid manner manifests fealty to the mandates of the law. It is entitled to full
concurrence. The parties, duly represented by counsel, entered on a
compromise. Its terms are thus binding on them. They should be adhered to.
Accordingly, there must be compliance with what was ordained by the Secretary
of Labor in his order of November 13, 1975. So it has been decided by us. We
have no choice on the matter. Unfortunately for respondent Labor Union, no
provision was made for backpay. That was an omission that ought to have been
remedied before the compromise was entered into. This Court, however
sympathetic it may be to the claims of labor, cannot go further than what was
assented to by the parties themselves. So the law prescribes.
Nontheless, the writer is impelled to write this brief concurrence because of his
belief that while this Court is precluded from granting additional relief to the
members of respondent Labor Union who, in the meanwhile, had been laid off,
still their situation is not necessarily devoid of any hope for improvement. The
present Labor Code stresses administrative rather than judicial redress. It has
the advantage of greater flexibility, of more discretion on the part of the Secretary
of Labor. That could be utilized on their behalf. Certainly, from what appears of
record, the course of conduct pursued by petitioner left much to be desired, and
not only from their standpoint. It yields the impression, to me at least, that there
was no fidelity to the basic policy on labor as prescribed by the present
Constitution. Petitioner commenced its operation on January 1, 1973. It refused
to employ the members of respondent Union, prompting the latter to file a
complaint with the National Labor Relations Court against it and one Santiago
Guerrero to compel them to employ its members pursuant to Article 1, Section 2
of the RP-US Bases Agreement dated May 27, 1968. Five days thereafter, or on
January 17, 1973, the present Constitution came into effect. Time and time
again, this Court has correctly stressed how far the present Constitution has
gone in seeing to it that the welfare of the economically underprivileged receive
full attention. All that has to be done is to refer to the expanded scope of social
justice 1 and the specific guarantees intended to vitalize the rights of labor. 2Security of tenure is one of
the basic features. Had that provision been lived up to, the members of respondent Labor Union would
not be in the sad plight they are in at present.
It is to be admitted that what complicated matters is that the service to be

rendered is inside the U.S. Naval Base of Olongapo City. Accordingly, the
intervention of the authorities therein cannot be avoided. That is quite
understandable. At the same time, in line with what was held in Reagan v.
Commissioner of nternal Revenue 3and People v. Gozo, 4 the jurisdiction vested in this
government over every inch of soil of its territory compels the conclusion that its laws are operative even
inside a military base or naval reservation except as limited by the Military Bases Agreement. Moreover,
the interpretation of such a provision should be most restrictive to assure that there be the least
derogation of the rights of the territorial sovereign. 5 The thought cannot be entertained that the naval
authorities concerned would be insensible to the fundamental public policy of according the utmost
consideration to the claims of labor. This observation is made with the hope that if paid attention to,
respondent Labor Union, through the efforts of the administrative officials, could still reasonably hope that
the financial burden long sustained by its members could be eased all in accordance with law.

SUPREME COURT
Manila
EN BANC
G.R. No. L-2662
March 26, 1949
SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE,
Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel
PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and
ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S.
Melville Hussey for respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army
and Commanding General of the Japanese Imperial Forces in The Philippines
during a period covering 19433 and 19444 who is now charged before a military
Commission convened by the Chief of Staff of the Armed forces of the
Philippines with having unlawfully disregarded and failed "to discharge his duties
as such command, permitting them to commit brutal atrocities and other high
crimes against noncombatant civilians and prisoners of the Imperial Japanese
Forces in violation of the laws and customs of war" comes before this Court
seeking to establish the illegality of Executive Order No. 68 of the President of
the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert
Port from participating in the prosecution of petitioner's case before the Military
Commission and to permanently prohibit respondents from proceeding with the
case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not
only the provision of our constitutional law but also our local laws to say nothing
of the fact (that) the Philippines is not a signatory nor an adherent to the Hague
Convention on Rules and Regulations covering Land Warfare and therefore
petitioners is charged of 'crimes' not based on law, national and international."
Hence petitioner argues "That in view off the fact that this commission has
been empanelled by virtue of an unconstitutional law an illegal order this
commission is without jurisdiction to try herein petitioner."
Second. That the participation in the prosecution of the case against petitioner
before the Commission in behalf of the United State of America of attorneys
Melville Hussey and Robert Port who are not attorneys authorized by the
Supreme Court to practice law in the Philippines is a diminution of our personality
as an independent state and their appointment as prosecutor are a violation of
our Constitution for the reason that they are not qualified to practice law in the
Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the
United State not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing
rule and regulation governing the trial of accused war criminals, was issued by
the President of the Philippines on the 29th days of July, 1947 This Court holds
that this order is valid and constitutional. Article 2 of our Constitution provides in
its section 3, that
The Philippines renounces war as an instrument of national policy and
adopts the generally accepted principles of international law as part of the
of the nation.
In accordance with the generally accepted principle of international law of the
present day including the Hague Convention the Geneva Convention and
significant precedents of international jurisprudence established by the United
Nation all those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto in violation of the laws and
customs of war, of humanity and civilization are held accountable therefor.
Consequently in the promulgation and enforcement of Execution Order No. 68
the President of the Philippines has acted in conformity with the generally
accepted and policies of international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his
power as Commander in chief of all our armed forces as upheld by this Court in
the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1when we said
War is not ended simply because hostilities have ceased. After cessation
of armed hostilities incident of war may remain pending which should be
disposed of as in time of war. An importance incident to a conduct of war is
the adoption of measure by the military command not only to repel and
defeat the enemies but to seize and subject to disciplinary measure those
enemies who in their attempt to thwart or impede our military effort have
violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.)
Indeed the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war. And in the
language of a writer a military commission has jurisdiction so long as a
technical state of war continues. This includes the period of an armistice or
military occupation up to the effective of a treaty of peace and may extend
beyond by treaty agreement. (Cowles Trial of War Criminals by Military
Tribunals, America Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to
consummate this unfinished aspect of war namely the trial and punishment of
war criminal through the issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try
petitioner for acts committed in violation of the Hague Convention and the
Geneva Convention because the Philippines is not a signatory to the first and
signed the second only in 1947. It cannot be denied that the rules and regulation
of the Hague and Geneva conventions form, part of and are wholly based on the
generally accepted principals of international law. In facts these rules and
principles were accepted by the two belligerent nation the United State and
Japan who were signatories to the two Convention, Such rule and principles
therefore form part of the law of our nation even if the Philippines was not a
signatory to the conventions embodying them for our Constitution has been
deliberately general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as continued inn treaties to
which our government may have been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly
committed the Philippines was under the sovereignty of United States and thus
we were equally bound together with the United States and with Japan to the
right and obligation contained in the treaties between the belligerent countries.
These rights and obligation were not erased by our assumption of full
sovereignty. If at all our emergency as a free state entitles us to enforce the right
on our own of trying and punishing those who committed crimes against crimes
against our people. In this connection it is well to remember what we have said in
the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic
does not affect the prosecution of those charged with the crime of treason
committed during then Commonwealth because it is an offense against the
same sovereign people. . . .
By the same token war crimes committed against our people and our
government while we were a Commonwealth are triable and punishable by our
present Republic.
Petitioner challenges the participation of two American attorneys namely Melville
S. Hussey and Robert Port in the prosecution of his case on the ground that said
attorney's are not qualified to practice law in Philippines in accordance with our
Rules of court and the appointment of said attorneys as prosecutors is violative
of our national sovereignty.
In the first place respondent Military Commission is a special military tribunal
governed by a special law and not by the Rules of court which govern ordinary
civil court. It has already been shown that Executive Order No. 68 which provides
for the organization of such military commission is a valid and constitutional law.
There is nothing in said executive order which requires that counsel appearing
before said commission must be attorneys qualified to practice law in the
Philippines in accordance with the Rules of Court. In facts it is common in military
tribunals that counsel for the parties are usually military personnel who are
neither attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our
nation sovereignty. It is only fair and proper that United States, which has
submitted the vindication of crimes against her government and her people to a
tribunal of our nation should be allowed representation in the trial of those very
crimes. If there has been any relinquishment of sovereignty it has not been by
our government but by the United State Government which has yielded to us the
trial and punishment of her enemies. The least that we could do in the spirit of
comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner
challenges the personality of attorneys Hussey and Port as prosecutors. It is of
common knowledge that the United State and its people have been equally if not
more greatly aggrieved by the crimes with which petitioner stands charged before
the Military Commission. It can be considered a privilege for our Republic that a
leader nation should submit the vindication of the honor of its citizens and its
government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with
jurisdiction over the crimes charged which fall under the provisions of Executive
Order No. 68, and having said petitioner in its custody, this Court will not interfere
with the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
A military commission was empanelled on December 1, 1948 to try Lt. Gen.
Shigenori Kuroda for Violation of the laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the
Supreme Court to practice law were appointed prosecutor representing the
American CIC in the trial of the case.
The commission was empanelled under the authority of Executive Order No. 68
of the President of the Philippines the validity of which is challenged by petitioner
on constitutional grounds. Petitioner has also challenged the personality of
Attorneys Hussey and Port to appear as prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948 in the name of
the people of the Philippines as accusers.
We will consideration briefly the challenge against the appearance of Attorneys
Hussey and Port. It appearing that they are aliens and have not been authorized
by the Supreme Court to practice law there could not be any question that said
person cannot appear as prosecutors in petitioner case as with such appearance
they would be practicing law against the law.
Said violation vanishes however into insignificance at the side of the momentous
question involved in the challenge against the validity of Executive Order No. 68.
Said order is challenged on several constitutional ground. To get a clear idea of
the question raised it is necessary to read the whole context of said order which
is reproduced as follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND
PRESCRIBING RULES AND REGULATION GOVERNING THE
TRIAL OF ACCUSED WAR CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the power vested
in me by the Constitution and laws of the Philippines do hereby establish a
National War Crimes Office charged with the responsibility of
accomplishing the speedy trial of all Japanese accused of war crimes

committed in the Philippines and prescribe the rules and regulation such
trial.
The National War crimes office is established within the office of the Judge
Advocate General of the Army of the Philippines and shall function under
the direction supervision and control of the Judge Advocate General. It
shall proceed to collect from all available sources evidence of war crimes
committed in the Philippines from the commencement of hostilities by
Japan in December 1941, maintain a record thereof and bring about the
prompt trial maintain a record thereof and bring about the prompt trial of
the accused.
The National War Crimes Office shall maintain direct liaison with the Legal
Section General Headquarters, Supreme Commander for the Allied power
and shall exchange with the said Office information and evidence of war
crimes.
The following rules and regulation shall govern the trial off person accused
as war criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. person accused as war criminal shall be tried by military
commission to be convened by or under the authority of the Philippines.
II. JURISDICTION
(a) Over Person. Thee military commission appointed hereunder shall
have jurisdiction over all persons charged with war crimes who are in the
custody of the convening authority at the time of the trial.
(b) Over Offenses. The military commission established hereunder shall
have jurisdiction over all offenses including but not limited to the following:
(1) The planning preparation initiation or waging of a war of aggression or
a war in violation of international treaties agreement or assurance or
participation in a common plan or conspiracy for the accomplishment of
any of the foregoing.
(2) Violation of the laws or customs of war. Such violation shall include but
not be limited to murder ill-treatment or deportation to slave labor or for
other purpose of civilian population of or in occupied territory; murder or ill-
treatment of prisoners of war or internees or person on the seas or

elsewhere; improper treatment of hostage; plunder of public or private
property wanton destruction of cities towns or village; or devastation not
justified by military necessity.
(3) Murder extermination enslavement deportation and other inhuman acts
committed against civilian population before or during the war or
persecution on political racial or religion ground in executive of or in
connection with any crime defined herein whether or not in violation of the
local laws.
III. MEMBERSHIP OF COMMISSIONS
(a) Appointment. The members of each military commission shall be
appointed by the President of the Philippines or under authority delegated
by him. Alternates may be appointed by the convening authority. Such
shall attend all session of the commission, and in case of illness or other
incapacity of any principal member, an alternate shall take the place of that
member. Any vacancy among the members or alternates, occurring after a
trial has begun, may be filled by the convening authority but the substance
of all proceeding had evidence taken in that case shall be made known to
the said new member or alternate. This facts shall be announced by the
president of the commission in open court.
(b) Number of Members. Each commission shall consist of not less than
three (3) members.
(c) Qualifications. The convening authority shall appoint to the
commission persons whom he determines to be competent to perform the
duties involved and not disqualified by personal interest or prejudice,
provided that no person shall be appointed to hear a case in which he
personally investigated or wherein his presence as a witness is required.
One specially qualified member whose ruling is final in so far as concerns
the commission on an objection to the admissibility of evidence offered
during the trial.
(d) Voting. Except as to the admissibility of evidence all rulings and
finding of the Commission shall be by majority vote except that conviction
and sentence shall be by the affirmative vote of not less than conviction
and sentence shall be by the affirmative vote of not less than two-thirds
(2\3) of the member present.
(e) Presiding Member. In the event that the convening authority does
not name one of the member as the presiding member, the senior officer
among the member of the Commission present shall preside.
IV. PROSECUTORS
(a) Appointment. The convening authority shall designate one or more
person to conduct the prosecution before each commission.
(b) Duties. The duties of the prosecutor are:
(1) To prepare and present charges and specifications for reference to a
commission.
(2) To prepare cases for trial and to conduct the prosecution before the
commission of all cases referred for trial.
V. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. A Commission shall:
(1) Confine each trial strictly to fair and expeditious hearing on the issues
raised by the charges, excluding irrelevant issues or evidence and
preventing any unnecessary delay or interference.
(2) Deal summarily with any contumacy or contempt, imposing any
appropriate punishment therefor.
(3) Hold public session when otherwise decided by the commission.
(4) Hold each session at such time and place as it shall determine, or as
may be directed by the convening authority.
(b) Rights of the Accused. The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges and specifications
clearly worded so as to apprise the accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel appointed by the
convening authority or counsel of his own choice, or to conduct his own
defense.
(3) To testify in his own behalf and have his counsel present relevant
evidence at the trial in support of his defense, and cross-examine each
adverse witness who personally appears before the commission.
(4) To have the substance of the charges and specifications, the
proceedings and any documentary evidence translated, when he is unable
otherwise to understand them.
(c) Witnesses. The Commission shall have power:
(1) To summon witnesses and require their attendance and testimony; to
administer oaths or affirmations to witnesses and other persons and to
question witnesses.
(2) To require the production of documents and other evidentiary material.
(3) To delegate the Prosecutors appointed by the convening authority the
powers and duties set forth in (1) and (2) above.
(4) To have evidence taken by a special commissioner appointed by the
commission.
(d) Evidence.
(1) The commission shall admit such evidence as in its opinion shall be of
assistance in proving or disproving the charge, or such as in the
commission's opinion would have probative value in the mind of a
reasonable man. The commission shall apply the rules of evidence and
pleading set forth herein with the greatest liberality to achieve expeditious
procedure. In particular, and without limiting in any way the scope of the
foregoing general rules, the following evidence may be admitted:
(a) Any document, irrespective of its classification, which appears to the
commission to have been signed or issued by any officer, department,
agency or member of the armed forces of any Government without proof of
the signature or of the issuance of the document.
(b) Any report which appears to the commission to have been signed or
issued by the International Red Cross or a member of any medical service
personnel, or by any investigator or intelligence officer, or by any other
person whom commission considers as possessing knowledge of the
matters contained in the report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn statements,

appearing to the commission to contain information relating to the charge.
(e) A copy of any document or other secondary evidence of the contents, if
the original is not immediately available.
(2) The commission shall take judicial notice of facts of common
knowledge, official government documents of any nation, and the
proceedings, records and findings of military or other agencies of any of
the United Nation.
(3) A commission may require the prosecution and the defense to make a
preliminary offer of proof whereupon the commission may rule in advance
on the admissibility of such evidence.
(4) The official position of the accused shall not absolve him from
responsibility nor be considered in mitigation of punishment. Further action
pursuant to an order of the accused's superior, or of his Government, shall
not constitute a defense, but may be considered in mitigation of
punishment if the commission determines that justice so requires.
(5) All purposed confessions or statements of the accused shall bee
admissible in evidence without any showing that they were voluntarily
made. If it is shown that such confession or statement was procured by
mean which the commission believe to have been of such a character that
may have caused the accused to make a false statement the commission
may strike out or disregard any such portion thereof as was so procured.
(e) Trial Procedure. The proceedings of each trial shall be conducted
substantially as follows unless modified by the commission to suit the
particular circumstances:
(1) Each charge and specification shall be read or its substance stated in
open court.
(2) The presiding member shall ask each accused whether he pleads
"Guilty" or "Not guilty."
(3) The prosecution shall make its opening statement."(4) The presiding
member may at this or any other time require the prosecutor to state what
evidence he proposes to submit to the commission and the commission
thereupon may rule upon the admissibility of such evidence.
(4) The witnesses and other evidence for the prosecution shall be heard or
presented. At the close of the case for the prosecution, the commission
may, on motion of the defense for a finding of not guilty, consider and rule
whether he evidence before the commission may defer action on any such
motion and permit or require the prosecution to reopen its case and
produce any further available evidence.
(5) The defense may make an opening statement prior to presenting its
case. The presiding member may, at this any other time require the
defense to state what evidence it proposes to submit to the commission
where upon the commission may rule upon the admissibility of such
evidence.
(6) The witnesses and other evidence for the defense shall be heard or
presented. Thereafter, the prosecution and defense may introduce such
evidence in rebuttal as the commission may rule as being admissible.
(7) The defense and thereafter the prosecution shall address the
commission.
(8) The commission thereafter shall consider the case in closed session
and unless otherwise directed by the convening authority, announce in
open court its judgment and sentence if any. The commission may state
the reason on which judgment is based.
( f ) Record of Proceedings. Each commission shall make a separate
record of its proceeding in the trial of each case brought before it. The
record shall be prepared by the prosecutor under the direction of the
commission and submitted to the defense counsel. The commission shall
be responsible for its accuracy. Such record, certified by the presiding
member of the commission or his successor, shall be delivered to the
convening authority as soon as possible after the trial.
(g) Sentence. The commission may sentence an accused, upon
conviction to death by hanging or shooting, imprisonment for life or for any
less term, fine or such other punishment as the commission shall
determine to be proper.
(h) Approval of Sentence. No. sentence of a military commission shall
be carried into effect until approved by the chief off Staff: Provided, That no
sentence of death or life imprisonment shall be carried into execution until
confirmed by the President of the Philippines. For the purpose of his
review the Chief of Staff shall create a Board of Review to be composed of
not more than three officers none of whom shall be on duty with or
assigned to the Judge Advocate General's Office. The Chief of Staff shall
have authority to approve, mitigate remit in whole or in part, commute,
suspend, reduce or otherwise alter the sentence imposed, or (without
prejudice to the accused) remand the case for rehearing before a new
military commission; but he shall not have authority to increase the severity
of the sentence. Except as herein otherwise provided the judgment and
sentence of a commission shall final and not subject to review by any other
tribunal.
VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall adopt rules
and forms to govern its procedure, not inconsistent with the provision of
this Order, or such rules and forms as may be prescribed by the convening
authority]or by the President of the Philippines.
VII. The amount of amount of seven hundred thousand pesos is hereby set
aside out of the appropriations for the Army of the Philippines for use by
the National War Crimes Office in the accomplishment of its mission as
hereinabove set forth, and shall be expended in accordance with the
recommendation of the Judge Advocate General as approved by the
President. The buildings, fixtures, installations, messing, and billeting
equipment and other property herefore used by then Legal Section, Manila
Branch, of the General Headquarters, Supreme Commander for the Allied
Power, which will be turned over by the United States Army to the
Philippines Government through the Foreign Liquidation Commission and
the Surplus Property Commission are hereby specification reserved for
use off the National War Crimes Office.
Executive Order No. 64, dated August 16, 1945, is hereby repealed.
Done in the City of Manila, this 29th day of July in the year of Our Lord,
nineteen hundred and forty-seven, and of the Independence of the
Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMILIO ABELLO
Chief of the Executive Office
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure, without the
benefit of congressional enactment.
The first question that is trust at our face spearheading a group of other no less
important question, is whether or not the President of the Philippines may
exercise the legislative power expressly vested in Congress by the Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of the Philippines
which shall consist of a Senate and House of Representatives. (Section 1,
Article VI.)
While there is no express provision in the fundamental law prohibiting the
exercise of legislative power by agencies other than Congress, a reading of the
whole context of the Constitution would dispel any doubt as to the constitutional
intent that the legislative power is to be exercised exclusively by Congress,
subject only to the veto power of the President of the President of the Philippines,
to the specific provision which allow the president of the Philippines to suspend
the privileges of the writ of habeas corpus and to place any part of the Philippines
under martial law, and to the rule-making power expressly vested by the
Constitution in the Supreme Court.
There cannot be any question that the member of the Constitutional Convention
were believers in the tripartite system of government as originally enunciated by
Aristotle, further elaborated by Montequieu and accepted and practiced by
modern democracies, especially the United State of America, whose
Constitution, after which ours has been patterned, has allocated the three power
of government legislative, executive, judicial to distinct and separate
department of government.
Because the power vested by our Constitution to the several department of the
government are in the nature of grants, not recognition of pre-existing power, no
department of government may exercise any power or authority not expressly
granted by the Constitution or by law by virtue express authority of the
Constitution.
Executive Order No. 68 establishes a National War Crimes Office and the power
to establish government office is essentially legislative.
The order provides that person accused as war criminals shall be tried by military
commissions. Whether such a provision is substantive or adjective, it is clearly
legislative in nature. It confers upon military commissions jurisdiction to try all
persons charge with war crimes. The power to define and allocate jurisdiction for
the prosecution of person accused of any crime is exclusively vested by the
Constitution in Congress. .
It provides rules of procedure for the conduct of trial of trial. This provision on
procedural subject constitutes a usurpation of the rule-making power vested by
Constitution in the Supreme Court.
It authorized military commission to adopt additional rule of procedure. If the
President of the Philippines cannot exercise the rule -making power vested by
the Constitution in the Supreme Court, he cannot, with more reason, delegate
that power to military commission.
It appropriates the sum of P7000,000 for the expenses of the National War
Crimes office established by the said Executive Order No. 68. This constitutes
another usurpation of legislative power as the power to vote appropriations
belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because, though it the
President of the Philippines usurped power expressly vested by the Constitution
in Congress and in the Supreme Court.
Challenged to show the constitutional or legal authority under which the
President issued Executive Order No. 68, respondent could not give any definite
answer. They attempted, however, to suggest that the President of the
Philippines issued Executive Order No. 68 under the emergency power granted
to him by Commonwealth Act No. 600, as amended by Commonwealth Act No.
620, and Commonwealth Act No. 671, both of which are transcribed below:
COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND
AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND
REGULATION TO SAFEGUARD THE INTEGRITY OF THE
PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS
INHABITANTS.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war in many parts of the world has created a
national emergency which makes it necessary to invest the President of
the Philippines with extraordinary power in order to safeguard the integrity
of the Philippines and to insure the tranquility of its inhabitants, by
suppressing espionage, lawlessness, and all subversive to the people
adequate shelter and clothing and sufficient food supply, and by providing
means for the speedy evacuation of the civilian population the
establishment of an air protective service and the organization of volunteer
guard units, and to adopt such other measures as he may deem necessary
for the interest of the public. To carry out this policy the President is
authorized to promulgate rules and regulations which shall have the force
and effect off law until the date of adjournment of the next regulation which
shall have the force and effect of law until the date of adjournment of the
next regular session of the First Congress of the Philippines, unless sooner
amended or repealed by the Congress of Philippines. Such rules and
regulation may embrace the following objects: (1) to suppress espionage
and other subversive activities; (2) to require all able-bodied citizens (a)
when not engaged in any lawful occupation, to engage in farming or other
productive activities or (b) to perform such services as may bee necessary
in the public interest; (3) to take over farm lands in order to prevent or
shortage of crops and hunger and destitution; (4) to take over industrial
establishment in order to insure adequate production, controlling wages
and profits therein; (5) to prohibit lockouts and strikes whenever necessary
to prevent the unwarranted suspension of work in productive enterprises or
in the interest of national security; (6) to regulate the normal hours of work
for wage-earning and salaried employees in industrial or business
undertakings of all kinds; (7) to insure an even distribution of labor among
the productive enterprises; (8) to commandership and other means of
transportation in order to maintain, as much as possible, adequate and
continued transportation facilities; (9) to requisition and take over any
public service or enterprise for use or operation by the Government;(10) to
regulate rents and the prices of articles or commodities of prime necessity,
both imported and locally produced or manufactured; and (11) to prevent,
locally or generally, scarcity, monopolization, hoarding injurious
speculations, and private control affecting the supply, distribution and
movement of foods, clothing, fuel, fertilizer, chemical, building, material,
implements, machinery, and equipment required in agriculture and
industry, with power to requisition these commodities subject to the
payment of just compensation. (As amended by Com. Act No. 620.)
SEC. 2. For the purpose of administering this Act and carrying out its
objective, the President may designate any officer, without additional
compensation, or any department, bureau, office, or instrumentality of the

National Government.
SEC. 3. Any person, firm, or corporation found guilty of the violation of any
provision of this Act or of this Act or any of the rules or regulations
promulgated by the President under the authority of section one of this Act
shall be punished by imprisonment of not more than ten years or by a fine
of not more than ten thousand pesos, or by both. If such violation is
committed by a firm or corporation, the manager, managing director, or
person charge with the management of the business of such firm, or
corporation shall be criminally responsible therefor.
SEC. 4. The President shall report to the national Assembly within the first
ten days from the date of the opening of its next regular session whatever
action has been taken by him under the authority herein granted.
SEC. 5. To carry out the purposed of this Act, the President is authorized to
spend such amounts as may be necessary from the sum appropriated
under section five Commonwealth Act Numbered four hundred and ninetyeight.
SEC. 6. If any province of this Act shall be declared by any court of
competent jurisdiction to be unconstitutional and void, such declaration
shall not invalidate the remainder of this Act.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.
COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A
RESULT OF WAR INVOLVING THE PHILIPPINES AND
AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND
REGULATIONS TO MEET SUCH EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTION 1. The existed of war between the United State and other
countries of Europe and Asia, which involves the Philippines, makes it
necessary to invest the President with extraordinary powers in order to
meet the resulting emergency.
SEC. 2. Pursuant to the provision of Article VI, section 16, of the

Constitution, the President is hereby authorized, during the existence of
the emergency, to promulgate such rules and regulation as he may deem
necessary to carry out the national policy declared in section 1 hereof.
Accordingly, he is, among other things, empowered (a) to transfer the seat
of the Government or any of its subdivisions, branches, department,
offices, agencies or instrumentalities; (b) to reorganize the Government of
the Commonwealth including the determination of the order of precedence
of the heads of the Executive Department; (c) to create new subdivision,
branches, departments, offices, agency or instrumentalities of government
and to abolish any of those already existing; (d) to continue in force laws
and appropriation which would lapse or otherwise became inoperative, and
to modify or suspend the operation or application of those of an
administrative character; (e) to imposed new taxes or to increase, reduce,
suspend, or abolish those in existence; (f) to raise funds through the
issuance of bonds or otherwise, and to authorize the expensive of the
proceeds thereof; (g) to authorize the National, provincial, city or municipal
governments to incur in overdrafts for purposes that he may approve; (h)
to declare the suspension of the collection of credits or the payment of
debts; and (i) to exercise such other power as he may deem necessary to
enable the Government to fulfill its responsibilities and to maintain and
enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules and
regulation promulgated by him under the power herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and
regulations. promulgated hereunder shall be in force and effect until the
Congress of the Philippines shall otherwise provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68 was issued on
July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines form
the Japanese forces or, at the latest, when the surrender of Japan was signed in
Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened
to have taken direct part in their consideration and passage, not only as one of
the members of said legislative body as chairman of the Committee on Third
Reading population Known as the "Little Senate." We are, therefore in a position
to state that said measures were enacted by the second national Assembly for
the purpose of facing the emergency of impending war and of the Pacific War
that finally broke out with the attack of Pearl Harbor on December 7, 1941. We
approved said extraordinary measures, by which under the exceptional
circumstances then prevailing legislative power were delegated to the President
of the Philippines, by virtue of the following provisions of the Constitution:
In time of war or other national emergency, the Congress may by law
authorize the President, for a limited period and subject to such restrictions
as it may prescribe to promulgate rules and regulations to carry out
declared national policy. (Article VI, section 26.)
It has never been the purpose of the National Assembly to extend the delegation
beyond the emergency created by the war as to extend it farther would be
violative of the express provision of the Constitution. We are of the opinion that
there is no doubt on this question.; but if there could still be any the same should
be resolved in favor of the presumption that the National Assembly did not intend
to violate the fundamental law.
The absurdity of the contention that the emergency Acts continued in effect even
after the surrender of Japan can not be gainsaid. Only a few months after
liberation and even before the surrender of Japan, or since the middle of 1945,
the Congress started to function normally. In the hypothesis that the contention
can prevail, then, since 1945, that is, four years ago, even after the
Commonwealth was already replaced by the Republic of the Philippines with the
proclamation of our Independence, two district, separate and independence
legislative organs, Congress and the President of the Philippines would
have been and would continue enacting laws, the former to enact laws of every
nature including those of emergency character, and the latter to enact laws, in
the form of executive orders, under the so-called emergency powers. The
situation would be pregnant with dangers to peace and order to the rights and
liberties of the people and to Philippines democracy.
Should there be any disagreement between Congress and the President of the
Philippines, a possibility that no one can dispute the President of the Philippines
may take advantage of he long recess of Congress (two-thirds of every year ) to
repeal and overrule legislative enactments of Congress, and may set up a
veritable system of dictatorship, absolutely repugnant to the letter and spirit of the
Constitution.
Executive Order No. 68 is equally offensive to the Constitution because it violates
the fundamental guarantees of the due process and equal protection of the law. It
is especially so, because it permit the admission of many kinds evidence by
which no innocent person can afford to get acquittal and by which it is impossible
to determine whether an accused is guilty or not beyond all reasonable doubt.
The rules of evidence adopted in Executive Order No. 68 are a reproduction of

the regulation governing the trial of twelve criminal, issued by General Douglas
Mac Arthur, Commander in Chief of the United State Armed Forces in Western
Pacific, for the purpose of trying among other, General Yamashita and Homma.
What we said in our concurring and dissenting opinion to the decision
promulgated on December 19, 1945, in the Yamashita case, L-129, and in our
concurring and dissenting opinion to the resolution of January 23, 1946 in
disposing the Homma case, L-244, are perfectly applicable to the offensive rules
of evidence in Executive Order No. 68. Said rules of evidence are repugnant to
conscience as under them no justice can expected.
For all the foregoing, conformably with our position in the Yamashita and Homma
cases, we vote to declare Executive Order No. 68 null and void and to grant
petition.
SUPREME COURT
Manila
EN BANC
G.R. No. L-7995
May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien residents,
corporations and partnerships adversely affected. by Republic Act No.
1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO,
City Treasurer of Manila,respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates
for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de
Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for
respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and
constitutionality of a legislative enactment, fundamental and far-reaching in
significance. The enactment poses questions of due process, police power and
equal protection of the laws. It also poses an important issue of fact, that is
whether the conditions which the disputed law purports to remedy really or
actually exist. Admittedly springing from a deep, militant, and positive nationalistic
impulse, the law purports to protect citizen and country from the alien retailer.
Through it, and within the field of economy it regulates, Congress attempts to
translate national aspirations for economic independence and national security,
rooted in the drive and urge for national survival and welfare, into a concrete and
tangible measures designed to free the national retailer from the competing
dominance of the alien, so that the country and the nation may be free from a
supposed economic dependence and bondage. Do the facts and circumstances
justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In
effect it nationalizes the retail trade business. The main provisions of the Act are:
(1) a prohibition against persons, not citizens of the Philippines, and against
associations, partnerships, or corporations the capital of which are not wholly
owned by citizens of the Philippines, from engaging directly or indirectly in the
retail trade; (2) an exception from the above prohibition in favor of aliens actually
engaged in said business on May 15, 1954, who are allowed to continue to
engaged therein, unless their licenses are forfeited in accordance with the law,
until their death or voluntary retirement in case of natural persons, and for ten
years after the approval of the Act or until the expiration of term in case of
juridical persons; (3) an exception therefrom in favor of citizens and juridical
entities of the United States; (4) a provision for the forfeiture of licenses (to
engage in the retail business) for violation of the laws on nationalization, control
weights and measures and labor and other laws relating to trade, commerce and
industry; (5) a prohibition against the establishment or opening by aliens actually
engaged in the retail business of additional stores or branches of retail business,
(6) a provision requiring aliens actually engaged in the retail business to present
for registration with the proper authorities a verified statement concerning their
businesses, giving, among other matters, the nature of the business, their assets
and liabilities and their offices and principal offices of judicial entities; and (7) a
provision allowing the heirs of aliens now engaged in the retail business who die,
to continue such business for a period of six months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents
corporations and partnerships adversely affected by the provisions of Republic
Act. No. 1180, brought this action to obtain a judicial declaration that said Act is
unconstitutional, and to enjoin the Secretary of Finance and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it
denies to alien residents the equal protection of the laws and deprives of their
liberty and property without due process of law ; (2) the subject of the Act is not
expressed or comprehended in the title thereof; (3) the Act violates international
and treaty obligations of the Republic of the Philippines; (4) the provisions of the
Act against the transmission by aliens of their retail business thru hereditary
succession, and those requiring 100% Filipino capitalization for a corporation or
entity to entitle it to engage in the retail business, violate the spirit of Sections 1
and 5, Article XIII and Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that:
(1) the Act was passed in the valid exercise of the police power of the State,
which exercise is authorized in the Constitution in the interest of national
economic survival; (2) the Act has only one subject embraced in the title; (3) no
treaty or international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property is not impaired,
and the institution of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power.
There is no question that the Act was approved in the exercise of the police
power, but petitioner claims that its exercise in this instance is attended by a
violation of the constitutional requirements of due process and equal protection of
the laws. But before proceeding to the consideration and resolution of the
ultimate issue involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever
recurrent conflict between police power and the guarantees of due process and
equal protection of the laws. What is the scope of police power, and how are the
due process and equal protection clauses related to it? What is the province and
power of the legislature, and what is the function and duty of the courts? These
consideration must be clearly and correctly understood that their application to
the facts of the case may be brought forth with clarity and the issue accordingly
resolved.
It has been said the police power is so far - reaching in scope, that it has become
almost impossible to limit its sweep. As it derives its existence from the very
existence of the State itself, it does not need to be expressed or defined in its
scope; it is said to be co-extensive with self-protection and survival, and as such
it is the most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a modern democratic
framework where the demands of society and of nations have multiplied to
almost unimaginable proportions; the field and scope of police power has
become almost boundless, just as the fields of public interest and public welfare
have become almost all-embracing and have transcended human foresight.
Otherwise stated, as we cannot foresee the needs and demands of public
interest and welfare in this constantly changing and progressive world, so we
cannot delimit beforehand the extent or scope of police power by which and
through which the State seeks to attain or achieve interest or welfare. So it is that
Constitutions do not define the scope or extent of the police power of the State;
what they do is to set forth the limitations thereof. The most important of these
are the due process clause and the equal protection clause.
b. Limitations on police power.
The basic limitations of due process and equal protection are found in the
following provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property
without due process of law, nor any person be denied the equal protection
of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty
and freedom in democracies, are not limited to citizens alone but are admittedly
universal in their application, without regard to any differences of race, of color, or
of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause.
The equal protection of the law clause is against undue favor and individual or
class privilege, as well as hostile discrimination or the oppression of inequality. It
is not intended to prohibit legislation, which is limited either in the object to which
it is directed or by territory within which is to operate. It does not demand
absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable grounds exists for
making a distinction between those who fall within such class and those who do
not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause.

The due process clause has to do with the reasonableness of legislation enacted
in pursuance of the police power. Is there public interest, a public purpose; is
public welfare involved? Is the Act reasonably necessary for the accomplishment
of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is
there sufficient foundation or reason in connection with the matter involved; or
has there not been a capricious use of the legislative power? Can the aims
conceived be achieved by the means used, or is it not merely an unjustified
interference with private interest? These are the questions that we ask when the
due process test is applied.
The conflict, therefore, between police power and the guarantees of due process
and equal protection of the laws is more apparent than real. Properly related, the
power and the guarantees are supposed to coexist. The balancing is the essence
or, shall it be said, the indispensable means for the attainment of legitimate
aspirations of any democratic society. There can be no absolute power, whoever
exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for
that would mean license and anarchy. So the State can deprive persons of life,
liberty and property, provided there is due process of law; and persons may be
classified into classes and groups, provided everyone is given the equal
protection of the law. The test or standard, as always, is reason. The police
power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. And if distinction
and classification has been made, there must be a reasonable basis for said
distinction.
e. Legislative discretion not subject to judicial review.
Now, in this matter of equitable balancing, what is the proper place and role of
the courts? It must not be overlooked, in the first place, that the legislature, which
is the constitutional repository of police power and exercises the prerogative of
determining the policy of the State, is by force of circumstances primarily the
judge of necessity, adequacy or reasonableness and wisdom, of any law
promulgated in the exercise of the police power, or of the measures adopted to
implement the public policy or to achieve public interest. On the other hand,
courts, although zealous guardians of individual liberty and right, have
nevertheless evinced a reluctance to interfere with the exercise of the legislative
prerogative. They have done so early where there has been a clear, patent or
palpable arbitrary and unreasonable abuse of the legislative prerogative.
Moreover, courts are not supposed to override legitimate policy, and courts never
inquire into the wisdom of the law.
V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into
the issue involved. If the disputed legislation were merely a regulation, as its title
indicates, there would be no question that it falls within the legitimate scope of
legislative power. But it goes further and prohibits a group of residents, the
aliens, from engaging therein. The problem becomes more complex because its
subject is a common, trade or occupation, as old as society itself, which from the
immemorial has always been open to residents, irrespective of race, color or
citizenship.
a. Importance of retail trade in the economy of the nation.
In a primitive economy where families produce all that they consume and
consume all that they produce, the dealer, of course, is unknown. But as group
life develops and families begin to live in communities producing more than what
they consume and needing an infinite number of things they do not produce, the
dealer comes into existence. As villages develop into big communities and
specialization in production begins, the dealer's importance is enhanced. Under
modern conditions and standards of living, in which man's needs have multiplied
and diversified to unlimited extents and proportions, the retailer comes as
essential as the producer, because thru him the infinite variety of articles, goods
and needed for daily life are placed within the easy reach of consumers. Retail
dealers perform the functions of capillaries in the human body, thru which all the
needed food and supplies are ministered to members of the communities
comprising the nation.
There cannot be any question about the importance of the retailer in the life of
the community. He ministers to the resident's daily needs, food in all its
increasing forms, and the various little gadgets and things needed for home and
daily life. He provides his customers around his store with the rice or corn, the
fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths
to sell, even the needle and the thread to sew them or darn the clothes that wear
out. The retailer, therefore, from the lowly peddler, the owner of a small sarisari store, to the operator of a department store or, a supermarket is so much a
part of day-to-day existence.
b. The alien retailer's trait.
The alien retailer must have started plying his trades in this country in the bigger
centers of population (Time there was when he was unknown in provincial towns
and villages). Slowly but gradually be invaded towns and villages; now he
predominates in the cities and big centers of population. He even pioneers, in far
away nooks where the beginnings of community life appear, ministering to the
daily needs of the residents and purchasing their agricultural produce for sale in
the towns. It is an undeniable fact that in many communities the alien has
replaced the native retailer. He has shown in this trade, industry without limit, and
the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur;
insults of ill-bred and insolent neighbors and customers are made in his face, but
he heeds them not, and he forgets and forgives. The community takes note of
him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance.
There is a general feeling on the part of the public, which appears to be true to
fact, about the controlling and dominant position that the alien retailer holds in the
nation's economy. Food and other essentials, clothing, almost all articles of daily
life reach the residents mostly through him. In big cities and centers of population
he has acquired not only predominance, but apparent control over distribution of
almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs,
sugar, flour, garlic, and scores of other goods and articles. And were it not for
some national corporations like the Naric, the Namarco, the Facomas and the
Acefa, his control over principal foods and products would easily become full and
complete.
Petitioner denies that there is alien predominance and control in the retail trade.
In one breath it is said that the fear is unfounded and the threat is imagined; in
another, it is charged that the law is merely the result of radicalism and pure and
unabashed nationalism. Alienage, it is said, is not an element of control; also so
many unmanageable factors in the retail business make control virtually
impossible. The first argument which brings up an issue of fact merits serious
consideration. The others are matters of opinion within the exclusive competence
of the legislature and beyond our prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the
figures in black and white. Between the constitutional convention year (1935),
when the fear of alien domination and control of the retail trade already filled the
minds of our leaders with fears and misgivings, and the year of the enactment of
the nationalization of the retail trade act (1954), official statistics unmistakably
point out to the ever-increasing dominance and control by the alien of the retail
trade, as witness the following tables:
Year and
No.-
Assets
Pesos
Per cent
Gross Sales
Pesos
Per cent
Retailers
Establishmen
Distributio
Distributio
Nationality
ts
n
n
1941
:
Filipino
106,671 200,323,13
55.82 174,181,92
51.74
..........
8
4
Chines
15,356 118,348,69
32.98 148,813,23
44.21
e ..........
2
9
.
Others .
1,646 40,187,090
11.20 13,630,239
4.05
...........
1947
:
Filipino
111,107 208,658,94
65.05 279,583,33
57.03
..........
6
3
Chines
13,774 106,156,21
33.56 205,701,13
41.96
e ..........
8
4
.
Others .
354 8,761,260
.49 4,927,168
1.01
..........
1948 (Censu
:
s)
Filipino
113,631 213,342,26
67.30 467,161,66
60.51
..........
4
7
Chines
12,087 93,155,459
29.38 294,894,22
38.20
e ..........
7
Others .
422 10,514,675
3.32 9,995,402
1.29
.........
1949
:
Filipino
113,659 213,451,60
60.89 462,532,90
53.47
..........
2
1
Chines
16,248 125,223,33
35.72 392,414,87
45.36
e ..........
6
5
Others .
486 12,056,365
3.39 10,078,364
1.17
.........
1951
:
Filipino
.........
Chines
e ..........
Others .
.........
119,352 224,053,62
0
17,429 134,325,30
3
347 8,614,025
61.09 466,058,05
2
36.60 404,481,38
4
2.31 7,645,327
AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Item
Assets
(Pesos)
Gross
Sales
(Pesos
)
Filipino ..................................
...........
1,878
1,633
Chinese .................................
.............
7,707
9,691
Others ...................................
............
24,415
8,281
Filipino ..................................
...........
1,878
2,516
Chinese .................................
..........
7,707
14,934
Others ...................................
...........
24,749
13,919
1,878
4,111
Year and Retailer's

Nationality
1941:
1947:
1948:
(Census)
Filipino ..................................
...........
53.07
46.06
87
Chinese .................................
............
7,707
24,398
Others ...................................
...........
24,916
23,686
Filipino ..................................
...........
1,878
4,069
Chinese .................................
.............
7,707
24,152
Others ...................................
...........
24,807
20,737
Filipino ..................................
...........
1,877
3,905
Chinese .................................
............
7,707
33,207
Others ...................................
............
24,824
22,033
1949:
1951:
(Estimated Assets and Gross Sales of Retail Establishments, By Year and

Nationality of Owners, Benchmark: 1948 Census, issued by the Bureau of
Census and Statistics, Department of Commerce and Industry; pp. 18-19
of Answer.)
The above statistics do not include corporations and partnerships, while the
figures on Filipino establishments already include mere market vendors, whose
capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross
sales, alien participation has steadily increased during the years. It is true, of
course, that Filipinos have the edge in the number of retailers, but aliens more
than make up for the numerical gap through their assests and gross sales which
average between six and seven times those of the very many Filipino retailers.
Numbers in retailers, here, do not imply superiority; the alien invests more
capital, buys and sells six to seven times more, and gains much more. The same
official report, pointing out to the known predominance of foreign elements in the
retail trade, remarks that the Filipino retailers were largely engaged in minor
retailer enterprises. As observed by respondents, the native investment is thinly
spread, and the Filipino retailer is practically helpless in matters of capital, credit,
price and supply.
d. Alien control and threat, subject of apprehension in Constitutional convention.
It is this domination and control, which we believe has been sufficiently shown to
exist, that is the legislature's target in the enactment of the disputed
nationalization would never have been adopted. The framers of our Constitution
also believed in the existence of this alien dominance and control when they
approved a resolution categorically declaring among other things, that "it is the
sense of the Convention that the public interest requires the nationalization of the
retail trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663,
quoted on page 67 of Petitioner.) That was twenty-two years ago; and the events
since then have not been either pleasant or comforting. Dean Sinco of the
University of the Philippines College of Law, commenting on the patrimony
clause of the Preamble opines that the fathers of our Constitution were merely
translating the general preoccupation of Filipinos "of the dangers from alien
interests that had already brought under their control the commercial and other
economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114);
and analyzing the concern of the members of the constitutional convention for
the economic life of the citizens, in connection with the nationalistic provisions of
the Constitution, he says:
But there has been a general feeling that alien dominance over the
economic life of the country is not desirable and that if such a situation
should remain, political independence alone is no guarantee to national
stability and strength. Filipino private capital is not big enough to wrest
from alien hands the control of the national economy. Moreover, it is but of
recent formation and hence, largely inexperienced, timid and hesitant.
Under such conditions, the government as the instrumentality of the
national will, has to step in and assume the initiative, if not the leadership,
in the struggle for the economic freedom of the nation in somewhat the
same way that it did in the crusade for political freedom. Thus . . . it (the
Constitution) envisages an organized movement for the protection of the
nation not only against the possibilities of armed invasion but also against
its economic subjugation by alien interests in the economic field. (Phil.
Political Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters.
Filipino businessmen, manufacturers and producers believe so; they fear the
dangers coming from alien control, and they express sentiments of economic
independence. Witness thereto is Resolution No. 1, approved on July 18, 1953,
of the Fifth National convention of Filipino Businessmen, and a similar resolution,
approved on March 20, 1954, of the Second National Convention of
Manufacturers and Producers. The man in the street also believes, and fears,
alien predominance and control; so our newspapers, which have editorially
pointed out not only to control but to alien stranglehold. We, therefore, find alien
domination and control to be a fact, a reality proved by official statistics, and felt
by all the sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem
to lie in the predominance alone; there is a prevailing feeling that such
predominance may truly endanger the national interest. With ample capital, unity
of purpose and action and thorough organization, alien retailers and merchants
can act in such complete unison and concert on such vital matters as the fixing of
prices, the determination of the amount of goods or articles to be made available
in the market, and even the choice of the goods or articles they would or would
not patronize or distribute, that fears of dislocation of the national economy and
of the complete subservience of national economy and of the consuming public
are not entirely unfounded. Nationals, producers and consumers alike can be
placed completely at their mercy. This is easily illustrated. Suppose an article of
daily use is desired to be prescribed by the aliens, because the producer or
importer does not offer them sufficient profits, or because a new competing
article offers bigger profits for its introduction. All that aliens would do is to agree
to refuse to sell the first article, eliminating it from their stocks, offering the new
one as a substitute. Hence, the producers or importers of the prescribed article,
or its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is thus
curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious
influences of alien domination. Grave abuses have characterized the exercise of
the retail trade by aliens. It is a fact within judicial notice, which courts of justice
may not properly overlook or ignore in the interests of truth and justice, that there
exists a general feeling on the part of the public that alien participation in the
retail trade has been attended by a pernicious and intolerable practices, the
mention of a few of which would suffice for our purposes; that at some time or
other they have cornered the market of essential commodities, like corn and rice,
creating artificial scarcities to justify and enhance profits to unreasonable
proportions; that they have hoarded essential foods to the inconvenience and
prejudice of the consuming public, so much so that the Government has had to
establish the National Rice and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that they have violated price
control laws, especially on foods and essential commodities, such that the
legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their
immediate and automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the operation
of the law of supply and demand; that they have connived to boycott honest
merchants and traders who would not cater or yield to their demands, in unlawful
restraint of freedom of trade and enterprise. They are believed by the public to
have evaded tax laws, smuggled goods and money into and out of the land,
violated import and export prohibitions, control laws and the like, in derision and
contempt of lawful authority. It is also believed that they have engaged in
corrupting public officials with fabulous bribes, indirectly causing the prevalence
of graft and corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government and by their own
lawful diplomatic representatives, action which impliedly admits a prevailing
feeling about the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things
may come in the future. The present dominance of the alien retailer, especially in
the big centers of population, therefore, becomes a potential source of danger on
occasions of war or other calamity. We do not have here in this country isolated
groups of harmless aliens retailing goods among nationals; what we have are
well organized and powerful groups that dominate the distribution of goods and
commodities in the communities and big centers of population. They owe no
allegiance or loyalty to the State, and the State cannot rely upon them in times of
crisis or emergency. While the national holds his life, his person and his property
subject to the needs of his country, the alien may even become the potential
enemy of the State.
f. Law enacted in interest of national economic survival and security.
We are fully satisfied upon a consideration of all the facts and circumstances that
the disputed law is not the product of racial hostility, prejudice or discrimination,
but the expression of the legitimate desire and determination of the people, thru
their authorized representatives, to free the nation from the economic situation
that has unfortunately been saddled upon it rightly or wrongly, to its
disadvantage. The law is clearly in the interest of the public, nay of the national
security itself, and indisputably falls within the scope of police power, thru which
and by which the State insures its existence and security and the supreme
welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. The next question that now
poses solution is, Does the law deny the equal protection of the laws? As pointed
out above, the mere fact of alienage is the root and cause of the distinction
between the alien and the national as a trader. The alien resident owes
allegiance to the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and profit. His aim or
purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally
lacking in that spirit of loyalty and enthusiasm for this country where he
temporarily stays and makes his living, or of that spirit of regard, sympathy and
consideration for his Filipino customers as would prevent him from taking
advantage of their weakness and exploiting them. The faster he makes his pile,
the earlier can the alien go back to his beloved country and his beloved kin and
countrymen. The experience of the country is that the alien retailer has shown
such utter disregard for his customers and the people on whom he makes his
profit, that it has been found necessary to adopt the legislation, radical as it may
seem.
Another objection to the alien retailer in this country is that he never really makes
a genuine contribution to national income and wealth. He undoubtedly
contributes to general distribution, but the gains and profits he makes are not
invested in industries that would help the country's economy and increase
national wealth. The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting the very important
function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already
pointed out above, their secret manipulations of stocks of commodities and
prices, their utter disregard of the welfare of their customers and of the ultimate
happiness of the people of the nation of which they are mere guests, which
practices, manipulations and disregard do not attend the exercise of the trade by
the nationals, show the existence of real and actual, positive and fundamental
differences between an alien and a national which fully justify the legislative
classification adopted in the retail trade measure. These differences are certainly
a valid reason for the State to prefer the national over the alien in the retail trade.
We would be doing violence to fact and reality were we to hold that no reason or
ground for a legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.
The above objectionable characteristics of the exercise of the retail trade by the
aliens, which are actual and real, furnish sufficient grounds for legislative
classification of retail traders into nationals and aliens. Some may disagree with
the wisdom of the legislature's classification. To this we answer, that this is the
prerogative of the law-making power. Since the Court finds that the classification
is actual, real and reasonable, and all persons of one class are treated alike, and
as it cannot be said that the classification is patently unreasonable and
unfounded, it is in duty bound to declare that the legislature acted within its
legitimate prerogative and it can not declare that the act transcends the limit of
equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and
classifications among persons is not curtailed or denied by the equal protection
of the laws clause. The legislative power admits of a wide scope of discretion,
and a law can be violative of the constitutional limitation only when the
classification is without reasonable basis. In addition to the authorities we have
earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co.
(1911), 55 L. ed., 369, which clearly and succinctly defined the application of
equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does
not take from the state the power to classify in the adoption of police laws,
but admits of the exercise of the wide scope of discretion in that regard,
and avoids what is done only when it is without any reasonable basis, and
therefore is purely arbitrary. 2. A classification having some reasonable
basis does not offend against that clause merely because it is not made
with mathematical nicety, or because in practice it results in some
inequality. 3. When the classification in such a law is called in question, if
any state of facts reasonably can be conceived that would sustain it, the
existence of that state of facts at the time the law was enacted must be
assumed. 4. One who assails the classification in such a law must carry
the burden of showing that it does not rest upon any reasonable basis but
is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification.
The question as to whether or not citizenship is a legal and valid ground for
classification has already been affirmatively decided in this jurisdiction as well as
in various courts in the United States. In the case of Smith Bell & Co. vs.
Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine
Legislature was in issue, because of a condition therein limiting the ownership of
vessels engaged in coastwise trade to corporations formed by citizens of the
Philippine Islands or the United States, thus denying the right to aliens, it was
held that the Philippine Legislature did not violate the equal protection clause of
the Philippine Bill of Rights. The legislature in enacting the law had as ultimate
purpose the encouragement of Philippine shipbuilding and the safety for these
Islands from foreign interlopers. We held that this was a valid exercise of the
police power, and all presumptions are in favor of its constitutionality. In

substance, we held that the limitation of domestic ownership of vessels engaged
in coastwise trade to citizens of the Philippines does not violate the equal
protection of the law and due process or law clauses of the Philippine Bill of
Rights. In rendering said decision we quoted with approval the concurring opinion
of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as,
for example, acts licensing gaming houses, retailers of spirituous liquors,
etc. The act, in this instance, is distinctly of that character, and forms part
of an extensive system, the object of which is to encourage American
shipping, and place them on an equal footing with the shipping of other
nations. Almost every commercial nation reserves to its own subjects a
monopoly of its coasting trade; and a countervailing privilege in favor of
American shipping is contemplated, in the whole legislation of the United
States on this subject. It is not to give the vessel an American character,
that the license is granted; that effect has been correctly attributed to the
act of her enrollment. But it is to confer on her American privileges, as
contra distinguished from foreign; and to preserve the Government from
fraud by foreigners; in surreptitiously intruding themselves into the
American commercial marine, as well as frauds upon the revenue in the
trade coastwise, that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a
classification otherwise justified simply because the limitation of the class
falls along the lines of nationality. That would be requiring a higher degree
of protection for aliens as a class than for similar classes than for similar
classes of American citizens. Broadly speaking, the difference in status
between citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on
the licensing of hawkers and peddlers, which provided that no one can obtain a
license unless he is, or has declared his intention, to become a citizen of the
United States, was held valid, for the following reason: It may seem wise to the
legislature to limit the business of those who are supposed to have regard for the
welfare, good order and happiness of the community, and the court cannot
question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309
(Ohio, 1912), a statute which prevented certain persons, among them aliens,
from engaging in the traffic of liquors, was found not to be the result of race
hatred, or in hospitality, or a deliberate purpose to discriminate, but was based on
the belief that an alien cannot be sufficiently acquainted with "our institutions and
our life as to enable him to appreciate the relation of this particular business to
our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs.
Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had
under consideration an ordinance of the city of Cincinnati prohibiting the issuance
of licenses (pools and billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that alien race
and allegiance may not bear in some instances such a relation to a legitimate
object of legislation as to be made the basis of permitted classification, and that it
could not state that the legislation is clearly wrong; and that latitude must be
allowed for the legislative appraisement of local conditions and for the legislative
choice of methods for controlling an apprehended evil. The case of State vs.
Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura
vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking
was considered as having tendencies injuring public interest, and limiting it to
citizens is within the scope of police power. A similar statute denying aliens the
right to engage in auctioneering was also sustained in Wright vs. May, L.R.A.,
1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340
(Oregon, 1924), the court said that aliens are judicially known to have different
interests, knowledge, attitude, psychology and loyalty, hence the prohibitions of
issuance of licenses to them for the business of pawnbroker, pool, billiard, card
room, dance hall, is not an infringement of constitutional rights. In Templar vs.
Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law
prohibiting the licensing of aliens as barbers was held void, but the reason for the
decision was the court's findings that the exercise of the business by the aliens
does not in any way affect the morals, the health, or even the convenience of the
community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947),
a California statute banning the issuance of commercial fishing licenses to
person ineligible to citizenship was held void, because the law conflicts with
Federal power over immigration, and because there is no public interest in the
mere claim of ownership of the waters and the fish in them, so there was no
adequate justification for the discrimination. It further added that the law was the
outgrowth of antagonism toward the persons of Japanese ancestry. However,
two Justices dissented on the theory that fishing rights have been treated
traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed.
257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of
foreign-born unnaturalized male persons over 21 years of age, was declared void
because the court found that there was no reason for the classification and the
tax was an arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained.
It is true that some decisions of the Federal court and of the State courts in the
United States hold that the distinction between aliens and citizens is not a valid
ground for classification. But in this decision the laws declared invalid were found
to be either arbitrary, unreasonable or capricious, or were the result or product of
racial antagonism and hostility, and there was no question of public interest
involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the
United States Supreme Court declared invalid a Philippine law making unlawful
the keeping of books of account in any language other than English, Spanish or
any other local dialect, but the main reasons for the decisions are: (1) that if
Chinese were driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because
they would be deprived of their right to be advised of their business and to direct
its conduct. The real reason for the decision, therefore, is the court's belief that
no public benefit would be derived from the operations of the law and on the
other hand it would deprive Chinese of something indispensable for carrying on
their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance
conferring powers on officials to withhold consent in the operation of laundries
both as to persons and place, was declared invalid, but the court said that the
power granted was arbitrary, that there was no reason for the discrimination
which attended the administration and implementation of the law, and that the
motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165
(Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was
declared void, because the discrimination bore no reasonable and just relation to
the act in respect to which the classification was proposed.
The case at bar is radically different, and the facts make them so. As we already
have said, aliens do not naturally possess the sympathetic consideration and
regard for the customers with whom they come in daily contact, nor the patriotic
desire to help bolster the nation's economy, except in so far as it enhances their
profit, nor the loyalty and allegiance which the national owes to the land. These
limitations on the qualifications of the aliens have been shown on many
occasions and instances, especially in times of crisis and emergency. We can do
no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to
drive home the reality and significance of the distinction between the alien and
the national, thus:
. . . . It may be judicially known, however, that alien coming into this
country are without the intimate knowledge of our laws, customs, and
usages that our own people have. So it is likewise known that certain
classes of aliens are of different psychology from our fellow countrymen.
Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of
governmental environment and control have been engendered and formed
under entirely different regimes and political systems, have not the same
inspiration for the public weal, nor are they as well disposed toward the
United States, as those who by citizenship, are a part of the government
itself. Further enlargement, is unnecessary. I have said enough so that
obviously it cannot be affirmed with absolute confidence that the
Legislature was without plausible reason for making the classification, and
therefore appropriate discriminations against aliens as it relates to the
subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
We now come to due process as a limitation on the exercise of the police power.
It has been stated by the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands
only that the law shall not be unreasonable, arbitrary or capricious, and
that the means selected shall have a real and substantial relation to the
subject sought to be attained. . . . .
xxx
xxx
xxx
So far as the requirement of due process is concerned and in the absence

of other constitutional restriction a state is free to adopt whatever economic
policy may reasonably be deemed to promote public welfare, and to
enforce that policy by legislation adapted to its purpose. The courts are
without authority either to declare such policy, or, when it is declared by the
legislature, to override it. If the laws passed are seen to have a reasonable
relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial
determination to that effect renders a court functus officio. . . . (Nebbia vs.
New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in
considering the scope of the police power in a constitutional sense, for the
test used to determine the constitutionality of the means employed by the
legislature is to inquire whether the restriction it imposes on rights secured
to individuals by the Bill of Rights are unreasonable, and not whether it
imposes any restrictions on such rights. . . .
xxx
xxx
xxx
. . . . A statute to be within this power must also be reasonable in its

operation upon the persons whom it affects, must not be for the annoyance
of a particular class, and must not be unduly oppressive. (11 Am. Jur. Sec.
302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference;
and second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon
individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes
this test of constitutionality:
In determining whether a given act of the Legislature, passed in the
exercise of the police power to regulate the operation of a business, is or is
not constitutional, one of the first questions to be considered by the court is
whether the power as exercised has a sufficient foundation in reason in
connection with the matter involved, or is an arbitrary, oppressive, and
capricious use of that power, without substantial relation to the health,
safety, morals, comfort, and general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a common, ordinary occupation, one of
those privileges long ago recognized as essential to the orderly pursuant of
happiness by free men; that it is a gainful and honest occupation and therefore
beyond the power of the legislature to prohibit and penalized. This arguments
overlooks fact and reality and rests on an incorrect assumption and premise, i.e.,
that in this country where the occupation is engaged in by petitioner, it has been
so engaged by him, by the alien in an honest creditable and unimpeachable
manner, without harm or injury to the citizens and without ultimate danger to their
economic peace, tranquility and welfare. But the Legislature has found, as we
have also found and indicated, that the privilege has been so grossly abused by
the alien, thru the illegitimate use of pernicious designs and practices, that he
now enjoys a monopolistic control of the occupation and threatens a deadly
stranglehold on the nation's economy endangering the national security in times
of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which
overlooks and ignores the facts and circumstances, but this, Is the exclusion in
the future of aliens from the retail trade unreasonable. Arbitrary capricious, taking
into account the illegitimate and pernicious form and manner in which the aliens
have heretofore engaged therein? As thus correctly stated the answer is clear.
The law in question is deemed absolutely necessary to bring about the desired
legislative objective, i.e., to free national economy from alien control and
dominance. It is not necessarily unreasonable because it affects private rights
and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law
is the appropriateness or adequacy under all circumstances of the means
adopted to carry out its purpose into effect (Id.) Judged by this test, disputed
legislation, which is not merely reasonable but actually necessary, must be
considered not to have infringed the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that
accompanied the bill, which later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent
persons who are not citizens of the Philippines from having a strangle hold
upon our economic life. If the persons who control this vital artery of our
economic life are the ones who owe no allegiance to this Republic, who
have no profound devotion to our free institutions, and who have no
permanent stake in our people's welfare, we are not really the masters of
our destiny. All aspects of our life, even our national security, will be at the
mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to
deprive persons who are not citizens of the Philippines of their means of
livelihood. While this bill seeks to take away from the hands of persons
who are not citizens of the Philippines a power that can be wielded to
paralyze all aspects of our national life and endanger our national security
it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic
independence is none the less legitimate. Freedom and liberty are not real and
positive if the people are subject to the economic control and domination of
others, especially if not of their own race or country. The removal and eradication
of the shackles of foreign economic control and domination, is one of the noblest
motives that a national legislature may pursue. It is impossible to conceive that
legislation that seeks to bring it about can infringe the constitutional limitation of
due process. The attainment of a legitimate aspiration of a people can never be

beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of
legislative action.
The framers of the Constitution could not have intended to impose the
constitutional restrictions of due process on the attainment of such a noble
motive as freedom from economic control and domination, thru the exercise of
the police power. The fathers of the Constitution must have given to the
legislature full authority and power to enact legislation that would promote the
supreme happiness of the people, their freedom and liberty. On the precise issue
now before us, they expressly made their voice clear; they adopted a resolution
expressing their belief that the legislation in question is within the scope of the
legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the
nationalization of retail trade; but it abstain from approving the amendment
introduced by the Delegate for Manila, Mr. Araneta, and others on this
matter because it is convinced that the National Assembly is authorized to
promulgate a law which limits to Filipino and American citizens the
privilege to engage in the retail trade. (11 Aruego, The Framing of the
Philippine Constitution, quoted on pages 66 and 67 of the Memorandum
for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various
provisions of the Constitution. Thus in the preamble, a principle objective is the
conservation of the patrimony of the nation and as corollary the provision limiting
to citizens of the Philippines the exploitation, development and utilization of its
natural resources. And in Section 8 of Article XIV, it is provided that "no franchise,
certificate, or any other form of authorization for the operation of the public utility
shall be granted except to citizens of the Philippines." The nationalization of the
retail trade is only a continuance of the nationalistic protective policy laid down as
a primary objective of the Constitution. Can it be said that a law imbued with the
same purpose and spirit underlying many of the provisions of the Constitution is
unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as
manifested in the approval of the radical measures is, therefore, fully justified. It
would have been recreant to its duties towards the country and its people would
it view the sorry plight of the nationals with the complacency and refuse or
neglect to adopt a remedy commensurate with the demands of public interest
and national survival. As the repository of the sovereign power of legislation, the
Legislature was in duty bound to face the problem and meet, through adequate
measures, the danger and threat that alien domination of retail trade poses to
national economy.
d. Provisions of law not unreasonable.
A cursory study of the provisions of the law immediately reveals how tolerant,
how reasonable the Legislature has been. The law is made prospective and
recognizes the right and privilege of those already engaged in the occupation to
continue therein during the rest of their lives; and similar recognition of the right
to continue is accorded associations of aliens. The right or privilege is denied to
those only upon conviction of certain offenses. In the deliberations of the Court
on this case, attention was called to the fact that the privilege should not have
been denied to children and heirs of aliens now engaged in the retail trade. Such
provision would defeat the law itself, its aims and purposes. Beside, the exercise
of legislative discretion is not subject to judicial review. It is well settled that the
Court will not inquire into the motives of the Legislature, nor pass upon general
matters of legislative judgment. The Legislature is primarily the judge of the
necessity of an enactment or of any of its provisions, and every presumption is in
favor of its validity, and though the Court may hold views inconsistent with the
wisdom of the law, it may not annul the legislation if not palpably in excess of the
legislative power. Furthermore, the test of the validity of a law attacked as a
violation of due process, is not its reasonableness, but its unreasonableness, and
we find the provisions are not unreasonable. These principles also answer
various other arguments raised against the law, some of which are: that the law
does not promote general welfare; that thousands of aliens would be thrown out
of employment; that prices will increase because of the elimination of
competition; that there is no need for the legislation; that adequate replacement
is problematical; that there may be general breakdown; that there would be
repercussions from foreigners; etc. Many of these arguments are directed
against the supposed wisdom of the law which lies solely within the legislative
prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim
that the title thereof is misleading or deceptive, as it conceals the real purpose of
the bill which is to nationalize the retail business and prohibit aliens from
engaging therein. The constitutional provision which is claimed to be violated in
Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one
subject which shall be expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to
appraise the legislators or the public of the nature, scope and consequences of
the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.)
A cursory consideration of the title and the provisions of the bill fails to show the
presence of duplicity. It is true that the term "regulate" does not and may not
readily and at first glance convey the idea of "nationalization" and "prohibition",
which terms express the two main purposes and objectives of the law. But
"regulate" is a broader term than either prohibition or nationalization. Both of
these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the
Legislature may prohibit the sale of intoxicating liquors. (Sweet vs. City of
Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every
act of the Legislature shall be stated in the tale, the title to regulate the sale
of intoxicating liquors, etc." sufficiently expresses the subject of an
act prohibiting the sale of such liquors to minors and to persons in the habit
of getting intoxicated; such matters being properly included within the
subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted
in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some
degree of restraint and prohibition of acts usually done in connection with
the thing to be regulated. While word regulate does not ordinarily convey
meaning of prohibit, there is no absolute reason why it should not have
such meaning when used in delegating police power in connection with a
thing the best or only efficacious regulation of which involves suppression.
(State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also
been said that the title need not be an index to the entire contents of the law (I
Sutherland, Statutory Construction, See. 4803, p. 345.) The above rule was
followed the title of the Act in question adopted the more general term "regulate"
instead of "nationalize" or "prohibit". Furthermore, the law also contains other
rules for the regulation of the retail trade which may not be included in the terms
"nationalization" or "prohibition"; so were the title changed from "regulate" to
"nationalize" or "prohibit", there would have been many provisions not falling
within the scope of the title which would have made the Act invalid. The use of
the term "regulate", therefore, is in accord with the principle governing the
drafting of statutes, under which a simple or general term should be adopted in
the title, which would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be
embraced in its title is to apprise the legislators of the purposes, the nature and
scope of its provisions, and prevent the enactment into law of matters which have
received the notice, action and study of the legislators or of the public. In the
case at bar it cannot be claimed that the legislators have been appraised of the
nature of the law, especially the nationalization and the prohibition provisions.
The legislators took active interest in the discussion of the law, and a great many
of the persons affected by the prohibitions in the law conducted a campaign
against its approval. It cannot be claimed, therefore, that the reasons for
declaring the law invalid ever existed. The objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed
violation thereby of the Charter of the United Nations and of the Declaration of
the Human Rights adopted by the United Nations General Assembly. We find no
merit in the Nations Charter imposes no strict or legal obligations regarding the
rights and freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains
nothing more than a mere recommendation or a common standard of
achievement for all peoples and all nations (Id. p. 39.) That such is the import of
the United Nations Charter aid of the Declaration of Human Rights can be
inferred the fact that members of the United Nations Organizations, such as
Norway and Denmark, prohibit foreigners from engaging in retail trade, and in
most nations of the world laws against foreigners engaged in domestic trade are
adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of
China of April 18, 1947 is also claimed to be violated by the law in question. All
that the treaty guarantees is equality of treatment to the Chinese nationals "upon
the same terms as the nationals of any other country." But the nationals of China
are not discriminating against because nationals of all other countries, except
those of the United States, who are granted special rights by the Constitution, are
all prohibited from engaging in the retail trade. But even supposing that the law
infringes upon the said treaty, the treaty is always subject to qualification or
amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and
the same may never curtail or restrict the scope of the police power of the State
(plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was
enacted to remedy a real actual threat and danger to national economy posed by
alien dominance and control of the retail business and free citizens and country
from dominance and control; that the enactment clearly falls within the scope of
the police power of the State, thru which and by which it protects its own
personality and insures its security and future; that the law does not violate the
equal protection clause of the Constitution because sufficient grounds exist for
the distinction between alien and citizen in the exercise of the occupation
regulated, nor the due process of law clause, because the law is prospective in
operation and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege; that the wisdom and efficacy
of the law to carry out its objectives appear to us to be plainly evident as a
matter of fact it seems not only appropriate but actually necessary and that in
any case such matter falls within the prerogative of the Legislature, with whose
power and discretion the Judicial department of the Government may not
interfere; that the provisions of the law are clearly embraced in the title, and this
suffers from no duplicity and has not misled the legislators or the segment of the
population affected; and that it cannot be said to be void for supposed conflict
with treaty obligations because no treaty has actually been entered into on the
subject and the police power may not be curtailed or surrendered by any treaty or
any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law
could have been made less harsh in its impact on the aliens. Thus it is stated that
the more time should have been given in the law for the liquidation of existing
businesses when the time comes for them to close. Our legal duty, however, is
merely to determine if the law falls within the scope of legislative authority and
does not transcend the limitations of due process and equal protection
guaranteed in the Constitution. Remedies against the harshness of the law
should be addressed to the Legislature; they are beyond our power and
jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L.,
Endencia and Felix, JJ., concur.
Separate Opinions
PADILLA, J., concurring and dissenting:
I agree to the proposition, principle or rule that courts may not inquire into the
wisdom of an the Act passed by the Congress and duly approved by the
President of the Republic. But the rule does not preclude courts from inquiring
and determining whether the Act offends against a provision or provisions of the
Constitution. I am satisfied that the Act assailed as violative of the due process of
law and the equal protection of the laws clauses of the Constitution does not
infringe upon them, insofar as it affects associations, partnership or corporations,
the capital of which is not wholly owned by the citizens of the Philippines, and
aliens, who are not and have not been engaged in the retail business. I am,
however, unable to persuade myself that it does not violate said clauses insofar
as the Act applies to associations and partnerships referred to in the Act and to
aliens, who are and have heretofore been engaged in said business. When they
did engage in the retail business there was no prohibition on or against them to
engage in it. They assumed and believed in good faith they were entitled to
engaged in the business. The Act allows aliens to continue in business until their
death or voluntary retirement from the business or forfeiture of their license; and
corporations, associations or partnership, the capital of which is not wholly
owned by the citizens of the Philippines to continue in the business for a period
of ten years from the date of the approval of the Act (19 June 1954) or until the
expiry of term of the existence of the association or partnership or corporation,
whichever event comes first. The prohibition on corporations, the capital of which
is not wholly owned by citizens of the Philippines, to engage in the retail business
for a period of more than ten years from the date of the approval of the Act or
beyond the term of their corporate existence, whichever event comes first, is
valid and lawful, because the continuance of the existence of such corporations
is subject to whatever the Congress may impose reasonably upon them by
subsequent legislation.1 But the prohibition to engage in the retail business by
associations and partnerships, the capital of which is not wholly owned by citizen
of the Philippines, after ten years from the date of the approval of the Act, even
before the end of the term of their existence as agreed upon by the associates
and partners, and by alien heirs to whom the retail business is transmitted by the
death of an alien engaged in the business, or by his executor or administrator,
amounts to a deprivation of their property without due process of law. To my
mind, the ten-year period from the date of the approval of the Act or until the
expiration of the term of the existence of the association and partnership,
whichever event comes first, and the six-month period granted to alien heirs of a
deceased alien, his executor or administrator, to liquidate the business, do not
cure the defect of the law, because the effect of the prohibition is to compel them
to sell or dispose of their business. The price obtainable at such forced sale of
the business would be inadequate to reimburse and compensate the associates
or partners of the associations or partnership, and the alien heirs of a deceased
alien, engaged in the retail business for the capital invested in it. The stock of
merchandise bought and sold at retail does not alone constitute the business.
The goodwill that the association, partnership and the alien had built up during a
long period of effort, patience and perseverance forms part of such business. The
constitutional provisions that no person shall be deprived of his property without
due process of law2 and that no person shall be denied the equal protection of
the laws3 would have no meaning as applied to associations or partnership and
alien heirs of an alien engaged in the retail business if they were to be compelled
to sell or dispose of their business within ten years from the date of the approval
of the Act and before the end of the term of the existence of the associations and
partnership as agreed upon by the associations and partners and within six
months after the death of their predecessor-in-interest.
The authors of the Constitution were vigilant, careful and zealous in the
safeguard of the ownership of private agricultural lands which together with the
lands of the public domain constitute the priceless patrimony and mainstay of the
nation; yet, they did not deem it wise and prudent to deprive aliens and their heirs
of such lands.4
For these reasons, I am of the opinion that section 1 of the Act, insofar as it
compels associations and partnership referred to therein to wind up their retail
business within ten years from the date of the approval of the Act even before the
expiry of the term of their existence as agreed upon by the associates and
partners and section 3 of the Act, insofar as it compels the aliens engaged in the
retail business in his lifetime his executor or administrator, to liquidate the
business, are invalid, for they violate the due process of law and the equal
protection of the laws clauses of the Constitution.
SUPREME COURT
Manila
EN BANC
G.R. No. L-21897
October 22, 1963
RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR.,
as Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO
BALMACEDA, as Secretary of Commerce and Industry, and SALVADOR
MARINO, Secretary of Justice, respondents.
Ramon A. Gonzales in his own behalf as petitioner.
Office of the Solicitor General and Estanislao Fernandez for respondents.
CONCEPCION, J.:
This is an original action for prohibition with preliminary injunction.
It is not disputed that on September 22, 1963, respondent Executive Secretary
authorized the importation of 67,000 tons of foreign rice to be purchased from
private sources, and created a rice procurement committee composed of the
other respondents herein1 for the implementation of said proposed importation.
Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales a
rice planter, and president of the Iloilo Palay and Corn Planters Association,
whose members are, likewise, engaged in the production of rice and corn filed
the petition herein, averring that, in making or attempting to make said
importation of foreign rice, the aforementioned respondents "are acting without
jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which
allegedly repeals or amends Republic Act No. 220 explicitly prohibits the
importation of rice and corn "the Rice and Corn Administration or any other
government agency;" that petitioner has no other plain, speedy and adequate
remedy in the ordinary course of law; and that a preliminary injunction is
necessary for the preservation of the rights of the parties during the pendency
this case and to prevent the judgment therein from coming ineffectual. Petitioner
prayed, therefore, that said petition be given due course; that a writ of preliminary
injunction be forthwith issued restraining respondent their agents or
representatives from implementing the decision of the Executive Secretary to
import the aforementioned foreign rice; and that, after due hearing, judgment be
rendered making said injunction permanent.
Forthwith, respondents were required to file their answer to the petition which
they did, and petitioner's pray for a writ of preliminary injunction was set for
hearing at which both parties appeared and argued orally. Moreover, a
memorandum was filed, shortly thereafter, by the respondents. Considering, later
on, that the resolution said incident may require some pronouncements that
would be more appropriate in a decision on the merits of the case, the same was
set for hearing on the merits thereafter. The parties, however, waived the right to
argue orally, although counsel for respondents filed their memoranda.
I. Sufficiency of petitioner's interest.
Respondents maintain that the status of petitioner as a rice planter does not give
him sufficient interest to file the petition herein and secure the relief therein
prayed for. We find no merit in this pretense. Apart from prohibiting the
importation of rice and corn "by the Rice and Corn Administration or any other
government agency". Republic Act No. 3452 declares, in Section 1 thereof, that
"the policy of the Government" is to "engage in the purchase of these basic
foods directly from those tenants, farmers, growers, producers and

landowners in the Philippines who wish to dispose of their products at a price that
will afford them a fair and just return for their labor and capital investment. ... ."
Pursuant to this provision, petitioner, as a planter with a rice land of substantial
proportion,2 is entitled to a chance to sell to the Government the rice it now seeks
to buy abroad. Moreover, since the purchase of said commodity will have to be
effected with public funds mainly raised by taxation, and as a rice producer and
landowner petitioner must necessarily be a taxpayer, it follows that he has
sufficient personality and interest to seek judicial assistance with a view to
restraining what he believes to be an attempt to unlawfully disburse said funds.
II. Exhaustion of administrative remedies.
Respondents assail petitioner's right to the reliefs prayed for because he "has not
exhausted all administrative remedies available to him before coming to court".
We have already held, however, that the principle requiring the previous
exhaustion of administrative remedies is not applicable where the question in
dispute is purely a legal one",3 or where the controverted act is "patently illegal"
or was performed without jurisdiction or in excess of jurisdiction,4 or where the
respondent is a department secretary, whose acts as an alter-ego of the
President bear the implied or assumed approval of the latter,5 unless actually
disapproved by him,6 or where there are circumstances indicating the urgency of
judicial intervention.7 The case at bar fails under each one of the foregoing
exceptions to the general rule. Respondents' contention is, therefore, untenable.
III. Merits of petitioner's cause of action.
Respondents question the sufficiency of petitioner's cause of action upon the
theory that the proposed importation in question is not governed by Republic Acts
Nos. 2207 and 3452, but was authorized by the President as Commander-inChief "for military stock pile purposes" in the exercise of his alleged authority
under Section 2 of Commonwealth Act No. 1;8 that in cases of necessity, the
President "or his subordinates may take such preventive measure for the
restoration of good order and maintenance of peace"; and that, as Commanderin-Chief of our armed forces, "the President ... is duty-bound to prepare for the
challenge of threats of war or emergency without waiting for any special
authority".
Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as
contended by petitioner herein - on which our view need not be expressed we
are unanimously of the opinion - assuming that said Republic Act No. 2207 is still
in force that the two Acts are applicable to the proposed importation in
question because the language of said laws is such as to include within the
purview thereof all importations of rice and corn into the Philippines". Pursuant to
Republic Act No. 2207, "it shall be unlawful for any person, association,
corporation orgovernment agency to import rice and corn into any point in the
Philippines", although, by way of exception, it adds, that "the President of the
Philippines may authorize the importation of these commodities through any
government agency that he may designate", is the conditions prescribed in
Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly
enjoins "the Rice and Corn Administration or any government agency" from
importing rice and corn.
Respondents allege, however, that said provisions of Republic Act Nos. 2207 and
3452, prohibiting the importation of rice and corn by any "government agency",
do not apply to importations "made by the Government itself", because the latter
is not a "government agency". This theory is devoid of merit. The Department of
National Defense and the Armed Forces of the Philippines, as well as
respondents herein, and each and every officer and employee of our
Government, our government agencies and/or agents. The applicability of said
laws even to importations by the Government as such, becomes more apparent
when we consider that:
1. The importation permitted in Republic Act No. 2207 is to be authorized by the
"President of the Philippines"and, hence, by or on behalf of the Government of
the Philippines;
2. Immediately after enjoining the Rice and Corn administration and any other
government agency from importing rice and corn, Section 10 of Republic Act No.
3452 adds "that the importation of rice and corn is left to private parties upon
payment of the corresponding taxes", thus indicating that only "private parties"
may import rice under its provisions; and
3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of
not more than five (5) years for those who shall violate any provision of Republic
Act No. 3452 or any rule and regulation promulgated pursuant thereto, Section
15 of said Act provides that "if the offender is a public official and/or employees",
he shall be subject to the additional penalty specified therein. A public official is
an officer of the Government itself, as distinguished from officers or employees of
instrumentalities of the Government. Hence, the duly authorized acts of the
former are those of the Government, unlike those of a government
instrumentality which may have a personality of its own, distinct and separate
from that of the Government, as such. The provisions of Republic Act No. 2207
are, in this respect, even more explicit. Section 3 thereof provides a similar
additional penalty for any "officer or employee of the Government" who "violates,
abets or tolerates the violation of any provision" of said Act. Hence, the intent to
apply the same to transactions made by the very government is patent.
Indeed, the restrictions imposed in said Republic Acts are merely additional to
those prescribed in Commonwealth Act No. 138, entitled "An Act to give native
products and domestic entities the preference in the purchase of articles for the
Government." Pursuant to Section 1 thereof:
The Purchase and Equipment Division of the Government of the
Philippines and other officers and employees of the municipal and
provincial governments and the Government of the Philippines and of
chartered cities, boards, commissions, bureaus, departments, offices,
agencies, branches, and bodies of any description, including governmentowned companies, authorized to requisition, purchase, or contract or make
disbursements for articles, materials, and supplies for public use, public
buildings, or public works shall give preference to materials ...
produced ... in the Philippines or in the United States, and to domestic
entities, subject to the conditions hereinbelow specified. (Emphasis
supplied.)
Under this provision, in all purchases by the Government, including those made
by and/or for the armed forces,preference shall be given to materials produced in
the Philippines. The importation involved in the case at bar violates this general
policy of our Government, aside from the provisions of Republic Acts Nos. 2207
and 3452.
The attempt to justify the proposed importation by invoking reasons of national
security predicated upon the "worsening situation in Laos and Vietnam", and
"the recent tension created by the Malaysia problem" - and the alleged powers of
the President as Commander-in-Chief of all armed forces in the Philippines,
under Section 2 of the National Defense Act (Commonwealth Act No. 1),
overlooks the fact that the protection of local planters of rice and corn in a
manner that would foster and accelerate self-sufficiency in the local production of
said commodities constitutes a factor that is vital to our ability to meet possible
national emergency. Even if the intent in importing goods in anticipation of such
emergency were to bolster up that ability, the latter would, instead, be impaired if
the importation were so made as to discourage our farmers from engaging in the
production of rice.
Besides, the stockpiling of rice and corn for purpose of national security and/or
national emergency is within the purview of Republic Act No. 3452. Section 3
thereof expressly authorizes the Rice and Corn Administration "to accumulate
stocks as a national reserve in such quantities as it may deem proper and
necessary to meet any contingencies". Moreover, it ordains that "the buffer

stocks held as a national reserve ... be deposited by the administration
throughout the country under the proper dispersal plans ... and may be released
only upon the occurrence of calamities or emergencies ...". (Emphasis applied.)
Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which
respondents rely so much, are not self-executory. They merely outline the
general objectives of said legislation. The means for the attainment of those
objectives are subject to congressional legislation. Thus, the conditions under
which the services of citizens, as indicated in said Section 2, may be availed of,
are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1.
Similarly, Section 5 thereof specifies the manner in which resources necessary
for our national defense may be secured by the Government of the Philippines,
but only "during a national mobilization",9which does not exist. Inferentially,
therefore, in the absence of a national mobilization, said resources shall be
produced in such manner as Congress may by other laws provide from time to
time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and 3452,
and Commonwealth Act No. 138 are such laws.
Respondents cite Corwin in support of their pretense, but in vain. An examination
of the work cited10 shows that Corwin referred to the powers of the President
during "war time"11 or when he has placed the country or a part thereof under
"martial law".12 Since neither condition obtains in the case at bar, said work
merely proves that respondents' theory, if accepted, would, in effect, place the
Philippines under martial law, without a declaration of the Executive to that effect.
What is worse, it would keep us perpetually under martial law.
It has been suggested that even if the proposed importation violated Republic
Acts Nos. 2207 and 3452, it should, nevertheless, be permitted because "it
redounds to the benefit of the people". Salus populi est suprema lex, it is said.
If there were a local shortage of rice, the argument might have some value. But
the respondents, as officials of this Government, have expressly affirmed again
and again that there is no rice shortage. And the importation is avowedly for
stockpile of the Army not the civilian population.
But let us follow the respondents' trend of thought. It has a more serious
implication that appears on the surface. It implies that if an executive officer
believes that compliance with a certain statute will not benefit the people, he is at
liberty to disregard it. That idea must be rejected - we still live under a rule of law.
And then, "the people" are either producers or consumers. Now as
respondents explicitly admit Republic Acts Nos. 2207 and 3452 were
approved by the Legislature for the benefit of producers and consumers, i.e., the
people, it must follow that the welfare of the people lies precisely in
the compliance with said Acts.
It is not for respondent executive officers now to set their own opinions against
that of the Legislature, and adopt means or ways to set those Acts at naught.
Anyway, those laws permit importation but under certain conditions, which
have not been, and should be complied with.
IV. The contracts with Vietnam and Burma
It is lastly contended that the Government of the Philippines has already entered
into two (2) contracts for the Purchase of rice, one with the Republic of Vietnam,
and another with the Government of Burma; that these contracts constitute valid
executive agreements under international law; that such agreements became
binding effective upon the signing thereof by representatives the parties thereto;
that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one
hand, and aforementioned contracts, on the other, the latter should prevail,
because, if a treaty and a statute are inconsistent with each other, the conflict
must be resolved under the American jurisprudence in favor of the one
which is latest in point of time; that petitioner herein assails the validity of acts of
the Executive relative to foreign relations in the conduct of which the Supreme
Court cannot interfere; and the aforementioned contracts have already been
consummated, the Government of the Philippines having already paid the price
of the rice involved therein through irrevocable letters of credit in favor of the sell
of the said commodity. We find no merit in this pretense.
The Court is not satisfied that the status of said tracts as alleged executive
agreements has been sufficiently established. The parties to said contracts do
not pear to have regarded the same as executive agreements. But, even
assuming that said contracts may properly considered as executive agreements,
the same are unlawful, as well as null and void, from a constitutional viewpoint,
said agreements being inconsistent with the provisions of Republic Acts Nos.
2207 and 3452. Although the President may, under the American constitutional
system enter into executive agreements without previous legislative authority, he
may not, by executive agreement, enter into a transaction which is prohibited by
statutes enacted prior thereto. Under the Constitution, the main function of the
Executive is to enforce laws enacted by Congress. The former may not interfere
in the performance of the legislative powers of the latter, except in the exercise of
his veto power. He may not defeat legislative enactments that have acquired the
status of law, by indirectly repealing the same through an executive
agreement providing for the performance of the very act prohibited by said laws.
The American theory to the effect that, in the event of conflict between
a treaty and a statute, the one which is latest in point of time shall prevail, is not
applicable to the case at bar, for respondents not only admit, but, alsoinsist that
the contracts adverted to are not treaties. Said theory may be justified upon the
ground that treaties to which the United States is signatory require the advice
and consent of its Senate, and, hence, of a branch of the legislative department.
No such justification can be given as regards executive agreements not
authorized by previous legislation, without completely upsetting the principle of
separation of powers and the system of checks and balances which are
fundamental in our constitutional set up and that of the United States.
As regards the question whether an international agreement may be invalidated
by our courts, suffice it to say that the Constitution of the Philippines has clearly
settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that
the Supreme Court may not be deprived "of its jurisdiction to review, revise,
reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the
rules of court may provide, final judgments and decrees of inferior courts in (1)
All cases in which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulation is in question". In other words, our Constitution
authorizes the nullification of a treaty, not only when it conflicts with the
fundamental law, but, also, when it runs counter to an act of Congress.
The alleged consummation of the aforementioned contracts with Vietnam and
Burma does not render this case academic, Republic Act No. 2207 enjoins our
Government not from entering into contracts for the purchase of rice, but
from importing rice, except under the conditions Prescribed in said Act. Upon the
other hand, Republic Act No. 3452 has two (2) main features, namely: (a) it
requires the Government to purchase rice and corn directlyfrom our local
planters, growers or landowners; and (b) it prohibits importations of rice by the
Government, and leaves such importations to private parties. The pivotal issue in
this case is whether the proposed importation which has not been
consummated as yet is legally feasible.
Lastly, a judicial declaration of illegality of the proposed importation would not
compel our Government to default in the performance of such obligations as it
may have contracted with the sellers of the rice in question, because, aside from
the fact that said obligations may be complied with without importing the
commodity into the Philippines, the proposed importation may still be legalized by
complying with the provisions of the aforementioned laws.
V. The writ of preliminary injunction.
The members of the Court have divergent opinions on the question whether or
not respondents herein should be enjoined from implementing the
aforementioned proposed importation. However, the majority favors the negative
view, for which reason the injunction prayed for cannot be granted.
WHEREFORE, judgment is hereby rendered declaring that respondent Executive
Secretary had and has no power to authorize the importation in question; that he
exceeded his jurisdiction in granting said authority; said importation is not
sanctioned by law and is contrary to its provisions; and that, for lack of the
requisite majority, the injunction prayed for must be and is, accordingly denied. It
is so ordered.
Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.
Separate Opinions
BAUTISTA ANGELO, J., concurring:
Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful
for any person, association, corporation or government agency to import rice and
corn into any point in the Philippines. The exception is if there is an existing or
imminent shortage of such commodity of much gravity as to constitute national
emergency in which case an importation may be authorized by the President
when so certified by the National Economic Council.
However, on June 14, 1962, Republic Act 3452 was enacted providing that the
importation of rice and corn canonly be made by private parties thereby
prohibiting from doing so the Rice and Corn Administration or any other
government agency. Republic Act 3452 does not expressly repeal Republic Act
2207, but only repeals or modified those parts thereof that are inconsistent with
its provisions. The question that now arises is: Has the enactment of Republic
Act 3452 the effect of prohibiting completely the government from importing rice
and corn into the Philippines?
My answer is in the negative. Since this Act does not in any manner provide for
the importation of rice and corn in case of national emergency, the provision of
the former law on that matter should stand, for that is not inconsistent with any
provision embodied in Republic Act 3452. The Rice and Corn Administration, or
any other government agency, may therefore still import rice and corn into the
Philippines as provided in Republic Act 2207 if there is a declared national

emergency.
The next question that arises is: Can the government authorize the importation of
rice and corn regardless of Republic Act 2207 if that is authorized by the
President as Commander-in-Chief of the Philippine Army as a military
precautionary measure for military stockpile?
Respondents answer this question in the affirmative. They advance the argument
that it is the President's duty to see to it that the Armed Forces of the Philippines
are geared to the defenses of the country as well as to the fulfillment of our
international commitments in Southeast Asia in the event the peace and security
of the area are in danger. The stockpiling of rice, they aver, is an essential
requirement of defense preparation in view of the limited local supply and the
probable disruption of trade and commerce with outside countries in the event of
armed hostilities, and this military precautionary measure is necessary because
of the unsettled conditions in the Southeast Asia bordering on actual threats of
armed conflicts as evaluated by the Intelligence Service of the Military
Department of our Government. This advocacy, they contend, finds support in the
national defense policy embodied in Section 2 of our National Defense Act
(Commonwealth Act No. 1), which provides:
(a) The preservation of the State is the obligation of every citizen. The
security of the Philippines and the freedom, independence and perpetual
neutrality of the Philippine Republic shall be guaranteed by the
employment of all citizens, without distinction of sex or age, and all
resources.
(b) The employment of the nation's citizens and resources for national
defense shall be effected by a national mobilization.
(c) The national mobilization shall include the execution of all measures
necessary to pass from a peace to a war footing.
(d) The civil authority shall always be supreme. The President of the
Philippines as the Commander-in-Chief of all military forces, shall be
responsible that mobilization measures are prepared at all times.
(Emphasis supplied)
Indeed, I find in that declaration of policy that the security of the Philippines and
its freedom constitutes the core of the preservation of our State which is the
basic duty of every citizen and that to secure which it is enjoined that the
President employ all the resources at his command. But over and above all that
power and duty, fundamental as they may seem, there is the injunction that the
civil authority shall always be supreme. This injunction can only mean that while
all precautions should be taken to insure the security and preservation of the
State and to this effect the employment of all resources may be resorted to, the
action must always be taken within the framework of the civil authority. Military
authority should be harmonized and coordinated with civil authority, the only
exception being when the law clearly ordains otherwise. Neither Republic Act
2207, nor Republic Act 3452, contains any exception in favor of military action
concerning importation of rice and corn. An exception must be strictly construed.
A distinction is made between the government and government agency in an
attempt to take the former out of the operation of Republic Act 2207. I disagree.
The Government of the Republic of the Philippines under the Revised
Administrative Code refers to that entity through which the functions of
government are exercised, including the various arms through which political
authority is made effective whether they be provincial, municipal or other form of
local government, whereas a government instrumentality refers to corporations
owned or controlled by the government to promote certain aspects of the
economic life of our people. A government agency, therefore, must necessarily
refer to the government itself of the Republic, as distinguished from any
government instrumentality which has a personality distinct and separate from it
(Section 2).
The important point to determine, however, is whether we should enjoin
respondents from carrying out the importation of the rice which according to the
record has been authorized to be imported on government to government level, it
appearing that the arrangement to this effect has already been concluded, the
only thing lacking being its implementation. This is evident from the manifestation
submitted by the Solicitor General wherein it appears that the contract for the
purchase of 47,000 tons of rice from had been sign on October 5, 1963, and for
the purchase of 20,000 tons from Burma on October 8, 1963, by the authorized
representatives of both our government and the governments of Vietnam and
Burma, respectively. If it is true that, our government has already made a formal
commitment with the selling countries there arises the question as to whether the
act can still be impeded at this stage of the negotiations. Though on this score
there is a divergence of opinion, it is gratifying to note that the majority has
expressed itself against it. This is a plausible attitude for, had the writ been
issued, our government would have been placed in a predicament where, as a
necessary consequence, it would have to repudiate a duly formalized agreement
to its great embarrassment and loss of face. This was avoided by the judicial
statesmanship evinced by the Court.
BARRERA, J., concurring:

Because of possible complications that might be aggravated by
misrepresentation of the true nature and scope of the case before this Court, it is
well to restate as clearly as possible, the real and only issue presented by the
respondents representing the government.
From the answer filed by the Solicitor General, in behalf of respondents, we
quote:
The importation of the rice in question by the Armed Forces of the
Philippines is for military stockpilingauthorized by the President pursuant to
his inherent power as commander-in-chief and as a military precautionary
measure in view the worsening situation in Laos and Vietnam and, it may
added, the recent, tension created by the Malaysia problem (Answer, p. 2;
emphasis supplied.)
During the oral argument, Senator Fernandez, appealing in behalf of the
respondents, likewise reiterated the imported rice was for military stockpiling, and
which he admitted that some of it went to the Rice and Corn Administration, he
emphasized again and again that rice was not intended for the RCA for
distribution to people, as there was no shortage of rice for that purpose but it was
only exchanged for palay because this could better preserved.
From the memorandum filed thereafter by the Solicits General, again the claim
was made:
We respectfully reiterate the arguments in our answer dated October 4,
1963 that the importation of rice sought be enjoined in this petition is in the
exercise of the authority vested in the President of the Philippines as
Commander-in-Chief of the Armed Forces, as a measure of military
preparedness demanded by a real and actual threat of emergency in the
South East Asian countries. (p. 1, Emphasis supplied.)
xxx
xxx
xxx
It (the stressing of the unsettled conditions in Southeast Asia) is merely our

intention to show the necessity for the stockpiling of rice for army
purposes, which is the very reason for the importation.
xxx
xxx
xxx
As it is, the importation in question is being made by the Republic of the

Philippines for its own use, and the rice is not supposed to be poured into
the open market as to affect the price to be paid by the public. (p. 4,
Emphasis supplied.)
xxx
xxx
xxx
What we do contend is that the law, for want of express and clear provision
to that effect, does not include in its prohibition importation by the
Government of rice for its own use and not for the consuming public,
regardless of whether there is or there is no emergency. (p. 5, Emphasis
supplied.)
From the above, it not only appears but is evident that the respondents were not
concerned with the present rice situation confronting the consuming public, but
were solely and exclusively after the stockpiling of rice for thefuture use of
the army. The issue, therefore, in which the Government was interested is not
whether rice is imported to give the people a bigger or greater supply to maintain
the price at P.80 per ganta for, to quote again their contention: "the rice is not
supposed to be poured into the open market to affect the price to be paid by the
public, as it is not for the consuming public, regardless of whether there is or
there is no emergency", but whether rice can legally be imported by the Armed
Forces of the Philippines avowedly for its future use, notwithstanding the
prohibitory provisions of Republic Acts Nos. 2207 and 3452. The majority opinion
ably sets forth the reasons why this Court can not accept the contention of the
respondents that this importation is beyond and outside the operation of these
statutes. I can only emphasize that I see in the theory advanced by the Solicitor
General a dangerous trend that because the policies enunciated in the cited
laws are for the protection of the producers and the consumers, the army is
removed from their application. To adopt this theory is to proclaim the existence
in the Philippines of three economic groups or classes: the producers, the
consumers, and the Armed Forces of the Philippines. What is more portentous is
the effect to equate the army with the Government itself.
Then again, the importation of this rice for military stockpiling is sought to be
justified by the alleged threat of emergency in the Southeast Asian countries. But
the existence of this supposed threat was unilaterally determined by the
Department of National Defense alone. We recall that there exists a body called
the National Security Council in which are represented the Executive as well as
the Legislative department. In it sit not only members of the party in power but of
the opposition as well. To our knowledge, this is the highest consultative body
which deliberates precisely in times of emergency threatening to affect the

security of the state. The democratic composition of this council is to guarantee
that its deliberations would be non-partisan and only the best interests of the
nation will be considered. Being a deliberative body, it insures against precipitate
action. This is as it should be. Otherwise, in these days of ever present cold war,
any change or development in the political climate in any region of the world is
apt to be taken as an excuse for the military to conjure up a crisis or emergency
and thereupon attempt to override our laws and legal processes, and
imperceptibly institute some kind of martial law on the pretext of precautionary
mobilization measure avowedly in the interest of the security of the state. One
need not, be too imaginative to perceive a hint of this in the present case.
The Supreme Court, in arriving at the conclusion unanimously reached, is fully
aware of the difficult and delicate task it had to discharge. Its position is liable to
be exploited by some for their own purposes by claiming and making it appear
that the Court is unmindful of the plight of our people during these days of
hardship; that it preferred to give substance to the "niceties of the law than heed
the needs of the people. Our answer is that the Court was left no alternative. It
had, in compliance with its duty, to decide the case upon the facts presented to it.
The respondents, representing the administration, steadfastly maintained and
insisted that there is no rice shortage; that the imported rice is not for the
consuming public and is not supposed to be placed in the open market to affect
the price to be paid by the public; that it is solely for stockpiling of the army for
future use as a measure of mobilization in the face of what the Department of
National Defense unilaterally deemed a threatened armed conflict in Southeast
Asia. Confronted with these facts upon, which the Government has built and
rested its case, we have searched in vain for legal authority or cogent reasons to
justify this importation made admittedly contrary to the provisions of Republic
Acts Nos. 2207 and 3452. I say admittedly, because respondents never as much
as pretended that the importation fulfills the conditions specified in these laws,
but limited themselves to the contention, which is their sole defense that this
importation does not fall within the scope of said laws. In our view, however, the
laws are clear. The laws are comprehensive and their application does not admit
of any exception. The laws are adequate. Compliance therewith is not difficult,
much less impossible. The avowed emergency, if at all, is not urgently
immediate.
In this connection, it is pertinent to bear in mind that the Supreme Court has a
duty to perform under the Constitution. It has to decide, when called upon to do
so in an appropriate proceeding, all cases in which the constitutionality or validity
of any treaty, law, ordinance, executive order or regulation is in question. We can
not elude this duty. To do so would be culpable dereliction on our part. While we
sympathize with the public that might be adversely affected as a result of this
decision yet our sympathy does not authorize us to sanction an act contrary to
applicable laws. The fault lies with those who stubbornly contended and
represented before this Court that there is no rice shortage, that the imported rice
is not intended for the consuming public, but for stockpiling of the army. And, if as
now claimed before the public, contrary to the Government's stand in this case,
that there is need for imported rice to stave off hunger, our legislature has
provided for such a situation. As already stated, the laws are adequate. The
importation of rice under the conditions set forth in the laws may be authorized
not only where there is an existing shortage, but also when the shortage
is imminent. In other words, lawful remedy to solve the situation is available, if
only those who have the duty to execute the laws perform their duty. If there is
really need for the importation of rice, who adopt some dubious means which
necessitates resort to doubtful exercise of the power of the President as
Commander-in-Chief of the Army? Why not comply with the mandate of the law?
Ours is supposed to be a regime under the rule of law. Adoption as a government
policy of the theory of the end justifies the means brushing aside constitutional
and legal restraints, must be rejected, lest we end up with the end of freedom.
For these reasons, I concur in the decision of the Court.
SUPREME COURT
Manila
EN BANC
August 15, 1961
IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the
Philippine Bar without taking the examination. ARTURO EFREN
GARCIA, petitioner.
RESOLUTION
BARRERA, J.:
Arturo E. Garcia has applied for admission to the practice of law in the
Philippines without submitting to the required bar examinations. In his verified
petition, he avers, among others, that he is a Filipino citizen born in Bacolor City,
Province of Negros Occidental, of Filipino parentage; that he had taken and
finished in Spain, the course of "Bachillerato Superior"; that he was approved,
selected and qualified by the "Instituto de Cervantes" for admission to the Central
University of Madrid where he studied and finished the law course graduating
there as "Licenciado En Derecho"; that thereafter he was allowed to practice the

law profession in Spain; and that under the provision of the Treaty of Academic
Degrees and the Exercise of Professions between the Republic of the Philippines
and the Spanish state, he is entitled to practice the law profession in the
Philippines without submitting to the required bar examinations.
After due consideration, the Court resolved to deny the petition on the following
grounds:
(1) the provisions of the Treaty on Academic Degrees and the Exercise of
Professions between the Republic of the Philippines and the Spanish State can
not be invoked by applicant. Under Article 11 thereof;
The Nationals of each of the two countries who shall have obtained
recognition of the validity of their academic degrees by virtue of the
stipulations of this Treaty, can practice their professions within the territory
of the Other, . . .. (Emphasis supplied).
from which it could clearly be discerned that said Treaty was intended to govern
Filipino citizens desiring to practice their profession in Spain, and the citizens of
Spain desiring to practice their professions in the Philippines. Applicant is a
Filipino citizen desiring to practice the legal profession in the Philippines. He is
therefore subject to the laws of his own country and is not entitled to the
privileges extended to Spanish nationals desiring to practice in the Philippines.
(2) Article I of the Treaty, in its pertinent part, provides .
The nationals of both countries who shall have obtained degree or
diplomas to practice the liberal professions in either of the Contracting
States, issued by competent national authorities, shall be deemed
competent to exercise said professions in the territory of the Other, subject
to the laws and regulations of the latter. . . ..
It is clear, therefore, that the privileges provided in the Treaty invoked by the
applicant are made expressly subject to the laws and regulations of the
contracting State in whose territory it is desired to exercise the legal profession;
and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof, which
have the force of law, require that before anyone can practice the legal
profession in the Philippine he must first successfully pass the required bar
examinations; and
(3) The aforementioned Treaty, concluded between the Republic of the
Philippines and the Spanish State could not have been intended to modify the
laws and regulations governing admission to the practice of law in the

Philippines, for the reason that the Executive Department may not encroach
upon the constitutional prerogative of the Supreme Court to promulgate rules for
admission to the practice of law in the Philippines, the lower to repeal, alter or
supplement such rules being reserved only to the Congress of the Philippines.
(See Sec. 13, Art VIII, Phil. Constitution).
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes, Dizon, De Leon and
Natividad, JJ., concur.
Bautista Angelo, J., on leave, took no part.
Concepcion, J., took no part.

SUPREME COURT
Manila
EN BANC
G.R. No. 151445
April 11, 2002
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-ARROYO,
and HONORABLE ANGELO REYES in his capacity as Secretary of National Defense,respondents.
---------------------------------------SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,
vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.
DISSENTING OPINION
SEPARATE OPINION
DE LEON, JR., J.:
This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that
respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and hearing,
that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S.
troops in Basilan and Mindanao for being illegal and in violation of the Constitution.
The facts are as follows:
Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving
in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1." These so-called "Balikatan"
exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a
simulation of joint military maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement entered
into by the Philippines and the United States in 1951.
Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal agreement
relative to the treatment of United States personnel visiting the Philippines. In the meantime, the respective
governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was
eventually cured when the two nations concluded the Visiting Forces Agreement (V FA) in 1999.
The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign
declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On that
day, three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade Center
in New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the
Base"), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no comparable historical
parallels, these acts caused billions of dollars worth of destruction of property and incalculable loss of hundreds of
lives.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition,
attacking the constitutionality of the joint exercise.2 They were joined subsequently by SANLAKAS and PARTIDO NG
MANGGAGAWA, both party-Iist organizations, who filed a petition-in-intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the
other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be
directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules
relative to locus standi citing the unprecedented importance of the issue involved.
On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T.
Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented the Draft Terms of Reference (TOR).3 Five
days later, he approved the TOR, which we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in
consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against
global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established. Temporary structures such as those
for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the
Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the
Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises
(FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall
authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of
the AFP during the FTX.
5. The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the
Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month
Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine
efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and
training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will
be for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field,
commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company
Tactical headquarters where they can observe and assess the performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense.
9. These terms of Reference are for purposes of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP
and US Forces with the primary objective of enhancing the operational capabilities of both forces to
combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the start of the Exercise.
This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the
provisions of the VF A. The briefing shall also promote the full cooperation on the part of the RP
and US participants for the successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their respective laws and
regulations, in the use of their resources, equipment and other assets. They will use their
respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and
resources.
d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in
Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.
b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be
jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces
in accordance with their respective laws and regulations, and in consultation with community and
local government officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d'
Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary
Kelly.4
Petitioners Lim and Ersando present the following arguments:
I
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951
TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL
PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL
AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN
BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN
ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON".
Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.
In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersando's
standing to file suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a
question of fact. Anent their locus standi, the Solicitor General argues that first, they may not file suit in their
capacities as, taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress'
taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the
case, citing our ruling in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and Ersando have failed to
demonstrate the requisite showing of direct personal injury. We agree.
It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that since the
Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues raised by petitioners are
premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners' resort to a
special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established
facts.
Apart from these threshold issues, the Solicitor General claims that there is actually no question of constitutionality
involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General
asks that we accord due deference to the executive determination that "Balikatan 02-1" is covered by the VFA,
considering the President's monopoly in the field of foreign relations and her role as commander-in-chief of the
Philippine armed forces.
Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related
case:
Notwithstanding, in view of the paramount importance and the constitutional significance of the
issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency
Powers Cases, where we had occasion to rule:
'x x x 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 '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.
[citation omitted]
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and
Basco vs. Phil, Amusement and Gaming Corporation, where we emphatically held:
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 the
government have kept themselves within the limits of the Constitution and the laws 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. xxx'
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the department of the government a becoming respect for each
other's act, this Court nevertheless resolves to take cognizance of the instant petition.6
Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate,
petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and
the duration of their stay has been addressed in the Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines
bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the
"core" of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to
enhance the strategic and technological capabilities of our armed forces through joint training with its American
counterparts; the "Balikatan" is the largest such training exercise directly supporting the MDT's objectives. It is this
treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in USPhilippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that
on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA. 7 The V FA provides the
"regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the
Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to
entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation
and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is
the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the
promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a
common foe.
The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces Agreement.
To resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the
terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an
impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only to the approval of the Philippine government.8 The sole
encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from
any activity inconsistent with the spirit of this agreement, and in particular, from any political activity."9 All other
activities, in other words, are fair game.
We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos
governing interpretations of international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus
of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including
its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with
the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the
treaty and accepted by the other parties as an instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of
article 31, or to determine the meaning when the interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is
presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce
the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. As explained by a writer on the Convention ,
[t]he Commission's proposals (which were adopted virtually without change by the conference and are now
reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty
must be presumed to be the authentic expression of the intentions of the parties; the Commission
accordingly came down firmly in favour of the view that 'the starting point of interpretation is the elucidation
of the meaning of the text, not an investigation ab initio into the intentions of the parties'. This is not to say
that the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are relegated to a
subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on
resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary means of
interpretation' in what is now Article 32 of the Vienna Convention. The distinction between the general rule of
interpretation and the supplementary means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous method of interpretation divorced from
the general rule.10
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word .'activities"
arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As
conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the
nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations,
civic action projects such as the building of school houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume
that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense
Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself -such as the
one subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of the VFA, what
may US forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort
against terrorism? Differently phrased, may American troops actually engage in combat in Philippine territory? The
Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants
may not engage in combat "except in self-defense." We wryly note that this sentiment is admirable in the abstract
but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit
idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for
they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a
fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per
directum."11 The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war
principally conducted by the United States government, and that the provision on self-defense serves only as
camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes
crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive war on
Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit:
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with
the following Principles.
xxx
xxx
xxx
xxx
4. All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations.
xxx
xxx
xxx
xxx
In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and
international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In
particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains
in effect as a valid source of international obligation. The present Constitution contains key provisions useful in
determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of
Principles and State Policies, it is provided that:
xxx
xxx
xxx
xxx
SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
xxx
xxx
xxx
xxx
SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the
paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to
self- determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from
nuclear weapons in the country.
xxx
xxx
xxx
xxx
The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty
or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of
the Senate."12 Even more pointedly, the Transitory Provisions state:
Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting state.
The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign
influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception.
Conflict arises then between the fundamental law and our obligations arising from international agreements.
A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in Philip Morris,
Inc. v. Court of Appeals,13 to wit:
xxx Withal, the fact that international law has been made part of the law of the land does not by any means
imply the primacy of international law over national law in the municipal sphere. Under the doctrine of
incorporation as applied in most countries, rules of international law are given a standing equal, not superior,
to national legislation.
This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one
law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches
may offer valuable insights.
From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle
ofpacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them
in good faith."14 Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for
its failure to perform a treaty." 15
Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII:
The Supreme Court shall have the following powers:
xxx
xxx
xxx
xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
xxx
xxx
xxx
xxx
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or amendment
by a subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova,17
xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it
to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section
2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise,
reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide,
final judgments and decrees of inferior courts in -( I) All cases in which the constitutionality or validity of
anytreaty, law, ordinance, or executive order or regulation is in question." In other words, our Constitution
authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it
runs counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on
Philippine territory.
Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers under
the guise of an alleged training and assistance exercise? Contrary to what petitioners would have us do, we cannot
take judicial notice of the events transpiring down south,18 as reported from the saturation coverage of the media. As
a rule, we do not take cognizance of newspaper or electronic reports per se, not because of any issue as to their
truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of
evidence. As a result, we cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo
government is engaged in "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign
troops on native soil. The petitions invite us to speculate on what is really happening in Mindanao, to issue I make
factual findings on matters well beyond our immediate perception, and this we are understandably loath to do.
It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must concur
with the Solicitor General that the present subject matter is not a fit topic for a special civil action forcertiorari. We
have held in too many instances that questions of fact are not entertained in such a remedy. The sole object of the
writ is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a
precise meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive
duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in
an arbitrary and despotic manner by reason of passion and personal hostility."19
In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20
Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government."21 From the facts obtaining, we find that the holding of "Balikatan 021" joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on our
part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack
or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a
new petition sufficient in form and substance in the proper Regional Trial Court.
SO ORDERED.
Bellosillo, Melo, Mendoza, Quisumbing, Carpio, JJ., concur.
Kapunan, dissenting opinion.
Ynares-Santiago, join the dissenting opinion.
Panganiban, separate opinion.
Davide., Jr., C.J., Puno, Sandoval-Gutierrez, join the main and separate opinion of J. Panganiban.
Footnotes
1
For ready reference, the text of the treaty is reproduced herein:
"MUTUAL DEFENSE TREATY

BETWEEN THE REPUBLIC OF THE PHILIPPINES
AND THE UNITED STATES OF AMERICA
30 August 1951
"The parties to this Treaty,
'"Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to
live in peace with all peoples and all Governments, and desiring to strengthen the fabric of peace in the
Pacific Area,
"Recalling with mutual pride the historic relationship which brought their two peoples together in a common
bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war,
"Desiring to declare publicly and formally their sense of unity and their common determination to defend
themselves against external armed attack, so that no potential aggressor could be under the illusion that
either of them stands alone in the Pacific Area,
"Desiring further to strengthen their present efforts for collective defense for the preservation of peace and
security pending the development of a more comprehensive system of regional security in the Pacific Area,
"Agreeing that nothing in this present instrument shall be considered or interpreted as in any way , or sense
altering or diminishing any existing agreements or understandings between the United States of America
and the Republic of the Philippines,
"Have agreed as follows:
"ARTICLE I.
"The Parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes
in which they may be involved by peaceful means in such a manner that international peace and security
and justice are not endangered and to refrain in their international relations from the threat or use of force in
any manner inconsistent with the purpose of the United Nations.
"ARTICLE II.
"In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by selfhelp and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.
"ARTICLE III.
"The Parties, through their Foreign Ministers or their deputies, will consult together from time to time
regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is threatened by external.'
I armed attack in the Pacific.
"ARTICLE IV.
"Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous
to its own peace and safety and declares that it would act to meet the common dangers in accordance with
its constitutional processes.
" Any such armed attack and all measures taken as a result thereof shall be immediately reported to the
Security Council of the United Nations. Such measures shall be terminated when the Security Council has
taken the measures necessary to restore and maintain international peace and security.
"ARTICLE V.
"For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an attack on the
metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or
on its armed forces, public vessels or aircraft used in the Pacific.
"ARTICLE VI.
"This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of
the Parties under the Charter of the United Nations or the responsibility of the United Nations for the
maintenance of international peace and security.
"ARTICLE VII.
"This Treaty shall be ratified by the United States of America and the Republic of the Philippines in
accordance with their respective constitutional processes and will come into force when instruments of
ratification thereof have been exchanged by them at Manila.
"ARTICLE VIII.
"This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been
given to the other party.
"IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
"DONE in duplicate at Washington this thirtieth day of August, 1951."
xxx
xxx
xxx
xxx
The day before, the first petition in connection with the joint military enterprise was filed --G.R. No.151433,
entitled "In the Matter of Declaration as Constitutional and Legal the 'Balikatan' RP- US Military Exercises."
Petitioner therein Atty. Eduardo B. Inlayo manifested that he would be perfectly "comfortable" should the
Court merely "note" his petition. We did not oblige him; in a Resolution dated February 12, 2002, we
dismissed his petition on the grounds of insufficiency in form and substance and lack of jurisdiction. After
extending a hearty Valentine's greeting to the Court en banc, Atty. Inlayo promised to laminate the aforesaid
resolution as a testimonial of his "once upon a time" participation in an issue of national consequence.
2
Annex 1 of the Comment.
Annex 2 of the Comment. The Minutes state:
"Secretary Guingona and Assistant Secretary Kelly welcomed the holding of Balikatan 02-1 exercise ('the
Exercise") and the conclusion of the Terms of Reference for the Exercise. Assistant Secretary Kelly thanked
Secretary Guingona for Secretary Guingona's personal approval of the Terms of Reference.
"Both Secretary Guingona and Assistant Secretary Kelly emphasized the importance of cooperating, within
the bounds provided for by their respective constitutions and laws, in the fight against international terrorism.
"Both Secretary Guingona and Assistant Secretary Kelly expressed the belief that the Exercise shall not in
any way contribute to any escalation of other conflicts in Mindanao, shall not adversely affect the progress of
ongoing peace negotiations between the Government of the Philippines and other parties, and shall not put
at risk the friendly relations between the Philippines and its neighbors as well as with other states. Secretary
Guingona stated that he had in mind the ongoing peace negotiations with the NDF and the MILF and he
emphasized that it is important to make sure that the Exercsie shall not in any way hinder those
negotiations.
"Both Secretary Guingona and Assistant Secretary Kelly stated that they look forward to the realization of
the nearly US$100 million in security assistance for fiscal years 2001-2002 agreed upon between H.E.
President Gloria Macapagal-Arroyo and H.E. President George W. Bush last November 2001.
"Secretary Guingona stated that the Philippines welcomes the assistance that the U.S. will be providing,
saying that while Filipino soldier does not lack experience, courage and determination, they could benefit
from additional knowledge and updated military technologies.
"Assistant Secretary Kelly said that he is glad the U.S. is able to provide advice, assistance and training and
reiterated the policy position expressed by H.E. President George W. Bush during his State of the Nation
Address that U.S. forces are in the Philippines to advise, assist and train Philippine military forces.
"Both Secretary Guingona and Assistant Secretary Kelly reiterated that, as provided in the Terms of
Reference, U.S. Forces shall not engage in combat during the Exercise, except in accordance with their
right to act in self-defense.
Both Secretary Guingona and Assistant Secretary Kelly reiterated that, pursuant to Article II of the Visiting
Forces Agreement, U.S. forces are bound to respect the laws of the Philippines during the Exercise.
"Both Secretary Guingona and Assistant Secretary Kelly recognized that, pursuant to Article VI of the Visiting
Forces Agreement, both the U.S. and Philippine Governments waive any and all claims against the other for
any deaths or injuries to their military and civilian personnel from the Exercise.
"Secretary Guingona and Assistant Secretary Kelly designated Ambassador Minerva Falcon and Charge d'
Affaires, a.i. Robert Fitts to initial these minutes.
"Both Secretary Guingona and Assistant Secretary Kelly agreed to consult from time to time on matters
relating to the Exercise as well as on other matters."
Notwithstanding, in view of the paramount importance and the constitutional significance of the
issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency
Powers Cases, where we had occasion to rule:
5
338 SCRA 81, 100-101 (2000).

'x x x 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 '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. [ citation omitted]
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs.
Singson, and Basco vs. Phil. Amusement and Gaming Corporation, where we emphatically held:
'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 detemine whether or not the other
branches of the governrnent have kept themselves within the limits of the Constitution and
the laws that 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.xxx
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of i
transcendental importance, the Court may relax the standing requirements and allow a suit to
prosper even , where there is no direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation, of powers, which enjoins upon the departments of the government a becoming respect
for each others' acts, this Court nevertheless resolves to take cognizance of the instant petitions.6
6 BAYAN, et. al. Y. Zamora, 342 SCRA 449 (2000).
7
BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 (2000).
Article I [Definitions], VFA.
Article II [Respect for Law], VFA.
10
II
l.M. SINCLA1R, THE VIENNA CONVENTION ON THE LAW OF TREATIES 71-72 (1973).
"No one is allowed to do indirectly what he is prohibited to do directly." 12 Sec. . 12 SEC.21, Art. VII.
13
224 SCRA 576, 593 (1993).
14
Vienna Convention on the Law of Treaties, art. 26.
15
Id, art. 27. However, this is without prejudice to the provisions of art. 46 of the Convention, which provides:
"1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless
that violation was manifest and concerned a rule of its internal law of fundamental importance.
"2. A violation is manifest if it would be objectively evident to any State conducting itself in the manner in
accordance with normal practice and in good faith."
16
101 Phil. 1155, 1191 (1957).
17
9 SCRA 230,242 (1963).
Pertinent sections of Rule 129 provide: "SECTION I. Judicial notice, when mandatory.-A court shall take
judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their
political history , forms of government and symbols of nationality, the law of nations, the admiralty and
maritime courts of the world and their seals, the political constitution and history of the Philippines, the
official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the
measure of time, and the geographical divisions." Likewise, it is also provided in the next succeeding
section: "SEC. 2. Judicial notice, when discretionary.-A court may take judicial notice of matters which are of
public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because
of their judicial functions."
18
19
Sanchez v. National Labor Relations Commission, 312 SCRA 727 ( 1999).
Hervas v. Court of Appeals, 319 SCRA 776 (1999); Valmonte v. Court of Appeals, 303 SCRA 278
( 1999).
20
1wphi1.nt
21
Article VIII, section 1.
The Lawphil Project - Arellano Law Foundation
EN BANC
G.R. No. 151445
April 11, 2002
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY PRESIDENT GLORIA
MACAPAGAL-ARROYO and HONORABLE ANGELO REYES in his official capacity as Secretary of National
Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.
DISSENTING OPINION
KAPUNAN, J.:
On September 11, 2001, terrorists, with the use of hijacked commercial airplanes, attacked the World Trade Center
Building in New York City and the Pentagon Building in Washington D.C., U.S.A., killing thousands of people.
Following the attacks, the United States declared a "global war" against terrorism and started to bomb and attack
Afghanistan to topple the Taliban regime and capture Osama bin Laden, the suspected mastermind of the September
11, 2001 attacks. With the Northern Alliance mainly providing the ground forces, the Taliban regime fell in a few
months, without Osama bin Laden having been captured. He is believed either to be still in Afghanistan or has
crossed the border into Pakistan.
In line with President Gloria Macapagal-Arroyo's pledge to render all-out aid to the US in its campaign against "global
terrorism," an arrangement for a. joint military exercises known as "RP-US Balikatan 02-1 Exercises" was entered
into between the US and Philippine authorities, allegedly within the ambit of the Visiting Forces Agreement (V FA)
with the main objective of enhancing the operational capabilities of the countries in combating terrorism. The US
government has identified the Abu Sayyaf Group (ASG) in the Philippines as a terrorist group forming part of a
"terrorist underground" linked to the al-Qaeda network of Osama bin Laden.
Beginning January 21, 2002, American troops started arriving in Mindanao as part of the total contingent force of 660
soldiers, 160 to be stationed in Basilan, 200 to 250 in Zamboanga, and 250 in the Air Force base in Mactan, Cebu.
The salient features of the joint military exercises as embodied in the Terms of Reference (TOR) are summarized as
follows:
(a) The exercise shall be consistent with the Constitution and other Philippine laws, particularly the RP-US
Visiting Forces Agreement;
(b) No permanent US bases and support facilities will be established;
(c) The exercise shall be implemented jointly by RP and US Exercise Co-Directors under the direction of the
Chief of Staff of the AFP and in no instance will US Forces operate independently during field training
exercises;
(d) It shall be conducted and completed within a period of not more than six months, with the projected
participation of 660 US personnel and 3,800 RP forces, and the Chief of Staff of the AFP shall direct the
Exercise Co-Directors to wind up the Exercise and other activities and the withdrawal of US forces within the
six-month period;
(e) The exercise "is a mutual counter-terrorism advising, assisting and training exercise" relative to
Philippine efforts against the Abu Sayyaf Group and will be conducted on the Island of Basilan. Further
advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga area.
Related activities in Cebu will also be conducted in support of the Exercise;
(f) Only 160 US troops organized in 12-man Special Forces Teams shall be deployed in Basilan, with the US
Team remaining at the Company Tactical Headquarters where they can observe and assess the
performance of the troops; and
(g) US exercise participants shall not engage in combat, without prejudice to their right to self-defense.
Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from participating in areas of
armed conflict on the ground that such is in gross violation of the Constitution. They argue that:
I
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) IN 1951
TO PROVIDE MUTUAL MILITARY ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL
PROCESSES" OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL
AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN
BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECTED THE PHILIPPINES TO
AN ARMED EXTERNAL ATTACK TO WARRANT US MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON."
Sanlakas and Partido ng Manggagawa as intervenors seek the same relief as petitioners, stressing that the
Constitution prohibits the presence of foreign military troops or facilities in the country, except under a treaty duly
concurred in by the Senate and recognized as a treaty by the other state.
The petition is impressed with merit.
There is no treaty allowing
US troops to engage in combat.
The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the same. Section 25,
Article XVIII of the Constitution provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States
of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
There is no treaty allowing foreign military troops to engage in combat with internal elements.
The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United States of America does not
authorize US military troops to engage the ASG in combat. The MDT contemplates only an "external armed attack."
Article III of the treaty cannot be more explicit:
The Parties, through their Foreign Ministers or their deputies, will consult together from time to time
regarding the implementation of this treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is threatened by external armed attack in
the Pacific. [Emphasis supplied.]
Supporting this conclusion is the third paragraph of the MDT preamble where the parties express their desire
to declare publicly and formally their sense of unity and their common determination to defend themselves
against external armed attack, so that no potential aggressor could be under the illusion that either of them
stands alone in the Pacific area. [Emphasis supplied.]
There is no evidence that
the ASG is connected with
"global terrorism."
There is no empirical basis for the allegation that the "terrorism" which the ASG is accused of constitutes an "external
armed attack." The ASG has committed mostly crimes of kidnapping for ransom and murder - common crimes that
are punishable under the penal code but which, by themselves, hardly constitute "terrorism."
Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed, one man's terrorist may be
another man's freedom fighter. The divergent interests of States have caused contradicting definitions and conflicting
perceptions of what constitutes "terrorist acts" that make it difficult for the United Nations to reach a decision on the
definition of terrorism. Because of this "definitional predicament," the power of definition is easily exercised by a
superpower which, by reason of its unchallenged hegemony, could draw lists of what it considers terrorist
organizations or states sponsoring terrorism based on criteria determined by the hegemon's own strategic interests.1
In any case, ties between the ASG and so-called international "terrorist" organizations have not been
established.2 Even assuming that such ties do exist, it does not necessarily make the "attacks" by the ASG "external"
as to fall within the ambit of the MDT.
Balikatan exercises are
not covered by VFA as
US troops are not
allowed to engage in combat.
Neither is the present situation covered by the so-called Visiting Forces Agreement (VFA). The V FA was concluded
after the removal of the US military bases, troops and facilities in the aftermath of the termination of the treaty
allowing the presence of American military bases in the Philippines. The VF A is nothing more than what its formal
name suggests: an "Agreement between the Government of the Republic of the Philippines and the Government of
the United States of America regarding the Treatment of United States Armed Forces Visiting the Philippines. "The
last paragraph of the V FA preamble also "recogniz[es] the desirability of defining the treatmentof United States
personnel visiting the Republic of the Philippines."
The VFA was entered into to enable American troops to enter the country again after the removal of the American
military bases so they can participate in military exercises under the auspices of the Mutual Defense Treaty. It
provided the legal framework under which American soldiers will be treated while they remain in the country.
The military exercises contemplated in the VFA are those in accordance with the National Defense Plan (NDP) of the
Philippines. The NDP was previously approved and adopted by the Mutual Defense Board, jointly chaired by the
Chief of Staff of the Armed Forces of the Philippines and the Commander in the Pacific of the United States Armed
Forces.
The NDP is directed against potential foreign aggressors, not designed to deal with internal disorders. This was what
the Senate understood when it ratified the VFA in Senate Resolution No. 18, which reads:
The VFA shall serve as the legal mechanism to promote defense cooperation between the two countries,
enhancing the preparedness of the Armed Forces of the Philippines against external threats; and enabling
the Philippines to bolster the stability of the Pacific Area in a shared effort with its neighbor states.
The VFA's ambiguous reference to "activities"3 is not a loophole that legitimizes the presence of US troops in Basilan.
In the treaty's preamble, the parties "reaffirm their obligations under the Mutual Defense Treaty of August 30, 1951."
As the preamble comprises part of a treaty's context for the purpose of interpretation, the VFA must be read in light of
the provisions of the MDT. As stated earlier, the MDT contemplates only an external armed attack; consequently, the
"activities" referred to in the V FA cannot thus be interpreted to include armed confrontation with or suppression of the
ASG members who appear to be mere local bandits, mainly engaged in kidnapping for ransom and murder -even
arson, extortion and illegal possession of firearms, all of which are common offenses under our criminal laws. These
activities involve purely police matters and domestic law and order problems; they are hardly "external" attacks within
the contemplation of the MDT and the V FA. To construe the vagueness of the term "activities" in the V FA as
authorizing American troops to confront the ASG in armed conflict would, therefore, contravene both spirit and letter
of the MDT.
Respondents maintain that the American troops are not here to fight the ASG but merely to engage in "training
exercises." To allay fears that the American troops are here to engage the ASG in combat, the TOR professes that
the present exercise "is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine
efforts against the ASG, and will be conducted on the Island of Basilan." The TOR further provides that the "exercise"
shall involve the conduct of "mutual military assisting, advising and training of RP and US Forces with the primary
objective of enhancing the operational capabilities of both forces to combat terrorism."
These avowals of assistance, advice, and training, however, fly in the face of the presence of US troops in the heart
of the ASG's stronghold. Such presence is an act of provocation that makes an armed confrontation between US
soldiers and ASG members inevitable.
The US troops in Basilan have been described as being "on a slippery slope between training and fighting."Their
very presence makes them a target for terrorist and for the local Moslem populace, which has been bitterly antiAmerican since colonial times. Though they are called advisers, the Americans win be going on risky missions deep
into the jungle. A former Green Beret who is an analyst of Washington's Center for Strategies and Budgetary
Assessments notes that "when troops go out on patrol, they come as close as they can to direct combat."4
"Advising" or "training" Filipino soldiers hardly describes the involvement of US troops (unaccompanied by Filipino
counterparts) on board combat helicopters which land on the battlegrounds to evacuate Filipino soldiers wounded
while fighting the ASG. For example, on April 5,2002, US troops on board a Pave Hawk helicopter flew to the scene
of a night battle on Basilan Island to evacuate a wounded Filipino soldier. This was reportedly the third time in recent
weeks that chopper-borne US forces had evacuated Filipino soldiers fighting the ASG.5
Whatever euphemisms may be conjured to characterize American involvement, the RP-US Balikatan 02-1
Exercises are aimed at seeking out the ASG and exterminating it.
The prohibition contained in the TOR against US exercise participants from engaging in combat but "without prejudice
to their right to self- defense" provides little consolation. Combat muddles the distinction between aggression and
self-defense. US troops can always say they did not fire first and no one would dare say otherwise. The ASG has
been so demonized that no one cares how it is exorcised. Significantly, the TOR does not define the parameters of
"self-defense." Militarily, a pre-emptive strike could be interpreted as an act of self -defense.
What I fear most is that the country would be dragged into a more devastating and protracted conflict as a result of
the continued presence of US military troops in Basilan. A single ASG sniper's bullet felling an American soldier could
be used as an excuse for massive retaliation by US ground and air forces to attack and bomb out every suspected
ASG lair, all in the name of "self -defense.
Apprehensions over possible catastrophic consequence of US military involvement in our country are not without
historical basis.
The US experience in Vietnam, for example, began as an expression of support for the establishment of South
Vietnam under Bao Dai's leadership in 1949 to. counteract the support given by communist China and the Soviet
Union to North Vietnam. In 1950, the US began providing military assistance in fighting North Vietnam by sending
military advisors as well as US tanks, planes, artillery and other supplies. The US became more involved in the
Vietnam conflict when in 1961, it sent the first 400 Green Beret "Special Advisors" to South Vietnam to train the
latter's soldiers in methods of counter-insurgency against the Viet Cong guerillas. It clarified that the American
soldiers were not in Vietnam to engage in combat.6
However, due to the increased success of the Viet Cong guerillas, assisted by the Northern Vietnamese Army, the US
eventually began to run covert operations using South Vietnamese commandos in speed boats to harass radar sites
along the coastline of North Vietnam. In 1964, after an alleged torpedo attack by North Vietnam of the American
destroyers USS. Maddox and USS. C. Turner Joy in the Gulf of Tonkin, the US decided to retaliate by conducting
bombing raids in North Vietnam.7
The Vietnam War resulted in the death of two million Vietnamese and injuries to three million others. Twelve million
Vietnamese became refugees and thousands of children became orphaned.8 Millions of acres of Vietnam's forests
were defoliated by a herbicide called Agent Orange, dropped from the air. Millions of mines and unexploded bombs
and artillery shells are still scattered in the countryside, posing constant danger to life and limb.
US militarv presence is
essentially indefinite
and open-ended.
Already, there are indications that the US intends to reestablish a more enduring presence in the country.
Defense Secretary Angelo Reyes was quoted to have declared on March 20, 2002 that 2,665 US soldiers will take
part in the RP-US Balikatan 02-2 starting next month in Central Luzon and that 10 more military exercises will be held
this year.9 How many more war exercises are needed for "training and advising" Filipino soldiers? What conditions
must be satisfied for the United States to consider the "war against terrorism" in Mindanao terminated? The endless
frequency and successive repetition of the war exercises covering the two largest islands of the country amount, in a
real sense, to the permanent presence of foreign military troops heresans a treaty in blatant violation of the
constitutional proscription.
US President George w. Bush in his January 30, 2002 speech declared:
The men and women of our armed-forces have delivered a message to every enemy of the United States.
You shall not escape the justice of this nation. x x x.
Should any country be timid in the face of terror, if they do not act, America will.
President Arroyo, in a speech at the Regis Hotel in New York City on February 1, 2002, pledged her "full support" to
US President George W. Bush in the fight against international terrorism. She declared that "the Philippines will
continue to be a partner of the United States in the war to end terrorism" and that "(t)he anti-terrorism partnership will
continue after the whole world is secure against the terrorist."10
In his speech on the White House Laws on March 11, 2002, President Bush exhorted:
America encourages and expects governments everywhere to help remove the terrorist parasites that
threaten their own countries and the peace of the world. x x x. We are helping right now in the Philippines,
where terrorist with links to Al Qaeda are trying to seize the southern part of the country to establish a
military regime.
They are oppressing local peoples, and have kidnapped both American and Filipino citizens."11
The Philippine Daily Inquirer in its March 17, 2002 issue carried the following report:
The United States wants to bring in more troops for the controversial Balikatan 02-1 training exercise aimed
at wiping out the Abu Sayyaf bandits in Basilan.
The US military last week began calling the war-games "Operation Enduring Freedom-Philippines," giving
credence to claims that the country has become, after Afghanistan, the second front of the US-led global war
on terrorism.
Today's issue of April 1, 2002 reporting as its source New York News Service, quoted a senior Bush administration
official as saying:
We are looking at prolonged training. x x x. It takes more to build up capabilities than saying here are some
night vision goggles.
The declarations of the two Presidents on the war against terrorism and their avowal to secure the world against the
terrorists would ineluctably suggest a long-drawn conflict without a foreseeable end. Worse, it is not unlikely that
this war could expand and escalate to include as protagonists the Moro Islamic Liberation Front and the
Moro National Liberation Front and -not improbably -the National People's Army, all lumped-up as "terrorists"
in a unilateral characterization.
No less than US Deputy Defense Secretary Paul Wolfowitz declared that the proposed $48-billion increase to the US
defense budget for 2003 is intended to sustain the war on terrorism,12 including that fought in this country, thus: .
Deputy Defense Secretary Paul Wolfowitz on Wednesday said the Pentagon needs a big budget increase
next year on terrorism, which has expanded from Afghanistan to the Philippines and now appears to be
moving to Georgia.13
The Court can take judicial notice of the foregoing pronouncements as they are of public knowledge,14 having been
widely circulated in all channels of the media. Neither have they been denied.
US military intervention
is not the solution to the
Mindanao problem.
Assuming that the ASG is a terrorist organization, U.S. military intervention is not the solution to achieve peace. The
annihilation of the rebel bandits would be a futile quest so long at the root causes of their criminality are not
addressed. A study15 by the United Nations Secretariat, however, acknowledges that international terrorism springs
from "misery, frustration, grievance and 'despair," elements which, many believe, are present in Basilan. Two veteran
Philippine journalists have described the province as Mindanao's "war laboratory," where lawlessness, government
neglect, religious strife, poverty, and power struggle are rampant.16
If indeed acts of terrorism are cries of desperation, if terrorism is but a symptom of the greater maladies of "misery,
frustration, grievance and despair," then it cannot be remedied alone by ASG's physical extermination, which appears
to be the object of President Bush and President Macapagal- Arroyo's joint campaign against global terrorism."
Admittedly, the State has the right to use force as a means of self-preservation. But perhaps we should all consider
that a military solution is but a first-aid measure, not the prescription to these diseases. It has been opined that:
The issue of terrorism in the Philippines should be dealt with not from the perspective of Manila-Washington
ties but from a serious study of how terrorism figures in the minds of leaders and armed men belonging to
the large but deeply factionalized guerrilla movements in the country. Terrorism can never be dissociated
from guerrilla warfare and the separatist movement in Mindanao. From these movements would arise
religious extremists or millennarian groups. With the right resources and the right agenda, these movements
will continue to attract men-skilled, intelligent, and experienced-who will come to grasp the practical realities
of waging a war with the minimum of resources but maximum public impact.
The government does not have to look for foreign connections-and be motivated by the desire to help
foreign friends to address a problem that has been and will be the making of its own home grown armies. 17
The presence of US troops in Basilan, whether from the legal, philosophical-or even from the practical perspective
cannot be justified, On the contrary, it is counterproductive. It serves to fuel an already volatile situation. US troops
are likely less able, if not less willing, to distinguish between the innocent and the enemy. The inevitable "collateral
damage," the killing of women and children, Muslims and Christians, the destruction of homes, schools and hospitals
would fan the flames of fanaticism and transform mere rogues into martyrs.
The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field of battle as shown in
Bataan and Corregidor, in the four long years of guerilla warfare thereafter against the Japanese, and in the struggle
for independence against Spain and the United States at the turn of the last century. The local army and police have
successfully battled in the past against Communist and other insurgents which were more organized and numerous,
operating in larger parts of the country and fighting for their political beliefs. If our troops need training by us advisers
or have to conduct joint exercises with US troops to improve their fighting capability, these could be more effectively
achieved if done outside Basilan or away from the danger zones. Instead of bringing troops to the combat zones, the
US can do more by supplying our soldiers with modern and high tech weaponry.
Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners do not have legal standing
or that the issues raised by them are premature and not based on sufficient facts. The issues raised are of
transcendental importance.18 The Balikatan exercises pose direct injury to some of the petitioners (intervenors) who
live in the affected areas. The presence of us troops in the combat zones "assisting" and "advising" our troops in
combat against the ASG is a blatant violation of the Constitutional proscription against the stationing of foreign troops
to fight a local insurgency and puts the country in peril of becoming a veritable killing field. If the time is not ripe to
challenge the continuing affront against the Constitution and the safety of the people, when is the right time? When
the countryside has been devastated and numerous lives lost?
I therefore vote to give due course to the petition.
sgd. SANTIAGO M. KAPUNAN

Associate Justice
Footnotes
In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series, Hans
Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the International
Progress Organization, speaking on "The United Nations, The International Rule of Law and Terrorism, "
noted;
1
In the actual unipolar context of international relations, the "fight against terrorism" has become one
of the basic slogans when it comes to the justification of the use of force against certain states and
against groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions -or threats of the use of force as the most
recent by the United States against Iraq- consists in the absence of an agreed definition of
terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.
The dilemma can be summarized in the saying '"One country's terrorist is another country's
freedom fighter." The apparent contradiction or lack of consistency in the use of the term
"'terrorism" may further be demonstrated by the historical fact that leaders of national liberation
movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben
Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who controlled
the territory at the time, but later became internationally respected statesmen.
What, then, is the defining creterion for terrorist acts -the differentia specifica distinguishing those
acts from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but
has been unable to bridge the gap between those who associate "'terrorism" with any violent act by
non-state groups against civilians, state functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious groups within a state is
concerned
The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) -which is a terrorist group for Israel and a liberation movement for Arabs and
Muslims -the Kashmiri resistance groups -who are terrorists in the perception of India, liberation
fighters in that of Pakistan -the earlier Contras in Nicaragua -freedom fighters for the United States,
terrorists for the Socialist camp -or, most drastically, the Afhani Mujahedeen (later to become
theTaliban movement): during the Cold War period they were a group of freedom fighters for the
West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and
on in enumerating examples of conflicting categorizations that cannot be reconciled in any way
-because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one
and the same group and its actions be explained? In our analysis, the basic r.eason for these
striking inconsistencies lies in the divergent interests of states. Depending on whether a state is in
the position of an occupying power or in that of a rival, or adversary, of an occupying power in a
given territory, the defmition of terrorism will "fluctuate" accordingly. A state may eventually see
itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak
of a "liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and
vice-versa.
1wphi1.nt
The United Nations Organization has been unable to reach a decision on the definition of terrorism
exactly because of these i. conflicting interests of sovereign states that determine in each and
every ! instance how a particular armed movement (i.e. a non-state actor) is r labeled in regard to
the terrorist-freedom fighter dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.
This "defmitional predicament" of an organization consisting of ~ sovereign states -and not of
peoples, in spite of the emphasis in the I! Preamble to the United Nations Charter! -has become
even more serious ~ in the present global power constellation: ~ superpower exercises the :1
decisive role in the Security Council, former great powers of the Cold ill i War era as well as
medium powers are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 in the United States. "
Koechler adds, however, that this failure to distinguish between terrorist acts and acts of national liberation
did not prevent the international community from arriving at an implicit or 11, "operative" definition. For
example, in Article of the International Convention for Suppression of Terrorist Bombings, terrorist acts are
referred to as "criminal acts ..., in particular where they are intended or calculated to provoke a state of terror
in the general i ~ public or in a group of persons or particular persons" that are under no circumstances
justifiable considerations of a political, philosophical, ideological, racial, ethnic, religious or ti ~ other similar
nature."
The following excerpts from "Under the Crescent Moon: Rebellion in Mindanao" by Marites Dafiguilan Vitug
and Glenda M. Gloria (Ateneo Center for Social Policy and Public Affairs and Institute for Popular
Democracy, 2000) demonstrate the obscurity of the ASG's raison d. etre:
2
...for all the warring [the Abu Sayyaf] it has done supposedly in the name of Islam, there is much
confusion and mistrust surrounding the Abu Sayyaf, whose leaders had flaunted their ties with the
police and the military. Even veterans of the Mindanao war find it hard to identify the Abu Sayyaf's
political direction-where it really wants to go, or what it wants to achieve as an organization. (At pp.
204205.)
The military had long been divided on how to view the Abu Sayyaf. The dominant view held the
group as a genuine extremist organization driven by an extreme view of Islam. But there are
military strategists who have downplayed the ideological component of Janjalani's cause, arguing
that he merely wanted to steal the thunder from the MNLF and the MILF - and in the process also
hijack their financial connections to the Arab World. (At p. 206.)
.[Basilan Bishop Romeo] [de] la Cruz said he didn't think the Abu Sayyaf was truly espousing
fundamentalism. "Initially I thought this was a religious conflict because of the so-called resurgence
of Islam. For awhile the Church even attributed the spate of kidnappings in Basilan to Islamic
fundamentalism. "Later on we realized this was not the case. Islam was being used as a mere
cover of these people.
Abdulgani "Gerry" Salappudin, governor of Basilan for 10 years, shares this view. The Abu Sayyaf
was being used to destroy the image of Islam. He cited the fact that Janjalani's mother was a
Christian. Was he out, therefore, the destroy Islam? "I am not saying that... It's just that he's not
pure Muslim."
Thus, how and why exactly the Abu Sayyaf was founded is a question for which neither the military
nor Janjalani had a solid answer. The group remains as nebulous as its beginning, and as shadowy
as its charismatic founder. There is absolutely no doubt that it has been infiltrated by the military.
What is uncertain is whether or not Janjalani, who was admired by many in the Muslim community,
formed the Abu Sayyafprecisely to work for the military or if he had simply lost control over his own
men. (At pp. 210-211.)
Article III (1) on Entry and Departure, for example, imposes upon the Philippine Government the duty to
"facilitate the admission of United States personnel and their departure from the Philippines in connection
with activities covered by this agreement." Article VI (1) also mentions "claims... from activities to which this
agreement applies." The same reference to "activities to which this agreement applies" is found in Article VII
on Importation and Exportation. Article I, in defining "United States personnel" as "United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government," does not limit the scope of the "activities" that the Philippine Government may "approve."
3
McGeary, Next Stop Mindanao, Time Magazine, January 28, 2002, p. 22.
Philippine Daily Inquirer, April 6, 2002.
See www.historyplace.com, Also Ambrose, Stephen, Rise to Globalism: American Foreign Policy since
1938 (Fifth Rev, Ed.),
6
Id.
Microsoft Encyclopedia Encarta (2000).
Philippine Daily Inquirer, March 21,2002.
10
Manila Bulletin, February 2, 2002.
11
Philippine Star, March 13,2002.
"Democratic Senate Majority Leader Tom Daschle criticized the US administration's war terrorism
yesterday, charging that it has undergone an expansion without at least a clear direction."
12
"How long can we stand this kind of pressure on our treasury?.. We seem to be good at developing enhance
strategies, not so good at developing exit strategies, he charged." (The Philippine Star, March 2, 2002).
13
The Philippine Star, March 2, 2002.
14
Sec. 1, Rule 129, RULES OF COURT.
Entitled "Measures to Prevent International Terrorism which Endangers or Takes Innocent Human Lives or
Jeopardizes Fundamental Freedoms and Study of the Underlying Causes of Those Forms of Terrorism and
Acts of Violence which Lie in Misery, Frustration, Grievance and Despair and which Cause Some People to
Sacrifice Human Lives, including Their Own, in an Attempt to Effect Radical Changes." 2 November 1972,
27th Session. The pertinent portions of the study state:
15
13. Man is one of the few species that frequently uses violence against its own kind. He has done
so since the dawn of history. In the past, periods in which violence has been especially
conspicuous have been those of rapid social change. During the years of the existence of the
United Nations, when in most parts of the world, and in both the
developed and the developing countries, the patters of society are changing with almost
unprecedented speed, violence has been frequent.
14. The interlinked growth of technology and growth of population have tended to create new
hopes, expectations and needs in many social groups. These new attitudes mark a departure from
the resignation and passivity with which most men in the past accepted the ills of life. The United
Nations Charter is the voice of the aspirations of mankind when it contemplates the establishment
of a world in which aggression and the threat or use of force in international relations would be
effectively outlawed, friendly relations would exist among nations on the basis of respect for the
principles of equal rights and self- determination of peoples, international disputes would be settled
justly be peaceful, and international co-operation would solve international economic and social
problems and promote respect for human rights and fundamental freedoms for all.
15. The period of the existence of the United Nations, however, has shown very incomplete and
uneven progress towards these goals. While major wars involving the great Power have not
occurred, force has often been resorted to, and has inflicted suffering and exile upon peoples.
While progress has been made against colonialism and racism, those evils have not yet been
completely eliminated. Even where political independence has been established, in many cases
much remains to be done in assisting the populations to attain the minimum level necessary for
decent conditions of life. Few advances have been made towards the peaceful settlement of some
major international disputes, which are too often left to fester and poison international relations.
Among groups where economic and social progress has been relatively slow, conditions have been
unfavourable to the exercise of and the respect for human rights and fundamental freedom.
16. The lack of slowness of advance towards these goals has contributed toward the "misery,
frustration, grievance and despair" which, while not themselves causes of terrorism, are
psychological conditions or states of being which sometimes lead, directly or indirectly, to the
commission of acts of violence. While in the United Nations context it is perhaps appropriate to give
special attention to the international factor that contribute to violence, there are also many
situations in individual nations which may give rise to the grievance of a particular group or person,
leading to acts having international repercussions. Purely personal circumstances can also often
have the same result. There are also cases in which there is no genuine grievance at all, and a
violent crime affecting more than one country seems to have been committed from mere cupidity,
or a desire to escape criminal prosecution. The General Assembly, however, in stressing "misery,
frustration, grievance and despair, seems to have singled out for special attention those situations
which have the common characteristic of calling for redress.
17. Why is it that violence resulting from these circumstances takes with increasing frequency the
form of international terrorism, threatening, endangering or killing innocent victims? As the peoples
of the world grow more interdependent the solution of many problems no longer hangs on any local
ruler or government, but on actions and decisions taken thousands of miles away. Men think their
ills have been produced by some vast impersonal force, which is deaf to their pleas for justice or
impotent to find solutions, rather than by other men, striving for similar although opposed ends and
bound to them by the claims of a common humanity. Modem communications and the growth of the
public information media have transformed local incidents into world events, especially when the
incidents have an international character. A terrorist act focuses world attention upon the terrorist
and upon any cause he may claim to represent. In these circumstances, some such acts - which,
as has already been said, cannot possibly by themselves effect radical social changes -are really
acts of communication. They are intended to show the world that the determination and devotion of
the terrorists are sufficient to compensate in the long run for their apparent inferiority in strength;
that their cause is more holy to them than life itself, must be taken seriously, and is worthy of
support; and that neither their foe nor the world at-Iarge is able to prevent their success in their
purpose, or ensure punishment of their deeds and those of their associates.
18. Other such acts, however, seem to be more the result of blind fanaticism, or of the adoption of
an extremist ideology which subordinates morality and all other human values to a single aim. In
either case, the result is the same; modern life and modern weapons bring more and more
strangers and foreigners within the reach of the terrorist, and he uses them as instruments for his
purpose. As violence breeds violence, so terrorism begets counter-terrorism, which in turn leads to
more terrorism in an ever-increasing spiral,
xxx
20. It thus appears that the "misery, frustration, grievance and despair" which lead to terrorism have
many roots in international and national political, economic and social situations affecting the
terrorist, as well as in his personal circumstances. The precise chain of causation of particular acts
cannot be traced with scientific exactitude. Nevertheless, the General Assembly may wish to
identify types of situations which, if a remedy could be found to bring them more into accord with
justice, will cease to contribute to the spreading terrorism which has shocked the world.
16
Daguilan Vitug and Gloria (Under the Crescent Moon: Rebellion in Mindanao, supra.) write:
Indeed, a man is inspired by his belief but is constrained by his environment. And Basilan, where
Janjalani grew up, is a place where the laws set by men are flouted daily. It is a place where people
of weak resolve could give in to the challenges posed by power, either the lack or possession of it.
It certainly is not a place conducive for reflection or reinforcing pure religious thoughts.
Mindanao's best war laboratory, Basilan is one of the Country's poorest provinces where all sorts of
armed groups dominate a populace long neglected by government. Local rulers compete for
legitimacy with armed rebel groups, bandits, Muslim preachers, Catholic volunteers, loggers legal
and illegal, the Marines, the Army. In this sense, the Abu Sayyaf was ripe for growth. Modern
history has proven that whenever the legitimacy of the state suffers and the economy goes down,
other forces come to fore as alternative. Janjalani had offered solace to those who bothered to
listen to him. The reality of Basilan, after all, is its deadly environment: grinding poverty, the
absence of the rule of law, and the proliferation of arms and of men who thrive on them. It is no
coincidence that a group with such amorphous beginnings as the Abu Sayyaf was established in a
province that remains poor despite its fertile, lushly forested land and its proximity to Zamboanga
City. It didn't matter that Janjalani went to the Catholic-run Clarest school. Janjalani, or any local
leader for that matter, would have found it difficult to detach himself from this environment.
Former MNLF members in Basilan who have known little more than how to was kidnapping, and it
gave Abu Sayaff away. No group espousing a true Islamic state would have resorted to kidnapping
in such a random, blatant style as the Abu Sayyaf did in its heyday.
It also didn't help that the governrnent and the media unfairly lumped Islamic fundamentalism and
terrorism together because the Abu Sayyaf, which espouses the former, has been suing the latter
as a means to fight for its cause. (At 206-207.)
17
DANGUILAN VITUG AND GLORIA, at 244-245.
18
Bayan vs. Zamora, 342 SCRA 449 (2002).
EN BANC
G.R. No. 151445
APRIL 11, 2002
ARTHUR D. LIM, ET AL., petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY, ETC., ET AL., respondents.
SANLAKAS, ET AL., intervenors.
SEPARATE OPINION*
PANGANIBAN, J:
Through their "Petition for Certiorari and, Prohibition," Arthur D. Lim and Paulino R. Ersanda -- joined by Intervenors
Sanlakas and Partido ng Manggagawa -- plead for the issuance of an order "restraining the respondents from
proceeding or continuing and completing the so-called 'Balikatan 02-1'" on the ground that the exercise is not
sanctioned by any treaty and is, therefore, allegedly unconstitutional.
Agreeing with the Comment of the Office of the Solicitor General (OSG), the ponencia of Mr. Justice Sabino R. de
Leon Jr. dismisses the Petition essentially on these procedural grounds:
1. As taxpayers, petitioners do not have legal standing or locus standi, because Balikatan 02-1 "does not
involve the exercise by Congress of its taxing or spending power."
2. Certiorari and prohibition are improper remedies, because petitioners have not alleged sufficient facts
upon which grave abuse of discretion or excess/lack of jurisdiction could be argued from.
3. The Petition is premature because the alleged violation of the Constitution is merely speculative, not
actual or imminent.
4. Though entitled "Certiorari and Prohibition," the Petition is really one for declaratory relief which merely
seeks an advice or opinion, not a decision. The Supreme Court has no jurisdiction to issue opinions or
advices.
Ordinarily, the above reasons would indeed be sufficient to cause the dismissal of a petition. However, because of the
"transcendental importance" of the main question raised - the constitutionality of the Balikatan exercise - the Court, I
believe, could have exempted this case from these procedural requirements and tackled the case on the merits, if
only to put to rest the legality of this major event of public interest ill our country and even ill the world. I, for one,
would have voted to set aside these legalistic obstacles, had the Petition presented enough factual moorings upon
which to base an intelligent discussion and disposition of the legal issues.
For instance, this Court cannot be called upon to decide the factual issues of whether the US forces are actually
engaging the Abu Sayyaf Group ill combat and whether they will stay ill our country permanently. This Court has no
authority to conduct a trial, which can establish these factual antecedents. Knowing what these antecedents are is
necessary to determine whether the Balikatan violates the Constitution or the Mutual Defense Treaty (MDT) of 1951
or the Visiting Forces Agreement (VFA) of 1999. Verily, the Petition has not even alleged that the American troops
have indeed been unconstitutionally engaged ill actual offensive combat. The contention that they would necessarily
and surely violate the Constitution by participating ill the joint exercise in Basilan is merely speculative. Petitioners
aver:
"American soldiers with high-tech weaponry, disguised as trainers or advisers to Filipino troops, will go to the
war zones of Basilan. Hence, while dubbed as a military exercise, it is in reality a continuing combat
operation by the AFP against the Abu Sayyaf to be participated in this time by U.S. troops. It has been
admitted that U.S. 'advisers' will accompany Filipino soldiers on patrol in the combat zones.
Also, a base of operation will be in the Sampinit complex which is in the heartland of the Abu Sayyaf's
'territorial domain' in Basilan island. A shooting war, not just an exercise, is unavoidable."
That a "shooting war is unavoidable" is conjectural; at best, a conclusion that is not borne by solid factual moorings.
Cases cannot be decided on mere speculation or prophecy .The Petition claims that while the us troops are
"disguised" as "advisers" or "trainors" or "chaperons," they are actually combatants engaged in an offensive war
against local insurgents. Again, there is no solid factual basis for this statement. It may or may not be true. The
Petition also alleges, again without firm factual support, that the American forces will stay here indefinitely "for a year
or even more depending on the need of the AFP for them."
On the other hand, the OSG assures that petitioners' "apprehensions are belied" by the Terms of Reference (TOR)
approved by both the Philippines and the United States, which "expressly limit. the conduct and completion of the
exercise within a period not exceeding six " (6) months and prohibits the American participants from engaging in
combat, without prejudice to their right to self-defense."
I stress that cases cannot be decided by this Court on the basis of speculative or hypothetical assumptions like "If the
facts were these, then our decision would be this; on the other hand, if the facts change, then our ruling would be
modified as follows. " Decisions of this Court especially in certiorari and prohibition cases are issued only if the facts
are clear and definite. As a rule, courts may not consider or judge facts or matters unless they are alleged in the
pleadings and proven by the parties. Our duty is to apply the law to facts that are not in dispute.
In the absence of firm factual findings that the Americans "will stay indefinitely" in our country or "are engaged in
actual offensive combat with local insurgents" as alleged by petitioners, respondent Philippine officials who are
hosting the Balikatan exercise cannot possibly be imputed with grave abuse of discretion - an indispensable element
of certiorari.
1wphi1.nt
True, there are some questions that may genuinely be raised in regard to the Balikatan 02-1 vis-a-vis our
Constitution, the MDT and the VFA, like the following:
(1) Is the Abu Sayyaf Group composed of "international terrorists" whose acts and practices violate the
United Nations Charter to such an extent as to pose a threat to international peace and security?
(2) Is there an "external armed attack" against the Philippines sufficient in force and magnitude as to justify
an invocation of the MDT?
(3) Are the size, the kind, and the location of the Balikatan deployment justified by the nature, the scope, the
duration, and the kind of "activities" allowed under the VFA?
(4) Is it true that the real American objective is the rescue of ASG hostages Martin and Gracia Burnham, who
are both American citizens? If so, is such rescue legally justified?
(5) Does the Balikatan pose a "political question " which the Supreme Court has no authority to rule upon,
and which may only be decided by our people directly or through their I elected representatives?
Unfortunately, the foregoing and other similar nagging questions cannot be judicially taken up and answered until a
petition, sufficient in form and substance, is properly presented to the appropriate court.
FOR THE FOREGOING REASONS, I vote to DISMISS the present Petition.
sgd. ARTEMIO V. PANGANIBAN

Associate Justice

SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE ENRILE, in
his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister Of Public
Works, Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of
Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D. Aquino for
respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is assailed in
this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar
as the rules and regulations for its implementation are concerned, for transgressing the fundamental
principle of non- delegation of legislative power. The Letter of Instruction is stigmatized by petitioner who
is possessed of the requisite standing, as being arbitrary and oppressive. A temporary restraining order as
issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister
of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and
Baltazar Aquino, Minister of Public Highways; were to answer. That they did in a pleading submitted by
Solicitor General Estelito P. Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear
that the imputation of a constitutional infirmity is devoid of justification The Letter of Instruction on is a
valid police power measure. Nor could the implementing rules and regulations issued by respondent Edu
be considered as amounting to an exercise of legislative power. Accordingly, the petition must be
dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on December 2,
1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or serious accidents in land
transportation is the presence of disabled, stalled or parked motor vehicles along streets or highways without any
appropriate early warning device to signal approaching motorists of their presence; [Whereas], the hazards posed by
such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968
Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said
Vienna Convention which was ratified by the Philippine Government under P.D. No. 207, recommended the
enactment of local legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E.
Marcos], President of the Philippines, in the interest of safety on all streets and highways, including expressways or
limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at all times in
their motor vehicles at least one (1) pair of early warning device consisting of triangular, collapsible reflectorized
plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle
is stalled or disabled or is parked for thirty (30) minutes or more on any street or highway, including expressways or
limited access roads, the owner, user or driver thereof shall cause the warning device mentioned herein to be
installed at least four meters away to the front and rear of the motor vehicle staged, disabled or parked. 3. The Land
Transportation Commissioner shall cause Reflectorized Triangular Early Warning Devices, as herein described, to be
prepared and issued to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece
not more than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are appropriate to
effectively implement this order. 4. All hereby concerned shall closely coordinate and take such measures as are
necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November 15, 1976, it was
amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is
hereby amended to read as follows: 3. The Land transportation Commissioner shall require every motor
vehicle owner to procure from any and present at the registration of his vehicle, one pair of a reflectorized
early warning device, as d bed of any brand or make chosen by mid motor vehicle . The Land
Transportation Commissioner shall also promulgate such rule and regulations as are appropriate to
effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the implementing
rules and regulations on December 10, 1976. 5 They were not enforced as President Marcos on January
25, 1977, ordered a six-month period of suspension insofar as the installation of early warning device as a
pre-registration requirement for motor vehicle was concerned. 6 Then on June 30, 1978, another Letter of
Instruction 7 the lifting of such suspension and directed the immediate implementation of Letter of
Instruction No. 229 as amended. 8 It was not until August 29, 1978 that respondent Edu issued
Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction No. 716, dated June 30,
1978, the implementation of Letter of Instruction No. 229, as amended by Letter of Instructions No. 479,
requiring the use of Early Warning Devices (EWD) on motor vehicle, the following rules and regulations
are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be
implemented provided that the device may come from whatever source and that it shall have substantially
complied with the EWD specifications contained in Section 2 of said administrative order; 2. In order to
insure that every motor vehicle , except motorcycles, is equipped with the device, a pair of serially
numbered stickers, to be issued free of charge by this Commission, shall be attached to each EWD. The
EWD. serial number shall be indicated on the registration certificate and official receipt of payment of
current registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict
herewith are hereby superseded, This Order shall take effect immediately. 9 It was for immediate
implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation, and
Communications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already properly
equipped when it came out from the assembly lines with blinking lights fore and aft, which could very well serve as an
early warning device in case of the emergencies mentioned in Letter of Instructions No. 229, as amended, as well as
the implementing rules and regulations in Administrative Order No. 1 issued by the land transportation
Commission," 11 alleged that said Letter of Instruction No. 229, as amended, "clearly violates the provisions
and delegation of police power, [sic] * * *: " For him they are "oppressive, unreasonable, arbitrary,
confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society." 12 He
contended that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the
motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will make
manufacturers and dealers instant millionaires at the expense of car owners who are compelled to buy a
set of the so-called early warning device at the rate of P 56.00 to P72.00 per set." 14are unlawful and
unconstitutional and contrary to the precepts of a compassionate New Society [as being] compulsory and
confiscatory on the part of the motorists who could very well provide a practical alternative road safety
device, or a better substitute to the specified set of EWD's." 15 He therefore prayed for a judgment both the
assailed Letters of Instructions and Memorandum Circular void and unconstitutional and for a restraining
order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon.
Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and the arguments adduced in
the petition for prohibition with writ of p prohibitory and/or mandatory injunction, the Court Resolved to (require) the
respondents to file an answer thereto within ton (10) days from notice and not to move to dismiss the petition. The
Court further Resolved to [issue] a [temporary restraining order] effective as of this date and continuing until
otherwise ordered by this Court. 16
Two motions for extension were filed by the Office of the Solicitor General and granted. Then on November 15, 1978,
he Answer for respondents was submitted. After admitting the factual allegations and stating that they lacked
knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle car," they
"specifically deny the allegations and stating they lacked knowledge or information sufficient to form a belief as to
petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the allegations in paragraphs X and XI
(including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as
amended by Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission
Administrative Order No. 1 and its Memorandum Circular No. 32 violates the constitutional provisions on
due process of law, equal protection of law and undue delegation of police power, and that the same are
likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal the
truth being that said allegations are without legal and factual basis and for the reasons alleged in the
Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who contented himself with a
rhetorical recital of his litany of grievances and merely invoked the sacramental phrases of constitutional
litigation, the Answer, in demonstrating that the assailed Letter of Instruction was a valid exercise of the
police power and implementing rules and regulations of respondent Edu not susceptible to the charge that
there was unlawful delegation of legislative power, there was in the portion captioned Special and
Affirmative Defenses, a citation of what respondents believed to be the authoritative decisions of this
Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v.
Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the United Nations on road
traffic, road signs, and signals, of which the Philippines was a signatory and which was duly
ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and dispassionate,
the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of Instruction and the
implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its highlypersuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at the outset,
it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by petitioner
and is the main reliance of respondents. It is the submission of the former, however, that while embraced in such a
category, it has offended against the due process and equal protection safeguards of the Constitution, although the
latter point was mentioned only in passing. The broad and expansive scope of the police power which was originally
Identified by Chief Justice Taney of the American Supreme Court in an 1847 decision as "nothing more or less than
the powers of government inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v.
Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into force, Calalang v.
Williams, Identified police power with state authority to enact legislation that may interfere with personal
liberty or property in order to promote the general welfare. Persons and property could thus 'be subjected
to all kinds of restraints and burdens in order to we the general comfort, health and prosperity of the
state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a
competence being referred to as 'the power to prescribe regulations to promote the health, morals, peace,
education, good order or safety, and general welfare of the people. The concept was set forth in negative
terms by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary power in the
State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. In that
sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of
legislative power. It is in the above sense the greatest and most powerful at. tribute of government. It is, to
quote Justice Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as
Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the
exigencies of the times, even to anticipate the future where it could be done, provides enough room for an
efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. In the
language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the
present with the well-being of the nation. What is critical or urgent changes with the time.' The police
power is thus a dynamic agency, suitably vague and far from precisely defined, rooted in the conception
that men in organizing the state and imposing upon its government limitations to safeguard constitutional
rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably
the enactment of such salutary measures calculated to communal peace, safety, good order, and
welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular police power
measure challenged was clearly intended to promote public safety. It would be a rare occurrence indeed for this Court
to invalidate a legislative or executive act of that character. None has been called to our attention, an indication of its
being non-existent. The latest decision in point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an
enactment conceived with the same end in view. Calalang v. Williams found nothing objectionable in a
statute, the purpose of which was: "To promote safe transit upon, and. avoid obstruction on roads and
streets designated as national roads * * *. 26 As a matter of fact, the first law sought to be nullified after the
effectivity of the 1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was
likewise prompted by the imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and regulations
becomes even more apparent considering his failure to lay the necessary factual foundation to rebut the presumption
of validity. So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 The
rationale was clearly set forth in an excerpt from a decision of Justice Branders of the American Supreme
Court, quoted in the opinion: "The statute here questioned deals with a subject clearly within the scope of
the police power. We are asked to declare it void on the ground that the specific method of regulation
prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying
questions of fact may condition the constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual foundation of record in overthrowing the
statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity. As was
pointed out in his Answer "The President certainly had in his possession the necessary statistical information and
data at the time he issued said letter of instructions, and such factual foundation cannot be defeated by petitioner's
naked assertion that early warning devices 'are not too vital to the prevention of nighttime vehicular accidents'
because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle accidents that in 1976 involved
rear-end collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on record. As aptly
stated by this Honorable Court: Further: "It admits of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the
case here"' * * *. But even as g the verity of petitioner's statistics, is that not reason enough to require the installation
of early warning devices to prevent another 390 rear-end collisions that could mean the death of 390 or more
Filipinos and the deaths that could likewise result from head-on or frontal collisions with stalled vehicles?" 30 It is
quite manifest then that the issuance of such Letter of Instruction is encased in the armor of prior, careful
study by the Executive Department. To set it aside for alleged repugnancy to the due process clause is to
give sanction to conjectural claims that exceeded even the broadest permissible limits of a pleader's well
known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was exposed in the
Answer of the Solicitor General thus: "Such early warning device requirement is not an expensive redundancy, nor
oppressive, for car owners whose cars are already equipped with 1) blinking lights in the fore and aft of said motor
vehicles,' 2) "battery-powered blinking lights inside motor vehicles," 3) "built-in reflectorized tapes on front and rear
bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal
among the signatory countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a
distance of at least 400 meters, any motorist from this country or from any part of the world, who sees a reflectorized
rectangular early seaming device installed on the roads, highways or expressways, will conclude, without thinking,
that somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle which is
stationary, stalled or disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees
any of the aforementioned other built in warning devices or the petroleum lamps will not immediately get adequate
advance warning because he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law
enforcement car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase,
rather than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the Solicitor
General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in Administrative Order No.
1, which requires or compels motor vehicle owners to purchase the early warning device prescribed thereby. All that
is required is for motor vehicle owners concerned like petitioner, to equip their motor vehicles with a pair of this early
warning device in question, procuring or obtaining the same from whatever source. In fact, with a little of industry and
practical ingenuity, motor vehicle owners can even personally make or produce this early warning device so long as
the same substantially conforms with the specifications laid down in said letter of instruction and administrative order.
Accordingly the early warning device requirement can neither be oppressive, onerous, immoral, nor confiscatory,
much less does it make manufacturers and dealers of said devices 'instant millionaires at the expense of car owners'
as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early warning device requirement 'a more
subtle racket may be committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that
unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an unreasonable degree,
does not render the same illegal or immoral where, as in the instant case, the challenged Letter of Instruction No. 229
and implementing order disclose none of the constitutional defects alleged against it. 32
7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of power, the
justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view he entertains as to its
wisdom. That approach, it put it at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It
bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon questions of wisdom justice or
expediency of legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to supervise legislation
and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern.'
There can be no possible objection then to the observation of Justice Montemayor. 'As long as laws do not violate
any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or
salutary. For they, according to Justice Labrador, 'are not supposed to override legitimate policy and * * * never
inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v.
Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be
the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main
wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There
would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate
branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last
offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired
the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar
as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally without any
support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with authoritative
pronouncements from this Tribunal, he would not have the temerity to make such an assertion. An exempt from the
aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there must be
a standard, which implies at the very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to repel A standard thus defines
legislative policy, marks its maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose
may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above
guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the
former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It
could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law clearly, the
legislative objective is public safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the
roads.' This is to adhere to the recognition given expression by Justice Laurel in a decision announced not too long
after the Constitution came into force and effect that the principle of non-delegation "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.' He
continued: 'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental
regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the
delegation of greater powers by the legislature and toward the approval of the practice by the courts.' Consistency
with the conceptual approach requires the reminder that what is delegated is authority non-legislative in character, the
completeness of the statute when it leaves the hands of Congress being assumed." 34
9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration. The
petition itself quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed
by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968
Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said
Vionna Convention, which was ratified by the Philippine Government under P.D. No. 207, recommended the
enactment of local legislation for the installation of road safety signs and devices; * * * " 35 It cannot be disputed
then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines * * *
adopts the generally accepted principles of international law as part of the law of the land * * *." 36 The
1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this
country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt
servanda stands in the way of such an attitude, which is, moreover, at war with the principle of
international morality.
10. That is about all that needs be said. The rather court reference to equal protection did not even elicit any attempt
on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such a casual observation
should be taken seriously. In no case is there a more appropriate occasion for insistence on what was referred to as
"the general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the constitutionality of a law wig
not be considered unless the point is specially pleaded, insisted upon, and adequately argued." 38 "Equal
protection" is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully
expect that success will crown his efforts. The law is anything but that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately executory. No
costs.
Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera,
concur.
Makasiar, J, reserves the right to file a separate opinion.
Aquino J., took no part.
Concepcion J., is on leave.
Castro, C.J., certifies that Justice Concepcion concurs in their decision.
Separate Opinions
TEEHANKEE, J., dissenting:

I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October
19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the so-called
early warning device, without even hearing the parties in oral argument as generally required by the Court in original
cases of far-reaching consequence such as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious
grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative
Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of
Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive,
unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New
Society," because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and
efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking
lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to
purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be
demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of
petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics
shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end
collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles
throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975,
there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of
1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned
E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative road safety
devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be
placed just as effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown
that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated
trucks and vehicles which are the main cause of the deplorable -highway accidents due to stoned vehicles,
establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the
reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be
carried out for much less than the P 50 million burden that would be imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic
mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of
the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power
insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.
# Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October
19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the so-called
early warning device, without even hearing the parties in oral argument as generally required by the Court in original
cases of far-reaching consequence such as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious
grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative
Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of
Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive,
unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New
Society," because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and
efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking
lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to
purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be
demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of
petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics
shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end
collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles
throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975,
there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of
1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned
E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative road safety
devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be
placed just as effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown
that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated
trucks and vehicles which are the main cause of the deplorable -highway accidents due to stoned vehicles,
establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the
reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be
carried out for much less than the P 50 million burden that would be imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic
mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of
the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power
insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

SUPREME COURT
Manila
EN BANC
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION
(ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:
+.wph!1
This Court, in this case of first impression, at least as to some aspects, is called
upon to delineate the boundaries of the protected area of the cognate rights to
free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor
Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a
permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in
the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly
two blocks away. Once there, and in an open space of public property, a short program would be
held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches,
a petition based on the resolution adopted on the last day by the International Conference for General
Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be
presented to a representative of the Embassy or any of its personnel who may be there so that it may be
delivered to the United States Ambassador. The march would be attended by the local and foreign
participants of such conference. There was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure
a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary
mandatory injunction on October 20, 1983 was due to the fact that as of that
date, petitioner had not been informed of any action taken on his request on
behalf of the organization to hold a rally. On October 25, 1983, the answer of
respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo
G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware
of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police
intelligence reports which strongly militate against the advisability of issuing such permit at this time and
at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports
affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or
congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested,
however, in accordance with the recommendation of the police authorities, that "a permit may be issued
for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the
participants themselves and the general public may be ensured." 8
The oral argument was heard on October 25, 1983, the very same day the
answer was filed. The Court then deliberated on the matter. That same afternoon,
a minute resolution was issued by the Court granting the mandatory injunction
prayed for on the ground that there was no showing of the existence of a clear
and present danger of a substantive evil that could justify the denial of a permit.
On this point, the Court was unanimous, but there was a dissent by Justice
Aquino on the ground that the holding of a rally in front of the US Embassy would
be violative of Ordinance No. 7295 of the City of Manila. The last sentence of
such minute resolution reads: "This resolution is without prejudice to a more
extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly, arising from the denial of a
permit. The Constitution is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to
assemble and petition the Government for redress of grievances." 10 Free speech, like
free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern
without censorship or punishment. 11 There is to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for
damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil
that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet
peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the
utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the
case with freedom of expression, of a clear and present danger of a substantive evil that the state has a
right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a
necessary consequence of our republican institutions and complements the right of free speech. 19 To
paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court
Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the
press were toupled in a single guarantee with the and to petition the rights of the people peaceably to
assemble and to petition the government for redress of grievances. All these rights, while not Identical,
are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the
judiciary is called upon to examine the effects of the challenged governmental actuation. The sole
justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public interest. 21
2. Nowhere is the rationale that underlies the freedom of expression and

peaceable assembly better expressed than in this excerpt from an opinion of
Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights
was the child of the Enlightenment. Back of the guaranty of free speech lay faith
in the power of an appeal to reason by all the peaceful means for gaining access
to the mind. It was in order to avert force and explosions due to restrictions upon
rational modes of communication that the guaranty of free speech was given a
generous scope. But utterance in a context of violence can lose its significance
as an appeal to reason and become part of an instrument of force. Such
utterance was not meant to be sheltered by the Constitution." 22 What was rightfully
stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of
violence. It must always be remembered that this right likewise provides for a safety valve, allowing
parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For
if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the
only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right
to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may
lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true
ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly.
One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of
dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is
ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out
in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be
expected that more or less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a
rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating
that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear and present
danger of a substantive evil, on the choice of Luneta as the place where the
peace rally would start. The Philippines is committed to the view expressed in the
plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever
the title of streets and parks may rest, they have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of
the United States to use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the
general comfort and convenience, and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v.
Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision,
where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man
and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to
such plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could
serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed
march and rally starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the streets, to the gates
of the US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v.
Fugoso has resolved any lurking doubt on the matter. In holding that the then
Mayor Fugoso of the City of Manila should grant a permit for a public meeting at
Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox vs. State of New Hampshire, 312
U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2,
providing that 'no parade or procession upon any ground abutting thereon, shall
'De permitted unless a special license therefor shall first be explained from the
selectmen of the town or from licensing committee,' was construed by the
Supreme Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941) penned by Chief
Justice Hughes affirming the judgment of the State Supreme Court, held that 'a
statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom of speech
and press, where, as the statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a consideration of
the time, place, and manner of the parade or procession, with a view to
conserving the public convenience and of affording an opportunity to provide
proper policing, and are not invested with arbitrary discretion to issue or refuse
license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the
opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been regarded as inconsistent with
civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of
social need. Where a restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right
which in other circumstances would be entitled to protection." 31
5. There is a novel aspect to this case, If the rally were confined to Luneta, no
question, as noted, would have arisen. So, too, if the march would end at another
park. As previously mentioned though, there would be a short program upon
reaching the public space between the two gates of the United States Embassy
at Roxas Boulevard. That would be followed by the handing over of a petition
based on the resolution adopted at the closing session of the Anti-Bases
Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic
Relations adopted in 1961. It was concurred in by the then Philippine Senate on
May 3, 1965 and the instrument of ratification was signed by the President on
October 11, 1965, and was thereafter deposited with the Secretary General of
the United Nations on November 15. As of that date then, it was binding on the
Philippines. The second paragraph of the Article 22 reads: "2. The receiving
State is under a special duty to take appropriate steps to protect the premises of
the mission against any intrusion or damage and to prevent any disturbance of
the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the
generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the
Vienna Convention is a restatement of the generally accepted principles of international law, it should be
a part of the law of the land. 34 That being the case, if there were a clear and present danger of any
intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would
be a justification for the denial of the permit insofar as the terminal point would be the Embassy.
Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or
staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation
as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights
of free speech and peaceable assembly. Even if shown then to be applicable, that question the confronts
this Court.
6. There is merit to the observation that except as to the novel aspects of a

litigation, the judgment must be confined within the limits of previous decisions.
The law declared on past occasions is, on the whole, a safe guide, So it has
been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983,
this Court issued the minute resolution granting the mandatory injunction allowing
the proposed march and rally scheduled for the next day. That conclusion was
inevitable ill the absence of a clear and present danger of a substantive, evil to a
legitimate public interest. There was no justification then to deny the exercise of
the constitutional rights of tree speech and peaceable assembly. These rights are
assured by our Constitution and the Universal Declaration of Human Rights. 35 The
participants to such assembly, composed primarily of those in attendance at the International Conference
for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from
the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at
the same street. To repeat, it is settled law that as to public places, especially so as to parks and streets,
there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether an
individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to
an equal protection question. The principle under American doctrines was given utterance by Chief
Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to
be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to
The relations of the speakers, but whether their utterances transcend the bounds of the freedom of
speech which the Constitution protects." 36 There could be danger to public peace and safety if such a
gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the
guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is
not devoid of discretion in determining whether or not a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly
occur but of what may probably occur, given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a specific public place is that the permit must be for
the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking
for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other
place." 37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v.

Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application.
While the General rule is that a permit should recognize the right of the applicants to hold their assembly
at a public place of their choice, another place may be designated by the licensing authority if it be shown
that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro
and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was
satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere
assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should
be overlooked. There was in this case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to
cope with such emergency should it arise That is to comply with its duty to extend protection to the
participants of such peaceable assembly. Also from him came the commendable admission that there
were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the
United States Embassy where no untoward event occurred. It was made clear by petitioner, through
counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take
place and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to
ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro expressed the view that
the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at
a discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat
what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to
provide the proper police protection to those exercising their right to peaceable assembly and freedom of
expression.
8. By way of a summary The applicants for a permit to hold an assembly should

inform the licensing authority of the date, the public place where and the time
when it will take place. If it were a private place, only the consent of the owner or
the one entitled to its legal possession is required. Such application should be
filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant but
at another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent and grave
danger of a substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so minded, then, can have recourse to
the proper judicial authority. Free speech and peaceable assembly, along with
the other intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary, even more so
than on the other departments rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal formula,
no sanctifying phrase can, of course, dispense with what has been so felicitiously
termed by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do precedence and primacy.
Clearly then, to the extent that there may be inconsistencies between this
resolution and that of Navarro v. Villegas, that case is pro tantomodified. So it
was made clear in the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295
of the City of Manila prohibiting the holding or staging of rallies or demonstrations
within a radius of five hundred (500) feet from any foreign mission or chancery
and for other purposes. It is to be admitted that it finds support In the previously
quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was

no showing, however, that the distance between the chancery and the embassy
gate is less than 500 feet. Even if it could be shown that such a condition is
satisfied. it does not follow that respondent Mayor could legally act the way he
did. The validity of his denial of the permit sought could still be challenged. It
could be argued that a case of unconstitutional application of such ordinance to
the exercise of the right of peaceable assembly presents itself. As in this case
there was no proof that the distance is less than 500 feet, the need to pass on
that issue was obviated, Should it come, then the qualification and observation of
Justices Makasiar and Plana certainly cannot be summarily brushed aside. The
high estate accorded the rights to free speech and peaceable assembly
demands nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside the denial or
the modification of the permit sought and order the respondent official, to grant it.
Nonetheless, as there was urgency in this case, the proposed march and rally
being scheduled for the next day after the hearing, this Court. in the exercise of
its conceded authority, granted the mandatory injunction in the resolution of
October 25, 1983. It may be noted that the peaceful character of the peace
march and rally on October 26 was not marred by any untoward incident. So it
has been in other assemblies held elsewhere. It is quite reassuring such that
both on the part of the national government and the citizens, reason and
moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, ,
Jr.,JJ., concur.
De Castro, J, is on leave.

SUPREME COURT
Manila
EN BANC
G.R. No. L-4254
September 26, 1951
BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.
Ambrosio T. Dollete for petitioner.
First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio
Villamor for respondents.
TUASON, J.:
This is a second petition for habeas corpus by Boris Mejoff, the first having been
denied in a decision of this Court of July 30, 1949. The history of the petitioner's
detention was thus briefly set forth in that decision, written by Mr. Justice
Bengzon:
The petitioner Boris Mejoff is an alien of Russian descent who was brought
to this country from Shanghai as a secret operative by the Japanese forces
during the latter's regime in these Islands. Upon liberation he was arrested
as a Japanese spy, by U.S. Army Counter Intelligence Corps. Later he was
handed to theCommonwealth Government for disposition in accordance
with Commonwealth Act No. 682. Thereafter, the People's Court ordered
his release. But the deportation Board taking his case up, found that
having no travel documents Mejoff was illegally in this country, and
consequently referred the matter to the immigration authorities. After the
corresponding investigation, the Board of commissioners of Immigration on
April 5, 1948, declared that Mejoff had entered the Philippines illegally in
1944, without inspection and admission by the immigration officials at a
designation port of entry and, therefore, it ordered that he be deported on
the first available transportation to Russia. The petitioner was then under
custody, he having been arrested on March 18, 1948. In May 1948 he was
transferred to the Cebu Provincial Jail together with three other Russians
to await the arrival of some Russian vessels. In July and August of that
year two boats of Russian nationality called at the Cebu Port. But their
masters refused to take petitioner and his companions alleging lack of
authority to do so. In October 1948 after repeated failures to ship this
deportee abroad, the authorities removed him to Bilibid Prison at
Muntinglupa where he has been confined up to the present time, inasmuch
as the Commissioner of Immigration believes it is for the best interests of
the country to keep him under detention while arrangements for his
departure are being made.
The Court held the petitioner's detention temporary and said that "temporary
detention is a necessary step in the process of exclusion or expulsion of
undesirable aliens and that pending arrangements for his deportation, the
Government has the right to hold the undesirable alien under confinement for a
reasonable lenght of time." It took note of the fact, manifested by the Solicitor
General's representative in the course of the of the oral argumment, that "this
Government desires to expel the alien, and does not relish keeping him at the
people's expense . . . making efforts to carry out the decree of exclusion by the
highest officer of the land." No period was fixed within which the immigration
authorities should carry out the contemplated deportation beyond the statement
that "The meaning of 'reasonable time' depends upon the circumstances,
specially the difficulties of obtaining a passport, the availability of transportation,
the diplomatic arrangements with the governments concerned and the efforts
displayed to send the deportee away;" but the Court warned that "under
established precedents, too long a detention may justify the issuance of a writ
of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and
the writer of this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto
voted for outright discharge of the prisoner from custody. Mr. Justice Paras
qualified his dissent by stating that he might agree "to further detention of the
herein petitioner, provided that he be released if after six months, the
Government is still unable to deport him." This writer joined in the latter dissent
but thought that two months constituted reasonable time.
Over two years having elapsed since the decision aforesaid was promulgated,
the Government has not found way and means of removing the petitioner out of
the country, and none are in sight, although it should be said in justice to the
deportation authorities, it was through no fault of theirs that no ship or country
would take the petitioner.
Aliens illegally staying in the Philippines have no right of asylum therein
(Sowapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289, 290), even if they are
"stateless," which the petitioner claims to be. It is no less true however, as
impliedly stated in this Court's decision, supra, that foreign nationals, not enemy
against whom no charge has been made other than that their permission to stay
has expired, may not indefinitely be kept in detention. The protection against
deprivation of liberty without due process of law and except for crimes committed
against the laws of the land is not limited to Philippine citizens but extends to all
residents, except enemy aliens, regardless of nationality. Whether an alien who
entered the country in violation of its immigration laws may be detained for as
long as the Government is unable to deport him, is a point we need not decide.
The petitioner's entry into the Philippines was not unlawful; he was brought by
the armed and belligerent forces of a de facto government whose decrees were
law furing the occupation.
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally
accepted principles of international law as part of the law of Nation." And in a
resolution entitled "Universal Declaration of Human Rights" and approved by the
General Assembly of the United Nations of which the Philippines is a member, at
its plenary meeting on December 10, 1948, the right to life and liberty and all
other fundamental rights as applied to all human beings were proclaimed. It was
there resolved that "All human beings are born free and equal in degree and
rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in
this Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, nationality or social origin, property,
birth, or other status" (Art. 2): that "Every one has the right to an effective remedy
by the competent national tribunals for acts violating the fundamental rights
granted him by the Constitution or by law" (Art. 8); that "No one shall be
subjected to arbitrary arrest, detention or exile" (Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power
to release from custody an alien who has been detained an unreasonably long
period of time by the Department of Justice after it has become apparent that
although a warrant for his deportation has been issued, the warrant can not be
effectuated;" that "the theory on which the court is given the power to act is that
the warrant of deportation, not having been able to be executed, is functus
officio and the alien is being held without any authority of law." The decision cited
several cases which, it said, settled the matter definitely in that jurisdiction,
adding that the same result had reached in innumerable cases elsewhere. The
cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401,
404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53
F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857;
Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.
The most recent case, as far as we have been able to find, was that of
Staniszewski vs. Watkins (1948), 90 Fed. Supp., 132, which is nearly foursquare
with the case at hand. In that case a stateless person, formerly a Polish national,
resident in the United States since 1911 and many times serving as a seaman on
American vessels both in peace and in war, was ordered excluded from the
United States and detained at Ellis Island at the expense of the steamship
company, when he returned from a voyage on which he had shipped from New
York for one or more European ports and return to the United States. The
grounds for his exclusion were that he had no passport or immigration visa, and
that in 1937 had been convicted of perjury because in certain documents he
presented himself to be an American citizen. Upon his application for release
on habeas corpus, the Court released him upon his own recognizance. Judge
Leibell, of the United States District Court for the Southern District of New York,
said in part:
When the return to the writ of habeas corpus came before this court, I
suggested that all interested parties . . . make an effort to arrange to have
the petitioner ship out of some country that he would receive him as a
resident. He is, a native-born Pole but the Polish Consul has advised him
in writing that he is no longer a Polish subject. This Government does not
claim that he is a Polish citizen. His attorney says he is a stateless. The
Government is willing that he go back to the ship, but if he were sent back
aboard a ship and sailed to the Port (Cherbourg, France) from which he
last sailed to the United States, he would probably be denied permission to
land. There is no other country that would take him, without proper
documents.
It seems to me that this is a genuine hardship case and that the petitioner
should be released from custody on proper terms. . . .
What is to be done with the petitioner? The government has had him in
custody almost seven months and practically admits it has no place to
send him out of this country. The steamship company, which employed him
as one of a group sent to the ship by the Union, with proper seaman's
papers issued by the United States Coast Guard, is paying $3 a day for
petitioner's board at Ellis Island. It is no fault of the steamship company
that petitioner is an inadmissible alien as the immigration officials describe
him. . . .
I intend to sustain the writ of habeas corpus and order the release of the
petitioner on his own recognizance. He will be required to inform the
immigration officials at Ellis Island by mail on the 15th of each month,
stating where he is employed and where he can be reached by mail. If the
government does succeed in arranging for petitioner's deportation to a
country that will be ready to receive him as a resident, it may then advise
the petitioner to that effect and arrange for his deportation in the manner
provided by law.
Although not binding upon this Court as a precedent, the case aforecited affords
a happy solution to the quandry in which the parties here finds themselves,
solution which we think is sensible, sound and compatible with law and the
Constitution. For this reason, and since the Philippine law on immigration was
patterned after or copied from the American law and practice, we choose to
follow and adopt the reasoning and conclusions in the Staniszewski decision with
some modifications which, it is believed, are in consonance with the prevailing
conditions of peace and order in the Philippines.
It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the
return, that the petitioner was engaged in subversive activities, and fear was
expressed that he might join or aid the disloyal elements if allowed to be at large.
Bearing in mind the Government's allegation in its answer that "the herein
petitioner was brought to the Philippines by the Japanese forces," and the fact
that Japan is no longer at war with the United States or the Philippines nor
identified with the countries allied against these nations, the possibility of the
petitioner's entertaining or committing hostile acts prejudicial to the interest and
security of this country seems remote.
If we grant, for the sake of argument, that such a possibility exists, still the
petitioner's unduly prolonged detention would be unwarranted by law and the
Constitution, if the only purpose of the detention be to eliminate a danger that is
by no means actual, present, or uncontrolable. After all, the Government is not
impotent to deal with or prevent any threat by such measure as that just outlined.
The thought eloquently expressed by Mr. Justice Jackson of the United States
Supreme Court in connection with the appliccation for bail of ten Communists
convicted by a lower court of advocacy of violent overthrow of the United States
Government is, in principle, pertinent and may be availed of at this juncture. Said
the learned Jurist:
The Governmet's alternative contention is that defendants, by misbehavior
after conviction, have forfeited their claim to bail. Grave public danger is
said to result from what they may be expected to do, in addition to what
they have done since their conviction. If I assume that defendants are
disposed to commit every opportune disloyal to act helpful to Communist
countries, it is still difficult to reconcile with traditional American law the
jailing of persons by the courts because of anticipated but as yet
uncommitted crimes. lmprisonment to protect society from predicted but
unconsummated offenses is so unprecedented in this country and so
fraught with danger of excesses and injustice that I am loath to resort it,
even as a discretionary judicial technique to supplement conviction of such
offenses as those of which defendants stand convicted.
But the right of every American to equal treatment before the law is
wrapped up in the same constitutional bundle with those of these
Communists. If an anger or disgust with these defendants we throw out the
bundle, we alsocast aside protection for the liberties of more worthy critics
who may be in opposition to the government of some future day.
xxx
xxx
xxx
1wphl.nt
If, however, I were to be wrong on all of these abstract or theoretical

matters of principle, there is a very practical aspect of this application
which must not be overlooked or underestimated that is the disastrous
effect on the reputation of American justice if I should now send these men
to jail and the full Court later decide that their conviction is invalid. All
experience with litigation teaches that existence of a substantial question
about a conviction implies a more than negligible risk of reversal. Indeed
this experience lies back of our rule permitting and practice of allowing bail
where such questions exist, to avoid the hazard of unjustifiably imprisoning
persons with consequent reproach to our system of justice. If that is
prudent judicial practice in the ordinary case, how much more important to
avoid every chance of handing to the Communist world such an ideological
weapon as it would have if this country should imprison this handful of
Communist leaders on a conviction that our highest Court would confess to
be illegal. Risks, of course, are involved in either granting or refusing bail. I
am naive enough to underestimate the troublemaking propensities of the
defendants. But, with the Department of Justice alert to the the dangers,
the worst they can accomplish in the short time it will take to end the
litigation is preferable to the possibility of national embarrassment from a
celebrated case of unjustified imprisonment of Communist leaders. Under
no circumstances must we permit their symbolization of an evil force in the
world to be hallowed and glorified by any semblance of martyrdom. The
way to avoid that risk is not to jail these men until it is finally decided that
they should stay jailed.
If that case is not comparable with ours on the issues presented, its underlying
principle is of universal application. In fact, its ratio decidendi applies with greater
force to the present petition, since the right of accused to bail pending apppeal of
his case, as in the case of the ten Communists, depends upon the discretion of
the court, whereas the right to be enlarged before formal charges are instituted is
absolute. As already noted, not only are there no charges pending against the
petitioner, but the prospects of bringing any against him are slim and remote.
Premises considered, the writ will issue commanding the respondents to release
the petitioner from custody upon these terms: The petitioner shall be placed
under the surveillance of the immigration authorities or their agents in such form
and manner as may be deemed adequate to insure that he keep peace and be
available when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to this Court
or to the Court of First Instance of Manila for decision in case of abuse. He shall
also put up a bond for the above purpose in the amount of P5,000 with sufficient
surety or sureties, which bond the Commissioner of Immigration is authorized to
exact by section 40 of Commonwealth Act No. 613.
No costs will be charged.

Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.
Separate Opinions
PABLO, M., disidente:
Disiento
En decision disada por este Tribunal en la primera causa de habeas
corpus incoada por el solicitante Boris Mejoff (G.R. No. L-2855,
Mejoff vs. Director of Prisons)*, se declaro que el habia venido a Filipinas
procedente de Shanghai como espia japones; en la liberacion, el ejercito
americano le arresto por se espia, habiendo sido mas tarde entregado al
Gobierno del Commonwealth para ser tratado de acuerdo con la ley No.682;
pero como bajo el Codgo Penal Revisado, antes de su enmienda por la Orden
Ejecutiva No. 44, (mayo 31, 1945) no se castiga al extranjero que comete
traicion, Mejoff fue puesto en libertad. Despues de una debida investigacion, la
Junta de Departacion encontra que el solicitante no tenia permiso para entrar en
Filipinas; fue entregado a la Junta de Inmigacion, la cual ordeno su deportacion
a Rusia por el primer transporte disponible por haber vendo aqui ilegalmente; fue
enviado a Cebu para que alli se embarcase, pero los dos barcos de nacionalidad
rusa que llegaron a dicho puerto en julio y agosto de 1948 rehusaron admitirle.
Por no encontrar transportacion para su departacion, Mejoff fue enviado a la
Prison de Muntinglupa, donde esta actualmente de tenido mientras el Gobierno
no encuenra medio de transportarle a Rusia.
La mayoria contiende que "The Petitioner's entry into the Philippines was not
unlawful; he was brought by the armed and belligerent forces of a de
facto government whose decrees were law during the occupation." Es tan ilegal
la entrada del solicitante como la del ejercito al que sirvio como espia. Ninguno
tiene derecho a permanecer aqui. Puesto que fue vencido el ejercito invasor que
le trajo, el solicitante no tiene derecho a pemanecer aqui ni un minuto mas. Si
desea proteccion, debe acudir al Gobierno Japones a cuyo ejercito el sirvio; el
hecho de que ya esta aqui no le da titulo para permanecer libre aqui. El que ha
venido como espia de enemigo del Pueblo de Filipinas no tiene derecho a pedir
igual trato que aquel ha entrado de buena fe. Es que Filipinos tiene la
obligacion de acoger a un ciudadano indeseable de Rusia? Desde cuando
tiene que allanarse una nacion a ser residencia de una extranjero que entro
como enemigo o, peor aun, como espia? Un Estado tiene indiscutible derecho a
deportar y expulsar de su territorio a todo extranjero indeseable.
El solicitante sostiene que no tiene estado. Eso no es razon para que tenga
derecho a permanecer aqui. Puede ser departado a Rusio o a Shanghai de
donde vino. Si todos los rusos que, por alguno que otro motivo, o por odio al
comunisomo, dejasen su pais y emigrasen aqui reclamando igual derecho, no
habria territorio suficiente para ellos. Se puede decir otro tanto de los chinos que,
so pretexto de no querer someterse al regimen comunista, optasen por resider
para siempre aqui. Y si los mismos communistas chinos viniesen
clandestinamente y despues reclamasen igual proteccion como la concedida a
Mejoff, tendreos que darles por el gusto?
Se invoca la resolucion aprobada por la Asamblea General de las Naciones
Unidas, titulada "Universal Declaration of Human Rights", en la que se establece,
entre otras cosas, que "no one shall be subjected to arbitrary arrest, detention or
exile." Yo soy de los que creen firmemente en lo sagrado de esta resolucion; no
puedo permitir que se detenga y se arreste a alguien sin motivo justificado, de
una manera arbitraria; pero el solicitante no esta detenido de esta manera, lo
esta de una manera provisional. Tan pronto como haya barco disponible para su
deportacion o tan pronto como pueda embarcarse en algun barco para el
extenjero o para cualquier otro punto a donde quiera ir, dejara de ser detenido.
Conste que no esta preso como un criminal condenado por un delito; esta
tratado como cualquier otro extranjero sujeto a deportacion. Si el solicitante no
hubiera sido espia, si no hubiera venido aqui para ayudar a las hordas japonesas
en la subyugacion del pueblo filipino, si hubiera venido como visitante, por
ejemplo, y, por azares de la fortuna, no pudo salir, yo seria el primero en abogar
por su liberacion inmediata.
Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American
Journal of International Law, 732) en el cual el recurrente estuvo detenido ya casi
siete meses cuando se decreto su libertad en un recurso de habeas corpus. En
nuestra opinion, dicho caso no tiene simulitud con la causa presente.
Staniszewski era residente de los Estados desde 1911; estuvo sirviendo como
marino en barcos mercantes americanos en tiempo de guerra y se ordeno su
detencion en Ellis Island cuando volvio a America procedente de un viaje a
Europa por no tener papeles de inmigracion. Staniszewski no habia entrado en
los Estados Unidos como espia, estuvo residiendo en dicho pais por varios aos,
era ya habitante de los Estados unidos. La ocupacion de marino es honrosa, la
del espia mercenario, detestable. El espia es peor que el enemigo. Este lucha
cara a cara, y el espia, con disimulo y arte engaosa, escucha lo que a
Staniszewski se le haya puesto en libertad. Poner en libertad a un espia es
poner en peligro la seguridad del Estado.
En cuanto a la duracion de la detencion provisional del recurrente, no hay regla

fija, depende de la cincunstancia de cada caso particular. Es evidente que los
medios de comunicacion entre Filipinas y Rusia o Shanghai, debico a fala de
relciones diplomaticas, son completamente anormales. No es culpa del gobierno
el que no encuentre medios de transportacion para el.
La Comision de Inmigracion ha dado pasos para que la International Refugee
Organziation of the United Nations (IRO0 se hiciera cargo del recurrente para
que pueda ser repartriado o enviado a otro pais extranjero, pero el Jefe de dicha
organizacion contesto que no estaba en condicines para aceptar dicha
recomendacion.
William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se
decreto su deportacion por el Sub Secretario del Tarabajo por violacion de la Ley
de Inmigracion; solicto su libertad bajo el recurso de Habeas Corpus, y en 16 de
febrero de 1927 se denego su peticion; no se le pudo deportar porque "the
necessary arrangements for his deportation could obviously not be made."
(District Court of Minnesota, 17 F. 2nd series, 507). Como se vera, la detencion
provisional de William Martin Jurgans duro mas de seis aos; la de Mejoff no ha
sido mas que de 31 meses, y no porque el gobierno no quiere deportarle, sino
porque no hay medio disponible para realizarlo.
En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:
What constitutes a reasonable time for the detention of the petitioner in
custody for deportation depends upon the facts and circumstances of
particular cases. This court cannot shut its eyes to the vitally important
interests of this country at this time with respect to the bottleneck of
shipping, when every available ship, domestic and foreign, must be utilized
to the utmost without delay consequent upon the lack of avilable seamen.
Under these present conditions the court should be liberal indeed in aiding
the executive branch of the govenment in the strict enforcement of laws so
vitally necessary in the common defns. There is sound authority for this
view in United States ex. rel. Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97,
where Circuit Judge Lacombe refused to release an alien who had come
here from Germany and was ordered deported in 1915 when, by reason of
the then existing war between Germany and England, his deportation to
Germany was not possible. It was said:
At the present time there is no regular passenger ocean service to German
ports, so the authorities are unable to forward him, and are holding him
until some opportunity of returning him to Germany may present itself. His
continual detention is unfortunate, but certainly is not illegal. His present
condition can be alleviated only by the action of the executive branch of

the government. A federal court would not be justified in discharging
him. . . .
If he is not really fit for sea service, it is not probable that he would be
forced into it, although he may be able to serve his government in some
other capacity. But however that may be, while this country has no power
under existing legislation to impress him into sea service against his will,
he has no just cause to be relieved from the strict enforcement of our
deportation laws, and to remain at liberty in this country as a sanctuary
contrary to our laws.
No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias
anormales.
La proposicion de vigilar al recurrente hasta que el gobierno encuentre
transporte para su deportacion, supon un gasto innecesario.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-46930 June 10, 1988
DALE SANDERS, AND A.S. MOREAU, JR, petitioners,
vs.
HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of First
Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and RALPH L.
WYERS, respondents.
CRUZ, J.:
The basic issue to be resolved in this case is whether or not the petitioners were
performing their official duties when they did the acts for which they have been
sued for damages by the private respondents. Once this question is decided, the
other answers will fall into place and this petition need not detain us any longer
than it already has.
Petitioner Sanders was, at the time the incident in question occurred, the special
services director of the U.S. Naval Station (NAVSTA) in Olongapo City. 1 Petitioner
Moreau was the commanding officer of the Subic Naval Base, which includes the said station. 2 Private
respondent Rossi is an American citizen with permanent residence in the Philippines, 3 as so was private
respondent Wyer, who died two years ago. 4 They were both employed as gameroom attendants in the
special services department of the NAVSTA, the former having been hired in 1971 and the latter in 1969.
On October 3, 1975, the private respondents were advised that their employment
had been converted from permanent full-time to permanent part-time, effective
October 18, 1975. 6 Their reaction was to protest this conversion and to institute grievance
proceedings conformably to the pertinent rules and regulations of the U.S. Department of Defense. The
result was a recommendation from the hearing officer who conducted the proceedings for the
reinstatement of the private respondents to permanent full-time status plus backwages. The report on the
hearing contained the observation that "Special Services management practices an autocratic form of
supervision." 7
In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of the
complaint), Sanders disagreed with the hearing officer's report and asked for the
rejection of the abovestated recommendation. The letter contained the
statements that: a ) "Mr. Rossi tends to alienate most co-workers and
supervisors;" b) "Messrs. Rossi and Wyers have proven, according to their
immediate supervisors, to be difficult employees to supervise;" and c) "even
though the grievants were under oath not to discuss the case with anyone, (they)
placed the records in public places where others not involved in the case could
hear."
On November 7, 1975, before the start of the grievance hearings, a-letter (Annex
"B" of the complaint) purportedly corning from petitioner Moreau as the
commanding general of the U.S. Naval Station in Subic Bay was sent to the
Chief of Naval Personnel explaining the change of the private respondent's
employment status and requesting concurrence therewith. The letter did not carry
his signature but was signed by W.B. Moore, Jr. "by direction," presumably of
Moreau.
On the basis of these antecedent facts, the private respondent filed in the Court
of First Instance of Olongapo City a for damages against the herein petitioners
on November 8, 1976. 8 The plaintiffs claimed that the letters contained libelous imputations that
had exposed them to ridicule and caused them mental anguish and that the prejudgment of the grievance
proceedings was an invasion of their personal and proprietary rights.
The private respondents made it clear that the petitioners were being sued in
their private or personal capacity. However, in a motion to dismiss filed under a
special appearance, the petitioners argued that the acts complained of were
performed by them in the discharge of their official duties and that, consequently,
the court had no jurisdiction over them under the doctrine of state immunity.
After extensive written arguments between the parties, the motion was denied in
an order dated March 8, 1977, 9on the main ground that the petitioners had not presented any
evidence that their acts were official in nature and not personal torts, moreover, the allegation in the
complaint was that the defendants had acted maliciously and in bad faith. The same order issued a writ of
preliminary attachment, conditioned upon the filing of a P10,000.00 bond by the plaintiffs, against the
properties of petitioner Moreau, who allegedly was then about to leave the Philippines. Subsequently, to
make matters worse for the defendants, petitioner Moreau was declared in a default by the trial court in its
order dated August 9, 1977. The motion to lift the default order on the ground that Moreau's failure to
appear at the pre-trial conference was the result of some misunderstanding, and the motion for
reconsideration of the denial of the motion to dismiss, which was filed by the petitioner's new lawyers,
were denied by the respondent court on September 7, 1977.
This petition for certiorari, prohibition and preliminary injunction was thereafter
filed before this Court, on the contention that the above-narrated acts of the
respondent court are tainted with grave abuse of discretion amounting to lack of
jurisdiction.
We return now to the basic question of whether the petitioners were acting
officially or only in their private capacities when they did the acts for which the
private respondents have sued them for damages.
It is stressed at the outset that the mere allegation that a government functionary
is being sued in his personal capacity will not automatically remove him from the
protection of the law of public officers and, if appropriate, the doctrine of state
immunity. By the same token, the mere invocation of official character will not
suffice to insulate him from suability and liability for an act imputed to him as a
personal tort committed without or in excess of his authority. These well-settled
principles are applicable not only to the officers of the local state but also where
the person sued in its courts pertains to the government of a foreign state, as in
the present case.
The respondent judge, apparently finding that the complained acts
were prima facie personal and tortious, decided to proceed to trial to
determine inter alia their precise character on the strength of the evidence to be
submitted by the parties. The petitioners have objected, arguing that no such
evidence was needed to substantiate their claim of jurisdictional immunity.
Pending resolution of this question, we issued a temporary restraining order on
September 26, 1977, that has since then suspended the proceedings in this case
in the courta quo.
In past cases, this Court has held that where the character of the act complained
of can be determined from the pleadings exchanged between the parties before
the trial, it is not necessary for the court to require them to belabor the point at a
trial still to be conducted. Such a proceeding would be superfluous, not to say
unfair to the defendant who is subjected to unnecessary and avoidable

inconvenience.
Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint against the commanding
general of the Olongapo Naval Base should not have been denied because it had been sufficiently shown
that the act for which he was being sued was done in his official capacity on behalf of the American
government. The United States had not given its consent to be sued. It was the reverse situation
in Syquia v. Almeda Lopez," where we sustained the order of the lower court granting a where we motion
to dismiss a complaint against certain officers of the U.S. armed forces also shown to be acting officially
in the name of the American government. The United States had also not waived its immunity from suit.
Only three years ago, in United States of America v. Ruiz, 12 we set aside the denial by the lower court of
a motion to dismiss a complaint for damages filed against the United States and several of its officials, it
appearing that the act complained of was governmental rather than proprietary, and certainly not
personal. In these and several other cases 13 the Court found it redundant to prolong the other case
proceedings after it had become clear that the suit could not prosper because the acts complained of
were covered by the doctrine of state immunity.
It is abundantly clear in the present case that the acts for which the petitioners
are being called to account were performed by them in the discharge of their
official duties. Sanders, as director of the special services department of
NAVSTA, undoubtedly had supervision over its personnel, including the private
respondents, and had a hand in their employment, work assignments, discipline,
dismissal and other related matters. It is not disputed that the letter he had
written was in fact a reply to a request from his superior, the other petitioner, for
more information regarding the case of the private respondents. 14 Moreover, even in
the absence of such request, he still was within his rights in reacting to the hearing officer's criticismin
effect a direct attack against him-that Special Services was practicing "an autocratic form of
supervision."
As for Moreau,what he is claimed to have done was write the Chief of Naval
Personnel for concurrence with the conversion of the private respondents' type of
employment even before the grievance proceedings had even commenced.
Disregarding for the nonce the question of its timeliness, this act is clearly official
in nature, performed by Moreau as the immediate superior of Sanders and
directly answerable to Naval Personnel in matters involving the special services
department of NAVSTA In fact, the letter dealt with the financial and budgetary
problems of the department and contained recommendations for their solution,
including the re-designation of the private respondents. There was nothing
personal or private about it.
Given the official character of the above-described letters, we have to conclude
that the petitioners were, legally speaking, being sued as officers of the United
States government. As they have acted on behalf of that government, and within
the scope of their authority, it is that government, and not the petitioners
personally, that is responsible for their acts. Assuming that the trial can proceed
and it is proved that the claimants have a right to the payment of damages, such
award will have to be satisfied not by the petitioners in their personal capacities
but by the United States government as their principal. This will require that
government to perform an affirmative act to satisfy the judgment, viz, the
appropriation of the necessary amount to cover the damages awarded, thus
making the action a suit against that government without its consent.
There should be no question by now that such complaint cannot prosper unless
the government sought to be held ultimately liable has given its consent to' be
sued. So we have ruled not only in Baer but in many other decisions where we
upheld the doctrine of state immunity as applicable not only to our own
government but also to foreign states sought to be subjected to the jurisdiction of
our courts. 15
The practical justification for the doctrine, as Holmes put it, is that "there can be
no legal right against the authority which makes the law on which the right
depends. 16 In the case of foreign states, the rule is derived from the principle of the sovereign equality
of states which wisely admonishes that par in parem non habet imperium and that a contrary attitude
would "unduly vex the peace of nations." 17 Our adherence to this precept is formally expressed in Article
II, Section 2, of our Constitution, where we reiterate from our previous charters that the Philippines
"adopts the generally accepted principles of international law as part of the law of the land.
All this is not to say that in no case may a public officer be sued as such without
the previous consent of the state. To be sure, there are a number of wellrecognized exceptions. It is clear that a public officer may be sued as such to
compel him to do an act required by law, as where, say, a register of deeds
refuses to record a deed of sale; 18or to restrain a Cabinet member, for example, from enforcing
a law claimed to be unconstitutional; 19 or to compel the national treasurer to pay damages from an
already appropriated assurance fund; 20 or the commissioner of internal revenue to refund tax overpayments from a fund already available for the purpose; 21 or, in general, to secure a judgment that the
officer impleaded may satisfy by himself without the government itself having to do a positive act to assist
him. We have also held that where the government itself has violated its own laws, the aggrieved party
may directly implead the government even without first filing his claim with the Commission on Audit as
normally required, as the doctrine of state immunity "cannot be used as an instrument for perpetrating an
injustice." 22
This case must also be distinguished from such decisions as Festejo v.

Fernando, 23 where the Court held that a bureau director could be sued for damages on a personal tort
committed by him when he acted without or in excess of authority in forcibly taking private property
without paying just compensation therefor although he did convert it into a public irrigation canal. It was
not necessary to secure the previous consent of the state, nor could it be validly impleaded as a party
defendant, as it was not responsible for the defendant's unauthorized act.
The case at bar, to repeat, comes under the rule and not under any of the
recognized exceptions. The government of the United States has not given its
consent to be sued for the official acts of the petitioners, who cannot satisfy any
judgment that may be rendered against them. As it is the American government
itself that will have to perform the affirmative act of appropriating the amount that
may be adjudged for the private respondents, the complaint must be dismissed
for lack of jurisdiction.
The Court finds that, even under the law of public officers, the acts of the
petitioners are protected by the presumption of good faith, which has not been
overturned by the private respondents. Even mistakes concededly committed by
such public officers are not actionable as long as it is not shown that they were
motivated by malice or gross negligence amounting to bad faith. 24 This, to, is well
settled . 25 Furthermore, applying now our own penal laws, the letters come under the concept of
privileged communications and are not punishable, 26 let alone the fact that the resented remarks are not
defamatory by our standards. It seems the private respondents have overstated their case.
A final consideration is that since the questioned acts were done in the Olongapo
Naval Base by the petitioners in the performance of their official duties and the
private respondents are themselves American citizens, it would seem only proper
for the courts of this country to refrain from taking cognizance of this matter and
to treat it as coming under the internal administration of the said base.
The petitioners' counsel have submitted a memorandum replete with citations of
American cases, as if they were arguing before a court of the United States. The
Court is bemused by such attitude. While these decisions do have persuasive
effect upon us, they can at best be invoked only to support our own
jurisprudence, which we have developed and enriched on the basis of our own
persuasions as a people, particularly since we became independent in 1946.
We appreciate the assistance foreign decisions offer us, and not only from the
United States but also from Spain and other countries from which we have
derived some if not most of our own laws. But we should not place undue and
fawning reliance upon them and regard them as indispensable mental crutches
without which we cannot come to our own decisions through the employment of
our own endowments We live in a different ambience and must decide our own
problems in the light of our own interests and needs, and of our qualities and
even idiosyncrasies as a people, and always with our own concept of law and
justice.
The private respondents must, if they are still sominded, pursue their claim
against the petitioners in accordance with the laws of the United States, of which
they are all citizens and under whose jurisdiction the alleged offenses were
committed. Even assuming that our own laws are applicable, the United States
government has not decided to give its consent to be sued in our courts, which
therefore has not acquired the competence to act on the said claim,.
WHEREFORE, the petition is GRANTED. The challenged orders dated March

8,1977, August 9,1977, and September 7, 1977, are SET ASIDE. The respondent
court is directed to DISMISS Civil Case No. 2077-O. Our Temporary restraining
order of September 26,1977, is made PERMANENT. No costs.
SO ORDERED.
Narvasa, Gancayco, Grino-Aquio and Medialdea, JJ., Concur.

SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS,
JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of
National Defense and Chief of Staff, respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While ostensibly
only legal issues are involved, the Court's decision in this case would undeniably
have a profound effect on the political, economic and other aspects of national
life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile. In
his stead, Corazon C. Aquino was declared President of the Republic under a
revolutionary government. Her ascension to and consilidation of power have not
been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders
of Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by
Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of
the Marcos spouses to surreptitiously return from Hawii with mercenaries aboard
an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30,
1987] awakened the nation to the capacity of the Marcoses to stir trouble even
from afar and to the fanaticism and blind loyalty of their followers in the country.
The ratification of the 1987 Constitution enshrined the victory of "people power"
and also clearly reinforced the constitutional moorings of Mrs. Aquino's
presidency. This did not, however, stop bloody challenges to the government. On
August 28, 1987, Col. Gregorio Honasan, one of the major players in the
February Revolution, led a failed coup that left scores of people, both combatants
and civilians, dead. There were several other armed sorties of lesser
significance, but the message they conveyed was the same a split in the ranks
of the military establishment that thraetened civilian supremacy over military and
brought to the fore the realization that civilian government could be at the mercy
of a fractious military.
But the armed threats to the Government were not only found in misguided
elements and among rabid followers of Mr. Marcos. There are also the
communist insurgency and the seccessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the communists
have set up a parallel government of their own on the areas they effectively
control while the separatist are virtually free to move about in armed bands.
There has been no let up on this groups' determination to wrest power from the
govermnent. Not only through resort to arms but also to through the use of
propaganda have they been successful in dreating chaos and destabilizing the
country.
Nor are the woes of the Republic purely political. The accumulated foreign debt
and the plunder of the nation attributed to Mr. Marcos and his cronies left the
economy devastated. The efforts at economic recovery, three years after Mrs.
Aquino assumed office, have yet to show concrete results in alleviating the
poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoses
has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
Philipppines to die. But Mrs. Aquino, considering the dire consequences to the
nation of his return at a time when the stability of government is threatened from
various directions and the economy is just beginning to rise and move forward,
has stood firmly on the decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator
forced out of office and into exile after causing twenty years of political, economic
and social havoc in the country and who within the short space of three years
seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the
respondents to issue travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from
returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1. Does the President have the power to bar the return of former
President Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former
President Marcos and his family from returning to the Philippines, in
the interest of "national security, public safety or public health
a. Has the President made a finding that the return of former
President Marcos and his family to the Philippines is a clear and
present danger to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been
complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed
with, has the President's decision, including the grounds
upon which it was based, been made known to

petitioners so that they may controvert the same?
c. Is the President's determination that the return of former President
Marcos and his family to the Philippines is a clear and present
danger to national security, public safety, or public health a political
question?
d. Assuming that the Court may inquire as to whether the return of
former President Marcos and his family is a clear and present
danger to national security, public safety, or public health, have
respondents established such fact?
3. Have the respondents, therefore, in implementing the President's
decision to bar the return of former President Marcos and his family,
acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act
which would effectively bar the return of former President Marcos
and his family to the Philippines? [Memorandum for Petitioners, pp.
5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses
to return to the Philippines is guaranteed under the following provisions of the Bill
of Rights, to wit:
Section 1. 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.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired except
in the interest of national security, public safety, or public health, as
may be provided by law.
The petitioners contend that the President is without power to impair the liberty of
abode of the Marcoses because only a court may do so "within the limits
prescribed by law." Nor may the President impair their right to travel because no
law has authorized her to do so. They advance the view that before the right to
travel may be impaired by any authority or agency of the government, there must
be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos
and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own,
and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had
been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to
choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are necessary
to protect national security, public order (order public), public health
or morals or the rights and freedoms of others, and are consistent
with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own
country.
On the other hand, the respondents' principal argument is that the issue in this
case involves a political question which is non-justiciable. According to the
Solicitor General:
As petitioners couch it, the question involved is simply whether or
not petitioners Ferdinand E. Marcos and his family have the right to
travel and liberty of abode. Petitioners invoke these constitutional
rights in vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is
whether or not petitioners Ferdinand E. Marcos and family have the
right to return to the Philippines and reside here at this time in the
face of the determination by the President that such return and

residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is
not a political question as it involves merely a determination of what
the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether
the two rights claimed by petitioners Ferdinand E. Marcos and family
impinge on or collide with the more primordial and transcendental
right of the State to security and safety of its nationals, the question
becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to
return to the Philippines and reestablish their residence here? This is
clearly a justiciable question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to
return to the Philippines and reestablish their residence here even if
their return and residence here will endanger national security and
public safety? this is still a justiciable question which this Honorable
Court can decide.
Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which
this Honorable Court can not decide for it falls within the exclusive
authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security
over individual rights. In support thereof, they cite Article II of the Constitution, to
wit:
Section 4. The prime duty of the Government is to serve and protect
the people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal, military, or civil
service.
Section 5. The maintenance of peace and order, the protection of
life, liberty, and property, and the promotion of the general welfare
are essential for the enjoyment by all the people of the blessings of
democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from
returning to the Philippines for reasons of national security and public safety has
international precedents. Rafael Trujillo of the Dominican Republic, Anastacio
Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba,
King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and
Marcos Perez Jimenez of Venezuela were among the deposed dictators whose
return to their homelands was prevented by their governments. [See Statement
of Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for
Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different light.
Although we give due weight to the parties' formulation of the issues, we are not
bound by its narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S. Supreme
Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed.
2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which
affirmed the right to travel and recognized exceptions to the exercise thereof,
respectively.
It must be emphasized that the individual right involved is not the right to travel
from the Philippines to other countries or within the Philippines. These are what
the right to travel would normally connote. Essentially, the right involved is the
right to return to one's country, a totally distinct right under international law,
independent from although related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International Covenant on Civil and
Political Rights treat the right to freedom of movement and abode within the
territory of a state, the right to leave a country, and the right to enter one's
country as separate and distinct rights. The Declaration speaks of the "right to
freedom of movement and residence within the borders of each state" [Art. 13(l)]
separately from the "right to leave any country, including his own, and to return to
his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right
to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the
right to "be free to leave any country, including his own." [Art. 12(2)] which rights
may be restricted by such laws as "are necessary to protect national security,
public order, public health or morals or enter qqqs own country" of which one
cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate to
construe the limitations to the right to return to one's country in the same context
as those pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and the
right to travel, but it is our well-considered view that the right to return may be
considered, as a generally accepted principle of international law and, under our
Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and enjoys a different
protection under the International Covenant of Civil and Political Rights, i.e.,
against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they relate
to a conflict between executive action and the exercise of a protected right. The
issue before the Court is novel and without precedent in Philippine, and even in
American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not
there can be limitations on the right to travel in the absence of legislation to that
effect is rendered unnecessary. An appropriate case for its resolution will have to
be awaited.
Having clarified the substance of the legal issue, we find now a need to explain
the methodology for its resolution. Our resolution of the issue will involve a twotiered approach. We shall first resolve whether or not the President has the
power under the Constitution, to bar the Marcoses from returning to the
Philippines. Then, we shall determine, pursuant to the express power of the
Court under the Constitution in Article VIII, Section 1, whether or not the
President acted arbitrarily or with grave abuse of discretion amounting to lack or
excess of jurisdiction when she determined that the return of the Marcose's to the
Philippines poses a serious threat to national interest and welfare and decided to
bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three
great branches of government. To recall the words of Justice Laurel in Angara v.
Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked but
with deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government." [At 157.1 Thus, the
1987 Constitution explicitly provides that "[the legislative power shall be vested in
the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall
bevested in the President of the Philippines" [Art. VII, Sec. 11, and "[te judicial
power shall be vested in one Supreme Court and in such lower courts as may be
established by law" [Art. VIII, Sec. 1.] These provisions not only establish a
separation of powers by actual division [Angara v. Electoral Commission, supra]
but also confer plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial power means a
grant of all the judicial power which may be exercised under the government." [At
631-632.1 If this can be said of the legislative power which is exercised by two
chambers with a combined membership of more than two hundred members and
of the judicial power which is vested in a hierarchy of courts, it can equally be
said of the executive power which is vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be
vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it does not
define what is meant by executive power" although in the same article it touches
on the exercise of certain powers by the President, i.e., the power of control over
all executive departments, bureaus and offices, the power to execute the laws,
the appointing power, the powers under the commander-in-chief clause, the
power to grant reprieves, commutations and pardons, the power to grant
amnesty with the concurrence of Congress, the power to contract or guarantee
foreign loans, the power to enter into treaties or international agreements, the
power to submit the budget to Congress, and the power to address Congress
[Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the
President did the framers of the Constitution intend that the President shall
exercise those specific powers and no other? Are these se enumerated powers
the breadth and scope of "executive power"? Petitioners advance the view that
the President's powers are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated powers, and
what is not enumerated is impliedly denied to her. Inclusion unius est exclusio
alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings to
mind the institution of the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States
grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To
those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to those
who think that constitution makers ought to leave considerable

leeway for the future play of political forces, it should be a vision
realized.
We encounter this characteristic of Article 11 in its opening words:
"The executive power shall be vested in a President of the United
States of America." . . .. [The President: Office and Powers,
17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different
persons who held the office from Washington to the early 1900's, and the swing
from the presidency by commission to Lincoln's dictatorship, he concluded that
"what the presidency is at any particular moment depends in important measure
on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it
remained of course, an agency of government subject to unvarying
demands and duties no remained, of cas President. But, more than
most agencies of government, it changed shape, intensity and ethos
according to the man in charge. Each President's distinctive
temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the
WhiteHouse and pervaded the entire government. The executive
branch, said Clark Clifford, was a chameleon, taking its color from
the character and personality of the President. The thrust of the
office, its impact on the constitutional order, therefore altered from
President to President. Above all, the way each President
understood it as his personal obligation to inform and involve the
Congress, to earn and hold the confidence of the electorate and to
render an accounting to the nation and posterity determined whether
he strengthened or weakened the constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she
does but, rather, that the consideration of tradition and the development of
presidential power under the different constitutions are essential for a complete
understanding of the extent of and limitations to the President's powers under the
1987 Constitution. The 1935 Constitution created a strong President with
explicitly broader powers than the U.S. President. The 1973 Constitution
attempted to modify the system of government into the parliamentary type, with
the President as a mere figurehead, but through numerous amendments, the
President became even more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the presidential

system of government and restored the separation of legislative, executive and
judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of
government and whatever powers inhere in such positions pertain to the office
unless the Constitution itself withholds it. Furthermore, the Constitution itself
provides that the execution of the laws is only one of the powers of the President.
It also grants the President other powers that do not involve the execution of any
provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise ofspecific powers of the President, it
maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive. Thus, in the landmark decision
of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the
issue of who between the Governor-General of the Philippines and the
Legislature may vote the shares of stock held by the Government to elect
directors in the National Coal Company and the Philippine National Bank, the
U.S. Supreme Court, in upholding the power of the Governor-General to do so,
said:
...Here the members of the legislature who constitute a majority of
the "board" and "committee" respectively, are not charged with the
performance of any legislative functions or with the doing of anything
which is in aid of performance of any such functions by the
legislature. Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act
in the Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The fact that
they do not fall within the authority of either of these two constitutes
logical ground for concluding that they do fall within that of the
remaining one among which the powers of government are
divided ....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring
words of dissent we find reinforcement for the view that it would indeed be a folly
to construe the powers of a branch of government to embrace only what are
specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide
fields of black and white. Even the more specific of them are found
to terminate in a penumbra shading gradually from one extreme to
the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the
distinction between legislative and executive action with
mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires. [At 210211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of
theGovernment is to serve and protect the people" and that "[t]he maintenance of
peace and order,the protection of life, liberty, and property, and the promotion of
the general welfare are essential for the enjoyment by all the people of the
blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and
order, the protection of life, liberty and property, and the promotion of the general
welfare are essentially ideals to guide governmental action. But such does not
mean that they are empty words. Thus, in the exercise of presidential functions,
in drawing a plan of government, and in directing implementing action for these
plans, or from another point of view, in making any decision as President of the
Republic, the President has to consider these principles, among other things, and
adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses
to return to the Philippines, the President is, under the Constitution, constrained
to consider these basic principles in arriving at a decision. More than that, having
sworn to defend and uphold the Constitution, the President has the
obligation under the Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the Constitution,
aside from being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the common
good. Hence, lest the officers of the Government exercising the powers
delegated by the people forget and the servants of the people become rulers, the
Constitution reminds everyone that "[s]overeignty resides in the people and all
government authority emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to
return to the country are the deposed dictator and his family at whose door the
travails of the country are laid and from whom billions of dollars believed to be illgotten wealth are sought to be recovered. The constitutional guarantees they
invoke are neither absolute nor inflexible. For the exercise of even the preferred
freedoms of speech and ofexpression, although couched in absolute terms,
admits of limits and must be adjusted to the requirements of equally important
public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7,
1981.]
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also
his duty to do anything not forbidden by the Constitution or the laws that the
needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by
the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are
faithfully executed [see Hyman, The American President, where the author
advances the view that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as
protector of the peace. Rossiter The American Presidency].The power of the
President to keep the peace is not limited merely to exercising the commanderin-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to
the day-to-day problems of maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the horizon. Wide discretion,
within the bounds of law, in fulfilling presidential duties in times of peace is not in
any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief
the enumeration of powers that follow cannot be said to exclude the President's
exercising as Commander-in- Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or declaring

martial law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's
from returning has been recognized by memembers of the Legislature, and is
manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr. Marcos to return
to the Philippines "as a genuine unselfish gesture for true national reconciliation
and as irrevocable proof of our collective adherence to uncompromising respect
for human rights under the Constitution and our laws." [House Resolution No.
1342, Rollo, p. 321.1 The Resolution does not question the President's power to
bar the Marcoses from returning to the Philippines, rather, it appeals to the
President's sense of compassion to allow a man to come home to die in his
country.
What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel,
subject to certain exceptions, or of case law which clearly never contemplated
situations even remotely similar to the present one. It must be treated as a matter
that is appropriately addressed to those residual unstated powers of the
President which are implicit in and correlative to the paramount duty residing in
that office to safeguard and protect general welfare. In that context, such request
or demand should submit to the exercise of a broader discretion on the part of
the President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." [Art.
VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that
the issue constitutes a political question which is beyond the jurisdiction of the
Court to decide.
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under previous
constitutions, would have normally left to the political departments to decide. But
nonetheless there remain issues beyond the Court's jurisdiction the
determination of which is exclusively for the President, for Congress or for the
people themselves through a plebiscite or referendum. We cannot, for example,
question the President's recognition of a foreign government, no matter how
premature or improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the beneficiary is totally

undeserving of the grant. Nor can we amend the Constitution under the guise of
resolving a dispute brought before us because the power is reserved to the
people.
There is nothing in the case before us that precludes our determination thereof
on the political question doctrine. The deliberations of the Constitutional
Commission cited by petitioners show that the framers intended to widen the
scope of judicial review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the
Constitution limits the determination to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned. If grave abuse is not established, the
Court will not substitute its judgment for that of the official concerned and decide
a matter which by its nature or by law is for the latter alone to decide. In this light,
it would appear clear that the second paragraph of Article VIII, Section 1 of the
Constitution, defining "judicial power," which specifically empowers the courts to
determine whether or not there has been a grave abuse of discretion on the part
of any branch or instrumentality of the government, incorporates in the
fundamental law the ruling inLansang v. Garcia [G.R. No. L-33964, December 11,
1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power
to suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme
within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and
when he acts within the sphere alloted to him by the Basic Law, and
the authority to determine whether or not he has so acted is vested
in the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme. In the exercise of such authority, the
function of the Court is merely to check not to supplant the
Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist
factual bases for the President to conclude that it was in the national interest to
bar the return of the Marcoses to the Philippines. If such postulates do exist, it
cannot be said that she has acted, or acts, arbitrarily or that she has gravely
abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments,
and the facts revealed during the briefing in chambers by the Chief of Staff of the
Armed Forces of the Philippines and the National Security Adviser, wherein
petitioners and respondents were represented, there exist factual bases for the
President's decision..
The Court cannot close its eyes to present realities and pretend that the country
is not besieged from within by a well-organized communist insurgency, a
separatist movement in Mindanao, rightist conspiracies to grab power, urban
terrorism, the murder with impunity of military men, police officers and civilian
officials, to mention only a few. The documented history of the efforts of the
Marcose's and their followers to destabilize the country, as earlier narrated in
this ponencia bolsters the conclusion that the return of the Marcoses at this time
would only exacerbate and intensify the violence directed against the State and
instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained.
The military establishment has given assurances that it could handle the threats
posed by particular groups. But it is the catalytic effect of the return of the
Marcoses that may prove to be the proverbial final straw that would break the
camel's back. With these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that the return of the
Marcoses poses a serious threat to the national interest and welfare and in
prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will
cause the escalation of violence against the State, that would be the time for the
President to step in and exercise the commander-in-chief powers granted her by
the Constitution to suppress or stamp out such violence. The State, acting
through the Government, is not precluded from taking pre- emptive action against
threats to its existence if, though still nascent they are perceived as apt to
become serious and direct. Protection of the people is the essence of the duty of
government. The preservation of the State the fruition of the people's sovereignty
is an obligation in the highest order. The President, sworn to preserve and
defend the Constitution and to see the faithful execution the laws, cannot shirk
from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to destabilize the country, while
the Government has barely scratched the surface, so to speak, in its efforts to
recover the enormous wealth stashed away by the Marcoses in foreign
jurisdictions. Then, We cannot ignore the continually increasing burden imposed
on the economy by the excessive foreign borrowing during the Marcos regime,
which stifles and stagnates development and is one of the root causes of
widespread poverty and all its attendant ills. The resulting precarious state of our
economy is of common knowledge and is easily within the ambit of judicial
notice.
The President has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years and
lead to total economic collapse. Given what is within our individual and common
knowledge of the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did
not act arbitrarily or with grave abuse of discretion in determining that the return
of former President Marcos and his family at the present time and under present
circumstances poses a serious threat to national interest and welfare and in
prohibiting their return to the Philippines, the instant petition is hereby
DISMISSED.
SO ORDERED.

SUPREME COURT
Manila
EN BANC
G.R. No. L-24170
December 16, 1968
ILLUH ASAALI, HATIB ABDURASID, INGKOH BANTALA, BASOK INGKIN,

and MOHAMMAD BANTALLA,petitioners,
vs.
THE COMMISSIONER OF CUSTOMS, respondent.
FERNANDO, J.:
The policy relentlessly adhered to and unhesitatingly pursued to minimize, if not
to do away entirely, with the evil and corruption that smuggling brings in its wake
would be frustrated and set at naught if the action taken by respondent

Commissioner of Customs in this case, as affirmed by the Court of Tax Appeals,
were to be set aside and this appeal from the decision of the latter were to
succeed. Fortunately, the controlling principles of law do not call for a contrary
conclusion. It cannot be otherwise if the legitimate authority vested in the
government were not to be reduced to futility and impotence in the face of an
admittedly serious malady, that at times has assumed epidemic proportions.
The principal question raised by petitioners, owners of five sailing vessels and
the cargo loaded therein declared forfeited by respondent Commissioner of
Customs for smuggling, is the validity of their interception and seizure by
customs officials on the high seas, the contention being raised that importation
had not yet begun and that the seizure was effected outside our territorial
waters..
Why such a plea could not be given the least credence without doing violence to
common sense and placing the law in disrepute would be apparent from a
statement of the case and the findings of facts as set forth in the decision now
under review, of the Court of Tax Appeals, dated November 19, 1964, the opinion
being penned by the late Associate Judge Augusto M. Luciano.
His opinion starts thus: "This is an appeal from the decision of the Acting
Commissioner of Customs in Customs Case No. 113, dated September 26,
1961, (Jolo Seizure Identification Cases Nos. 38, 39, 40, 41 & 42) decreeing the
forfeiture of five (5) sailing vessels (kumpits) named 'Iroc-Iroc,' 'Lahat-lahat,'
'Liberal Wing III,' 'Sulu Area Command,' and 'Business,' with their respective
cargoes of blue seal cigarettes and rattan chairs for violation of Section 1363(a)
of the Revised Administrative Code and Section 20 of Republic Act No. 426 in
relation with Section 1363(f) of the Revised Administrative Code."1
The facts according to the above opinion "are not controverted." Thus: "It
appears that on September 10, 1950, at about noon time, a customs patrol team
on board Patrol Boat ST-23 intercepted the five (5) sailing vessels in question on
the high seas, between British North Borneo and Sulu while they were heading
towards Tawi-tawi, Sulu. After ordering the vessels to stop, the customs officers
boarded and found on board, 181 cases of 'Herald' cigarettes, 9 cases of 'Camel'
cigarettes, and some pieces of rattan chairs. The sailing vessels are all of
Philippine registry, owned and manned by Filipino residents of Sulu, and of less
than thirty (30) tons burden. They came from Sandakan, British North Borneo,
but did not possess any permit from the Commissioner of Customs to engage in
the importation of merchandise into any port of the Sulu sea, as required by
Section 1363(a) of the Revised Administrative Code. Their cargoes were not
covered by the required import license under Republic Act No. 426, otherwise
known as the Import Control Law."2
Respondent Commissioner of Customs, as noted at the outset, affirmed the
decision rendered by the Collector of Customs of Jolo, who found cause for
forfeiture under the law of the vessels and the cargo contained therein. He was,
as also already made known, sustained by the Court of Tax Appeals. Hence this
petition for review.
The first two errors assigned by petitioners would impugn the jurisdiction of the
Bureau of Customs to institute seizure proceedings and thereafter to declare the
forfeiture of the vessels in question and their cargo. They would justify their stand
thus: "In the light of the fact that the vessels involved with the articles laden
therein were apprehended and seized on the high seas, beyond the territorial
waters of the Philippines, the said vessels could not have touched any place or
port in the Philippines, whether a port or place of entry or not, consequently, the
said vessels could not have been engaged in the importation of the articles laden
therein into any Philippine port or place, whether a port or place of entry or not, to
have incurred the liability of forfeiture under Section 1363(a) of the Revised
Administrative Code."3
Such a contention was advanced by petitioners before the Court of Tax Appeals.
It met the repudiation that it deserved. Thus: "We perfectly see the point of the
petitioners but considering the circumstances surrounding the apprehension of
the vessels in question, we believe that Section 1363(a) of the Revised
Administrative Code should be applied to the case at bar. It has been established
that the five vessels came from Sandakan, British North Borneo, a foreign port,
and when intercepted, all of them were heading towards Tawi-tawi, a domestic
port within the Sulu sea. Laden with foreign manufactured cigarettes, they did not
possess the import license required by Republic Act No. 426, nor did they carry a
permit from the Commissioner of Customs to engage in importation into any port
in the Sulu sea. Their course announced loudly their intention not merely to skirt
along the territorial boundary of the Philippines but to come within our limits and
land somewhere in Tawi-tawi towards which their prows were pointed. As a
matter of fact, they were about to cross our aquatic boundary but for the
intervention of a customs patrol which, from all appearances, was more than
eager to accomplish its mission."4
The sense of realism and the vigorous language employed by the late Judge
Luciano in rejecting such a plea deserve to be quoted. Thus: "To entertain even
for a moment the thought that these vessels were probably not bound for a
Philippine port would be too much a concession even for a simpleton or a
perennial optimist. It is quite irrational for Filipino sailors manning five Philippine
vessels to sneak out of the Philippines and go to British North Borneo, and come
a long way back laden with highly taxable goods only to turn about upon reaching
the brink of our territorial waters and head for another foreign port."5
1. We find no plausible reason not to accept in its entirety such a conclusion
reached by the Court of Tax Appeals. Nor, even if the persuasive element in the
above view were not so overwhelming, could we alter the decisive facts as found
by it. For it is now beyond question that its finding, if supported by substantial
evidence, binds us, only questions of law being for us to resolve. Where the
issue raised belongs to the former category, we lack the power of review.6
Moreover, for understandable reasons, we feel extreme reluctance to substitute
our own discretion for that of the Court of Tax Appeals in its appreciation of the
relevant facts and its appraisal of their significance. As we had occasion to state
in a relatively recent decision: "Nor as a matter of principle is it advisable for this
Court to set aside the conclusion reached by an agency such as the Court of Tax
Appeals which is, by the very nature of its function, dedicated exclusively to the
study and consideration of tax problems and has necessarily developed an
expertise on the subject, ..., there has been an abuse or improvident exercise of
its authority."7
2. We thus could rest our decision affirming that of the Court of Tax Appeals on
the above consideration.
It might not be amiss however to devote some degree of attention to the legal
points raised in the above two assignment of errors, discussed jointly by
petitioners-appellants, alleging the absence of jurisdiction, the deprivation of
property without due process of law and the abatement of liability consequent
upon the repeal of Republic Act No. 426. Not one of the principles of law relied
upon suffices to call for reversal of the action taken by the respondent
Commissioner of Customs, even if the facts presented a situation less conclusive
against the pretension of petitioners-appellants.
From the apprehension and seizure of the vessels in question on the high seas
beyond the territorial waters of the Philippines, the absence of jurisdiction of
Commissioner of Customs is predicated. Such contention of petitionersappellants is without merit.
It is unquestioned that all vessels seized are of Philippine registry. The Revised
Penal Code leaves no doubt as to its applicability and enforceability not only
within the Philippines, its interior waters and maritime zone, but also outside of its
jurisdiction against those committing offense while on a Philippine ship ...8 The
principle of law that sustains the validity of such a provision equally supplies a
firm foundation for the seizure of the five sailing vessels found thereafter to have
violated the applicable provisions of the Revised Administrative Code.9
Moreover, it is a well settled doctrine of International Law that goes back to Chief
Justice Marshall's opinion in Church v. Hubbart,10 an 1804 decision, that a state
has the right to protect itself and its revenues, a right not limited to its own
territory but extending to the high seas. In the language of Chief Justice Marshall:
"The authority of a nation within its own territory is absolute and exclusive. The
seizure of a vessel within the range of its cannon by a foreign force is an invasion
of that territory, and is a hostile act which it is its duty to repel. But its power to
secure itself from injury may certainly be exercised beyond the limits of its
territory."
The question asked in the brief of petitioners-appellants as to whether the
seizure of the vessels in question and the cargoes on the high seas and thus
beyond the territorial waters of the Philippines was legal must be answered in the
affirmative.
4. The next question raised is the alleged denial of due process arising from such
forfeiture and seizure. The argument on the alleged lack of validity of the action
taken by the Commissioner of Customs is made to rest on the fact that the
alleged offense imputed to petitioners-appellants is a violation of Section 1363(a)
and not Section 1363(f). The title of Section 1363 is clear, "Property subject to
forfeiture under customs laws." The first subsection thereof, (a) cover any vessel
including cargo unlawfully engaged in the importation of merchandise except a
port of entry. Subsection (f) speaks of any merchandise of any prohibited
importation, the importation of which is effected or attempted contrary to law and
all other merchandise which in the opinion of the Collector of Customs have been
used are or were intended to be used as instrument in the importation or
exportation of the former.
From the above recital of the legal provisions relied upon, it would appear most
clearly that the due process question raised is insubstantial. Certainly, the facts
on which the seizure was based were not unknown to petitioners-appellants. On
those facts the liability of the vessels and merchandise under the above terms of
the statute would appear to be undeniable. The action taken then by the
Commissioner of Customs was in accordance with law.
How could there be a denial of due process? There was nothing arbitrary about
the manner in which such seizure and forfeiture were effected. The right to a
hearing of petitioners-appellants was respected. They could not have been
unaware of what they were doing. It would be an affront to reason if under the
above circumstances they could be allowed to raise in all seriousness a due
process question. Such a constitutional guaranty, basic and fundamental,

certainly should not be allowed to lend itself as an instrument for escaping a
liability arising from one's own nefarious acts.
5. Petitioners-appellants would further assail the validity of the action taken by
the respondent Commissioner of Customs by the plea that the repeal of Republic
Act No. 426 abated whatever liability could have been incurred thereunder. This
argument raised before the Court of Tax Appeals was correctly held devoid of
any persuasive force. The decision under review cited our opinion in GolayBuchel & Cie v. Commissioner of Customs11 to the effect that the expiration of the
Import Control Law "did not produce the effect of declaring legal the importation
of goods which were illegally imported and the seizure and forfeiture thereof as
ordered by the Collector of Customs illegal or null and void."
Roxas v. Sayoc 12 announced that principle earlier. Thus: "Herein, we are
concerned with the effect of the expiration of a law, not with the abrogation of a
law, and we hold the view that once the Commissioner of Customs has acquired
jurisdiction over the case, the mere expiration of Republic Act No. 650 will not
divest him of his jurisdiction thereon duly acquired while said law was still in
force. In other words, we believe that despite the expiration of Republic Act No.
650 the Commissioner of Customs retained his jurisdiction over the case and
could continue to take cognizance thereof until its final determination, for the
main question brought in by the appeal from the decision of the Collector of
Customs was the legality or illegality of the decision of the Collector of Customs,
and that question could not have been abated by the mere expiration of Republic
Act No. 650. We firmly believe that the expiration of Republic Act No. 650 could
not have produced the effect (1) of declaring legal the importation of the cotton
counterpanes which were illegally imported, and (2) of declaring the seizure and
forfeiture ordered by the Collector of Customs illegal or null and void; in other
words it could not have the effect of annulling or setting aside the decision of the
Collector of Customs which was rendered while the law was in force and which
should stand until it is revoked by the appellate tribunal."
As late as 1965, in Bombay Dept. Store v. Commissioner of Customs,13 we had
occasion to reaffirm the doctrine in the above two decisions, the present Chief
Justice, speaking for the Court, stating that such expiration of the period of
effectivity of Republic Act No. 650 "did not have the effect of depriving the
Commissioner of Customs of the jurisdiction, acquired by him prior thereto, to act
on cases of forfeiture pending before him, which are in the nature of
proceeding in rem...."
It is thus most evident that the Court of Tax Appeals had not in any wise refused
to adhere faithfully to controlling legal principles when it sustained the action
taken by respondent Commissioner of Customs. It would be a reproach and a

reflection on the law if on the facts as they had been shown to exist, the seizure
and forfeiture of the vessels and cargo in question were to be characterized as
outside the legal competence of our government and violative of the
constitutional rights of petitioners-appellants. Fortunately, as had been made
clear above, that would be an undeserved reflection and an unwarranted
reproach. The vigor of the war against smuggling must not be hampered by a
misreading of international law concepts and a misplaced reliance on a
constitutional guaranty that has not in any wise been infringed.
WHEREFORE, the decision of respondent Court of Tax Appeals of November 19,
1964, is affirmed. With costs against petitioners-appellants.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro
and Capistrano, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-1494
August 3, 1949
ALLISON J. GIBBS, as executor of the will of A. D. Gibbs, deceased,

ALLISON J. GIBBS and FINLEY J. GIBBS, plaintiffs-appellees,
vs.
EULOGIO RODRIGUEZ, SR., LUZON SURETY CO., INC., PHILIPPINE
NATIONAL BANK and MARIANO VILLANUEVA, as Register of
Deeds, defendants-appellants.
Ramon Diokno and Jose W. Diokno for appellants.
Gibbs, Gibbs, Chuidian and Quasha for appellees.
FERIA, J.:
On August 22, 1945, plaintiff filed a complaint alleging, among others, the
following:
(4) That on April 18, 1941, pursuant to a preliminary "Agreement of
Purchase, Sale and Mortgage," dated April 11, 1940, Allison J. Gibbs,
acting for himself and as attorney-in-fact for Allison D. Gibbs and Finley J.
Gibbs, sold by a document entitled "Deed and Mortgage" said two parcels
of land and the improvement thereon to Raymundo F. Navarro and R. F.
Navarro and Co., for the sum of One hundred twenty-five thousand dollars
($125,000), United States currency, of which Twelve thousand five hundred
dollars ($12,500), United States currency, was paid in cash; that
Raymundo F. Navarro and R. F. Navarro and Co., in the said "Deed and
Mortgage" mortgaged the said two parcels of land in favor of Allison D.
Gibbs and Finley J. Gibbs, to secure the payment of a balance of the sale
price which they agreed to pay to the said mortgages in annual
installments, plus 5 per cent interest on the deferred payments. . . . .
(5) That the first installment of $16,875, United States currency, due on
April 11, 1941, was paid to the said mortgages, but none of the other
installments totalling $126,562.50, United States currency, have been paid
and are now due and owing.
(6) That on August 12, 1941, R. F. Navarro, for himself and in his capacity
as president of R. F. Navarro and Co., by document entitled "Deed of Sale
with Assumption of Mortgage," sold said property for the sum of fortythousand pesos (P40,000), Philippine currency, to Eulogio Rodriguez, Sr.,
who in said document assumed and agree to be bound by the obligation of
the mortgage existing thereon in favor of the mortgages, Allison D. Gibbs,
Allison J. Gibbs and Finley J. Gibbs, and all the covenants, agreements,
stipulations and conditions relating thereto, as recited in said "Deed and
Mortgage" Exhibit "A", to which sale and assumption of mortgage the said
mortgages gave their express conformity; . . . .
(7) That on December 16, 1941, Eulogio Rodriguez, Sr., with the consent
of the said mortgages and by a document entitled "Deed of assignment
with Assumption of Mortgage" assigned his rights, title and interest in and
to the said property to the defendant Luzon Surety Co., Inc., for the sum of
Forty-two thousand five hundred fifty-six and 21/100 (P42,556.21) pesos,
together with his obligations under the "Deed of Sale with the Assumption
of Mortgage," Exhibit B, which were duly assumed by the Luzon Surety
Co., Inc., with the express stipulation, however, that Eulogio Rodriguez,
Sr., was not relieved of the said obligations and that he, together with the
Luzon Surety Co., Inc., were jointly and severally liable to the said
mortgages for the obligations under the said mortgage, . . . .
(9) That during the Japanese occupation, to writ, in or about July, 1943, the
defendant Eulogio Rodriguez, Sr., and the Luzon Surety Co., Inc., without
paying any sum to the said mortgages, and without the latter's knowledge
or consent, unlawfully secured from the Japanese Military Administration
and from the Mariano Villanueva, who was then purporting to act as
Register of Deeds of the City of Manila under the Philippine Republic, a
purported cancellation of the mortgage Exhibit A, which purported
cancellation was on July 30, 1943, unlawfully annotated on the back of
said transfer certificate of title No, 63345 as document No. 709-710/63345,
but not on the mortgagee's copy, and without the prior cancellation or
surrender of said mortgagee's copy of transfer certificate of title No. 63345.
(Record on appeal of the defendants, pp. 4-7.)
The defendants admitted in their amended answer the facts alleged in the above
quoted paragraphs 4, 6, 7 of the complaint, and in connection with paragraphs 5
and 9 the defendants alleged that, during the Japanese occupation, the
Department of Enemy Property established by the Japanese Military
Administration in the City of Manila required the defendants to pay to said
department the debt due from them to the plaintiffs, who were considered as
enemy nationals. In view of the fact that one of the plaintiffs, Allison J. Gibbs, to
whom the defendant Luzon Surety Co., communicated the said demand,
answered that they could not do anything to avoid its compliance, the defendants
had to obtain from the Philippine National Bank a loan of P120,000 they needed
to pay, and in fact had paid, to the Department of Enemy Property the sum of
P202,500 which they owed then to the plaintiffs. The Director of the Department
of Enemy Property of the Japanese Military Administration had issued a receipt
and a deed of cancellation of the mortgage credit of the plaintiffs, and the register
of deeds on July 30, 1943, cancelled the mortgage annotated on the back of the
transfer certificate title of the property mortgaged.
On September 25, the plaintiff filed a motion to strike the defense set up in the
defendant's answer to the effect that they had paid their obligation to the plaintiff
to the Department of Enemy Property of the Japanese Military Administration, on
the ground that the latter had no authority to demand and accept such payment.
Before the date set for hearing of the motion to strike the defendant's defense on
September 29, 1945, the defendant had filed on September 26, 1945, a motion
for summary judgment under section 2, Rule 36, attaching to the motion in
support thereof an affidavit of the attorney for the Luzon Surety Inc., Atty. Arturo
Tolentino, to the effect that on July 21, 1943, when the department of Enemy
Property, Japanese Military Administration, ordered the Luzon Surety Co., to pay
to said Department the defendant's mortgage debt of P202,500 to the plaintiffs,
he went to see the plaintiff Allison J. Gibbs at the compound of the Holy Ghost
College and asked him his advise "as to what action the company should take on
the matter, and Attorney Gibbs told him that he cannot do anything and that he
stated further that in that event the credit will be considered as a war damage."
Attached to the motion for summary judgment was also an affidavit of defendant
Eulogio Rodriguez which stated that, in view of the demand of payment made by
the Department of Enemy Property, Japanese Military Administration, the
defendants had to secure a loan of P120,000 from the Philippines National Bank
and pay to said department on July 31, 1943, the sum of P202,500 due from
them to the plaintiffs.
The motion to strike as well as the motion for summary judgment was not acted
on by the court until the date set for trial of the case on the merits when both
parties, without presenting any evidence, filed their respective memoranda and
submitted the case to the lower court for decision.
The plaintiffs did not serve any disposing affidavit under section 3, Rule 36, to
contradict the affidavit of Eulogio Rodriguez to the effect that payment of the
mortgage debt in question was made to the Japanese Military Administration,
attached to and in support of the motion for summary judgment for the
defendants, and they admit, in paragraph 9 of their complaint, that the defendant
register of deeds the purported cancellation of the mortgage Exhibit A and,
consequently, the payment of the mortgage debt by necessary implication. These
facts belie the assertion of the appellees that there is no basis for the lower
court's assumption that such payment was made, and therefore the lower court
was right in stating in its decision the following:
Sin estar resueltas las citadas peticion de descarte y de sentencia
summaria, las partes, en inteligencia con el Juzgado y a fin de terminarse
definitivamente con el asunto en esta instancia, tuvieron a bien que al
mismo fuese sometido, en su fondo, previa practica de sus respectivas
pruebas. Se senalo la causa para su vista en el fondo pero en el dia
senalado los demandantes se limitaron a presentar los Exhibit A, B y C,
unidos a la demanda, los cuales fueron admitidos sin oposicion, y los
demandados sometieron el asunto para su fallo sin practicar prueba
alguna. De modo que el asunto fue practicament sometido a una
sentencia de acuerdo con los escritos de alegaciones unicamente.
(Record on Appeal of the defendants, p.78.)
El punto principal y decisivo planteado por las alegaciones de las partes
es el de si, es o no, legal y valido el pago hecho por los demandados al
custodio Japones. . . .
Trantadose aqui de un credito privado de que se ha incautado el
beligerente ocupante japones durante la pasada guerra, este caso tiene
similaridad al de "Hongkong and Shanghai Banking
Corporation contra Luis Perez Samanillo, Inc., et al., causa civil No.
71009" de este Juzgado. En esta ultima causa se ha discutado
extensamente la legalidad o ilegalidad de los actos del invasor al

incautarse de un credito y disponer de ello. En la decision de dicha causa,
este Juzgado hizo las consideraciones y conclusiones que a continuacion
se acotan y se hacen parte de esta decision por ser perfectamente
aplicables al punto que se discute:
The lower court declared invalid the payment made by the defendants to the
Bureau of Enemy Property, and null and void the cancellation of the mortgage by
the register of deeds, and sentenced the defendant to pay to the plaintiff, as soon
as the moratorium is lifted, the balance due from the former to the latter, and the
defendants appealed from said judgment to this Court.
The lower court was correct in holding that the question raised in the present
case is similar to that involved in the case of Hongkong and Shanghai Banking
Corporation vs. Luis Perez Samanillo, Inc., et al., (82 Phil., p. 851, and in making
the reasons and conclusions set forth in support of its decision therein as
grounds for its decision in the present case. In Samanillo case, the debt due from
the defendant to the plaintiff was paid, by order of the Japanese Military
Administration, to the Bank of Taiwan as Liquidator of local enemy banks and
Bureau of Enemy Property of the enemy bank's properties. In the present case
the defendants, by order of the Japanese Military Administration, paid to the
Bank of Taiwan as Bureau of Enemy Property the debt due from the defendants
to the plaintiffs. The question involved in said Samanillo case was whether or not
the collection of Samanillo's debt to the Hongkong and Shanghai Banking
Corporation by the Bureau of Enemy Property of the Japanese Military
Administration, was a confiscation of the plaintiffs' credit. And the question
involved in the instant case is whether or not the collection by the Department of
Enemy Property, Japanese Military Administration, of the mortgage debt due
from the defendants to the plaintiffs was a confiscation of the latter's credit.
This Court reversed the decision of the lower court in the case of Hongkong and
Shanghai Baking Corporation vs. Luis Perez Samanillo, Inc., et al., on the
strength of the ruling of this Court in the case of Haw Pia vs. China Banking
Corporation, (80 Phil 604), in which the facts and law involved were similar to
those in Haw Pia. In this last case we held that the collection by the Bank of
Taiwan of the China Banking Corporation's credit from the latter's debtor by order
of the Japanese Military Administration, was not a confiscation but a
sequestration of the enemy private personal property, and threrefore the payment
by the plaintiff Haw Pia to the Bank of Taiwan was valid and released plaintiff's
obligation to the defendant bank. Therefore, we have to reverse also the decision
of the lower court in the present case.
The plaintiffs contention that the debt of the defendants in the present case was
payable in dollars or its equivalent in Philippine peso at the option of the plaintiffs
is immaterial, because both the Philippine pesos and American dollars at the rate
of one dollar for two pesos were then legal tender in the Philippines according to
section 1612 of the Revised Administration Code, and for that reason the lower
court sentenced the defendants to pay the plaintiffs in dollar or its equivalent in
Philippine pesos. Besides we have held in the case of Haw Pia the following:
But be that it may, whatever might have been the intrinsic or extrinsic worth
of the Japanese war notes which the Bank of Taiwan has received as full
satisfaction of the obligations of the appellee's debtors to it, is of no
consequence in the present case. As we have already stated, the
Japanese war-notes were issued as legal tender at par with the Philippine
peso, and guaranteed by Japanese Government "which takes full
responsibility for their usage having the correct amount to back them up
(Proclamation of January 3, 1942). Now that the outcome of the war has
turned against Japan, the enemy banks have the right to demand from
Japan, through their States or Government, payments or compensation in
Philippine pesos or U. S. dollars at the case may be, for the loss or
damage inflicted on the property by the emergency war measures taken by
the enemy. If Japan had won the war or were the victor, the property or
money of said banks sequestrated or impounded by her might be retained
by Japan and credited to the respective State of which the owners of said
banks were nationals, as a payment on account of the sums payable by
them as indemnity under the treaties, and the said owners were to look for
compensation in Philippine pesos or U. S. dollars to their respective
States. (Treaty of Versailles and other peace treaties entered at the close
of the first World War; VI Hackworth Digest of International Law, p.232.)
And if they cannot get any or sufficient compensation either from the
enemy or from their States, because of their insolvency or impossibility to
pay, they have naturally to suffer, as everybody else, the losses incident to
all wars.
In view of the foregoing, the decision appealed from is reversed and the plaintiffs'
action is dismissed.
Moran, C.J., Paras, Bengzon, Montemayor and Reyes, JJ., concur.
Separate Opinions
PERFECTO, J., concurring:

Except the pronouncement about legal tender, upon which we wish not to commit
ourselves, we concur in the above opinion.
TUASON, J., dissenting:

I dissent on the same general principles and reasons stated in Mr. Justice
Hilado's dissenting opinion in Haw Pia vs. China Banking Corporation, G. R. No.
L-554, and in my dissenting opinion in Philippine Trust Company vs. Araneta, G.
R. No. L-2734.
RESOLUTION
December 21, 1950
FERIA, J.:
This is a motion for reconsideration of the decision of this Court in the present
case filed by the plaintiffs on the grounds (I) that "even if it is assumed that the
Japanese had authority to demand payment of plaintiffs' U. S. dollar credit in
Japanese military pesos, the payments allegedly made by the defendants to the
Japanese should be credited against the amount owed to plaintiffs only at the
express mortgage rate, namely, at the cost in Japanese military pesos (or at the
fair rate of exchange) of the U. S. dollar demand draft on New York called for in
the mortgage; this would leave a balance due plaintiffs after such application of
not less than $40,024.07"; and (II) that the decision of this Court in the Haw Pia
case on the strength of which the present case has been decide, is erroneous,
and in support of the petitioners' contention our attention is invited to an article
appearing in the June 1949 issue of the Philippine Law Journal written by
Professor Charles Cheney Hyde, author of "International Law as chiefly
interpreted and applied by the United States."
I
As to the first ground, suffice if to say that if the Japanese military occupant had
power to sequestrate and, in fact, sequestrated the plaintiffs' credit, it had
subrogated into the rights or stood in the shoes of the plaintiffs as creditor and,
therefore, had the right to demand and accept, through Japanese Enemy
Property Custodian, the payment of all the defendants' debts to the plaintiffs in
Japanese military notes without of course compelling the defendants to pay

interest not yet then due, and completely release thereby said obligation, without
prejudice to the plaintiffs' right to demand, through their government from the
Japanese after the war, the reimbursement of the full value of their sequestrated
credit. We have held in the decision that "whatever might have been the intrinsic
or extrinsic value of the Japanese war-notes which the Bank of Taiwan has
received as full satisfaction of the obligation of the appellee's debtors to it, is of
no consequence in the present case. As we have already stated, the Japanese
war-notes were issued as legal tender at par with the Philippine peso, and
guaranteed by Japanese Government which "takes full responsibility for their
usage having the correct amount to back them up" (Proclamation of Jan. 3,
1942). Now that the outcome of the war has turned against Japan, the enemy
banks have the right to demand from Japan, through their States of Government,
payments or compensation in Philippine peso or U. S. dollars as the case may
be, for the loss or damage inflicted on the property by the emergency war
measure taken by the enemy."
Furthermore, when the Court of First Instance of Manila rendered judgment
sentencing the defendants in the present case to pay their debt to the plaintiffs,
after the moratorium has been lifted, in American dollars or its equivalent in
Philippine pesos which, according to said Section 1612 of the Revised
Administration Code, was at the rate of two Philippine pesos to one American
dollar, the plaintiffs did not appeal from the said part of the judgment nor assail it
as erroneous in their briefs, and therefore plaintiffs can not now raise that
question for the first time in their motion for reconsideration.
The decision of this Court in the Legarda case did not hold that the defendant
Burke had the right to refuse the payment by the debtor of his debt in British
currency in Japanese war notes. This Supreme Court returned the case to the
lower court for further proceeding and the writer of the opinion of the court in said
case only said that "still it is serious question whether the defendant Burke who
was a special creditor having the right to insist upon his option to receive
Japanese money specially at par." Moreover in the Legarda case the action was
instituted by the debtor against his creditor to compel the latter to accept the
payment in Japanese military notes, while in the present the payment of the
debtors' debt to their creditors was demanded and accepted by the Japanese
military Occupant in the exercise of its power to sequestrate the property of said
creditors who were enemy citizens, without prejudice to the right of the latter to
demand from the Japanese Government full compensation for the seizure
through State Department channels at the peace table. (United States v. SS.
White Dental Manufacturing Co., 247 U. S. 398, 402 (1927).
II
With respect to the article of Professor Charles Cheney Hyde on the decision of
this Court in the case of Haw Pia vs. China Banking Corporation,1 G. R. No. L554, promulgated on April 9, 1948, it may not be amiss to state, by way of
preamble before proceeding, that according to Article 38 of the Statues of the
International Court of Justice, the Court shall, subject to certain limitations, apply
judicial decisions as a subsidiary means for the determination of rule of
International Law. Although courts are not organs of the State for expressing in a
binding manner its views on foreign affairs, they are nevertheless organs of the
State giving, as a rule, impartial expression to what is believed to be International
Law. For this reason, judgments of municipal tribunals are of considerable
practical importance for determining what is the right rule of International Law.
This is now being increasingly recognizes, and periodical unofficial collections of
decisions of both international and municipal courts are being published. In
pleadings before international tribunals litigants still fortify their arguments by
reference to writings of international jurists, but with the growth of international
judicial activity and of the practice of States evidenced by widely accessible
records and reports, it is natural that reliance on the authority of writers as
evidence of International Law should tend to diminish. For it is as evidence of the
law and not as a law-creating factor that the usefulness of teaching of writers has
been occasionally admitted in judicial pronouncements. But inasmuch as a
source of law is conceived as a factor influencing the judge in rendering its
decision, the work of writers may continue to play a part in proportion to its
intrinsic scientific value, its impartiality and its determination to scrutinize critically
the practice of State by reference to legal principle. (International Law by
Oppenhiem, Vol. I, pp. 29-32).
It does not seem, therefore proper for an attorney or jurist, in trying to protect or
defend the interest of parties affected adversely by a decision rendered by the
Supreme Court of a Sovereign Foreign Power, to assail it with arguments
premised on facts different from those found by their court on which the decision
is based and dub that decision as one in violation of International Law. A decision
of the Supreme Court of the small Republic of the United States of America. The
article of Professor Hyde in which the author, commenting on the decision in the
Haw Pia case, says that it "will do the utmost harm to American Interest" *, does
not deserve the same weight as his opinions set forth in his work "International
Law chiefly as interpreted and applied by the United States." Because the article
was written and published more than one year after our decision, not by an
impartial jurist andante litem motam, but by an attorney who tries to defend
American interests in the Philippines after an action was instituted in the
Supreme Court of the State of New York by the Compania Tabacalera, a
corporation owned mostly by Spaniards and doing business in these Islands,
against the National City Bank of New York, an action based on the decision of
this Supreme Court of the Philippines in the said Haw Pia case.
For clarity's sake, we shall discuss separately the arguments and conclusions
advanced by Mr. Hyde in support of his contention that our decision in the Haw
Pia case is a violation of a International Law: (1) first, on the validity of the
payment made in war notes to the Bank of Taiwan by Haw Pia of his pre-war
debt to the China Bank; (2) secondly, on the alleged failure of the Bank of
Taiwan, liquidator of the China Banking Corporation, to properly and adequately
perform its function as such; (3) and thirdly, on the so-called failure of the
Philippine Republic to heed certain contractual undertaking in the Inter-Allied
Declaration of January 5, 1943, in London, to which the late President Quezon
adhered in behalf of the Commonwealth of the Philippines. We shall copy the
pertinent parts of the article dealing with each of those subjects, and then refute
Mr. Hyde's contentions by transcribing the corresponding portion of our decision
in said Haw Pia case plus some additional comments.
(1) As to the first, Professor Hyde has evidently missed the point with respect to
the main issue decided in the Haw Pia case in the article in question, and
consequently his conclusions are incorrect from the beginning to the end for they
are based on wrong premises. At the beginning he says, among others, the
following:
The decision of the Supreme Court of the Philippines Republic in the Haw
Pia case constitutes internationally illegal conduct upon the part of the
Philippine Government which is productive of a solid claim for
compensation in behalf of alien nationals or creditors who suffered loss as
a direct consequence of such decision. The Japanese decrees which
permitted Haw Pia, a local debtor, fully to satisfy her pre-war peso
indebtedness to the local office of a foreign creditor bank of payment in a
greatly depreciated Japanese military currency were in violation of
International Law. They permitted the debtor to satisfy her debt in a
currency not contemplated by the parties and of little or no value at the
time of payment. By such payments a mortgage of property given to
secure such debt was satisfied of record. The recognition by the Supreme
Court of the Philippines of the Japanese decrees which resulted in this
harm-producing act it is also a violation of International Law by such court.
This decision will do the utmost harm to American interest in the
Philippines unless remedied by Philippine legislation or some kindred
process.
In the Haw Pia case there has been confusion of thought manifested in
variuos quarters due in part to failure to observe all the relevant facts in the
case, to failure also to observe the character of the practice that has grown
up in relation to the privileges, of a belligerent occupant especially in
relation to uses of legal tender, and to failure to observe the nature of

certain acts on the part of the Japanese agency or so-called liquidator in
the present case, and finally, to observe the failure of the Philippine
Republic to heed certain contractual undertakings which it has accepted.
xxx
xxx
xxx
In a word, various aspects of the case have been dealt with by the courts
and commentators in a fantastic way that might be called old-fashioned,
because of failure to seek light on what state practices ordained, and
because ignorance thereof served to bolster up conclusions that could not
have been reached if faithful and penetrating studies of that practice had
been made. Again, loose treatment of some secondary materials has
pointed to neglectful and superficial work. Thus, for example, the views of
this writer have more than once been quoted or cited as indicating the
rights of a belligerent occupant as such when those views had reference to
a different matter, and notably to what a belligerent State might do with
respect to alien enemy property found within its own domain. Much more
important, "no question has been raised as to the value of the money paid.
xxx
xxx
xxx
We now come to the question whether a belligerent occupant has the right
through such uses of a depressed currency, by making it legal tender and
continuing it as such, to oblige a creditor to accept in payment of a debt
something that was a the time of payment practically or almost worthless.
As has been suggested above, there is no evidence manifested by any
practices that have been seen which indicates that occupying powers
(other than Japan) to have sought by causing a depressed currency to be
legal tender, to oblige a creditor to accept in payment of a debt something
that was of little value. The scope of the occupant's rights depends upon
the degree of harm wrought to the creditor by the occupant's decrees.
In a word, the practice which has developed shows a significant and
complete abstention from such conduct on the part of occupants and also
vigorous and successful restrictions from foreign offended States when it
was attempted. In general the abstention and the correction of abuses may
be regarded as establishing a general rule of International Law forbidding
the occupant to make it possible for the debtor to rob his creditos by the
satisfaction of a debt through a greatly depreciated and practically
worthless currency. Indeed what has taken place amounts to an impressive
practice reflecting the creation or acknowledgment of a prohibitive rule of
International Law. The general tenor of the Hague Regulations of 1907 is
in complete harmony with this limitation of the right of the occupant as thus
set forth. Or, to express it differently, those Regulations call for the
limitation. . . . (Philippine Law Journal, Vol. XXIV, June, 1949, pp. 141, 142,
144-145).
Professor Hyde has missed the point, because the question involved and
decided in the Haw Pia case was not the validity of the Japanese decrees
permitting a local debtor to satisfy fully his pre-war peso indebtedness to the local
office of a foreign creditor bank by payment in a greatly depreciated military
currency, but the power of the Japanese Military Administration to order validly
the liquidation of winding up of the defendant China Banking Corporation,
considered as a hostile bank, by the Bank of Taiwan appointed as the liquidator
and authorized to demand and accept the payment by the debtors of the
defendant bank in order to sequestrate the latter's assets. And the ruling in the
Haw Pia case has been applied to the present case, as well as to the cases
of Hongkong and Shanghai Banking Corporation vs. Luis Perez Samanillo,2 G. R.
No. L-1729, because in these three cases the Japanese Military Administration
required the debtors to pay to the Bank of Taiwan, as depositary of the Bureau of
Enemy Property Custody or Alien Property Custodian, their debts to their
creditors who were alien enemies, in order to sequestrate, not confiscate, the
properties of the enemy aliens during the war, sequestration permitted and not
prohibited by International Law or the Hague Regulations.
In order decisions in the Haw Pia case we held, among others, the following:
The appellant's assignment of error may be reduced to two, to wit: First,
whether or not the Japanese Military Administration had authority to order
the liquidation or winding up to the business of defendant-appellee China
Banking Corporation, and to appoint the Bank of Taiwan liquidator
authorized as such to accept the payment by the plaintiff-appellant's debt
to said defendant-appellee, and second, whether or not such payment by
the plaintiff-appellant has extinguished her obligation to said defendantappellee.
As to the first question, we are of the considered opinion, and therefore
hold, that the Japanese military authorities had power, under the
international law, to order the liquidation of the China Banking Corporation
and to appoint and authorize the Bank of Taiwan as liquidator to accept the
payment in question, because such liquidation is not a confiscation of the
properties of the bank appellee, but a mere sequestration of its assets
which required the liquidation or winding up to the business of said bank.
All the arguments to the contrary in support of the decision appealed from
are predicated upon the affairs of the China Banking Corporation in order
to determinate its liabilities and not assets to be sequestrated or controlled

was an act of confiscation or appropriation of private property contrary to
article 46, section III of the Hague Regulations of 1907.
xxx
xxx
xxx
Before the Hague Convention, it was the usage or practice to allow or

permit the confiscation or appropriation by the belligerent occupant not
only of public but also of private property of the enemy in a territory
occupied by the belligerent hostile army; and as such usage or practice
was allowed, a fortiori, any other act short of confiscation was necessarily
permitted. Section III of the Hague Regulations only prohibits the
confiscation of and privilege property by order of the Military authorities
(art. 46), and pillage or stealing and thievery thereof by individuals (art.
47); and as regards public property, article 53 provides that cash funds,
and property liable to requisition and all other movable property belonging
to the State susceptible of military use or operation, may be confiscated or
taken possession of as a booty and utilized for the benefit of the invader's
government (II Openheim, 8th ed., sections 137; 320 and 321, War
Department; Base Field Manual, Rules of Land Warfare FM 27-10). The
belligerents in their efforts to control enemy property within their jurisdiction
or in territories occupied by their armed forces in order to avoid their use in
aid of the enemy and to increase their own resources, after the Hague
Convention and especially during the first World War, had to resort to such
measures of prevention which do not to a start confiscation, as freezing,
blocking, placing under custody and sequestrating the enemy private
property. Such acts are recognized as not repugnant to the provisions of
article 46 or any other articles of the Hague Regulations by well known
writers on International Law, and are authorized in the Army and Navy
Manual of Military Government and Civil Affairs not only of the United
States, but also in similar manuals of Army and Navy of other civilized
countries.
Hyde in his International Law as chiefly interpreted and applied by the
United States, Vol. 3, 6th ed., p. 1727, has the following to say:
In examining the efforts of a belligerent to control in various ways
property with its domain that has such a connection with nationals of
the enemy that it may be fairly regarded as enemy property, it is
important to inquire whether the attempt is made to appropriate
property without compensation, diversing him not only of title, but
also of any right or interest in what is taken, without prospect of
reimbursement, or whether those efforts constitute an assumption of
control which, regardless of any transfer of title, is not designed to

produce such a deprivation. The character of the belligerent acts in
the two situations is not identical. To refer to both as confiscatory is
not productive of clearness of thought, unless a loose and abroad
signification be attached to the term "confiscation." The point to be
noted is that a belligerent may in fact deprive an alien enemy owner
of property by process that are not essentially confiscatory, even
though the taking and retention may cause him severe loss and
hardship. Recourse to such non-confiscatory retentions or
deprivations has marked the conduct of belligerents since the
beginning of the World War in 1914. They may perhaps be
appropriately reffered to as a sequestration. . . . .
A belligerent may fairly endeavor to prevent enemy property of any
kind within its territory (or elsewhere within its reach) from being so
employed as to afford direct military aid to its foe. Measures of
prevention may, in a particular case, assume a confiscatory aspect.
In such a situation the question may arise whether those measures
are, nevertheless, excusable. It is believed that they may be, and
that they are not invariably unlawful despite the absence of efforts to
compensate the owners. (Emphasis ours)
And Oppenheim in his International Law, Vol. 2, 6th ed., by Lauterpacht, says:
But this desire to eliminate the financial and commercial influence of the
enemy, and other motives, presently led in most States to exceptional war
measures against the businesses and property of enemies, which, though
not confiscation, inflicted great loss and injury. Sometimes these measure
stopped short of divesting the enemy ownership of the property; but in
other cases the businesses or property were liquidated, and were
represented at the close of hostilities by nothing else that the proceeds of
their realization, often enough out of all proportion to their value. In the
Trading with the Enemy Act, 1939, provisions was made for the
appointment of custodians of enemy property in order to prevent the
payment of money to enemies and to preserve enemy property in
contemplation of arrangements to be made at the conclusion of peace.
xxx
xxx
xxx
Ernest K. Feilchenfeld in his "The International Economic Law of

Belligerent Occupation (1942)" supports the foregoing conclusion of Hyde,
when he says that "According to article 46 of the Hague Regulations,
private property must be respected and cannot be confiscated. This rule
affords protection against the laws of property, through outright

confiscation, but not against losses under lawful requisition, contribution,
seizure, fines, taxes, and expropriation" (Par. 208, p. 51). And later on he
adds "A complete nationalization of a corporation for the benefit of the
occupant could not be anything but a permanent measure involving final
effects beyond the duration of the occupation. There is no military need for
it because the same practical results can be achieved by
temporary sequestion, (par. 385, p. 107).
Martin Domke * in his Trading with the Enemy in World War II, pp. 4 and 5,
speaking of Warfare on Economic and military fronts, says that "Freezing
Control is but one phase of the present war effort; it is but one weapon on
the total war which is now being on both economic and military fronts.
Coupled with Freezing Control as a part of this nation's program of
economic warfare are to be found export control, the promulgation of a
Black List, censorship, seizure of enemy-owned property, and financial and
lend-lease aid to allied and friendly nations. . . .
xxx
xxx
xxx
The sequetration or liquidation of enemy banks in occupied territories is

authorized expressly by the United States Army and Navy Manual of Military
Government and Civil Affairs F. M. 2710 OPNAV 50-E-3, which, mandatory and
controlling upon the theatre commanders of the U. S. forces in said territories,
provides in its paragraph 12 the following:
Functions of Civil Affairs Officers. In the occupation of such
territories for a considerable period of time, the civil affairs officers
will in most cases be concerned with the following and other
activities;
1. Money and Banking. Closing, if necessary and guarding of
banks, bank funds, safe deposit boxes, securities and records;
providing interim banking and credit needs; liquidation;
reorganization, and reopening of banks at appropriate times; . . . .
The Civil Affairs Officers are concerned, that is, entrusted with the
performance of the functions enumerated above, when so directed by the
Chief Commander of the occupant military forces.
Not only the United States Army and Navy Manual of Military Government
and Civil Affairs but similar manuals of other countries authorize the
liquidation of impounding of the assets of enemy banks or the freezing,
blocking and impounding of enemy properties in the occupied hostile

territories without violating article 46 or other article of the Hague
Regulations. They do not amount to an outright confiscation of private
property, and we put into effect by the Allied Army in the occupied hostile
territories in Europe.
On the other hand, the provisions of the Trading with the Enemy Acts
enacted by the United States and almost all the principal nations since the
first World War, including England, Germany, France, and other European
countries, as well as Japan, confirms that the assets of enemy
corporations, especially banks incorporated under the laws of the country
at war with the occupant and doing business in the occupied territory, may
be legally sequestrated, and the business thereof wound up or liquidated.
Such sequestration or seizures of properties is not an act for the
confiscation of enemy property, but for the conservation of it, subject to
further disposition by treaty between the belligerents at the end of the war.
Section 12 of the Trading with the Enemy Act of the United States provides
that "after the end of the way any claim of enemy or ally of an enemy to
any money or other property received and held by the Alien Custodian or
deposited in the United States Treasury, shall be settled as Congress shall
direct."
The purpose of such sequestration is well expounded in the Annual Report
of the Office of the Alien Custodian for a period from March 11, 1943, to
June 30, 1943. "In the absence of effective measures of control, enemyowned property can be used to further the interest of the enemy and to
impede our own war effect. All enemy-controlled assets can be used to
finance propaganda, espionage, and sabotage in this country or in
countries friendly to our cause. They can be used to acquire stocks of
strategic materials and supplies ... was to the enemy, they will be diverted
from our own war efforts. (Haw Pia vs. China Banking Corporation, L-554,
pp. 3-10, 12-13, Original Decision.)
As we have already said, from the decision above qouted it appears that the
"question whether a belligerent occupant has the right through such uses of a
depressed currency, by making it legal tender and continuing it as such to oblige
a creditor to accept in payment of a debt something that was at the time of
payment practically or almost worthless," which Professor Hyde discusses at
length in his article, has no bearing on the question involved and decided in the
Haw Pia case and, therefore, Professor Hyde's criticism are predicated upon a
wrong premise.
However, although the question of legal tender was only incidental to the issue in
the Haw Pia case, we have shown in our decision that the power of a military
occupant to issue military currency is based, not only on the military occupant's
general power to maintain law and order recognized in article 43 of the Hague
Regulations, but also on military necessity; and said power was exercised during
the last World War not only by Germany who used in most occupied areas the
Reichskroditkassa mark, a paper currency printed in Germany and denominated
in German monetary units, but also by the Aliens in the occupied territory of
Sicily, Germany and Austria. The Combined Directives of the Combined Chiefs of
Staffs of the Supreme Allied Commander issued on June 24, 1943, April 28,
1944, and June 27, 1947, declared respectively as legal tender the yellow seal
dollars currency and the British military notes (BMN) in Sicily, the Allied military
mark and the yellow seal dollars in Germany, and the Allied military shillings in
Austria. When the Japanese Military occupant issued the Proclamation of
January 3, 1942, which declared the Japanese military notes of small
denominations up to ten pesos as legal tender at par with the Philippine peso,
the purchasing power of said notes was then the same as that of the Philippine
peso. If the Japanese war notes became depressed and valueless, it was
because the war was prolonged and lost by the Japanese contrary to their
expectation of winning the war in a short time, and not because they issued
purposely a depressed and valueless currency as legal tender. If their
expectation had been realized no question as to the validity of the Japanese
military notes as legal tender would have come up.
There was no Japanese order or decree or any particular case in which the
Japanese military occupant or agents had actually compelled all creditors to
accept in payment of pre-war debts depressed currency or Japanese war notes;
as a matter of fact several cases are still pending in our courts in which debtors
of pre-war debts had to file civil actions to compel their creditors to accept
Japanese war notes deposited by them in court in payment of pre-war obligations
which became due and payable during the occupation. What the Japanese
military occupant did in the Haw Pia case was to issue Administrative Ordinance
No. 1, dated July 31, 1942, ordering the liquidation of the seven banks of hostile
countries, among them the defendant China Banking Corporation, appointing the
Bank of Taiwan, Ltd. as liquidator of said banks and demanding the payments of
all loans, advances and other receivables of the banks which were thereby
declared due and payable to notwithstanding the terms and conditions of the
contract, in order to sequestrate the latter's assets during the war; and in the
present case the Japanese Military Administration ordered the debtors to pay to
the Japanese Enemy Property Custodian or Bank of Taiwan their debts due to
their creditors who were enemy aliens or corporations, in order to sequestrate the
money so paid. Of course the medium of payment, being a currency declared
legal tender by the same Japanese military occupant, had to be accepted by the
Bank of Taiwan to refuse to accept them; for even if they were valueless the
enemy creditors would not legally suffer the war to pay said creditors full
compensation for such sequestration through their respective governments at the
conference table, regardless of the intrinsic or extrinsic value of the money
accepted by them.
As we have stated in this connection in our decision "But be that as it may,
whatever might have been the intrinsic or extrinsic value of the Japanese warnotes which the Bank of Taiwan has received as full satisfaction of the obligation
of the appellee's debtors to it, is of no consequence in the present case." As we
have already stated, the Japanese war-notes were issued as legal tender at par
with the Philippine peso, and guaranteed by Japanese Government "which takes
full responsibility for their usage having the correct amount to back them up
(Proclamation of Jan. 3, 1942). Now that the outcome of the war has turned
against Japan, through their States or Government, payments or compensation
in Philippine peso or U. S. dollars as the case may be, for the loss or damage
inflicted on the property by the emergency war measure taken by the enemy. If
Japan had won the war or were the victor, the property or money of said banks
sequestrated or impounded by her might be retained by Japan and credited to
the respective State of which the owners of said banks were nationals, as a
payment on account of the sums payable by them as indemnity under the
treaties, and the said owners were to look for compensation to their respective
States (VI Backworth Digest of International Law, p. 232; 2 Oppenheim, 6th ed.
by Lauterpacht, page 263).
We have quoted once the view of Professor Hyde on the assumption that
Professor Hyde would not give the words "domain or territory," wherein private
property of enemy nationals may be sequestrated under the Trading with the
Enemy Act, an interpretation he seems to give now in his article, different from
that of the other writers and authorities we have also quoted and specially of the
Executive Department of the United States Government which we shall
hereinafter quote, in order to show that if the United States as well as the other
Allied countries applied and enforced during the last world war their Trading with
the Enemy Act in any territory occupied by their armed forces, as we have shown
in our decision, Japan had also the right to do the same in the Philippines by
virtue of the international law principle that "what is permitted to one belligerent is
also allowed to the other."
An agency of the Executive Branch of the United States Government, i.e., the
Alien Property Custodian, in March, 1944 recognized the validity of the liquidation
by the Japanese military authorities of branches of the National City Bank of New
York situated in Japan, Korea and in territory occupied by the Japanese military
forces, namely Tokyo, Dairen and Harbin. The Custodian expressly held that
payments made by debtors of said branch banks to the Japanese liquidator,

namely, the Yokohama Specie Bank, appointed under the Japanese Enemy
Assets Control Law (December 22, 1941), constituted valid payment of such
debts to the branch banks. The authority for the appointment of the Yokohama
Specie Bank, Limited, as such liquidator was identical with that for the
appointment of the Bank of Taiwan as liquidator of China Banking Corporation
plaintiff in the Haw Pia case.
This determination was made in the proceedings for the liquidation of the New
York Branch of the Yokohama Specie Bank conducted by the Superintendent of
Banks of the State of New York under the supervision of the United States Alien
Property Custodian, and was based upon an opinion of the General Counsel to
the Alien Property Custodian, dated March 14, 1944, in which the said General
Counsel held in part as follows:
There is in fact reason to believe that National City Bank has no cause of
action against anyone. Article III of the Enemy Assets Control Law of
Japan (December 22, 1941) provides:
When a person liable for a debt to an enemy country, an enemy national,
or others designated by the Order, performs to a person designated by the
Government, the payment of money or the delivery of articles which are
the object of the debt it shall have discharged that obligation.
By order of February 10, 1942, made pursuant to the Enemy Assets Control Law
(December 22, 1941), Yokohama Specie Bank was entrusted by the Japanese
government with the liquidation of National City Bank's branches in Japan and
occupied territory, subject to no presently relevant exceptions. Upon
appointment, Yokohama Specie Bank commenced the liquidation thereof.
Information obtained from an officer of the Department of State, recently
repatriated from Japan, indicates that liquidation of National City Bank, Japan,
has proceeded in accordance with the law quoted above. It is a fair assumption
that Yokohama Specie Bank, engaged in liquidating these branches in its
capacity as administrator, collected from itself in its capacity as a commercial
bank the moneys owing to National City Bank's foreign branches, and
consequently that the Yokohama Specie Bank branches were, in accordance
with term of Article III, supra, discharged of those obligations. The deposits of
National City branches in the Far Eastern branches of Yokohama Specie Bank
are outside the jurisdiction of the United States, and the only liability that
Yokohama Specie Bank incurred by its failure to pay was that which the
Japanese law might impose. Deutsche Bank Filiale Nurnberg v. Humphrey, 272
U. S. 517, 520 (1926). By that law, payment of the deposits to the governmental
administrator satisfied the debt owed by the depository. If the obligation was
discharged by Japanese law, no right remains to be recognized in this country,

except such as may be urged through State Department channels at the peace
table. See United States v. S. S. by Mr. Justice Holmes in an analogous case:
. . . in any view of all that had happened the only obligations of the Wiener
Bank-Verein, were those imposed by the law of Austria-Hungary, and that if
that law discharged the debt, the debt was discharged everywhere.
Zimmerman v. Sutherland, 274 U. S. 253, 256 (1927).
The opinion proceeds to state that the sequestration in question was effected
pursuant to valid and binding orders of the Japanese government and that
recognition is given by the courts of the United States to the power of a
belligerent to thus sequester property even when that power is exercised
adversely to United States nationals.United States v. White Dental Mfg. Co., 274
U. S. 398. The sequestration was held not to create any right in the National City
Bank except as may arise from subsequent treaties. As was said by Mr. Justice
Stone:
The sequestration of enemy property was within the rights of the German
Government as a belligerent power and when effected left the corporation
without right to demand its releases or compensation for its seizure, at
least until the declaration of peace . . . . United States v. S. S. White Dental
Mfg. Co., U. S. 398, 402 (1927)
(2) Prof. Hyde discussing the second point says:
In the present case the Bank of Taiwan is constantly referred to as the
"Liquidator" of the China Banking Corporation. This leads to the question
whether it properly or adequately performed its function as liquidator. The
liquidation of a corporation is synonymous with the winding up of the affairs
of the corporation. There is no proper or complete liquidation in which
debts to creditors are not settled and paid as well as assets reduced to a
liquid state. In the present case, only about ten per cent of the deposits of
foreign banks were allowed to be withdrawn.
The conduct of the liquidator in the present case had also another
significance. Its retention of money representing debts due by foreign
banks to depositors served in fact to be a convenient means of preserving
them so that they would be subjected to the Japanese Government might
later apply. Thus here was a process whereby the occupant held within its
grip something which later by a method akin to consfiscation it could ruin
the value of, contrary to the injunctions of The Hague Regulations. Looked
at in this way, the conduct of the liquidator as an agency of the Japanese
Government together with the later action of that Government united jointly
to facilitate and also effectuate the commission of an international wrong.
That wrong was of a type which Articles 43 and 46 of the Hague
Regulations of 1907 appeared to forbid.
A third conclusion is to be drawn from the same fact. There would be a
discrimination against non-Filipinos not permissible pursuant to
international law. Filipinos, axis nationals and neutrals were able to utilize
the payments received by them at a time when they had value. The foreign
bank on the other hand could not pay more than ten per cent of their
deposits and remained indebted to their depositors in full.
xxx
xxx
xxx
The refusal of the liquidator, the Bank of Taiwan, twice to release the
mortgage in the Haw Pia case stands out as a significant fact. Of course, it
is possible that the liquidator received payment of 4,563.78 pesos made by
the debtor in August 1944 merely for what it was worth. It may have been
known to the liquidator at the time that Japanese military pesos of larger
denominations that ten peso notes had not been made legal tender, or it
may have doubted whether they had been tender. Hence the liquidator
may have felt obliged, in case payment were made in such larger
Japanese notes, not to regard them as adequate for the settlement of the
debt. Or, the liquidator may have been influenced by the vastness and
improprietry of the Japanese acts of inflation which if allowed to enable the
debtor to pay her debts therewith, would have amounted to sheer robbery
of the creditor, both violative of precedent and hurtful to the prestige of the
Japanese Government. In a word, there are numerous reasons any one of
which might have served to put the liquidator on its guard, and to cause it
not leave the matter to its own later decision. Be that as it may, it is a
reasonable assumption that shrewd debtors ran to the windows of the
Bank of Taiwan in the attempt to take advantage of the decrease of the
value of the occupation currency, one peso of the Philippines being then
equivalent to at least fifteen pesos of the military notes.
The liquidation ordered by the Japanese Administrative Ordinance No. 11 of July
31, 1942, was not a complete liquidation of all the affairs of the local banks
controlled by enemy nationals, but only a liquidation of all the credits of said
banks in order to liquidate and sequestrate them. Said Ordinance only provided
that "2. The Bank of Taiwan Ltd. has been appointed liquidator of the above
banks. 3. All loans, advances and other receivables of the banks are hereby
declared due and payable notwithstanding the terms and conditions of the
contract. Debtors are given from today until September 30, 1942, to pay the
principal and interest of their obligations. All payments made thereafter shall be
charged additional interest at 3 per cent per annum, except only in special case
where they may be waived." For that reason the creditors or depositors of the
banks were allowed to withdraw restricted amounts only from their deposits as a
protective measure to prevent runs on banks owned or controlled by the enemy
nationals, which would result from mass withdrawals. And it is incorrect or
contrary to facts to say, as Professor Hyde avers, that "only about ten per cent of
the deposits of foreigners were allowed to withdrawn". For what we have found in
our decision in the Haw Pia case is the following:
That the liquidation or winding up of the business of the China Banking
Corporation and other enemy banks did not constitute a confiscation or
appropriation of their properties of the debts due them from their debtors,
but a mere sequestration of their assets during the duration of the war for
the purposes already stated, is evidenced conclusively by the following
uncontroverted facts set forth in the briefs of both parties and amici curiae:
(1) Out of the sum of about P34,000,000 collected from the debtors by the
liquidator Bank of Taiwan, the latter paid out to the depositors or creditors
of the same Bank about P9,000,000; and it is common sense that this last
amount of about P34,000,000 had it been the intention of the Japanese
Military Administration to confiscate this amount collected by the Bank of
Taiwan.
xxx
xxx
xxx
As the enemy banks were closed and had not received deposits in Japanese
Military notes during the occupation, they did not run the risk, as the other banks
did, of being responsible for such deposits in genuine Philippine currency had not
the Philippine Government declared after liberation such deposits to be of no
value. The retention by the liquidator "of money representing debts due by
foreign banks to depositors" did not, as Professor Hyde affirms, "serve in fact to
be a convenient means of preserving them so that they would be subjected to the
dangers of inflation and deterioration of currency which the Japanese
Government might later apply." As all the payments made to the Bank of Taiwan
in Japanese war notes of the credits of the enemy Banks, except about twentyseven, not ten, percent paid by the liquidator to the Banks' depositors, had been
sequestrated, said Bank could not have been subjected to the dangers of
inflation or deterioration of currency; because, we have already stated above, the
Japanese Government assumed the responsibility and is responsible for the
payment, in terms of Philippine pesos or U. S. dollars, of the foreign Bank's
credits they have collected and sequestrated, and the Banks may demand the
payment thereof through their respective Governments at the Peace Conference.
Although it is obviously immaterial whatever may have been the opinion of the
legislator on the validity or adequacy of the currency paid by Haw Pia for the
settlement of his debt, there is nothing in the record to show that the Bank of
Taiwan refused or declined twice to release the mortgage in the Haw Pia case,
as Professor Hyde affirms. What appeared in the record was that Haw Pia
alleged in his complaint filed in August, 1945, that the defendants, referring to the
China Banking Corporation because the Bank of Taiwan was only a nominal
defendant and in 1945 was no longer doing business in the Philippines, refused
and neglected to execute the deed of cancellation of mortgage of the property,
and for that reason Haw Pia had filed that action against the China Banking
Corporation. It is a fact, of which we have judicial notice, that the Bank of Taiwan
had executed deeds of cancellation of mortgages for all payments received by it
in payment of the Banks' and the enemy nationals' mortgage credits, and the
plaintiffs in the present case of Gibbs v. Rodriguez and in the case ofHongkong
Shanghai Banking Corporation v. Perez Samanillo, precisely demanded in their
action the annulment of the deed of cancellation of the defendants' mortgages
executed by the Bank of Taiwan.
(3) And, with respect to the so-called failure of the Philippine Republic to heed
certain contractual undertaking in the Inter-Allied Declaration of January 5, 1943,
Professor Hyde says in his article the following:
We now come to an important contractual undertakings by the Philippine
Republic. The Government of the Philippines undertook to invalidate all
Japanese dealings by which property in which nationals of United Nations
were interested was hurt by taking is seen in the "Inter-Allied Declaration
Against Acts of Dispossesion Committed in Territories under Enemy
Occupation or Control (with covering Statement by His Majesty's
Government in the United Kingdom and Explanatory Memorandum issued
by the Parties to the Declaration)", London, January 5, 1943, to which the
Government of the Commonwealth of the Philippines adhered on January
19, 1943.
xxx
xxx
xxx
It is not here contended that the Allied Nations contemplated on January 5,

1943 the consideration of payments made to Banks in the currency of the
occupied European countries as invalid. The inflation in these countries
had not progressed to a degree that such thoughts came to the minds of
the signatories. It is here contended, however, that property is
"dispossessed" within the meaning of the Inter-Allied Declaration where
the degree of inflation is as great as that indicated in the figure in the table
above given on page 155 of this document.
If this be a correct statement, the government participating in the

agreement of January 5, 1943, found themselves legally obliged to reach a
determination that debtors were not relieved from liability by payments of
debts to occupation authorities, when through a larger inflation such
payment would amount to practical robbery of the creditor for the benefit of
the debtor.
xxx
xxx
xxx
The Inter-Allied Declaration of January 5, 1943, in the light of the official

interpretation given to it, has a direct bearing upon the obligation assumed
by the Philippine Republic in the Haw Pia case. It is evidence of definite
undertaking by the Republic to undo the consequence of acts mutually
regarded as wrongful, and manifested in the inflationary conduct of Japan
that was contemptuous of the rights of Alien creditors growing out of debts
due them by Philippine debtors. Of direct consequence of the agreement
was the obligation on the part of the Republic by some appropriate process
to permit no local agency, judicial or other, to give effect to the Japanese
decrees. . . . Thus, when the Supreme Court, through ignorance of what
had taken place, or for any other reason, regarded as enforceable or valid
the Japanese edicts, it made itself the means by which its own country
violated an international obligation laid down by contract. . . . .
As we have already said, we have not determined in the Haw Pia case, contrary
to Professor Hyde's erroneous assumption, that debtors were relieved from
liability by payments in a greatly depreciated currency or Japanese war notes to
the occupation authorities of the pre-war debts they owed to their creditors
(national, neutral or enemy aliens).
What we have declared is that the Military Occupant had power to order the
liquidation of the hostile banks, appoint the Bank of Taiwan as liquidator and
sequestrate their assets, and that, therefore, the payment made by Haw Pia to
the Bank of Taiwan of his pre-war debt to the China Banking Corporation was
valid and extinguished his obligation to the latter; and for that reason this Court
did not deem it necessary to discuss and pass upon the effect on said case of
the adherence by the late President Quezon in behalf of the Commonwealth of
the Philippines to the United Nations Declaration of January 5, 1943, in London.
Because in said declaration the United Nations "stated their intention to do their
utmost to defeat the methods of dispossession practiced by the Governments
with which they are at war against the countries and people who have so
wantonly assaulted and despoiled", and "reserved all their rights to declare
invalid, but did not actually invalidate, any transfers of, or dealing with, property,
rights and interest of any description whatsoever" in the occupied territories
which have taken "the form of open looting or plunder"; and we have held that
the acts of the Japanese occupant involved in the Haw Pia case did not
constitute a confiscation but a mere sequestration of private granted such
occupant under International Law.
Besides, as the governments which were parties to that agreement did not bind
themselves, but only reserved alltheir rights, to invalidate such acts, the
Government of the Philippines did not exercise that reserve right* to declare
invalid the payments made to the Bank of Taiwan by debtors of their debts to the
enemy banks or nationals. On the contrary it enacted in 1945 Commonwealth Act
No. 727 which provided that "payment on demand or tendered and accepted
during the period of the Japanese invasion on obligation incurred or contracted
prior to such period shall be considered valid." Although said Act was vetoed by
President Truman on the assumption that it was a currency statue and required
his approval, it is obvious, without necessity of discussing whether or not said Act
727 was really a currency measure, that it was a declaration of the policy of the
Legislative and Executive Departments of the Government.
Wherefore, we find both the first ground as well as the second ground of the
motion for reconsideration based on Professor Charles Cheney Hyde's
contentions submitted by the petitioners without merit, and deny said motion for
reconsideration.
Moran, C.J., Paras, Pablo, Bengzon, Montemayor, A. Reyes, and Bautista
Angelo, JJ., concur.
TUASON, J., dissenting:

I dissent from the majority opinion on the grounds stated in Mr. Justice Hilado's
dissenting opinion, in which I joined, in Haw Pia v. China Banking Corporation, 45
Official Gazette Supp. No. 9, 229, and in my dissents in other allied case.
epublic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 182498
December 3, 2009
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP);

Police Chief Superintendent RAUL CASTAEDA, Chief, Criminal
Investigation and Detection Group (CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response
(PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM,
PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA,
JR., Attorney-in-Fact,Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the decision dated March 7,
2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA
decision confirmed the enforced disappearance of Engineer Morced N. Tagitis
(Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B.
Tagitis (respondent). The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court
hereby FINDS that this is an "enforced disappearance" within the meaning of the
United Nations instruments, as used in the Amparo Rules. The privileges of the
writ of amparo are hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who should order COL. JOSE
VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent
GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP, (b) COL.
AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c) respondent SR.
SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and
Emergency Response, to aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect the life, liberty and
security of Engr. Morced Tagitis, but also to extend the privileges of the writ of
amparo to Engr. Morced Tagitis and his family, and to submit a monthly report of
their actions to this Court, as a way of PERIODIC REVIEW to enable this Court
to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN.
ALEXANDER YANO, Commanding General, Philippine Army, and as to
respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet,

Zamboanga City, both being with the military, which is a separate and distinct
organization from the police and the CIDG, in terms of operations, chain of
command and budget.
This Decision reflects the nature of the Writ of Amparo a protective remedy
against violations or threats of violation against the rights to life, liberty and
security.3 It embodies, as a remedy, the courts directive to police agencies to
undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced disappearance for
purposes of imposing the appropriate remedies to address the disappearance.
Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission,
in an enforced disappearance, as a measure of the remedies this Court shall
craft, among them, the directive to file the appropriate criminal and civil cases
against the responsible parties in the proper courts. Accountability, on the other
hand, refers to the measure of remedies that should be addressed to those who
exhibited involvement in the enforced disappearance without bringing the level of
their complicity to the level of responsibility defined above; or who are imputed
with knowledge relating to the enforced disappearance and who carry the burden
of disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance. In all
these cases, the issuance of the Writ of Amparo is justified by our primary goal of
addressing the disappearance, so that the life of the victim is preserved and his
liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the
unique situations that call for the issuance of the writ, as well as the
considerations and measures necessary to address these situations, may not at
all be the same as the standard measures and procedures in ordinary court
actions and proceedings. In this sense, the Rule on the Writ of Amparo4 (Amparo
Rule) issued by this Court is unique. The Amparo Rule should be read, too, as a
work in progress, as its directions and finer points remain to evolve through time
and jurisprudence and through the substantive laws that Congress may
promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They immediately checkedin at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his
return trip the following day to Zamboanga. When Kunnong returned from this
errand, Tagitis was no longer around.5 The receptionist related that Tagitis went
out to buy food at around 12:30 in the afternoon and even left his room key with
the desk.6 Kunnong looked for Tagitis and even sent a text message to the
latters Manila-based secretary who did not know of Tagitis whereabouts and
activities either; she advised Kunnong to simply wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP
professor of Muslim studies and Tagitis fellow student counselor at the IDB,
reported Tagitis disappearance to the Jolo Police Station.8 On November 7,
2007, Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis disappearance.9
More than a month later (on December 28, 2007), the respondent filed a Petition
for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty.
Felipe P. Arcilla.10 The petition was directed against Lt. Gen. Alexander Yano,
Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine
National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation
and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police AntiCrime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMMPNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively
referred to as petitioners]. After reciting Tagitis personal circumstances and the
facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly men
believed to be police intelligence operatives, forcibly took him and boarded the
latter on a motor vehicle then sped away without the knowledge of his student,
Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the
pension house, and was surprised to find out that subject Engr. Tagitis cannot
[sic] be contacted by phone and was not also around and his room was closed
and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic]
assisted him to open the room of Engr. Tagitis, where they discovered that the
personal belongings of Engr. Tagitis, including cell phones, documents and other
personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts
in trying to locate the whereabouts of Engr. Tagitis and when he reported the
matter to the police authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could have been abducted by the Abu Sayyaf group and other
groups known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by
phone and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with
the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought
help from some of their friends in the military who could help them find/locate the
whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be
identified that Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of
the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondents] request and pleadings failed to produce any positive
results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by
the police that her husband, subject of the petition, was not missing but was with
another woman having good time somewhere, which is a clear indication of the
[petitioners] refusal to help and provide police assistance in locating her missing
husband;
19. The continued failure and refusal of the [petitioners] to release and/or turnover subject Engr. Tagitis to his family or even to provide truthful information to
[the respondent] of the subjects whereabouts, and/or allow [the respondent] to
visit her husband Engr. Morced Tagitis, caused so much sleepless nights and
serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to
the ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to
these places thereby resorting her to borrowings and beggings [sic] for financial
help from friends and relatives only to try complying [sic] to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons
that she should approach, but assured her not to worry because her husband is
[sic] in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the
[respondents] request for help and failure and refusal of the [petitioners] to
extend the needed help, support and assistance in locating the whereabouts of
Engr. Tagitis who had been declared missing since October 30, 2007 which is
almost two (2) months now, clearly indicates that the [petitioners] are actually in
physical possession and custody of [respondents] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but
to no avail, and under the circumstances, [the respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of the [petitioners], their intelligence
operatives and the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO. [Emphasis
supplied]
On the same day the petition was filed, the CA immediately issued the Writ of
Amparo, set the case for hearing on January 7, 2008, and directed the petitioners
to file their verified return within seventy-two (72) hours from service of the writ.11
In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis alleged abduction.
They argued that the allegations of the petition were incomplete and did not
constitute a cause of action against them; were baseless, or at best speculative;
and were merely based on hearsay evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated
that: he did not have any personal knowledge of, or any participation in, the
alleged disappearance; that he had been designated by President Gloria
Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to
address concerns about extralegal killings and enforced disappearances; the
Task Force, inter alia, coordinated with the investigators and local police, held
case conferences, rendered legal advice in connection to these cases; and gave
the following summary:13
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional Office
ARMM submitted a report on the alleged disappearance of one Engr.
Morced Tagitis. According to the said report, the victim checked-in at ASY
Pension House on October 30, 2007 at about 6:00 in the morning and then
roamed around Jolo, Sulu with an unidentified companion. It was only after
a few days when the said victim did not return that the matter was reported
to Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of the said missing
person, but to no avail. The said PPO is still conducting investigation that
will lead to the immediate findings of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to
the Director, CIDG. The said report stated among others that: subject
person attended an Education Development Seminar set on October 28,
2007 conducted at Ateneo de Zamboanga, Zamboanga City together with
a Prof. Matli. On October 30, 2007, at around 5:00 oclock in the morning,
Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty
Cruise, he was then billeted at ASY Pension House. At about 6:15 oclock
in the morning of the same date, he instructed his student to purchase a
fast craft ticket bound for Zamboanga City and will depart from Jolo, Sulu
on October 31, 2007. That on or about 10:00 oclock in the morning, Engr.
Tagitis left the premises of ASY Pension House as stated by the cashier of
the said pension house. Later in the afternoon, the student instructed to
purchase the ticket arrived at the pension house and waited for Engr.
Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is
now conducting a continuous case build up and information gathering to
locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all
divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or
illegally detained by covert CIDG-PNP Intelligence Operatives since
October 30, 2007, but after diligent and thorough search, records show
that no such person is being detained in CIDG or any of its department or
divisions.
5. On this particular case, the Philippine National Police exhausted all possible
efforts, steps and actions available under the circumstances and continuously
search and investigate [sic] the instant case. This immense mandate, however,
necessitates the indispensable role of the citizenry, as the PNP cannot stand
alone without the cooperation of the victims and witnesses to identify the
perpetrators to bring them before the bar of justice and secure their conviction in
court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the
Writ of Amparo, he caused the following:14
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately directed
the Investigation Division of this Group [CIDG] to conduct urgent investigation on
the alleged enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at
around six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his
student identified as Arsimin Kunnong of the Islamic Development Bank who was
also one of the participants of the said seminar. He checked in at ASY pension
house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic]
unidentified companion. At around six oclock in the morning of even date, Engr.
Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City.
In the afternoon of the same date, Kunnong arrived at the pension house
carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to
be found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who
reported the incident to the police. The CIDG is not involved in the
disappearance of Engr. Morced Tagitis to make out a case of an enforced
disappearance which presupposes a direct or indirect involvement of the
government.
That herein [petitioner] searched all divisions and departments for a person
named Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained
by covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a
diligent and thorough research records show that no such person is being
detained in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or persons responsible
therefore.
Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that:16
xxxx
That, I and our men and women in PACER vehemently deny any participation in
the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS
on October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that
the alleged abduction was perpetrated by elements of PACER nor was there any
indication that the alleged abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence
operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or
eradicating kidnap-for-ransom groups which until now continue to be one of the
menace of our society is a respondent in kidnapping or illegal detention case.
Simply put, our task is to go after kidnappers and charge them in court and to
abduct or illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the
Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active
measures to investigate, locate/search the subject, identify and apprehend the
persons responsible, to recover and preserve evidence related to the
disappearance of ENGR. MORCED TAGITIS, which may aid in the prosecution
of the person or persons responsible, to identify witnesses and obtain statements
from them concerning the disappearance and to determine the cause, manner,
location and time of disappearance as well as any pattern or practice that may
have brought about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the disappearance
of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax
his written report.
That the investigation and measures being undertaken to locate/search the
subject in coordination with Police Regional Office, Autonomous Region of
Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and
other AFP and PNP units/agencies in the area are ongoing with the instruction
not to leave any stone unturned so to speak in the investigation until the
perpetrators in the instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT
OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen.
Goltiao), also submitted his affidavit detailing the actions that he had taken upon
receipt of the report on Tagitis disappearance, viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during
the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of
reported enforced disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office

reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on
November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an
employee of Islamic Development Bank, appeared before the Office of the Chief
of Police, Jolo Police Station, and reported the disappearance of Engr. Morced
Tagitis, scholarship coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or
taken by any member of the Philippine National Police but rather he just
disappeared from ASY Pension House situated at Kakuyagan Village, Village,
Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or
arrest;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket at
the Office of Weezam Express, however, when the student returned back to ASY
Pension House, he no longer found Engr. Tagitis there and when he immediately
inquired at the information counter regarding his whereabouts [sic], the person in
charge in the counter informed him that Engr. Tagitis had left the premises on
October 30, 2007 around 1 oclock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call and
text messages to conduct investigation [sic] to determine the whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or
omission, to recover and preserve evidence related to the disappearance of
Engr. Tagitis, to identify witnesses and obtain statements from them concerning
his disappearance, to determine the cause and manner of his disappearance, to
identify and apprehend the person or persons involved in the disappearance so
that they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection
Management Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22,
2007 directing PD Sulu PPO to conduct joint investigation with CIDG and
CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28,
2007 directing PD Sulu PPO to expedite compliance to my previous
directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO

reiterating our series of directives for investigation and directing him to
undertake exhaustive coordination efforts with the owner of ASY Pension
House and student scholars of IDB in order to secure corroborative
statements regarding the disappearance and whereabouts of said
personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO
directing him to maximize efforts to establish clues on the whereabouts of
Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and
Arsimin Kunnong and/or whenever necessary, for them to voluntarily
submit for polygraph examination with the NBI so as to expunge all clouds
of doubt that they may somehow have knowledge or idea to his
disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional
Chief, Criminal Investigation and Detection Group, Police Regional Office
9, Zamboanga City, requesting assistance to investigate the cause and
unknown disappearance of Engr. Tagitis considering that it is within their
area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated
December 30, 2007 addressed to PD Sulu PPO requiring them to submit
complete investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to
conduct investigation [sic] on the matter to determine the whereabouts of Engr.
Tagitis and the circumstances related to his disappearance and submitted the
following:
a) Progress Report dated November 6, 2007 through Radio Message Cite
No. SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that
they are still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police,
Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as
shown in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP

informing him of the facts of the disappearance and the action being taken
by our office;
b) Memorandum dated November 6, 2007 addressed to the Director,
Directorate for Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director,
DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be
determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen.
Goltiao as the officer in command of the area of disappearance to form TASK
FORCE TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt.
Ajirim) to head TASK FORCE TAGITIS.19 The CA subsequently set three hearings
to monitor whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in
handling the disappearance of Tagitis.20 As planned, (1) the first hearing would be
to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to
mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would
be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of
Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA
an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo
Police Station, stating a possible motive for Tagitis disappearance.22 The
intelligence report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic
Studies at the University of the Philippines and an Honorary Student Counselor
of the IDB Scholarship Program in the Philippines, who told the Provincial
Governor of Sulu that:23
[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis
has reportedly taken and carried away more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his [personal] bank accounts by
the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was]
intended for the IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to
be responsible, he personally went to the CIDG office in Zamboanga City to
conduct an ocular inspection/investigation, particularly of their detention
cells.24 PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently denied any
knowledge or complicity in any abduction.25 He further testified that prior to the
hearing, he had already mobilized and given specific instructions to their
supporting units to perform their respective tasks; that they even talked to, but
failed to get any lead from the respondent in Jolo.26 In his submitted investigation
report dated January 16, 2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and observation at the Headquarters
9 RCIDU and the documents at hand, it is my own initial conclusion that the
9RCIDU and other PNP units in the area had no participation neither [sic]
something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last
October 30, 2007. Since doubt has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB that was reportedly deposited
in the personal account of Engr. Tagitis by the IDB central office in Jeddah,
Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or
sour grape among students who are applying for the scholar [sic] and were
denied which was allegedly conducted/screened by the subject being the
coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that
the motive behind the disappearance of the subject might be due to the funds he
maliciously spent for his personal interest and wanted to elude responsibilities
from the institution where he belong as well as to the Islamic student scholars
should the statement of Prof. Matli be true or there might be a professional
jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in the
area particularly the CIDG are exerting their efforts and religiously doing their
tasked [sic] in the conduct of its intelligence monitoring and investigation for the
early resolution of this instant case. But rest assured, our office, in coordination
with other law-enforcement agencies in the area, are continuously and religiously
conducting our investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force

Tagitis did not appear to be exerting extraordinary efforts in resolving Tagitis
disappearance on the following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after
the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had
requested for clear photographs when it should have been standard
operating procedure in kidnappings or disappearances that the first
agenda was for the police to secure clear pictures of the missing person,
Engr. Morced Tagitis, for dissemination to all parts of the country and to
neighboring countries. It had been three (3) months since GEN. JOEL
GOLTIAO admitted having been informed on November 5, 2007 of the
alleged abduction of Engr. Morced Tagitis by alleged bad elements of the
CIDG. It had been more than one (1) month since the Writ of Amparo had
been issued on December 28, 2007. It had been three (3) weeks when
battle formation was ordered through Task Force Tagitis, on January 17,
2008. It was only on January 28, 2008 when the Task Force Tagitis
requested for clear and recent photographs of the missing person, Engr.
Morced Tagitis, despite the Task Force Tagitis claim that they already had
an "all points bulletin", since November 5, 2007, on the missing person,
Engr. Morced Tagitis. How could the police look for someone who
disappeared if no clear photograph had been disseminated?
(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM informed this
Court that P/Supt KASIM was designated as Col. Ahirom Ajirims
replacement in the latters official designated post. Yet, P/Supt KASIMs
subpoena was returned to this Court unserved. Since this Court was made
to understand that it was P/Supt KASIM who was the petitioners unofficial
source of the military intelligence information that Engr. Morced Tagitis was
abducted by bad elements of the CIDG (par. 15 of the Petition), the close
contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE
TAGITIS should have ensured the appearance of Col. KASIM in response
to this courts subpoena and COL. KASIM could have confirmed the
military intelligence information that bad elements of the CIDG had
abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her to
"specify" her allegations, "particularly paragraph 15 of the petition."29 This friend
also told her that her husband "[was] in good hands."30 The respondent also
testified that she sought the assistance of her former boss in Davao City, Land
Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is
holding [her husband], Engineer Morced Tagitis."31 The respondent recounted
that she went to Camp Katitipan in Davao City where she met Col. Julasirim
Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who
were then with her) a "highly confidential report" that contained the "alleged
activities of Engineer Tagitis" and informed her that her husband was abducted
because "he is under custodial investigation" for being a liaison for "J.I. or
Jemaah Islamiah."32
On January 17, 2008, the respondent on cross-examination testified that she is
Tagitis second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife.33 She last communicated with her husband on
October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then
on his way to Jolo, Sulu, from Zamboanga City.34
The respondent narrated that she learned of her husbands disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her
that she had not heard from her father since the time they arranged to meet in
Manila on October 31, 2007.35 The respondent explained that it took her a few
days (or on November 5, 2007) to personally ask Kunnong to report her
husbands disappearance to the Jolo Police Station, since she had the
impression that her husband could not communicate with her because his
cellular phones battery did not have enough power, and that he would call her
when he had fully-charged his cellular phones battery.36
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan,
Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga through her
boss.37 She also testified that she was with three other people, namely, Mrs.
Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when
Col. Kasim read to them the contents of the "highly confidential report" at Camp
Katitipan, Davao City. The respondent further narrated that the report indicated
that her husband met with people belonging to a terrorist group and that he was
under custodial investigation. She then told Col. Kasim that her husband was a
diabetic taking maintenance medication, and asked that the Colonel relay to the
persons holding him the need to give him his medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
reports,39 signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col.
Kasim of the PNP. In her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel
Talbin. Our flight from Davao City is 9:00 oclock in the morning; we arrived at
Zamboanga Airport at around 10:00 oclock. We [were] fetched by the two staffs
of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He
interviewed me and got information about the personal background of Engr.
Morced N. Tagitis. After he gathered all information, he revealed to us the
contents of text messages they got from the cellular phone of the subject Engr.
Tagitis. One of the very important text messages of Engr. Tagitis sent to his
daughter Zaynah Tagitis was that she was not allowed to answer any telephone
calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of
Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as guests
to the city. His two staffs accompanied us to the mall to purchase our plane ticket
going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning,
Col. Ancanan and I were discussing some points through phone calls. He
assured me that my husband is alive and hes last looked [sic] in Talipapao, Jolo,
Sulu. Yet I did not believe his given statements of the whereabouts of my
husband, because I contacted some of my friends who have access to the
groups of MILF, MNLF and ASG. I called up Col. Ancanan several times begging
to tell me the exact location of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because
the PNP, Jolo did not give me any information of the whereabouts of my
husband. Col. Ancanan told me that "Sana ngayon alam mo na kung saan ang
kinalalagyan ng asawa mo." When I was in Zamboanga, I was thinking of
dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit for
the reason that the Chief of Police of Jolo told me not to contact any AFP officials
and he promised me that he can solve the case of my husband (Engr. Tagitis)
within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband
Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows:41
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch,

Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer
Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007.
I asked him a favor to contact his connections in the military in Jolo, Sulu where
the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up
Camp Katitipan located in Davao City looking for high-ranking official who can
help me gather reliable information behind the abduction of subject Engineer
Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador
introduced me to Col. Kasim and we had a short conversation. And he assured
me that hell do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that
I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent,
confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three friends.
That was the time that Col. Kasim read to us the confidential report that Engr.
Tagitis was allegedly connected [with] different terrorist [groups], one of which he
mentioned in the report was OMAR PATIK and a certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still remember. It
was written in a long bond paper with PNP Letterhead. It was not shown to us,
yet Col. Kasim was the one who read it for us.
He asked a favor to me that "Please dont quote my Name! Because this is a raw
report." He assured me that my husband is alive and he is in the custody of the
military for custodial investigation. I told him to please take care of my husband
because he has aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from
Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin
(Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her
husband, in relation particularly with the information she received from Col.
Kasim. Mrs. Talbin testified that she was with the respondent when she went to
Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to meet
Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told
them that there was a report and that he showed them a series of text messages
from Tagitis cellular phone, which showed that Tagitis and his daughter would
meet in Manila on October 30, 2007.43
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim.44 The respondent asked Col.
Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that
Tagitis was in good hands, although he was not certain whether he was with the
PNP or with the Armed Forces of the Philippines (AFP). She further recounted
that based on the report Col. Kasim read in their presence, Tagitis was under
custodial investigation because he was being charged with terrorism; Tagitis in
fact had been under surveillance since January 2007 up to the time he was
abducted when he was seen talking to Omar Patik and a certain Santos of
Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim also told them that he
could not give a copy of the report because it was a "raw report."45 She also
related that the Col. Kasim did not tell them exactly where Tagitis was being kept,
although he mentioned Talipapao, Sulu.Prof., lalabas din yan."50 Prof. Matli also
emphasized that despite what his January 4, 2008 affidavit indicated,51 he never
told PS Supt. Pingay, or made any accusation, that Tagitis took away money
entrusted to him.52 Prof. Matli confirmed, however, that that he had received an email report53 from Nuraya Lackian of the Office of Muslim Affairs in Manila that the
IDB was seeking assistance of the office in locating the funds of IDB scholars
deposited in Tagitis personal account.54
On cross-examination by the respondents counsel, Prof. Matli testified that his
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him
to sign it.55 Prof Matli clarified that although he read the affidavit before signing it,
he "was not so much aware of [its] contents."56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had
stated that Tagitis was in the custody of either the military or the PNP.57 Col.
Kasim categorically denied the statements made by the respondent in her
narrative report, specifically: (1) that Tagitis was seen carrying boxes of
medicines as supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent that "your husband
is in good hands" and is "probably taken cared of by his armed abductors;" and
(3) that Tagitis was under custodial investigation by the military, the PNP or the
CIDG Zamboanga City.58 Col. Kasim emphasized that the "informal letter" he
received from his informant in Sulu did not indicate that Tagitis was in the custody
of the CIDG.59 He also stressed that the information he provided to the
respondent was merely a "raw report" sourced from "barangay intelligence" that
still needed confirmation and "follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a "civilian asset," through
a letter which he considered as "unofficial."61 Col. Kasim stressed that the letter
was only meant for his "consumption" and not for reading by others.62 He testified
further that he destroyed the letter right after he read it to the respondent and her
companions because "it was not important to him" and also because the
information it contained had no importance in relation with the abduction of
Tagitis.63He explained that he did not keep the letter because it did not contain
any information regarding the whereabouts of Tagitis and the person(s)
responsible for his abduction.64
In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to
disprove the respondents allegation that Tagitis was in the custody of CIDGZamboanga City.65 Col. Pante clarified that the CIDG was the "investigative arm"
of the PNP, and that the CIDG "investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered as heinous
crimes."66 Col. Pante further testified that the allegation that 9 RCIDU personnel
were involved in the disappearance of Tagitis was baseless, since they did not
conduct any operation in Jolo, Sulu before or after Tagitis reported
disappearance.67 Col. Pante added that the four (4) personnel assigned to the
Sulu CIDT had no capability to conduct any "operation," since they were only
assigned to investigate matters and to monitor the terrorism situation.68 He
denied that his office conducted any surveillance on Tagitis prior to the latters
disappearance.69 Col. Pante further testified that his investigation of Tagitis
disappearance was unsuccessful; the investigation was "still facing a blank wall"
on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision71 confirming that the disappearance
of Tagitis was an "enforced disappearance" under the United Nations (UN)
Declaration on the Protection of All Persons from Enforced
Disappearances.72 The CA ruled that when military intelligence pinpointed the
investigative arm of the PNP (CIDG) to be involved in the abduction, the missingperson case qualified as an enforced disappearance. The conclusion that the
CIDG was involved was based on the respondents testimony, corroborated by
her companion, Mrs. Talbin. The CA noted that the information that the CIDG, as
the police intelligence arm, was involved in Tagitis abduction came from no less
than the military an independent agency of government. The CA thus greatly
relied on the "raw report" from Col. Kasims asset, pointing to the CIDGs
involvement in Tagitis abduction. The CA held that "raw reports" from an "asset"
carried "great weight" in the intelligence world. It also labeled as "suspect" Col.
Kasims subsequent and belated retraction of his statement that the military, the
police, or the CIDG was involved in the abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable" and "a bedlam of
speculation" police theories painting the disappearance as "intentional" on the
part of Tagitis. He had no previous brushes with the law or any record of
overstepping the bounds of any trust regarding money entrusted to him; no
student of the IDB scholarship program ever came forward to complain that he or
she did not get his or her stipend. The CA also found no basis for the police
theory that Tagitis was "trying to escape from the clutches of his second wife," on
the basis of the respondents testimony that Tagitis was a Muslim who could have
many wives under the Muslim faith, and that there was "no issue" at all when the
latter divorced his first wife in order to marry the second. Finally, the CA also
ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary
as the cause for Tagitis disappearance, since the respondent, the police and the
military noted that there was no acknowledgement of Tagitis abduction or
demand for payment of ransom the usual modus operandi of these terrorist
groups.
Based on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante,
PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security of
Tagitis, with the obligation to provide monthly reports of their actions to the CA. At
the same time, the CA dismissed the petition against the then respondents from
the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the
finding that it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the
CA denied the motion in its Resolution of April 9, 2008.73
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the
petitioners mainly dispute the sufficiency in form and substance of the Amparo
petition filed before the CA; the sufficiency of the legal remedies the respondent
took before petitioning for the writ; the finding that the rights to life, liberty and
security of Tagitis had been violated; the sufficiency of evidence supporting the
conclusion that Tagitis was abducted; the conclusion that the CIDG Zamboanga
was responsible for the abduction; and, generally, the ruling that the respondent
discharged the burden of proving the allegations of the petition by substantial
evidence.74
THE COURTS RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondents Amparo
petition, the petitioners contend that the petition violated Section 5(c), (d), and (e)
of the Amparo Rule. Specifically, the petitioners allege that the respondent failed
to:
1) allege any act or omission the petitioners committed in violation of
Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondents source of
information;
3) allege that the abduction was committed at the petitioners instructions
or with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to
have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis disappearance;
and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege,
among others (in terms of the portions the petitioners cite):75
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal

circumstances, and addresses of the investigating authority or individuals,
as well as the manner and conduct of the investigation, together with any
report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete in
every detail in stating the threatened or actual violation of a victims rights. As in
any other initiatory pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details.76 In an Amparo
petition, however, this requirement must be read in light of the nature and
purpose of the proceeding, which addresses a situation of uncertainty; the
petitioner may not be able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or arrest him or her, or
where the victim is detained, because these information may purposely be
hidden or covered up by those who caused the disappearance. In this type of
situation, to require the level of specificity, detail and precision that the petitioners
apparently want to read into the Amparo Rule is to make this Rule a token
gesture of judicial concern for violations of the constitutional rights to life, liberty
and security.
To read the Rules of Court requirement on pleadings while addressing the unique
Amparo situation, the test in reading the petition should be to determine whether
it contains the details available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victims rights to life,
liberty and security through State or private party action. The petition should
likewise be read in its totality, rather than in terms of its isolated component parts,
to determine if the required elements namely, of the disappearance, the State
or private action, and the actual or threatened violations of the rights to life,
liberty or security are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging
in normal activities, and thereafter was nowhere to be found despite efforts to
locate him. The petition alleged, too, under its paragraph 7, in relation to
paragraphs 15 and 16, that according to reliable information, police operatives
were the perpetrators of the abduction. It also clearly alleged how Tagitis rights
to life, liberty and security were violated when he was "forcibly taken and boarded
on a motor vehicle by a couple of burly men believed to be police intelligence
operatives," and then taken "into custody by the respondents police intelligence
operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga
City, x x x held against his will in an earnest attempt of the police to involve and
connect [him] with different terrorist groups."77
These allegations, in our view, properly pleaded ultimate facts within the
pleaders knowledge about Tagitis disappearance, the participation by agents of
the State in this disappearance, the failure of the State to release Tagitis or to
provide sufficient information about his whereabouts, as well as the actual
violation of his right to liberty. Thus, the petition cannot be faulted for any failure
in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the
summary nature of the proceedings for the writ and to facilitate the resolution of
the petition, the Amparo Rule incorporated the requirement for supporting
affidavits, with the annotation that these can be used as the affiants direct
testimony.78 This requirement, however, should not be read as an absolute one
that necessarily leads to the dismissal of the petition if not strictly followed.
Where, as in this case, the petitioner has substantially complied with the
requirement by submitting a verified petition sufficiently detailing the facts relied
upon, the strict need for the sworn statement that an affidavit represents is
essentially fulfilled. We note that the failure to attach the required affidavits was
fully cured when the respondent and her witness (Mrs. Talbin) personally testified
in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to
and flesh out the allegations of the petition. Thus, even on this point, the petition
cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of the
investigation. Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities undertook in relation with
the reported disappearance.79
We reject the petitioners argument that the respondents petition did not comply
with the Section 5(d) requirements of the Amparo Rule, as the petition specifies
in its paragraph 11 that Kunnong and his companions immediately reported
Tagitis disappearance to the police authorities in Jolo, Sulu as soon as they were
relatively certain that he indeed had disappeared. The police, however, gave
them the "ready answer" that Tagitis could have been abducted by the Abu
Sayyaf group or other anti-government groups. The respondent also alleged in
paragraphs 17 and 18 of her petition that she filed a "complaint" with the PNP
Police Station in Cotobato and in Jolo, but she was told of "an intriguing tale" by
the police that her husband was having "a good time with another woman." The
disappearance was alleged to have been reported, too, to no less than the
Governor of the ARMM, followed by the respondents personal inquiries that
yielded the factual bases for her petition.80
These allegations, to our mind, sufficiently specify that reports have been made
to the police authorities, and that investigations should have followed. That the
petition did not state the manner and results of the investigation that the Amparo
Rule requires, but rather generally stated the inaction of the police, their failure to
perform their duty to investigate, or at the very least, their reported failed efforts,
should not be a reflection on the completeness of the petition. To require the
respondent to elaborately specify the names, personal circumstances, and
addresses of the investigating authority, as well the manner and conduct of the
investigation is an overly strict interpretation of Section 5(d), given the
respondents frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the allegations of the
petition on the investigations undertaken are sufficiently complete for purposes of
bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition that
otherwise is not supported by sufficient allegations to constitute a proper cause
of action as a means to "fish" for evidence.81 The petitioners contend that the
respondents petition did not specify what "legally available efforts were taken by
the respondent," and that there was an "undue haste" in the filing of the petition
when, instead of cooperating with authorities, the respondent immediately
invoked the Courts intervention.
We do not see the respondents petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the
present case) allege "the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission." The following allegations of the respondents petition
duly outlined the actions she had taken and the frustrations she encountered,
thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly men
believed to be police intelligence operatives, forcibly took him and boarded the
latter on a motor vehicle then sped away without the knowledge of his student,
Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted
efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported
the matter to the police authorities in Jolo, he was immediately given a ready
answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group
and other groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone
and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of
the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the
ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to
find her husband, but [the respondents] request and pleadings failed to produce
any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including the police headquarters in Davao City, in
Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places
have been visited by the [respondent] in search for her husband, which entailed
expenses for her trips to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives only to try complying to
the different suggestions of these police officers, despite of which, her efforts
produced no positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but
to no avail, and under the circumstances, [respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of [the petitioners], their intelligence
operatives and the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondents petition for the Writ
of Amparo is sufficient in form and substance and that the Court of Appeals had
every reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule
on the Writ of Amparo in an enforced disappearance situation. For a deeper
appreciation of the application of this Rule to an enforced disappearance
situation, a brief look at the historical context of the writ and enforced
disappearances would be very helpful.
The phenomenon of enforced disappearance arising from State action first
attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree
of December 7, 1941.82 The Third Reichs Night and Fog Program, a State policy,
was directed at persons in occupied territories "endangering German security";
they were transported secretly to Germany where they disappeared without a
trace. In order to maximize the desired intimidating effect, the policy prohibited
government officials from providing information about the fate of these targeted
persons.83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced,
shocking and outraging the world when individuals, numbering anywhere from
6,000 to 24,000, were reported to have "disappeared" during the military regime
in Argentina. Enforced disappearances spread in Latin America, and the issue
became an international concern when the world noted its widespread and
systematic use by State security forces in that continent under Operation
Condor84 and during the Dirty War85 in the 1970s and 1980s. The escalation of the
practice saw political activists secretly arrested, tortured, and killed as part of
governments counter-insurgency campaigns. As this form of political brutality

became routine elsewhere in the continent, the Latin American media
standardized the term "disappearance" to describe the phenomenon. The victims
of enforced disappearances were called the "desaparecidos,"86 which literally
means the "disappeared ones."87 In general, there are three different kinds of
"disappearance" cases:
1) those of people arrested without witnesses or without positive
identification of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate
warrant and held in complete isolation for weeks or months while their
families are unable to discover their whereabouts and the military
authorities deny having them in custody until they eventually reappear in
one detention center or another; and
3) those of victims of "salvaging" who have disappeared until their lifeless
bodies are later discovered.88
In the Philippines, enforced disappearances generally fall within the first two
categories,89 and 855 cases were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and
127 were found dead. During former President Corazon C. Aquinos term, 820
people were reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced alive and 97
were found dead. The number of enforced disappearances dropped during
former President Fidel V. Ramos term when only 87 cases were reported, while
the three-year term of former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization, reports that as of
March 31, 2008, the records show that there were a total of 193 victims of
enforced disappearance under incumbent President Gloria M. Arroyos
administration. The Commission on Human Rights records show a total of 636
verified cases of enforced disappearances from 1985 to 1993. Of this number,
406 remained missing, 92 surfaced alive, 62 were found dead, and 76 still have
undetermined status.90 Currently, the United Nations Working Group on Enforced
or Involuntary Disappearance91 reports 619 outstanding cases of enforced or
involuntary disappearances covering the period December 1, 2007 to November
30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal killings
and enforced disappearances or threats thereof."93 We note that although the writ
specifically covers "enforced disappearances," this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court Committee on
the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule
initially considered providing an elemental definition of the concept of enforced
disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or
formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the rules,
definite rules concerning the same.
CHIEF JUSTICE PUNO: As things stand, there is no law penalizing
extrajudicial killings and enforced disappearances so initially also we have to
[come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings and
disappearances will define the jurisdiction of the courts. So well have to agree
among ourselves about the nature of killings and disappearances for instance, in
other jurisdictions, the rules only cover state actors. That is an element
incorporated in their concept of extrajudicial killings and enforced
disappearances. In other jurisdictions, the concept includes acts and omissions
not only of state actors but also of non state actors. Well, more specifically in the
case of the Philippines for instance, should these rules include the killings, the
disappearances which may be authored by let us say, the NPAs or the leftist
organizations and others. So, again we need to define the nature of the
extrajudicial killings and enforced disappearances that will be covered by these
rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of
Representatives96 and in the Senate97 on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these
terms in the Rule. The Committee instead focused on the nature and scope of
the concerns within its power to address and provided the appropriate remedy
therefor, mindful that an elemental definition may intrude into the ongoing
legislative efforts.98
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws.99 The simple reason
is that the Legislature has not spoken on the matter; the determination of what
acts are criminal and what the corresponding penalty these criminal acts should
carry are matters of substantive law that only the Legislature has the power to
enact under the countrys constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial
killings and enforced disappearances, however, the Supreme Court is not
powerless to act under its own constitutional mandate to promulgate "rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts,"100 since extrajudicial killings and enforced
disappearances, by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty and security.
Although the Courts power is strictly procedural and as such does not diminish,
increase or modify substantive rights, the legal protection that the Court can
provide can be very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby directly compel
the public authorities to act on actual or threatened violations of constitutional
rights. To state the obvious, judicial intervention can make a difference even if
only procedurally in a situation when the very same investigating public
authorities may have had a hand in the threatened or actual violations of
constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do
not rule on any issue of criminal culpability for the extrajudicial killing or enforced
disappearance. This is an issue that requires criminal action before our criminal
courts based on our existing penal laws. Our intervention is in determining
whether an enforced disappearance has taken place and who is responsible or
accountable for this disappearance, and to define and impose the appropriate
remedies to address it. The burden for the public authorities to discharge in these
situations, under the Rule on the Writ of Amparo, is twofold. The first is to ensure
that all efforts at disclosure and investigation are undertaken under pain of
indirect contempt from this Court when governmental efforts are less than what
the individual situations require. The second is to address the disappearance, so
that the life of the victim is preserved and his or her liberty and security restored.
In these senses, our orders and directives relative to the writ are continuing
efforts that are not truly terminated until the extrajudicial killing or enforced
disappearance is fully addressed by the complete determination of the fate and
the whereabouts of the victim, by the production of the disappeared person and
the restoration of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced disappearance is

considered a flagrant violation of human rights.101 It does not only violate the right
to life, liberty and security of the desaparecido; it affects their families as well
through the denial of their right to information regarding the circumstances of the
disappeared family member. Thus, enforced disappearances have been said to
be "a double form of torture," with "doubly paralyzing impact for the victims," as
they "are kept ignorant of their own fates, while family members are deprived of
knowing the whereabouts of their detained loved ones" and suffer as well the
serious economic hardship and poverty that in most cases follow the
disappearance of the household breadwinner.102
The UN General Assembly first considered the issue of "Disappeared Persons" in
December 1978 under Resolution 33/173. The Resolution expressed the General
Assemblys deep concern arising from "reports from various parts of the world
relating to enforced or involuntary disappearances," and requested the "UN
Commission on Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations."103
In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).104 This Declaration, for the first time, provided in its
third preambular clause a working description of enforced disappearance, as
follows:
Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or
abducted against their will or otherwise deprived of their liberty by officials of
different branches or levels of Government, or by organized groups or private
individuals acting on behalf of, or with the support, direct or indirect, consent or
acquiescence of the Government, followed by a refusal to disclose the fate or
whereabouts of the persons concerned or a refusal to acknowledge the
deprivation of their liberty, which places such persons outside the protection of
the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).105 The Convention was opened for
signature in Paris, France on February 6, 2007.106 Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, "enforced disappearance" is considered to
be the arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the

authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there
is a right not to be subject to enforced disappearance107 and that this right is nonderogable.108 It provides that no one shall be subjected to enforced
disappearance under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties to codify
enforced disappearance as an offense punishable with appropriate penalties
under their criminal law.109 It also recognizes the right of relatives of the
disappeared persons and of the society as a whole to know the truth on the fate
and whereabouts of the disappeared and on the progress and results of the
investigation.110 Lastly, it classifies enforced disappearance as a continuing
offense, such that statutes of limitations shall not apply until the fate and
whereabouts of the victim are established.111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that
the country is not yet committed to enact any law penalizing enforced
disappearance as a crime. The absence of a specific penal law, however, is not a
stumbling block for action from this Court, as heretofore mentioned; underlying
every enforced disappearance is a violation of the constitutional rights to life,
liberty and security that the Supreme Court is mandated by the Constitution to
protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is
guided, in acting on Amparo cases, by the reality that the Philippines is a
member of the UN, bound by its Charter and by the various conventions we
signed and ratified, particularly the conventions touching on humans rights.
Under the UN Charter, the Philippines pledged to "promote universal respect for,
and observance of, human rights and fundamental freedoms for all without
distinctions as to race, sex, language or religion."112 Although no universal
agreement has been reached on the precise extent of the "human rights and
fundamental freedoms" guaranteed to all by the Charter,113 it was the UN itself
that issued the Declaration on enforced disappearance, and this Declaration
states:114
Any act of enforced disappearance is an offence to dignity. It is condemned as

a denial of the purposes of the Charter of the United Nations and as a grave and
flagrant violation of human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights and reaffirmed and developed in
international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter
made in a UN Declaration, the ban on enforced disappearance cannot but have
its effects on the country, given our own adherence to "generally accepted
principles of international law as part of the law of the land."115
In the recent case of Pharmaceutical and Health Care Association of the
Philippines v. Duque III,116 we held that:
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either bytransformation or incorporation. The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law
is deemed to have the force of domestic law. [Emphasis supplied]
We characterized "generally accepted principles of international law" as norms of
general or customary international law that are binding on all states. We held
further:117
[G]enerally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not
derive from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is a
belief that the practice in question is rendered obligatory by the existence of a
rule of law requiring it. [Emphasis in the original]
The most widely accepted statement of sources of international law today is
Article 38(1) of the Statute of the International Court of Justice, which provides
that the Court shall apply "international custom, as evidence of a general practice
accepted as law."118 The material sources of custom include State practice, State
legislation, international and national judicial decisions, recitals in treaties and
other international instruments, a pattern of treaties in the same form, the
practice of international organs, and resolutions relating to legal questions in the
UN General Assembly.119 Sometimes referred to as "evidence" of international
law,120 these sources identify the substance and content of the obligations of
States and are indicative of the "State practice" and "opinio juris" requirements of
international law.121 We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of
American States (OAS) General Assembly adopted the Inter-American
Convention on Enforced Disappearance of Persons in June 1994.122 State parties
undertook under this Convention "not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or suspension of
individual guarantees."123 One of the key provisions includes the States obligation
to enact the crime of forced disappearance in their respective national criminal
laws and to establish jurisdiction over such cases when the crime was committed
within their jurisdiction, when the victim is a national of that State, and "when the
alleged criminal is within its territory and it does not proceed to extradite him,"
which can be interpreted as establishing universal jurisdiction among the parties
to the Inter-American Convention.124 At present, Colombia, Guatemala, Paraguay,
Peru and Venezuela have enacted separate laws in accordance with the InterAmerican Convention and have defined activities involving enforced
disappearance to be criminal.125
1avvphi1
Second, in Europe, the European Convention on Human Rights has no explicit

provision dealing with the protection against enforced disappearance. The
European Court of Human Rights (ECHR), however, has applied the Convention
in a way that provides ample protection for the underlying rights affected by
enforced disappearance through the Conventions Article 2 on the right to life;
Article 3 on the prohibition of torture; Article 5 on the right to liberty and security;
Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an
effective remedy. A leading example demonstrating the protection afforded by the
European Convention is Kurt v. Turkey,126 where the ECHR found a violation of
the right to liberty and security of the disappeared person when the applicants
son disappeared after being taken into custody by Turkish forces in the Kurdish
village of Agilli in November 1993. It further found the applicant (the disappeared
persons mother) to be a victim of a violation of Article 3, as a result of the silence
of the authorities and the inadequate character of the investigations undertaken.
The ECHR also saw the lack of any meaningful investigation by the State as a
violation of Article 13.127
Third, in the United States, the status of the prohibition on enforced
disappearance as part of customary international law is recognized in the most
recent edition of Restatement of the Law: The Third,128 which provides that "[a]
State violates international law if, as a matter of State policy, it practices,
encourages, or condones (3) the murder or causing the disappearance of
individuals."129 We significantly note that in a related matter that finds close
identification with enforced disappearance the matter of torture the United

States Court of Appeals for the Second Circuit Court held in Filartiga v. PenaIrala130 that the prohibition on torture had attained the status of customary
international law. The court further elaborated on the significance of UN
declarations, as follows:
These U.N. declarations are significant because they specify with great precision
the obligations of member nations under the Charter. Since their adoption,
"(m)embers can no longer contend that they do not know what human rights they
promised in the Charter to promote." Moreover, a U.N. Declaration is, according
to one authoritative definition, "a formal and solemn instrument, suitable for rare
occasions when principles of great and lasting importance are being enunciated."
Accordingly, it has been observed that the Universal Declaration of Human
Rights "no longer fits into the dichotomy of binding treaty against non-binding
pronouncement,' but is rather an authoritative statement of the international
community." Thus, a Declaration creates an expectation of adherence, and
"insofar as the expectation is gradually justified by State practice, a declaration
may by custom become recognized as laying down rules binding upon the
States." Indeed, several commentators have concluded that the Universal
Declaration has become, in toto, a part of binding, customary international law.
[Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the
International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has
stated that the act of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or punishment) and
9 (right to liberty and security of the person) of the ICCPR, and the act may also
amount to a crime against humanity.131
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
International Criminal Court (ICC) also covers enforced disappearances insofar
as they are defined as crimes against humanity,132 i.e., crimes "committed as part
of a widespread or systematic attack against any civilian population, with
knowledge of the attack." While more than 100 countries have ratified the Rome
Statute,133 the Philippines is still merely a signatory and has not yet ratified it. We
note that Article 7(1) of the Rome Statute has been incorporated in the statutes of
other international and hybrid tribunals, including Sierra Leone Special Court, the
Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary
Chambers in the Courts of Cambodia.134 In addition, the implementing legislation
of State Parties to the Rome Statute of the ICC has given rise to a number of
national criminal provisions also covering enforced disappearance.135
While the Philippines is not yet formally bound by the terms of the Convention on
enforced disappearance (or by the specific terms of the Rome Statute) and has
not formally declared enforced disappearance as a specific crime, the above
recital shows that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban on it is now a
generally accepted principle of international law, which we should consider a part
of the law of the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of Human
Rights, the ICCPR and the International Convention on Economic, Social and
Cultural Rights (ICESR) may be infringed in the course of a disappearance: 136
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein

recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies
when granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the obligation
of the State to investigate ICCPR violations promptly, thoroughly, and effectively,
viz:137
15. Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights, States Parties must ensure that individuals also have accessible
and effective remedies to vindicate those rights The Committee attaches
importance to States Parties' establishing appropriate judicial and administrative
mechanisms for addressing claims of rights violations under domestic law
Administrative mechanisms are particularly required to give effect to the general
obligation to investigate allegations of violations promptly, thoroughly and
effectivelythrough independent and impartial bodies. A failure by a State Party to
investigate allegations of violations could in and of itself give rise to a separate
breach of the Covenant. Cessation of an ongoing violation is an essential
element of the right to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment
No. 31 that failure to investigate as well as failure to bring to justice the
perpetrators of ICCPR violations could in and of itself give rise to a separate
breach of the Covenant, thus:138
18. Where the investigations referred to in paragraph 15 reveal violations of
certain Covenant rights, States Parties must ensure that those responsible are
brought to justice. As with failure to investigate, failure to bring to justice
perpetrators of such violations could in and of itself give rise to a separate breach
of the Covenant. These obligations arise notably in respect of those violations
recognized as criminal under either domestic or international law, such as torture
and similar cruel, inhuman and degrading treatment (article 7), summary and
arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and,
frequently, 6). Indeed, the problem of impunity for these violations, a matter of
sustained concern by the Committee, may well be an important contributing
element in the recurrence of the violations. When committed as part of a
widespread or systematic attack on a civilian population, these violations of the
Covenant are crimes against humanity (see Rome Statute of the International
Criminal Court, article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,139 this Court, in ruling that the right to
security of persons is a guarantee of the protection of ones right by the
government, held that:
The right to security of person in this third sense is a corollary of the policy that
the State "guarantees full respect for human rights" under Article II, Section 11 of
the 1987 Constitution. As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these
rights especially when they are under threat.Protection includes conducting
effective investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. The Inter-American Court of Human Rights
stressed the importance of investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not as a step taken
by private interests that depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for the truth by the
government. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the "right
to security" not only as a prohibition on the State against arbitrary deprivation of
liberty, but also as the imposition of a positive duty to afford protection to the right
to liberty. The Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with
the substantive and procedural rules of national law but must equally be in
keeping with the very purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual, it is incumbent on the
authorities to account for his or her whereabouts. For this reason, Article 5 must
be seen as requiring the authorities to take effective measures to safeguard
against the risk of disappearance and to conduct a prompt effective investigation
into an arguable claim that a person has been taken into custody and has not
been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of
Amparo, which the Court made effective on October 24, 2007. Although the
Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of "enforced
disappearance," the materials cited above, among others, provide ample
guidance and standards on how, through the medium of the Amparo Rule, the
Court can provide remedies and protect the constitutional rights to life, liberty and
security that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the burden
of proving the allegations of the petition for the Writ of Amparo by the degree of
proof required by the Amparo Rule, we shall discuss briefly the unique
evidentiary difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of the Amparo Rule
shall encounter.
These difficulties largely arise because the State itself the party whose
involvement is alleged investigates enforced disappearances. Past experiences
in other jurisdictions show that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct
perpetrators.141 Experts note that abductors are well organized, armed and
usually members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under
some form of governmental authority. In many countries the units that plan,
implement and execute the program are generally specialized, highly-secret
bodies within the armed or security forces. They are generally directed through a
separate, clandestine chain of command, but they have the necessary
credentials to avoid or prevent any interference by the "legal" police forces.
These authorities take their victims to secret detention centers where they
subject them to interrogation and torture without fear of judicial or other
controls.142
In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the
disappearance out of fear for their own lives.143 We have had occasion to note
this difficulty in Secretary of Defense v. Manalo144 when we acknowledged that
"where powerful military officers are implicated, the hesitation of witnesses to
surface and testify against them comes as no surprise."
Second, deliberate concealment of pertinent evidence of the disappearance is a
distinct possibility; the central piece of evidence in an enforced disappearance
i.e., the corpus delicti or the victims body is usually concealed to effectively
thwart the start of any investigation or the progress of one that may have
begun.145 The problem for the victims family is the States virtual monopoly of
access to pertinent evidence. The Inter-American Court of Human Rights
(IACHR) observed in the landmark case of Velasquez Rodriguez146 that inherent
to the practice of enforced disappearance is the deliberate use of the States
power to destroy the pertinent evidence. The IACHR described the concealment
as a clear attempt by the State to commit the perfect crime.147
Third is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearance ever occurred.148 "Deniability" is central to
the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
ensuring the victims human rights.149 Experience shows that government officials
typically respond to requests for information about desaparecidos by saying that
they are not aware of any disappearance, that the missing people may have fled
the country, or that their names have merely been invented.150
These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the parties to the
case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary.
However, the court, justice or judge may call for a preliminary conference to
simplify the issues and determine the possibility of obtaining stipulations and
admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The parties
shall establish their claims bysubstantial evidence.
The respondent who is a private individual must prove that ordinary diligence as
required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent who is a public official or employee must prove that
extraordinary diligence as required by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption that
official duty has been regularly performed or evade responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall
be denied. [Emphasis supplied]
These characteristics namely, of being summary and the use of substantial
evidence as the required level of proof (in contrast to the usual preponderance of
evidence or proof beyond reasonable doubt in court proceedings) reveal the
clear intent of the framers of the Amparo Rule to have the equivalent of an
administrative proceeding, albeit judicially conducted, in addressing Amparo
situations. The standard of diligence required the duty of public officials and
employees to observe extraordinary diligence point, too, to the extraordinary
measures expected in the protection of constitutional rights and in the
consequent handling and investigation of extra-judicial killings and enforced
disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly comply
with the substance and form requirements of a Writ of Amparo petition, as
discussed above, and prove the allegations by substantial evidence. Once a
rebuttable case has been proven, the respondents must then respond and prove
their defenses based on the standard of diligence required. The rebuttable case,
of course, must show that an enforced disappearance took place under
circumstances showing a violation of the victims constitutional rights to life,
liberty or security, and the failure on the part of the investigating authorities to
appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations151 provided the
Court its first opportunity to define the substantial evidence required to arrive at a
valid decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a
conclusion. [citations omitted] The statute provides that the rules of evidence
prevailing in courts of law and equity shall not be controlling. The obvious
purpose of this and similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter which would
be deemed incompetent in judicial proceedings would not invalidate the
administrative order. [citations omitted] But this assurance of a desirable flexibility
in administrative procedure does not go so far as to justify orders without a basis
in evidence having rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,152 which was the Courts first petition for a Writ
of Amparo, we recognized that the full and exhaustive proceedings that the
substantial evidence standard regularly requires do not need to apply due to the
summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the
appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings. [Emphasis
supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions are
the unique difficulties presented by the nature of enforced disappearances,
heretofore discussed, which difficulties this Court must frontally meet if the
Amparo Rule is to be given a chance to achieve its objectives. These evidentiary
difficulties compel the Court to adopt standards appropriate and responsive to
the circumstances, without transgressing the due process requirements that
underlie every proceeding.
In the seminal case of Velasquez Rodriguez,153 the IACHR faced with a lack of
direct evidence that the government of Honduras was involved in Velasquez
Rodriguez disappearance adopted a relaxed and informal evidentiary
standard, and established the rule that presumes governmental responsibility for
a disappearance if it can be proven that the government carries out a general
practice of enforced disappearances and the specific case can be linked to that
practice.154 The IACHR took note of the realistic fact that enforced
disappearances could be proven only through circumstantial or indirect evidence
or by logical inference; otherwise, it was impossible to prove that an individual
had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct
evidence, whether testimonial or documentary, is not the only type of evidence
that may be legitimately considered in reaching a decision. Circumstantial
evidence, indicia, and presumptions may be considered, so long as they lead to
conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations
of disappearances, because this type of repression is characterized by an
attempt to suppress all information about the kidnapping or the whereabouts and
fate of the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo) was
carried out by agents who acted under cover of public authority, the IACHR relied
on circumstantial evidence including the hearsay testimony of Zenaida
Velsquez, the victims sister, who described Manfredos kidnapping on the basis
of conversations she had with witnesses who saw Manfredo kidnapped by men
in civilian clothes in broad daylight. She also told the Court that a former
Honduran military official had announced that Manfredo was kidnapped by a
special military squadron acting under orders of the Chief of the Armed
Forces.155 The IACHR likewise considered the hearsay testimony of a second
witness who asserted that he had been told by a Honduran military officer about
the disappearance, and a third witness who testified that he had spoken in prison
to a man who identified himself as Manfredo.156
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the problem if a wrong
is addressed by the commission of another wrong. On the other hand, we cannot
be very strict in our evidentiary rules and cannot consider evidence the way we
do in the usual criminal and civil cases; precisely, the proceedings before us are
administrative in nature where, as a rule, technical rules of evidence are not
strictly observed. Thus, while we must follow the substantial evidence rule, we
must observe flexibility in considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test of
reason i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence is
not at all novel in the Philippine legal system. In child abuse cases, Section 28 of
the Rule on Examination of a Child Witness157 is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the right
of cross-examination by the adverse party. The admission of the statement is
determined by the court in light of specified subjective and objective
considerations that provide sufficient indicia of reliability of the child
witness.158 These requisites for admission find their counterpart in the present
case under the above-described conditions for the exercise of flexibility in the
consideration of evidence, including hearsay evidence, in extrajudicial killings
and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN Declaration we have
cited?
The Convention defines enforced disappearance as "the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the law."159 Under
this definition, the elements that constitute enforced disappearance are
essentially fourfold:160
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons
acting with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of
the fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]
We find no direct evidence indicating how the victim actually disappeared. The
direct evidence at hand only shows that Tagitis went out of the ASY Pension
House after depositing his room key with the hotel desk and was never seen nor
heard of again. The undisputed conclusion, however, from all concerned the
petitioner, Tagitis colleagues and even the police authorities is that Tagistis
disappeared under mysterious circumstances and was never seen again. The
respondent injected the causal element in her petition and testimony, as we shall
discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG
Zamboanga abducted or arrested Tagitis. If at all, only the respondents
allegation that Tagistis was under CIDG Zamboanga custody stands on record,
but it is not supported by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information as
her bases for her allegation that Tagistis had been placed under government
custody (in contrast with CIDG Zamboanga custody). The first was an unnamed
friend in Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis was in good
hands. Nothing came out of this claim, as both the respondent herself and her
witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any
information that Tagitis was in government custody. Col. Ancanan, for his part,
admitted the meeting with the respondent but denied giving her any information
about the disappearance.
The more specific and productive source of information was Col. Kasim, whom
the respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in
Davao City. To quote the relevant portions of the respondents testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of
your husband particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim,
told me that my husband is being abducted [sic] because he is under custodial
investigation because he is allegedly "parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jemaah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of
yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those
reports are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, maam.
Q: And a certain Col. Kasim told you that your husband was abducted and under
custodial investigation?
A: Yes, maam.
Q: And you mentioned that he showed you a report?
A: Yes, maam.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were
highly confidential. That is a military report, maam.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, maam.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, maam.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental,
maam.162
xxxx
Q: When you were told that your husband is in good hands, what was your
reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other people
na parang mga terorista na mga tao. Tapos at the end of the report is [sic] under
custodial investigation. So I told him "Colonel, my husband is sick. He is diabetic
at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na
bigyan siya ng gamot, maam."163
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being
held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that
information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na
yun na effort ko because I know that they would deny it, maam.164
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her
testimony that her husband was abducted and held under custodial investigation
by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November
24, 2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that
time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if
he can furnish us the location of Engr. Tagitis. And he was reading this report. He
told us that Engr. Tagitis is in good hands. He is with the military, but he is not
certain whether he is with the AFP or PNP. He has this serious case. He was
charged of terrorism because he was under surveillance from January 2007 up to
the time that he was abducted. He told us that he was under custodial
investigation. As Ive said earlier, he was seen under surveillance from January.
He was seen talking to Omar Patik, a certain Santos of Bulacan who is also a
Balik Islam and charged with terrorism. He was seen carrying boxes of
medicines. Then we asked him how long will he be in custodial investigation. He
said until we can get some information. But he also told us that he cannot give us
that report because it was a raw report. It was not official, sir.
Q: You said that he was reading a report, was that report in document form, in a
piece of paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I dont know if it was
computerized but Im certain that it was typewritten. Im not sure if it used
computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was
reading in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir.165
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this
Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as Ive mentioned, we just waited because that raw
information that he was reading to us [sic] after the custodial investigation,
Engineer Tagitis will be released. [Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and her friends, and
that he provided them information based on the input of an unnamed asset. He
simply claimed in his testimony that the "informal letter" he received from his
informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He
also stressed that the information he provided the respondent was merely a "raw
report" from "barangay intelligence" that still needed confirmation and "follow up"
as to its veracity.167
To be sure, the respondents and Mrs. Talbins testimonies were far from perfect,
as the petitioners pointed out. The respondent mistakenly characterized Col.
Kasim as a "military officer" who told her that "her husband is being abducted
because he is under custodial investigation because he is allegedly parang
liason ng J.I." The petitioners also noted that "Mrs. Talbins testimony imputing
certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he
is not certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt.
Kasim is a high ranking police officer who would certainly know that the PNP is
not part of the military."
Upon deeper consideration of these inconsistencies, however, what appears
clear to us is that the petitioners never really steadfastly disputed or presented
evidence to refute the credibility of the respondent and her witness, Mrs. Talbin.
The inconsistencies the petitioners point out relate, more than anything else, to
details that should not affect the credibility of the respondent and Mrs. Talbin; the
inconsistencies are not on material points.168 We note, for example, that these
witnesses are lay people in so far as military and police matters are concerned,
and confusion between the police and the military is not unusual. As a rule, minor
inconsistencies such as these indicate truthfulness rather than
prevarication169and only tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail; the latter cannot
but generate suspicion that the material circumstances they testified to were
integral parts of a well thought of and prefabricated story.170
Based on these considerations and the unique evidentiary situation in enforced
disappearance cases, we hold it duly established that Col. Kasim informed the
respondent and her friends, based on the informants letter, that Tagitis, reputedly
a liaison for the JI and who had been under surveillance since January 2007,
was "in good hands" and under custodial investigation for complicity with the JI
after he was seen talking to one Omar Patik and a certain "Santos" of Bulacan, a
"Balik Islam" charged with terrorism. The respondents and Mrs. Talbins
testimonies cannot simply be defeated by Col. Kasims plain denial and his claim
that he had destroyed his informants letter, the critical piece of evidence that
supports or negates the parties conflicting claims. Col. Kasims admitted
destruction of this letter effectively, a suppression of this evidence raises the
presumption that the letter, if produced, would be proof of what the respondent
claimed.171 For brevity, we shall call the evidence of what Col. Kasim reported to
the respondent to be the "Kasim evidence."
Given this evidence, our next step is to decide whether we can accept this
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis
was due to action with government participation, knowledge or consent and that
he was held for custodial investigation. We note in this regard that Col. Kasim
was never quoted to have said that the custodial investigation was by the CIDG
Zamboanga. The Kasim evidence only implies government intervention through
the use of the term "custodial investigation," and does not at all point to CIDG
Zamboanga as Tagitis custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence
i.e., evidence whose probative value is not based on the personal knowledge of
the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the
knowledge of some other person not on the witness stand (the informant).172
To say that this piece of evidence is incompetent and inadmissible evidence of
what it substantively states is to acknowledge as the petitioners effectively
suggest that in the absence of any direct evidence, we should simply dismiss
the petition. To our mind, an immediate dismissal for this reason is no different
from a statement that the Amparo Rule despite its terms is ineffective, as it
cannot allow for the special evidentiary difficulties that are unavoidably present in
Amparo situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this intent or with
the intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from
local and international experiences in extrajudicial killings and enforced
disappearances, as the situation may require. Consequently, we have no choice
but to meet the evidentiary difficulties inherent in enforced disappearances with
the flexibility that these difficulties demand.
1avvphi1
To give full meaning to our Constitution and the rights it protects, we hold that, as
in Velasquez, we should at least take a close look at the available evidence to
determine the correct import of every piece of evidence even of those usually
considered inadmissible under the general rules of evidence taking into
account the surrounding circumstances and the test of reason that we can use as
basic minimum admissibility requirement. In the present case, we should at least
determine whether the Kasim evidence before us is relevant and meaningful to

the disappearance of Tagistis and reasonably consistent with other evidence in
the case.
The evidence about Tagitis personal circumstances surrounded him with an air
of mystery. He was reputedly a consultant of the World Bank and a Senior
Honorary Counselor for the IDB who attended a seminar in Zamboanga and
thereafter proceded to Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to Zamboanga the day after he
arrived in Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo
police that Tagitis may have taken funds given to him in trust for IDB scholars.
Prof Matli later on stated that he never accused Tagitis of taking away money
held in trust, although he confirmed that the IDB was seeking assistance in
locating funds of IDB scholars deposited in Tagitis personal account. Other than
these pieces of evidence, no other information exists in the records relating to the
personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal circumstances.
While the Amparo petition recited that he was taken away by "burly men believed
to be police intelligence operatives," no evidence whatsoever was introduced to
support this allegation. Thus, the available direct evidence is that Tagitis was last
seen at 12.30 p.m. of October 30, 2007 the day he arrived in Jolo and was
never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were
never looked into and clarified by police investigation. It is the evidence, too, that
colors a simple missing person report into an enforced disappearance case, as it
injects the element of participation by agents of the State and thus brings into
question how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police
informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo police arrived at
this conclusion. The respondents own inquiry in Jolo yielded the answer that he
was not missing but was with another woman somewhere. Again, no evidence
exists that this explanation was arrived at based on an investigation. As already
related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it was only the inquiry from Col.
Kasim that yielded positive results. Col. Kasims story, however, confirmed only
the fact of his custodial investigation (and, impliedly, his arrest or abduction),
without identifying his abductor/s or the party holding him in custody. The more
significant part of Col. Kasims story is that the abduction came after Tagitis was
seen talking with Omar Patik and a certain Santos of Bulacan, a "Balik Islam"
charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at
Talipapao, Sulu. None of the police agencies participating in the investigation
ever pursued these leads. Notably, Task Force Tagitis to which this information
was relayed did not appear to have lifted a finger to pursue these aspects of the
case.
More denials were manifested in the Returns on the writ to the CA made by the
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives
he sent to the ARMM Regional Director and the Regional Chief of the CIDG on
Tagitis, and these reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions with negative
results. These, to the PNP Chief, constituted the exhaustion "of all possible
efforts." PNP-CIDG Chief General Edgardo M. Doromal, for his part, also
reported negative results after searching "all divisions and departments [of the
CIDG] for a person named Engr. Morced N. Tagitis . . . and after a diligent and
thorough research, records show that no such person is being detained in the
CIDG or any of its department or divisions." PNP-PACER Chief PS Supt.
Leonardo A. Espina and PNP PRO ARMM Regional Director PC Superintendent
Joel R. Goltiao did no better in their affidavits-returns, as they essentially
reported the results of their directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA
constituted Task Force Tagitis, with specific directives on what to do. The
negative results reflected in the Returns on the writ were again replicated during
the three hearings the CA scheduled. Aside from the previously mentioned
"retraction" that Prof. Matli made to correct his accusation that Tagitis took money
held in trust for students, PS Supt. Ajirim reiterated in his testimony that the CIDG
consistently denied any knowledge or complicity in any abduction and said that
there was no basis to conclude that the CIDG or any police unit had anything to
do with the disappearance of Tagitis; he likewise considered it premature to
conclude that Tagitis simply ran away with the money in his custody. As already
noted above, the Task Force notably did not pursue any investigation about the
personal circumstances of Tagitis, his background in relation to the IDB and the
background and activities of this Bank itself, and the reported sighting of Tagistis
with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to
have ever been made to look into the alleged IDB funds that Tagitis held in trust,
or to tap any of the "assets" who are indispensable in investigations of this
nature. These omissions and negative results were aggravated by the CA
findings that it was only as late as January 28, 2008 or three months after the
disappearance that the police authorities requested for clear pictures of Tagitis.
Col. Kasim could not attend the trial because his subpoena was not served,
despite the fact that he was designated as Ajirims replacement in the latters last
post. Thus, Col. Kasim was not then questioned. No investigation even an
internal one appeared to have been made to inquire into the identity of Col.
Kasims "asset" and what he indeed wrote.
We glean from all these pieces of evidence and developments a consistency in
the governments denial of any complicity in the disappearance of Tagitis,
disrupted only by the report made by Col. Kasim to the respondent at Camp
Katitipan. Even Col. Kasim, however, eventually denied that he ever made the
disclosure that Tagitis was under custodial investigation for complicity in
terrorism. Another distinctive trait that runs through these developments is the
governments dismissive approach to the disappearance, starting from the initial
response by the Jolo police to Kunnongs initial reports of the disappearance, to
the responses made to the respondent when she herself reported and inquired
about her husbands disappearance, and even at Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best
haphazard since the authorities were looking for a man whose picture they
initially did not even secure. The returns and reports made to the CA fared no
better, as the CIDG efforts themselves were confined to searching for custodial
records of Tagitis in their various departments and divisions. To point out the
obvious, if the abduction of Tagitis was a "black" operation because it was
unrecorded or officially unauthorized, no record of custody would ever appear in
the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG
detention places. In sum, none of the reports on record contains any meaningful
results or details on the depth and extent of the investigation made. To be sure,
reports of top police officials indicating the personnel and units they directed to
investigate can never constitute exhaustive and meaningful investigation, or
equal detailed investigative reports of the activities undertaken to search for
Tagitis. Indisputably, the police authorities from the very beginning failed to come
up to the extraordinary diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasims disclosure, made
in an unguarded moment, unequivocally point to some government complicity in
the disappearance. The consistent but unfounded denials and the haphazard
investigations cannot but point to this conclusion. For why would the government
and its officials engage in their chorus of concealment if the intent had not been
to deny what they already knew of the disappearance? Would not an in-depth
and thorough investigation that at least credibly determined the fate of Tagitis be
a feather in the governments cap under the circumstances of the

disappearance? From this perspective, the evidence and developments,
particularly the Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the UN
Declaration, heretofore cited and quoted,173 the evidence at hand and the
developments in this case confirm the fact of the enforced disappearance and
government complicity, under a background of consistent and unfounded
government denials and haphazard handling. The disappearance as well
effectively placed Tagitis outside the protection of the law a situation that will
subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent
in international enforced disappearance rulings. While the facts are not exactly
the same, the facts of this case run very close to those of Timurtas v. Turkey,174 a
case decided by ECHR. The European tribunal in that case acted on the basis of
the photocopy of a "post-operation report" in finding that Abdulvahap Timurtas
(Abdulvahap) was abducted and later detained by agents (gendarmes) of the
government of Turkey. The victim's father in this case brought a claim against
Turkey for numerous violations of the European Convention, including the right to
life (Article 2) and the rights to liberty and security of a person (Article 5). The
applicant contended that on August 14, 1993, gendarmes apprehended his son,
Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in the Silopi
region. The petition was filed in southeast Turkey nearly six and one half years
after the apprehension. According to the father, gendarmes first detained
Abdulvahap and then transferred him to another detainment facility. Although
there was no eyewitness evidence of the apprehension or subsequent
detainment, the applicant presented evidence corroborating his version of
events, including a photocopy of a post-operation report signed by the
commander of gendarme operations in Silopi, Turkey. The report included a
description of Abdulvahap's arrest and the result of a subsequent interrogation
during detention where he was accused of being a leader of the PKK in the Silopi
region. On this basis, Turkey was held responsible for Abdulvahaps enforced
disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal
setting and the Amparo remedy this Court has established, as applied to the
unique facts and developments of this case we believe and so hold that the
government in general, through the PNP and the PNP-CIDG, and in particular,
the Chiefs of these organizations together with Col. Kasim, should be held fully
accountable for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No.
6975, otherwise known as the "PNP Law,"175 specifies the PNP as the
governmental office with the mandate "to investigate and prevent crimes, effect
the arrest of criminal offenders, bring offenders to justice and assist in their
prosecution." The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG
Region 9) testified, is the "investigative arm" of the PNP and is mandated to
"investigate and prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous crimes."176 Under the PNP
organizational structure, the PNP-CIDG is tasked to investigate all major crimes
involving violations of the Revised Penal Code and operates against organized
crime groups, unless the President assigns the case exclusively to the National
Bureau of Investigation (NBI).177 No indication exists in this case showing that the
President ever directly intervened by assigning the investigation of Tagitis
disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the
ones who were remiss in their duties when the government completely failed to
exercise the extral'>To fully enforce the Amparo remedy, we refer this case back
to the CA for appropriate proceedings directed at the monitoring of the PNP and
the PNP-CIDG investigations and actions, and the validation of their results
through hearings the CA may deem appropriate to conduct. For purposes of
these investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of
action for further investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action. On behalf of this Court,
the CA shall pass upon: the need for the PNP and the PNP-CIDG to make
disclosures of matters known to them as indicated in this Decision and as further
CA hearings may indicate; the petitioners submissions; the sufficiency of their
investigative efforts; and submit to this Court a quarterly report containing its
actions and recommendations, copy furnished the petitioners and the
respondent, with the first report due at the end of the first quarter counted from
the finality of this Decision. The PNP and the PNP-CIDG shall have one (1) full
year to undertake their investigation. The CA shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the finality
of this Decision.
WHEREFORE, premises considered, we DENY the petitioners petition for
review on certiorari for lack of merit, and AFFIRM the decision of the Court of
Appeals dated March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an
enforced disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the PNP-
CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced
disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals
issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its
Chief, directly responsible for the disclosure of material facts known to the
government and to their offices regarding the disappearance of Engineer
Morced N. Tagitis, and for the conduct of proper investigations using
extraordinary diligence, with the obligation to show investigation results
acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and
holding him accountable with the obligation to disclose information known
to him and to his "assets" in relation with the enforced disappearance of
Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate
proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP and the
PNP-CIDG shall initially present to the Court of Appeals a plan of action for
further investigation, periodically reporting their results to the Court of
Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report
with its recommendations, copy furnished the incumbent PNP and PNPCIDG Chiefs as petitioners and the respondent, with the first report due at
the end of the first quarter counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake
their investigations; the Court of Appeals shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the
finality of this Decision;
These directives and those of the Court of Appeals made pursuant to this
Decision shall be given to, and shall be directly enforceable against, whoever
may be the incumbent Chiefs of the Philippine National Police and its Criminal
Investigation and Detection Group, under pain of contempt from this Court when
the initiatives and efforts at disclosure and investigation constitute less than the
extraordinary diligence that the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique nature of Amparo cases
and their varying attendant circumstances, these directives particularly, the
referral back to and monitoring by the CA are specific to this case and are not
standard remedies that can be applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano,
Commanding General, Philippine Army, and General Ruben Rafael, Chief, AntiTerrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.
SO ORDERED.

SUPREME COURT
Manila
EN BANC
G.R. No. L-13250 October 29, 1971

THE COLLECTOR OF INTERNAL REVENUE, petitioner,
vs.
ANTONIO CAMPOS RUEDA, respondent..
Assistant Solicitor General Jose P. Alejandro and Special Attorney Jose G.
Azurin, (O.S.G.) for petitioner.
Ramirez and Ortigas for respondent.
FERNANDO, J.:
The basic issue posed by petitioner Collector of Internal Revenue in this appeal
from a decision of the Court of Tax Appeals as to whether or not the requisites of
statehood, or at least so much thereof as may be necessary for the acquisition of
an international personality, must be satisfied for a "foreign country" to fall within
the exemption of Section 122 of the National Internal Revenue Code 1 is now ripe for
adjudication. The Court of Tax Appeals answered the question in the negative, and thus reversed the
action taken by petitioner Collector, who would hold respondent Antonio Campos Rueda, as administrator
of the estate of the late Estrella Soriano Vda. de Cerdeira, liable for the sum of P161,874.95 as deficiency
estate and inheritance taxes for the transfer of intangible personal properties in the Philippines, the
deceased, a Spanish national having been a resident of Tangier, Morocco from 1931 up to the time of her
death in 1955. In an earlier resolution promulgated May 30, 1962, this Court on the assumption that the
need for resolving the principal question would be obviated, referred the matter back to the Court of Tax
Appeals to determine whether the alleged law of Tangier did grant the reciprocal tax exemption required
by the aforesaid Section 122. Then came an order from the Court of Tax Appeals submitting copies of
legislation of Tangier that would manifest that the element of reciprocity was not lacking. It was not until
July 29, 1969 that the case was deemed submitted for decision. When the petition for review was filed on
January 2, 1958, the basic issue raised was impressed with an element of novelty. Four days thereafter,
however, on January 6, 1958, it was held by this Court that the aforesaid provision does not require that
the "foreign country" possess an international personality to come within its terms. 2 Accordingly, we have
to affirm.
The decision of the Court of Tax Appeals, now under review, sets forth the
background facts as follows: "This is an appeal interposed by petitioner Antonio
Campos Rueda as administrator of the estate of the deceased Doa Maria de la
Estrella Soriano Vda. de Cerdeira, from the decision of the respondent Collector
of Internal Revenue, assessing against and demanding from the former the sum
P161,874.95 as deficiency estate and inheritance taxes, including interest and
penalties, on the transfer of intangible personal properties situated in the
Philippines and belonging to said Maria de la Estrella Soriano Vda. de Cerdeira.
Maria de la Estrella Soriano Vda. de Cerdeira (Maria Cerdeira for short) is a
Spanish national, by reason of her marriage to a Spanish citizen and was a
resident of Tangier, Morocco from 1931 up to her death on January 2, 1955. At
the time of her demise she left, among others, intangible personal properties in
the Philippines." 3 Then came this portion: "On September 29, 1955, petitioner filed a provisional
estate and inheritance tax return on all the properties of the late Maria Cerdeira. On the same date,
respondent, pending investigation, issued an assessment for state and inheritance taxes in the respective
amounts of P111,592.48 and P157,791.48, or a total of P369,383.96 which tax liabilities were paid by
petitioner ... . On November 17, 1955, an amended return was filed ... wherein intangible personal
properties with the value of P396,308.90 were claimed as exempted from taxes. On November 23, 1955,
respondent, pending investigation, issued another assessment for estate and inheritance taxes in the
amounts of P202,262.40 and P267,402.84, respectively, or a total of P469,665.24 ... . In a letter dated
January 11, 1956, respondent denied the request for exemption on the ground that the law of Tangier is
not reciprocal to Section 122 of the National Internal Revenue Code. Hence, respondent demanded the
payment of the sums of P239,439.49 representing deficiency estate and inheritance taxes including ad
valorem penalties, surcharges, interests and compromise penalties ... . In a letter dated February 8, 1956,
and received by respondent on the following day, petitioner requested for the reconsideration of the
decision denying the claim for tax exemption of the intangible personal properties and the imposition of
the 25% and 5% ad valorem penalties ... . However, respondent denied request, in his letter dated May 5,
1956 ... and received by petitioner on May 21, 1956. Respondent premised the denial on the grounds that
there was no reciprocity [with Tangier, which was moreover] a mere principality, not a foreign country.
Consequently, respondent demanded the payment of the sums of P73,851.21 and P88,023.74
respectively, or a total of P161,874.95 as deficiency estate and inheritance taxes including surcharges,
interests and compromise penalties." 4
The matter was then elevated to the Court of Tax Appeals. As there was no
dispute between the parties regarding the values of the properties and the
mathematical correctness of the deficiency assessments, the principal question
as noted dealt with the reciprocity aspect as well as the insisting by the Collector
of Internal Revenue that Tangier was not a foreign country within the meaning of
Section 122. In ruling against the contention of the Collector of Internal Revenue,
the appealed decision states: "In fine, we believe, and so hold, that the
expression "foreign country", used in the last proviso of Section 122 of the
National Internal Revenue Code, refers to a government of that foreign power
which, although not an international person in the sense of international law,
does not impose transfer or death upon intangible person properties of our
citizens not residing therein, or whose law allows a similar exemption from such
taxes. It is, therefore, not necessary that Tangier should have been recognized
by our Government order to entitle the petitioner to the exemption benefits of the
proviso of Section 122 of our Tax. Code." 5
Hence appeal to this court by petitioner. The respective briefs of the parties duly
submitted, but as above indicated, instead of ruling definitely on the question, this
Court, on May 30, 1962, resolve to inquire further into the question of reciprocity
and sent back the case to the Court of Tax Appeals for the motion of evidence
thereon. The dispositive portion of such resolution reads as follows: "While
section 122 of the Philippine Tax Code aforequoted speaks of 'intangible
personal property' in both subdivisions (a) and (b); the alleged laws of Tangier
refer to 'bienes muebles situados en Tanger', 'bienes muebles radicantes en
Tanger', 'movables' and 'movable property'. In order that this Court may be able
to determine whether the alleged laws of Tangier grant the reciprocal tax
exemptions required by Section 122 of the Tax Code, and without, for the time
being, going into the merits of the issues raised by the petitioner-appellant, the
case is [remanded] to the Court of Tax Appeals for the reception of evidence or
proof on whether or not the words `bienes muebles', 'movables' and 'movable
properties as used in the Tangier laws, include or embrace 'intangible person
property', as used in the Tax Code." 6 In line with the above resolution, the Court of Tax Appeals
admitted evidence submitted by the administrator petitioner Antonio Campos Rueda, consisting of exhibits
of laws of Tangier to the effect that "the transfers by reason of death of movable properties, corporeal or
incorporeal, including furniture and personal effects as well as of securities, bonds, shares, ..., were not
subject, on that date and in said zone, to the payment of any death tax, whatever might have been the
nationality of the deceased or his heirs and legatees." It was further noted in an order of such Court
referring the matter back to us that such were duly admitted in evidence during the hearing of the case on
September 9, 1963. Respondent presented no evidence." 7
The controlling legal provision as noted is a proviso in Section 122 of the

National Internal Revenue Code. It reads thus: "That no tax shall be collected
under this Title in respect of intangible personal property (a) if the decedent at the
time of his death was a resident of a foreign country which at the time of his
death did not impose a transfer tax or death tax of any character in respect of
intangible person property of the Philippines not residing in that foreign country,
or (b) if the laws of the foreign country of which the decedent was a resident at
the time of his death allow a similar exemption from transfer taxes or death taxes
of every character in respect of intangible personal property owned by citizens of
the Philippines not residing in that foreign country." 8 The only obstacle therefore to a
definitive ruling is whether or not as vigorously insisted upon by petitioner the acquisition of internal
personality is a condition sine qua non to Tangier being considered a "foreign country". Deference to the
De Lara ruling, as was made clear in the opening paragraph of this opinion, calls for an affirmance of the
decision of the Court of Tax Appeals.
It does not admit of doubt that if a foreign country is to be identified with a state, it
is required in line with Pound's formulation that it be a politically organized
sovereign community independent of outside control bound by penalties of
nationhood, legally supreme within its territory, acting through a government
functioning under a regime of
law. 9 It is thus a sovereign person with the people composing it viewed as an organized corporate
society under a government with the legal competence to exact obedience to its commands. 10 It has
been referred to as a body-politic organized by common consent for mutual defense and mutual safety
and to promote the general welfare. 11 Correctly has it been described by Esmein as "the juridical
personification of the nation." 12 This is to view it in the light of its historical development. The stress is on
its being a nation, its people occupying a definite territory, politically organized, exercising by means of its
government its sovereign will over the individuals within it and maintaining its separate international
personality. Laski could speak of it then as a territorial society divided into government and subjects,
claiming within its allotted area a supremacy over all other institutions. 13 McIver similarly would point to
the power entrusted to its government to maintain within its territory the conditions of a legal order and to
enter into international relations. 14 With the latter requisite satisfied, international law do not exact
independence as a condition of statehood. So Hyde did opine. 15
Even on the assumption then that Tangier is bereft of international personality,

petitioner has not successfully made out a case. It bears repeating that four days
after the filing of this petition on January 6, 1958 in Collector of Internal Revenue
v. De Lara, 16 it was specifically held by us: "Considering the State of California as a foreign country in
relation to section 122 of our Tax Code we believe and hold, as did the Tax Court, that the Ancilliary
Administrator is entitled the exemption from the inheritance tax on the intangible personal property found
in the Philippines." 17 There can be no doubt that California as a state in the American Union was in the
alleged requisite of international personality. Nonetheless, it was held to be a foreign country within the
meaning of Section 122 of the National Internal Revenue Code. 18
What is undeniable is that even prior to the De Lara ruling, this Court did commit
itself to the doctrine that even a tiny principality, that of Liechtenstein, hardly an
international personality in the sense, did fall under this exempt category. So it
appears in an opinion of the Court by the then Acting Chief Justicem Bengson
who thereafter assumed that position in a permanent capacity, in Kiene v.
Collector of Internal Revenue. 19 As was therein noted: 'The Board found from the documents
submitted to it proof of the laws of Liechtenstein that said country does not impose estate,
inheritance and gift taxes on intangible property of Filipino citizens not residing in that country. Wherefore,
the Board declared that pursuant to the exemption above established, no estate or inheritance taxes were
collectible, Ludwig Kiene being a resident of Liechtestein when he passed away." 20 Then came this
definitive ruling: "The Collector hereafter named the respondent cites decisions of the United States
Supreme Court and of this Court, holding that intangible personal property in the Philippines belonging to
a non-resident foreigner, who died outside of this country is subject to the estate tax, in disregard of the
principle 'mobilia sequuntur personam'. Such property is admittedly taxable here. Without the proviso
above quoted, the shares of stock owned here by the Ludwig Kiene would be concededly subject to
estate and inheritance taxes. Nevertheless our Congress chose to make an exemption where conditions
are such that demand reciprocity as in this case. And the exemption must be honored." 21
WHEREFORE, the decision of the respondent Court of Tax Appeals of October

30, 1957 is affirmed. Without pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Villamor and Makasiar, JJ.,
concur.
Reyes, J.B.L., J., concurs in the result.
Teehankee and Barredo, JJ., took no part.

SUPREME COURT
Manila
EN BANC
G.R. No. 183591
October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR

JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIOL, for and in
his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO
GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK
RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in
his capacity as the present and duly-appointed Presidential Adviser on the
Peace Process (OPAPP) or the so-called Office of the Presidential Adviser
on the Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183752
October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L.

LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as
resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO,
District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of
Zamboanga, petitioners,
vs.

NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA,
LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the Presidential Adviser on
Peace Process,respondents.
x--------------------------------------------x
G.R. No. 183893
October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE

LLUCH CRUZ, petitioner,
vs.
PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO
GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK
RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity as
the present and duly appointed Presidential Adviser on the Peace Process;
and/or SEC. EDUARDO ERMITA, in his capacity as Executive
Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951
October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as

represented by HON. ROLANDO E. YEBES, in his capacity as Provincial
Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and
Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA
JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON.
CESAR G. JALOSJOS, Congressman, 3rdCongressional District, and
Members of the Sangguniang Panlalawigan of the Province of Zamboanga
del Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON.
FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON.
EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L.
ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C.
AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, petitioners,
vs.
NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C.
GARCIA and HON. HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962
October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL

III, petitioners,
vs.
NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA,
and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING
PANEL, represented by its Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-inintervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor
NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR
CHERRYLYN P. SANTOS-AKBAR,petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a resident of
the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous
Peoples in Mindanao Not Belonging to the MILF, petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C.

ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of
Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-inintervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT
(MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President
in pursuing the peace process.While the facts surrounding this controversy
center on the armed conflict in Mindanao between the government and the Moro
Islamic Liberation Front (MILF), the legal issue involved has a bearing on all
areas in the country where there has been a long-standing armed conflict. Yet
again, the Court is tasked to perform a delicate balancing act. It must
uncompromisingly delineate the bounds within which the President may lawfully
exercise her discretion, but it must do so in strict adherence to the Constitution,
lest its ruling unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to pursue the peace
process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace negotiating panels,
were scheduled to sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala
Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National
Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of the MNLF away from
an Islamic basis towards Marxist-Maoist orientations.1
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those who filed
their cases before the scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding
of several prior agreements between the two parties beginning in 1996, when the
GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF
Peace Panels signed the Agreement on General Cessation of Hostilities. The
following year, they signed the General Framework of Agreement of Intent on
August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by
stating that the same contained, among others, the commitment of the parties to
pursue peace negotiations, protect and respect human rights, negotiate with
sincerity in the resolution and pacific settlement of the conflict, and refrain from
the use of threat or force to attain undue advantage while the peace negotiations
on the substantive agenda are on-going.2
Early on, however, it was evident that there was not going to be any smooth
sailing in the GRP-MILF peace process. Towards the end of 1999 up to early
2000, the MILF attacked a number of municipalities in Central Mindanao and, in
March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.3 In
response, then President Joseph Estrada declared and carried out an "all-outwar" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive
against the MILF was suspended and the government sought a resumption of the
peace talks. The MILF, according to a leading MILF member, initially responded
with deep reservation, but when President Arroyo asked the Government of
Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF
to return to the negotiating table, the MILF convened its Central Committee to
seriously discuss the matter and, eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same date the
Agreement on the General Framework for the Resumption of Peace Talks
Between the GRP and the MILF. The MILF thereafter suspended all its military
actions.5
Formal peace talks between the parties were held in Tripoli, Libya from June 2022, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace
(Tripoli Agreement 2001) containing the basic principles and agenda on the
following aspects of the negotiation: Security Aspect, Rehabilitation Aspect,
and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the
parties in Tripoli Agreement 2001 simply agreed "that the same be discussed
further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7,
2001 which ended with the signing of the Implementing Guidelines on the
Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status
between the parties. This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement
2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless,
there were many incidence of violence between government forces and the MILF
from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003
and he was replaced by Al Haj Murad, who was then the chief peace negotiator
of the MILF. Murad's position as chief peace negotiator was taken over by
Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form,
which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever
embodied in an instrument - the MOA-AD which is assailed principally by the
present petitions bearing docket numbers 183591, 183752, 183893, 183951 and
183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral
Domain7 and the Presidential Adviser on the Peace Process (PAPP)
Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel
Piol filed a petition, docketed as G.R. No. 183591, for Mandamus and
Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and
Temporary Restraining Order.9 Invoking the right to information on matters of

public concern, petitioners seek to compel respondents to disclose and furnish
them the complete and official copies of the MOA-AD including its attachments,
and to prohibit the slated signing of the MOA-AD, pending the disclosure of the
contents of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No. 183752,
also for Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor
Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who
likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that
the City of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared
null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to cease
and desist from formally signing the MOA-AD.13 The Court also required the
Solicitor General to submit to the Court and petitioners the official copy of the
final draft of the MOA-AD,14 to which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory
Relief, docketed as G.R. No. 183893, praying that respondents be enjoined from
signing the MOA-AD or, if the same had already been signed, from implementing
the same, and that the MOA-AD be declared unconstitutional. Petitioners
herein additionally implead Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, ViceGovernor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and
the members18 of the Sangguniang Panlalawigan of Zamboanga del Norte filed
on August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOAAD be declared null and void and without operative effect, and that respondents
be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III
filed a petition for Prohibition,20docketed as G.R. No. 183962, praying for a
judgment prohibiting and permanently enjoining respondents from formally
signing and executing the MOA-AD and or any other agreement derived
therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional
and illegal. Petitioners herein additionally implead as respondent the MILF Peace
Negotiating Panel represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator
Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel
Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of
Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon in
Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo
tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin
Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario
Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement
for Peace and Development (MMMPD) filed their respective Comments-inIntervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners
submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the
Executive Department shall thoroughly review the MOA-AD and pursue further
negotiations to address the issues hurled against it, and thus moved to dismiss
the cases. In the succeeding exchange of pleadings, respondents' motion was
met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that
tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the Memorandum of
Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government
Units is concerned, if it is considered that consultation has
become fait accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3. Whether respondent Government of the Republic of the Philippines
Peace Panel committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it negotiated and initiated the MOA vis--vis
ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on

matters of public concern (1987 Constitution, Article III, Sec. 7) under a
state policy of full disclosure of all its transactions involving public interest
(1987 Constitution, Article II, Sec. 28) including public consultation under
Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997
Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the
Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as
a separate state, or a juridical, territorial or political subdivision not
recognized by law;
b) to revise or amend the Constitution and existing laws to conform
to the MOA;
c) to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in violation of Republic Act No.
8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so
bind the Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato,
Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
Lanao del Norte in/from the areas covered by the projected Bangsamoro
Homeland is a justiciable question; and
7. Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their respective Memoranda.
Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the
subject five petitions and six petitions-in-intervention against the MOA-AD, as
well as the two comments-in-intervention in favor of the MOA-AD, the Court

takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only
four earlier agreements between the GRP and MILF, but also two agreements
between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final
Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed
on September 2, 1996 during the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples
Rights Act (IPRA),26 and several international law instruments - the ILO
Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries in relation to the UN Declaration on the Rights of the Indigenous
Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights
entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or territory under peace agreement) that
partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the
world through a simple dichotomy: there was the dar-ul-Islam (the Abode
of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands
where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however, became more complex
through the centuries as the Islamic world became part of the international
community of nations.
As Muslim States entered into treaties with their neighbors, even with distant
States and inter-governmental organizations, the classical division of the world
into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were
drawn up to describe novel ways of perceiving non-Muslim territories. For
instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land
of treaty) referred to countries which, though under a secular regime, maintained
peaceful and cooperative relations with Muslim States, having been bound to
each other by treaty or agreement. Dar-ul-aman (land of order), on the other
hand, referred to countries which, though not bound by treaty with Muslim States,
maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the
regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements
between the MILF and the Philippine government - the Philippines being the land
of compact and peace agreement - that partake of the nature of a treaty
device, "treaty" being broadly defined as "any solemn agreement in writing that
sets out understandings, obligations, and benefits for both parties which provides
for a framework that elaborates the principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED
AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
Bangsamoros.'" It defines "Bangsamoro people" as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD,
includes not only "Moros" as traditionally understood even by Muslims,31 but
all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds
that the freedom of choice of indigenous peoples shall be respected. What this
freedom of choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership
of which is vested exclusively in the Bangsamoro people by virtue of
their prior rights of occupation.32 Both parties to the MOA-AD acknowledge
that ancestral domain does not form part of the public domain.33
The Bangsamoro people are acknowledged as having the right to selfgovernance, which right is said to be rooted on ancestral territoriality exercised
originally under the suzerain authority of their sultanates and the Pat a
Pangampong ku Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with all the elements of a
nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro
people on the past suzerain authority of the sultanates. As gathered, the territory
defined as the Bangsamoro homeland was ruled by several sultanates and,

specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a
confederation of independent principalities (pangampong) each ruled by datus
and sultans, none of whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the First
Nation' with defined territory and with a system of government having entered
into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples
of that territory, particularly those known as Indians. In Canada, each of these
indigenous peoples is equally entitled to be called "First Nation," hence, all of
them are usually described collectively by the plural "First Nations."36 To that
extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation"
- suggesting its exclusive entitlement to that designation - departs from the
Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity"
(BJE) to which it grants the authority and jurisdiction over the Ancestral Domain
and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well
as the maritime, terrestrial, fluvial and alluvial domains, including the aerial
domain and the atmospheric space above it, embracing the Mindanao-SuluPalawan geographic region.38
More specifically, the core of the BJE is defined as the present geographic area
of the ARMM - thus constituting the following areas: Lanao del Sur,
Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core
also includes certain municipalities of Lanao del Norte that voted for inclusion in
the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B.
Each of these areas is to be subjected to a plebiscite to be held on different
dates, years apart from each other. Thus, Category A areas are to be subjected
to a plebiscite not later than twelve (12) months following the signing of the MOAAD.40 Category B areas, also called "Special Intervention Areas," on the other
hand, are to be subjected to a plebiscite twenty-five (25) years from the signing
of a separate agreement - the Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all
natural resources within its "internal waters," defined as extending fifteen (15)
kilometers from the coastline of the BJE area;42 that the BJE shall also have
"territorial waters," which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorialwaters, the BJE and the
"Central Government" (used interchangeably with RP) shall
exercise joint jurisdiction, authority and management over all natural
resources.43 Notably, the jurisdiction over the internal waters is not similarly
described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through
production sharing and economic cooperation agreement.44 The activities which
the Parties are allowed to conduct on the territorial waters are enumerated,
among which are the exploration and utilization of natural resources, regulation
of shipping and fishing activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of minerals and allowed
activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation
and trade relations with foreign countries and shall have the option to establish
trade missions in those countries. Such relationships and understandings,
however, are not to include aggression against the GRP. The BJE may also enter
into environmental cooperation agreements.46
The external defense of the BJE is to remain the duty and obligation of the
Central Government. The Central Government is also bound to "take necessary
steps to ensure the BJE's participation in international meetings and events" like
those of the ASEAN and the specialized agencies of the UN. The BJE is to be
entitled to participate in Philippine official missions and delegations for the
negotiation of border agreements or protocols for environmental protection and
equitable sharing of incomes and revenues involving the bodies of water
adjacent to or between the islands forming part of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the
jurisdiction and control thereon is to be vested in the BJE "as the party having
control within its territorial jurisdiction." This right carries the proviso that, "in
times of national emergency, when public interest so requires," the Central
Government may, for a fixed period and under reasonable terms as may be
agreed upon by both Parties, assume or direct the operation of such resources.48
The sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people
arising from any unjust dispossession of their territorial and proprietary rights,
customary land tenures, or their marginalization shall be acknowledged.
Whenever restoration is no longer possible, reparation is to be in such form as
mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and Sharing
Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and
other land tenure instruments granted by the Philippine Government, including
those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the "details for the effective enforcement" and "the mechanisms and
modalities for the actual implementation" of the MOA-AD. The MOA-AD explicitly
provides that the participation of the third party shall not in any way affect the
status of the relationship between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE
as "associative," characterizedby shared authority and responsibility. And it
states that the structure of governance is to be based on executive, legislative,
judicial, and administrative institutions with defined powers and functions in the
Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing
legal framework" shall take effect upon signing of the Comprehensive Compact
and upon effecting the aforesaid amendments, with due regard to the nonderogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact. As will be discussed later, much of
the present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions
inclusive of civil service, electoral, financial and banking, education, legislation,
legal, economic, police and internal security force, judicial system and
correctional institutions, the details of which shall be discussed in the negotiation
of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by
Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating
Panels of the GRP and the MILF, respectively. Notably, the penultimate
paragraph of the MOA-AD identifies the signatories as "the representatives of the
Parties," meaning the GRP and MILF themselves, and not merely of the
negotiating panels.53 In addition, the signature page of the MOA-AD states that it
is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime
Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to
Organization of the Islamic Conference (OIC) Secretary General and Special
Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE
PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and
Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective
lists cum maps of the provinces, municipalities, and barangays under Categories
A and B earlier mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies.54 Courts
decline to issue advisory opinions or to resolve hypothetical or feigned problems,
or mere academic questions.55 The limitation of the power of judicial review to
actual cases and controversies defines the role assigned to the judiciary in a
tripartite allocation of power, to assure that the courts will not intrude into areas
committed to the other branches of government.56
An actual case or controversy involves a conflict of legal rights, an assertion of
opposite legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. There must be a contrariety of legal
rights that can be interpreted and enforced on the basis of existing law and
jurisprudence.57The Court can decide the constitutionality of an act or treaty only
when a proper case between opposing parties is submitted for judicial
determination.58
Related to the requirement of an actual case or controversy is the requirement of

ripeness. A question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it.59 For a case to be
considered ripe for adjudication, it is a prerequisite that something had then been
accomplished or performed by either branch before a court may come into the
picture,60 and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action.61 He must show
that he has sustained or is immediately in danger of sustaining some direct injury
as a result of the act complained of.62
The Solicitor General argues that there is no justiciable controversy that is ripe
for judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to
further negotiations and legislative enactments as well as constitutional
processes aimed at attaining a final peaceful agreement. Simply put, the
MOA-AD remains to be a proposal that does not automatically create
legally demandable rights and obligations until the list of operative acts
required have been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court
has no authority to pass upon issues based on hypothetical or feigned
constitutional problems or interests with no concrete bases. Considering
the preliminary character of the MOA-AD, there are no concrete acts that
could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a
final peace agreement. Plainly, petitioners and intervenors' perceived
injury, if at all, is merely imaginary and illusory apart from being unfounded
and based on mere conjectures. (Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the

Government stipulates to conduct and deliver, using all possible legal
measures, within twelve (12) months following the signing of the MOA-AD,
a plebiscite covering the areas as enumerated in the list and depicted in
the map as Category A attached herein (the "Annex"). The Annex
constitutes an integral part of this framework agreement. Toward this end,
the Parties shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen (15)
months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into forceupon the signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal framework
with due regard to non-derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive
Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present
controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial
controversy even without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough to awaken judicial
duty.
xxxx
By the same token, when an act of the President, who in our constitutional
scheme is a coequal of Congress, is seriously alleged to have infringed the
Constitution and the laws x x x settling the dispute becomes the duty and
the responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United States Supreme
Court held that the challenge to the constitutionality of the school's policy
allowing student-led prayers and speeches before games was ripe for
adjudication, even if no public prayer had yet been led under the policy, because
the policy was being challenged as unconstitutional on its face.68
That the law or act in question is not yet effective does not negate ripeness. For
example, in New York v. United States,69 decided in 1992, the United States
Supreme Court held that the action by the State of New York challenging the
provisions of the Low-Level Radioactive Waste Policy Act was ripe for
adjudication even if the questioned provision was not to take effect until January
1, 1996, because the parties agreed that New York had to take immediate action
to avoid the provision's consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari
and Prohibition are remedies granted by law when any tribunal, board or officer
has acted, in the case of certiorari, or is proceeding, in the case of prohibition,
without or in excess of its jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction.72 Mandamus is a remedy granted by law when
any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes another from the use or
enjoyment of a right or office to which such other is entitled.73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and
executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3
(E.O. No. 3), issued on February 28, 2001.75 The said executive order requires
that "[t]he government's policy framework for peace, including the systematic
approach and the administrative structure for carrying out the comprehensive
peace process x x x be governed by this Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP Esperon
drafted the terms of the MOA-AD without consulting the local government units or
communities affected, nor informing them of the proceedings. As will be
discussed in greater detail later, such omission, by itself, constitutes a departure
by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that "any provisions of the MOA-AD
requiring amendments to the existing legal framework shall come into force upon
the signing of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework," implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect,guaranteed to the MILF
the amendment of the Constitution. Such act constitutes another violation of its
authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed
their authority, by violating their duties under E.O. No. 3 and the provisions of
the Constitution and statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe for
adjudication exists. When an act of a branch of government is seriously
alleged to have infringed the Constitution, it becomes not only the right but
in fact the duty of the judiciary to settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."78
Because constitutional cases are often public actions in which the relief sought is
likely to affect other persons, a preliminary question frequently arises as to this
interest in the constitutional question raised.79
When suing as a citizen, the person complaining must allege that he 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
or act complained of.80 When the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that public
funds are illegally disbursed or deflected to an illegal purpose, or that there is a
wastage of public funds through the enforcement of an invalid or unconstitutional
law.82 The Court retains discretion whether or not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive that
injures the institution of Congress causes a derivative but nonetheless
substantial injury that can be questioned by legislators. A member of the House
of Representatives has standing to maintain inviolate the prerogatives, powers

and privileges vested by the Constitution in his office.84
An organization may be granted standing to assert the rights of its
members,85 but the mere invocation by theIntegrated Bar of the Philippines or
any member of the legal profession of the duty to preserve the rule of law does
not suffice to clothe it with standing.86
As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of facts that
satisfy the requirements of the law authorizing intervention,88 such as a legal
interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus
standi, given the liberal attitude it has exercised, highlighted in the case of David
v. Macapagal-Arroyo,89 where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of
transcendental importance deserving the attention of the Court in view of their
seriousness, novelty and weight as precedents.90 The Court's forbearing stance
on locus standi on issues involving constitutional issues has for its purpose the
protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves
within the limits of the Constitution and the laws and have not abused the
discretion given them, has brushed aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and
petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon havelocus standi in view of the direct and
substantial injury that they, as LGUs, would suffer as their territories, whether in
whole or in part, are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in the ARMM which
would be expanded to form the BJE territory. Petitioners' legal standing is thus
beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure to
specify that they would be denied some right or privilege or there would be
wastage of public funds. The fact that they are a former Senator, an incumbent
mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of
the issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the conduct of
an illegal and unconstitutional plebiscite to delineate the BJE territory. On that
score alone, they can be given legal standing. Their allegation that the issues
involved in these petitions are of "undeniable transcendental importance" clothes
them with added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a
member of the Senate and a citizen to enforce compliance by respondents of the
public's constitutional right to be informed of the MOA-AD, as well as on a
genuine legal interest in the matter in litigation, or in the success or failure of
either of the parties. He thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the
3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B.
Gomez, et al., as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to
allege any proper legal interest in the present petitions. Just the same, the Court
exercises its discretion to relax the procedural technicality on locus standigiven
the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and
prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation
Inc., a non-government organization of Muslim lawyers, allege that they stand to
be benefited or prejudiced, as the case may be, in the resolution of the petitions
concerning the MOA-AD, and prays for the denial of the petitions on the grounds
therein stated. Such legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that "[n]o matter what the Supreme
Court ultimately decides[,] the government will not sign the MOA."92
In lending credence to this policy decision, the Solicitor General points out that
the President had already disbanded the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic"
principle not being a magical formula that automatically dissuades courts in
resolving a case, it will decide cases, otherwise moot and academic, if it finds
that (a) there is a grave violation of the Constitution;95 (b) the situation is of
exceptional character and paramount public interest is involved;96 (c) the
constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public;97 and (d) the case is capable of repetition yet
evading review.98
Another exclusionary circumstance that may be considered is where there is
a voluntary cessation of the activity complained of by the defendant or doer.
Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct,
it does not automatically deprive the tribunal of power to hear and determine the
case and does not render the case moot especially when the plaintiff seeks
damages or prays for injunctive relief against the possible recurrence of the
violation.99
The present petitions fall squarely into these exceptions to thus thrust them into
the domain of judicial review. The grounds cited above in David are just as
applicable in the present cases as they were, not only in David, but also
in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the Court
similarly decided them on the merits, supervening events that would ordinarily
have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOAAD and the eventual dissolution of the GRP Peace Panel did not moot the
present petitions. It bears emphasis that the signing of the MOA-AD did not push
through due to the Court's issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere
"list of consensus points," especially given its nomenclature, the need to have
it signed or initialed by all the parties concerned on August 5, 2008, and
the far-reaching Constitutional implications of these "consensus
points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the
part of respondents to amend and effect necessary changes to the existing
legal framework for certain provisions of the MOA-AD to take effect.
Consequently, the present petitions are not confined to the terms and provisions
of the MOA-AD, but to other on-going and future negotiations and agreements
necessary for its realization. The petitions have not, therefore, been rendered
moot and academic simply by the public disclosure of the MOA-AD,102 the
manifestation that it will not be signed as well as the disbanding of the GRP
Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public
interest, involving a significant part of the country's territory and the wide-ranging
political modifications of affected LGUs. The assertion that the MOA-AD is
subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this
case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e]
on issues which no longer legitimately constitute an actual case or controversy
[as this] will do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico,
what was assailed and eventually cancelled was a stand-alone government
procurement contract for a national broadband network involving a one-time
contractual relation between two parties-the government and a private foreign
corporation. As the issues therein involved specific government procurement
policies and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual circumstances being
peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of
agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD
which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the
third such component to be undertaken following the implementation of
the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28,
2008 to the Solicitor General, has stated that "no matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA[-AD],"mootness will
not set in in light of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be
drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement
2001, in another or in any form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive Secretary that the
government "is committed to securing an agreement that is both constitutional
and equitable because that is the only way that long-lasting peace can be
assured," it is minded to render a decision on the merits in the present petitions
toformulate controlling principles to guide the bench, the bar, the public
and, most especially, the government in negotiating with the MILF
regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief
Justice Artemio Panganiban inSanlakas v. Reyes104 in which he stated that the
doctrine of "capable of repetition yet evading review" can override mootness,
"provided the party raising it in a proper case has been and/or continue to be
prejudiced or damaged as a direct result of their issuance." They contend that the
Court must have jurisdiction over the subject matter for the doctrine to be
invoked.
The present petitions all contain prayers for Prohibition over which this Court
exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a
petition for Injunction and Declaratory Relief, the Court will treat it as one for
Prohibition as it has far reaching implications and raises questions that need to
be resolved.105 At all events, the Court has jurisdiction over most if not the rest of
the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply
the doctrine immediately referred to as what it had done in a number of landmark
cases.106 There is a reasonable expectation that petitioners, particularly the
Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the
Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
will again be subjected to the same problem in the future as respondents' actions
are capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become
moot, respondents having, by Compliance of August 7, 2008, provided this Court
and petitioners with official copies of the final draft of the MOA-AD and its
annexes. Too, intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the
MOA-AD was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed
the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public
concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by
law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory
right to examine and inspect public records, a right which was eventually
accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a self-executory
constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that
access to public records is predicated on the right of the people to acquire
information on matters of public concern since, undoubtedly, in a democracy, the
pubic has a legitimate interest in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be
no realistic perception by the public of the nation's problems, nor a meaningful
democratic decision-making if they are denied access to information of general
interest. Information is needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed: "Maintaining the flow of
such information depends on protection for both its acquisition and its
dissemination since, if either process is interrupted, the flow inevitably ceases." x

x x111
In the same way that free discussion enables members of society to cope with
the exigencies of their time, access to information of general interest aids the
people in democratic decision-making by giving them a better perspective of the
vital issues confronting the nation112 so that they may be able to criticize and
participate in the affairs of the government in a responsible, reasonable and
effective manner. It is by ensuring an unfettered and uninhibited exchange of
ideas among a well-informed public that a government remains responsive to the
changes desired by the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of
public concern114 faces no serious challenge. In fact, respondents admit that the
MOA-AD is indeed of public concern.115 In previous cases, the Court found that
the regularity of real estate transactions entered in the Register of Deeds,116 the
need for adequate notice to the public of the various laws,117 the civil service
eligibility of a public employee,118 the proper management of GSIS funds allegedly
used to grant loans to public officials,119 the recovery of the Marcoses' alleged illgotten wealth,120 and the identity of party-list nominees,121 among others, are
matters of public concern. Undoubtedly, the MOA-AD subject of the present
cases is of public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as
to the executory nature or commercial character of agreements, the Court has
categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations
leading to the consummation of the transaction." Certainly, a
consummated contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too late
for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the
contract, which may be grossly disadvantageous to the government or
even illegal, becomes fait accompli. This negates the State policy of full
transparency on matters of public concern, a situation which the framers of
the Constitution could not have intended. Such a requirement will prevent
the citizenry from participating in the public discussion of

any proposed contract, effectively truncating a basic right enshrined in the
Bill of Rights. We can allow neither an emasculation of a constitutional
right, nor a retreat by the State of its avowed "policy of full disclosure of all
its transactions involving public interest."122 (Emphasis and italics in the
original)
Intended as a "splendid symmetry"123 to the right to information under the Bill of
Rights is the policy of public disclosure under Section 28, Article II of the
Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest.124
The policy of full public disclosure enunciated in above-quoted Section
28 complements the right of access to information on matters of public
concern found in the Bill of Rights. The right to information guarantees the right
of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the people's right to
know as the centerpiece. It is a mandate of the State to be accountable by
following such policy.126 These provisions are vital to the exercise of the freedom
of expression and essential to hold public officials at all times accountable to the
people.127
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be
enunciated or will not be in force and effect until after Congress shall have
provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately
but, of course, the implementing law will have to be enacted by Congress,
Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought
clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding
Officer, did I get the Gentleman correctly as having said that this is not a
self-executing provision? It would require a legislation by Congress to
implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted
an amendment from Commissioner Regalado, so that the safeguards on
national interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for reasonable
safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it
should immediately influence the climate of the conduct of public
affairs but, of course, Congress here may no longer pass a law revoking it,
or if this is approved, revoking this principle, which is inconsistent with this
policy.129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await
the passing of a statute. As Congress cannot revoke this principle, it is merely
directed to provide for "reasonable safeguards." The complete and effective
exercise of the right to information necessitates that its complementary provision
on public disclosure derive the same self-executory nature. Since both provisions
go hand-in-hand, it is absurd to say that the broader130 right to information on
matters of public concern is already enforceable while the correlative duty of the
State to disclose its transactions involving public interest is not enforceable until
there is an enabling law.Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained
to the end that the government may perceive and be responsive to the people's
will.131Envisioned to be corollary to the twin rights to information and disclosure is
the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the
people be able to participate? Will the government provide feedback
mechanisms so that the people can participate and can react where
the existing media facilities are not able to provide full feedback
mechanisms to the government? I suppose this will be part of the
government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is
how these courses take place. There is a message and a feedback, both
ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last
sentence?
I think when we talk about the feedback network, we are not talking
about public officials but also network of private business o[r]
community-based organizations that will be reacting. As a matter of
fact, we will put more credence or credibility on the private network of
volunteers and voluntary community-based organizations. So I do not think
we are afraid that there will be another OMA in the making.132(Emphasis
supplied)
The imperative of a public consultation, as a species of the right to information, is
evident in the "marching orders" to respondents. The mechanics for the duty to
disclose information and to conduct public consultation regarding the peace
agenda and process is manifestly provided by E.O. No. 3.133 The preambulatory
clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by
institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is
that it "should be community-based, reflecting the sentiments, values and
principles important to all Filipinos" and "shall be defined not by the government
alone, nor by the different contending groups only, but by all Filipinos as one
community."134Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes "continuing
consultations on both national and local levels to build consensus for a peace
agenda and process, and the mobilization and facilitation of people's participation
in the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to
effectuate "continuing" consultations, contrary to respondents' position
that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP,
one of which is to "[c]onductregular dialogues with the National Peace Forum
(NPF) and other peace partners to seek relevant information, comments,
recommendations as well as to render appropriate and timely reports on the
progress of the comprehensive peace process."137 E.O. No. 3 mandates the

establishment of the NPF to be "the principal forumfor the PAPP to consult with
and seek advi[c]e from the peace advocates, peace partners and concerned
sectors of society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society dialogue
and consensus-building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the
peace agenda, as a corollary to the constitutional right to information and
disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out
the pertinent consultation. The furtive process by which the MOA-AD was
designed and crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law
and discharge the functions within the authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to
respondents' retort in justifying the denial of petitioners' right to be consulted.
Respondents' stance manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people's participation. Such disregard of the express
mandate of the President is not much different from superficial conduct toward
token provisos that border on classic lip service.140 It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not
tenable under the premises. The argument defies sound reason when contrasted
with E.O. No. 3's explicit provisions on continuing consultation and dialogue on
both national and local levels. The executive order even recognizes the
exercise of the public's right even before the GRP makes its official
recommendations or before the government proffers its definite propositions.141 It
bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information,
comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive
privilege in view of their unqualified disclosure of the official copies of the final
draft of the MOA-AD. By unconditionally complying with the Court's August 4,
2008 Resolution, without a prayer for the document's disclosure in camera, or

without a manifestation that it was complying therewith ex abundante ad
cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it
a State policy to "require all national agencies and offices to conduct periodic
consultations with appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the community before
any project or program is implemented in their respective jurisdictions"142 is welltaken. The LGC chapter on intergovernmental relations puts flesh into this
avowed policy:
Prior Consultations Required. - No project or program shall be
implemented by government authoritiesunless the consultations mentioned
in Sections 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas
where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the
provisions of the Constitution.143 (Italics and underscoring supplied)
In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy and
above-quoted provision of the LGU apply only to national programs or projects
which are to be implemented in a particular local community. Among the
programs and projects covered are those that are critical to the environment and
human ecology including those that may call for the eviction of a particular group
of people residing in the locality where these will be implemented.145 The MOAAD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people,146 which could
pervasively and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples
(ICCs/IPs), whose interests are represented herein by petitioner Lopez and are
adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right
to participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies.147 The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut
mechanisms ordained in said Act,148 which entails, among other things, the
observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise. The recognition of the ancestral domain is the raison
d'etre of the MOA-AD, without which all other stipulations or "consensus points"
necessarily must fail. In proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as one of the TOR of the
MOA-AD, respondents clearly transcended the boundaries of their
authority. As it seems, even the heart of the MOA-AD is still subject to
necessary changes to the legal framework. While paragraph 7 on Governance
suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following
section.
Indeed, ours is an open society, with all the acts of the government subject to
public scrutiny and available always to public cognizance. This has to be so if the
country is to remain democratic, with sovereignty residing in the people and all
government authority emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they
cannot all be accommodated under the present Constitution and laws.
Respondents have admitted as much in the oral arguments before this Court,
and the MOA-AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because any
provisions therein which are inconsistent with the present legal framework will not
be effective until the necessary changes to that framework are made. The validity
of this argument will be considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently
worded.
In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers granted
to the BJE exceed those granted to any local government under present laws,
and even go beyond those of the present ARMM. Before assessing some of the
specific powers that would have been vested in the BJE, however, it would be
useful to turn first to a general idea that serves as a unifying link to the different
provisions of the MOA-AD, namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this concept, indicating that the
Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe

the envisioned relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall beassociative characterized by
shared authority and responsibility with a structure of governance
based on executive, legislative, judicial and administrative institutions with
defined powers and functions in the comprehensive compact. A period of
transition shall be established in a comprehensive peace compact
specifying the relationship between the Central Government and the BJE.
(Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be
defined more precisely in the still to be forged Comprehensive Compact.
Nonetheless, given that there is a concept of "association" in international law,
and the MOA-AD - by its inclusion of international law instruments in its TORplaced itself in an international legal context, that concept of association may be
brought to bear in understanding the use of the term "associative" in the MOAAD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate,
delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations
represent a middle ground between integration and independence. x x
x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.-administered
Trust Territory of the Pacific Islands,151 are associated states of the U.S. pursuant
to a Compact of Free Association. The currency in these countries is the U.S.
dollar, indicating their very close ties with the U.S., yet they issue their own travel
documents, which is a mark of their statehood. Their international legal status as
states was confirmed by the UN Security Council and by their admission to UN
membership.
According to their compacts of free association, the Marshall Islands and the
FSM generally have the capacity to conduct foreign affairs in their own name and
right, such capacity extending to matters such as the law of the sea, marine
resources, trade, banking, postal, civil aviation, and cultural relations. The U.S.
government, when conducting its foreign affairs, is obligated to consult with the
governments of the Marshall Islands or the FSM on matters which it (U.S.

government) regards as relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the
U.S. government has the authority and obligation to defend them as if they were
part of U.S. territory. The U.S. government, moreover, has the option of
establishing and using military areas and facilities within these associated states
and has the right to bar the military personnel of any third country from having
access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between sovereigns.
The Compact of Free Association is a treaty which is subordinate to the
associated nation's national constitution, and each party may terminate the
association consistent with the right of independence. It has been said that, with
the admission of the U.S.-associated states to the UN in 1990, the UN
recognized that the American model of free association is actually based on an
underlying status of independence.152
In international practice, the "associated state" arrangement has usually been
used as a transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status of
associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept ofassociation, specifically the following: the BJE's
capacity to enter into economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE's participation in
meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense.
Moreover, the BJE's right to participate in Philippine official missions bearing on
negotiation of border agreements, environmental protection, and sharing of
revenues pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any
foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or, at any
rate, a status closely approximating it.
The concept of association is not recognized under the present

Constitution
No province, city, or municipality, not even the ARMM, is recognized under our
laws as having an "associative" relationship with the national government.
Indeed, the concept implies powers that go beyond anything ever granted by the
Constitution to any local or regional government. It also implies the recognition of
the associated entity as a state. The Constitution, however, does not contemplate
any state in this jurisdiction other than the Philippine State, much less does it
provide for a transitory status that aims to prepare any part of Philippine territory
for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore,
already requires for its validity the amendment of constitutional provisions,
specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays.
There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other
relevant characteristics within the framework of this Constitution and
the national sovereignty as well as territorial integrity of the Republic
of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship
with the national government being fundamentally different from that of the
ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a
state laid down in the Montevideo Convention,154 namely, a permanent
population, a defined territory, a government, and a capacity to enter into
relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit animating it - which has betrayed itself
by its use of the concept of association - runs counter to the national

sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present Constitution, it
is not surprising that many of the specific provisions of the MOA-AD on the
formation and powers of the BJE are in conflict with the Constitution and
the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the votes
cast by the constituent units in a plebiscite called for the purpose, provided
that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But
even assuming that it is covered by the term "autonomous region" in the
constitutional provision just quoted, the MOA-AD would still be in conflict with it.
Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present
geographic area of the ARMM and, in addition, the municipalities of Lanao del
Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi,
Munai, Nunungan, Pantar, Tagoloan and Tangkal - are automatically part of the
BJE without need of another plebiscite, in contrast to the areas under Categories
A and B mentioned earlier in the overview. That the present components of the
ARMM and the above-mentioned municipalities voted for inclusion therein in
2001, however, does not render another plebiscite unnecessary under the
Constitution, precisely because what these areas voted for then was their
inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions
of this Constitution and national laws, the organic act of autonomous
regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region,
the MOA-AD would require an amendment that would expand the above-quoted
provision. The mere passage of new legislation pursuant to sub-paragraph No. 9
of said constitutional provision would not suffice, since any new law that might
vest in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass
legislation vesting the BJE with treaty-making power in order to accommodate
paragraph 4 of the strand on RESOURCES which states: "The BJE is free to
enter into any economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not include
aggression against the Government of the Republic of the Philippines x x x."
Under our constitutional system, it is only the President who has that
power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is
the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's mouthpiece
with respect to international affairs. Hence, the President is vested with
the authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign relations. In the realm
of treaty-making, the President has the sole authority to negotiate
with other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: "The State recognizes and promotes the rights ofindigenous
cultural communities within the framework of national unity and development."

(Underscoring supplied) An associative arrangement does not uphold national
unity. While there may be a semblance of unity because of the associative ties
between the BJE and the national government, the act of placing a portion of
Philippine territory in a status which, in international practice, has generally been
a preparation for independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which are R.A. No.
9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption
of the definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1
on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of
conquest or colonization of its descendants whether mixed or of full blood.
Spouses and their descendants are classified as Bangsamoro. The
freedom of choice of the Indigenous people shall be respected. (Emphasis
and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article
X, Section 3 of the Organic Act, which, rather than lumping together the identities
of the Bangsamoro and other indigenous peoples living in Mindanao,
clearly distinguishes between Bangsamoro people and Tribal peoples, as
follows:
"As used in this Organic Act, the phrase "indigenous cultural community"
refers to Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic
conditions distinguish them from other sectors of the national community;
and
(b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social,
economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation
and recognition of ancestral domains. The MOA-AD's manner of delineating the
ancestral domain of the Bangsamoro people is a clear departure from that
procedure. By paragraph 1 of Territory, the Parties simply agree that, subject to
the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and
historic territory refer to the land mass as well as the maritime, terrestrial, fluvial
and alluvial domains, and the aerial domain, the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of
ancestral domains shall be done in accordance with the following
procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter
may be initiated by the NCIP with the consent of the ICC/IP concerned, or
through a Petition for Delineation filed with the NCIP, by a majority of the
members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain
boundaries including census of all community members therein, shall be
immediately undertaken by the Ancestral Domains Office upon filing of the
application by the ICCs/IPs concerned. Delineation will be done in
coordination with the community concerned and shall at all times include
genuine involvement and participation by the members of the communities
concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the
testimony of elders or community under oath, and other documents directly
or indirectly attesting to the possession or occupation of the area since
time immemorial by such ICCs/IPs in the concept of owners which shall be
any one (1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning

boundaries entered into by the ICCs/IPs concerned with other
ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests
and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as
mountains, rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of
the community.
e) Preparation of Maps. - On the basis of such investigation and the
findings of fact based thereon, the Ancestral Domains Office of the NCIP
shall prepare a perimeter map, complete with technical descriptions, and a
description of the natural features and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the
preliminary census and a report of investigation, shall be prepared by the
Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall be
posted in a prominent place therein for at least fifteen (15) days. A copy of
the document shall also be posted at the local, provincial and regional
offices of the NCIP, and shall be published in a newspaper of general
circulation once a week for two (2) consecutive weeks to allow other
claimants to file opposition thereto within fifteen (15) days from date of
such publication: Provided, That in areas where no such newspaper exists,
broadcasting in a radio station will be a valid substitute: Provided, further,
That mere posting shall be deemed sufficient if both newspaper and radio
station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of
the inspection process, the Ancestral Domains Office shall prepare a report
to the NCIP endorsing a favorable action upon a claim that is deemed to
have sufficient proof. However, if the proof is deemed insufficient, the

Ancestral Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall reject any
claim that is deemed patently false or fraudulent after inspection and
verification: Provided, further, That in case of rejection, the Ancestral
Domains Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be
appealable to the NCIP: Provided, furthermore, That in cases where there
are conflicting claims among ICCs/IPs on the boundaries of ancestral
domain claims, the Ancestral Domains Office shall cause the contending
parties to meet and assist them in coming up with a preliminary resolution
of the conflict, without prejudice to its full adjudication according to the
section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present
legal system, a discussion of not only the Constitution and domestic statutes, but
also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts
the generally accepted principles of international law as part of the law of
the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,158 held that the Universal Declaration of Human Rights is part of the law
of the land on account of which it ordered the release on bail of a detained alien
of Russian descent whose deportation order had not been executed even after
two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid
constitutional provision to the 1968 Vienna Convention on Road Signs and
Signals.
International law has long recognized the right to self-determination of "peoples,"
understood not merely as the entire population of a State but also a portion
thereof. In considering the question of whether the people of Quebec had a right
to unilaterally secede from Canada, the Canadian Supreme Court in
REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge
that "the right of a people to self-determination is now so widely recognized in
international conventions that the principle has acquired a status beyond
convention' and is considered a general principle of international law."
Among the conventions referred to are the International Covenant on Civil and
Political Rights161 and the International Covenant on Economic, Social and
Cultural Rights162 which state, in Article 1 of both covenants, that all peoples, by
virtue of the right of self-determination, "freely determine their political status and
freely pursue their economic, social, and cultural development."
The people's right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made between
the right of internal and external self-determination. REFERENCE RE
SECESSION OF QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to
self-determination of a people is normally fulfilled
through internal self-determination - a people's pursuit of its political,
economic, social and cultural development within the framework of
an existing state. A right toexternal self-determination (which in this
case potentially takes the form of the assertion of a right to unilateral
secession) arises in only the most extreme of cases and, even then,
under carefully defined circumstances. x x x
External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free
association or integration with an independent State or the
emergence into any other political status freely determined by
apeople constitute modes of implementing the right of self-determination
by that people. (Emphasis added)
127. The international law principle of self-determination has evolved
within a framework of respect for the territorial integrity of existing
states. The various international documents that support the existence of
a people's right to self-determination also contain parallel statements
supportive of the conclusion that the exercise of such a right must be
sufficiently limited to prevent threats to an existing state's territorial integrity
or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right
to external self-determination can arise, namely, where a people is under colonial
rule, is subject to foreign domination or exploitation outside a colonial context,
and - less definitely but asserted by a number of commentators - is blocked from
the meaningful exercise of its right to internal self-determination. The Court

ultimately held that the population of Quebec had no right to secession, as the
same is not under colonial rule or foreign domination, nor is it being deprived of
the freedom to make political choices and pursue economic, social and cultural
development, citing that Quebec is equitably represented in legislative, executive
and judicial institutions within Canada, even occupying prominent positions
therein.
The exceptional nature of the right of secession is further exemplified in the
REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE
LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There, Sweden
presented to the Council of the League of Nations the question of whether the
inhabitants of the Aaland Islands should be authorized to determine by plebiscite
if the archipelago should remain under Finnish sovereignty or be incorporated in
the kingdom of Sweden. The Council, before resolving the question, appointed
an International Committee composed of three jurists to submit an opinion on the
preliminary issue of whether the dispute should, based on international law, be
entirely left to the domestic jurisdiction of Finland. The Committee stated the rule
as follows:
x x x [I]n the absence of express provisions in international treaties, the
right of disposing of national territory is essentially an attribute of the
sovereignty of every State. Positive International Law does not
recognize the right of national groups, as such, to separate
themselves from the State of which they form part by the simple
expression of a wish, any more than it recognizes the right of other
States to claim such a separation. Generally speaking, the grant or
refusal of the right to a portion of its population of determining its
own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning such a
question, under normal conditions therefore, bears upon a question which
International Law leaves entirely to the domestic jurisdiction of one of the
States concerned. Any other solution would amount to an infringement of
sovereign rights of a State and would involve the risk of creating difficulties
and a lack of stability which would not only be contrary to the very idea
embodied in term "State," but would also endanger the interests of the
international community. If this right is not possessed by a large or small
section of a nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis and
underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer
to a question which is left by international law to the domestic jurisdiction of
Finland, thereby applying the exception rather than the rule elucidated above. Its
ground for departing from the general rule, however, was a very narrow one,
namely, the Aaland Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal situation of Finland was,
according to the Committee, so abnormal that, for a considerable time, the
conditions required for the formation of a sovereign State did not exist. In the
midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national
government was disputed by a large section of the people, and it had, in fact,
been chased from the capital and forcibly prevented from carrying out its duties.
The armed camps and the police were divided into two opposing forces. In light
of these circumstances, Finland was not, during the relevant time period, a
"definitively constituted" sovereign state. The Committee, therefore, found that
Finland did not possess the right to withhold from a portion of its population the
option to separate itself - a right which sovereign nations generally have with
respect to their own populations.
Turning now to the more specific category of indigenous peoples, this term has
been used, in scholarship as well as international, regional, and state practices,
to refer to groups with distinct cultures, histories, and connections to land
(spiritual and otherwise) that have been forcibly incorporated into a larger
governing society. These groups are regarded as "indigenous" since they are the
living descendants of pre-invasion inhabitants of lands now dominated by others.
Otherwise stated, indigenous peoples, nations, or communities are culturally
distinctive groups that find themselves engulfed by settler societies born of the
forces of empire and conquest.164 Examples of groups who have been regarded
as indigenous peoples are the Maori of New Zealand and the aboriginal peoples
of Canada.
As with the broader category of "peoples," indigenous peoples situated within
states do not have a general right to independence or secession from those
states under international law,165 but they do have rights amounting to what was
discussed above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly
adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN
DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4,
the Philippines being included among those in favor, and the four voting against
being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination,
encompassing the right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the
right to autonomy or self-government in matters relating to
their internal and local affairs, as well as ways and means for financing
their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct
political, legal, economic, social and cultural institutions, while retaining
their right to participate fully, if they so choose, in the political, economic,
social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to
indigenous peoples, has been understood as equivalent to "internal selfdetermination."166 The extent of self-determination provided for in the UN DRIP is
more particularly defined in its subsequent articles, some of which are quoted
hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to
forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and
redress for:
(a) Any action which has the aim or effect of depriving them of their
integrity as distinct peoples, or of their cultural values or ethnic
identities;
(b) Any action which has the aim or effect of dispossessing them of
their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect
of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or
ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including, inter alia,
in the areas of education, employment, vocational training and retraining,
housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and social
conditions. Particular attention shall be paid to the rights and special needs
of indigenous elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the
lands, territories and resources that they possess by reason of traditional
ownership or other traditional occupation or use, as well as those which
they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with due
respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of
indigenous peoples, unless justified by a relevant public interest or
otherwise freely agreed with or requested by the indigenous peoples
concerned.
2. States shall undertake effective consultations with the indigenous
peoples concerned, through appropriate procedures and in particular
through their representative institutions, prior to using their lands or
territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities
and strategies for the development or use of their lands or territories and
other resources.
2. States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order to
obtain their free and informed consent prior to the approval of any project
affecting their lands or territories and other resources, particularly in
connection with the development, utilization or exploitation of mineral,
water or other resources.
3. States shall provide effective mechanisms for just and fair redress for
any such activities, and appropriate measures shall be taken to mitigate
adverse environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors and to have States honour and
respect such treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or
eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take
the appropriate measures, including legislative measures, to achieve the
ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights,
must now be regarded as embodying customary international law - a question
which the Court need not definitively resolve here - the obligations enumerated
therein do not strictly require the Republic to grant the Bangsamoro people,
through the instrumentality of the BJE, the particular rights and powers provided
for in the MOA-AD. Even the more specific provisions of the UN DRIP are
general in scope, allowing for flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
presupposes that it is the State which will provide protection for indigenous
peoples against acts like the forced dispossession of their lands - a function that
is normally performed by police officers. If the protection of a right so essential to
indigenous people's identity is acknowledged to be the responsibility of the State,
then surely the protection of rights less significant to them as such peoples would
also be the duty of States. Nor is there in the UN DRIP an acknowledgement of
the right of indigenous peoples to the aerial domain and atmospheric space.
What it upholds, in Article 26 thereof, is the right of indigenous peoples to the
lands, territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to
autonomy, does not obligate States to grant indigenous peoples the nearindependent status of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any
State, people, group or person any right to engage in any activity or to
perform any act contrary to the Charter of the United Nations orconstrued
as authorizing or encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to
Article II, Section 2 of the Constitution, it would not suffice to uphold the validity of
the MOA-AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that
cannot be reconciled with the Constitution and the laws as presently
worded. Respondents proffer, however, that the signing of the MOA-AD alone
would not have entailed any violation of law or grave abuse of discretion on their
part, precisely because it stipulates that the provisions thereof inconsistent with
the laws shall not take effect until these laws are amended. They cite paragraph
7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is
reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal

framework shall come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal framework
with due regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the
MOA-AD from coming into force until the necessary changes to the legal
framework are effected. While the word "Constitution" is not mentioned in
the provision now under consideration or anywhere else in the MOA-AD,
the term "legal framework" is certainly broad enough to include the
Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act
of incorporating in the MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government, have already violated
the Memorandum of Instructions From The President dated March 1, 2001,
which states that the "negotiations shall be conducted in accordance with x x x
the principles of the sovereignty and territorial integrityof the Republic of the
Philippines." (Emphasis supplied) Establishing an associative relationship
between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit
acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is
defective because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is
founded on E.O. No. 3, Section 5(c), which states that there shall be established
Government Peace Negotiating Panels for negotiations with different rebel
groups to be "appointed by the President as her official emissaries to conduct
negotiations, dialogues, and face-to-face discussions with rebel groups." These
negotiating panels are to report to the President, through the PAPP on the
conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the
Moro Problem through its negotiations with the MILF, was not restricted by E.O.
No. 3 only to those options available under the laws as they presently stand. One
of the components of a comprehensive peace process, which E.O. No. 3
collectively refers to as the "Paths to Peace," is the pursuit of social, economic,
and political reforms which may require new legislation or even constitutional
amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No.
125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the

comprehensive peace process comprise the processes known as the
"Paths to Peace". These component processes are interrelated and not
mutually exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be
limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This
component involves the vigorous implementation of various
policies, reforms, programs and projects aimed at addressing the
root causes of internal armed conflicts and social unrest. This may
require administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of
respondents to address, pursuant to this provision of E.O. No. 3, the root causes
of the armed conflict in Mindanao. The E.O. authorized them to "think outside the
box," so to speak. Hence, they negotiated and were set on signing the MOA-AD
that included various social, economic, and political reforms which cannot,
however, all be accommodated within the present legal framework, and which
thus would require new legislation and constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here,
because it must be askedwhether the President herself may exercise the
power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May
the President, in the course of peace negotiations, agree to pursue reforms that
would require new legislation and constitutional amendments, or should the
reforms be restricted only to those solutions which the present laws allow? The
answer to this question requires a discussion of the extent of the President's
power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel
groups is not explicitly mentioned in the Constitution does not mean that she has
no such authority. In Sanlakas v. Executive Secretary,168 in issue was the
authority of the President to declare a state of rebellion - an authority which is not
expressly provided for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the
President's power to forbid the return of her exiled predecessor. The

rationale for the majority's ruling rested on the President's
. . . unstated residual powers which are implied from the grant
of executive power and which are necessary for her to comply
with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in
the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the
avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant
of executive power.
Thus, the President's authority to declare a state of rebellion springs
in the main from her powers as chief executive and, at the same time,
draws strength from her Commander-in-Chief powers. x x x (Emphasis
and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As Chief
Executive, the President has the general responsibility to promote public peace,
and as Commander-in-Chief, she has the more specific duty to prevent and
suppress rebellion and lawless violence.169
As the experience of nations which have similarly gone through internal armed
conflict will show, however, peace is rarely attained by simply pursuing a military
solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration
of the nation's constitutional structure is required. The observations of Dr. Kirsti
Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building mission.
As we have observed in Liberia and Haiti over the last ten years, conflict
cessation without modification of the political environment, even where
state-building is undertaken through technical electoral assistance and
institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict.
Moreover, a substantial proportion of transitions have resulted in weak or
limited democracies.
The design of a constitution and its constitution-making process can play

an important role in the political and governance transition. Constitutionmaking after conflict is an opportunity to create a common vision of the
future of a state and a road map on how to get there. The constitution can
be partly a peace agreement and partly a framework setting up the rules
by which the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and legal
status of peace agreements, observed that the typical way that peace
agreements establish or confirm mechanisms for demilitarization and
demobilization is by linking them to new constitutional structures addressing
governance, elections, and legal and human rights institutions.171
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous
regions172is the framers' intention to implement a particular peace agreement,
namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed
by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more
questions, I will reserve my right to ask them if they are not covered by the
other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already
exists in the Muslim region; it is working very well; it has, in fact,
diminished a great deal of the problems. So, my question is: since that
already exists, why do we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo.
Commissioner Yusup Abubakar is right thatcertain definite steps have
been taken to implement the provisions of the Tripoli Agreement with
respect to an autonomous region in Mindanao. This is a good first
step, but there is no question that this is merely a partial response to
the Tripoli Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state
policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to
them have, to the credit of their drafters, been partly successful. Nonetheless, the
Filipino people are still faced with the reality of an on-going conflict between the
Government and the MILF. If the President is to be expected to find means for
bringing this conflict to an end and to achieve lasting peace in Mindanao, then
she must be given the leeway to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution for their implementation.
Being uniquely vested with the power to conduct peace negotiations with rebel
groups, the President is in a singular position to know the precise nature of their
grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she
considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1
and 3 of the Constitution, to propose the recommended amendments or revision
to the people, call a constitutional convention, or submit to the electorate the
question of calling such a convention.
While the President does not possess constituent powers - as those powers may
be exercised only by Congress, a Constitutional Convention, or the people
through initiative and referendum - she may submit proposals for constitutional
change to Congress in a manner that does not involve the arrogation of
constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos'
act of directly submitting proposals for constitutional amendments to a
referendum, bypassing the interim National Assembly which was the body vested
by the 1973 Constitution with the power to propose such amendments. President
Marcos, it will be recalled, never convened the interim National Assembly. The
majority upheld the President's act, holding that "the urges of absolute necessity"
compelled the President as the agent of the people to act as he did, there being
no interim National Assembly to propose constitutional amendments. Against this
ruling, Justices Teehankee and Muoz Palma vigorously dissented. The Court's
concern at present, however, is not with regard to the point on which it was then
divided in that controversial case, but on that which was not disputed by either
side.
Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed
that the President may directly submit proposed constitutional amendments to a
referendum, implicit in his opinion is a recognition that he would have upheld the
President's action along with the majority had the President convened the interim
National Assembly and coursed his proposals through it. Thus Justice Teehankee
opined:
"Since the Constitution provides for the organization of the essential

departments of government, defines and delimits the powers of each and
prescribes the manner of the exercise of such powers, and the constituent
power has not been granted to but has been withheld from the President or
Prime Minister, it follows that the President's questioned decrees proposing
and submitting constitutional amendments directly to the people (without
the intervention of the interim National Assembly in whom the power
is expressly vested) are devoid of constitutional and legal
basis."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President in the course of conducting peace negotiations - may validly consider
implementing even those policies that require changes to the Constitution, but
she may not unilaterally implement them without the intervention of
Congress, or act in any way as if the assent of that body were assumed as
a certainty.
Since, under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also
submit her recommendations to the people, not as a formal proposal to be voted
on in a plebiscite similar to what President Marcos did in Sanidad, but for their
independent consideration of whether these recommendations merit being
formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
President's suggestions to the people, for any further involvement in the process
of initiative by the Chief Executive may vitiate its character as a genuine
"people's initiative." The only initiative recognized by the Constitution is that
which truly proceeds from the people. As the Court stated in Lambino v.
COMELEC:177
"The Lambino Group claims that their initiative is the people's voice.'
However, the Lambino Group unabashedly states in ULAP Resolution No.
2006-02, in the verification of their petition with the COMELEC, that ULAP
maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms.' The
Lambino Group thus admits that their people's' initiative is an
unqualified support to the agenda' of the incumbent President to
change the Constitution. This forewarns the Court to be wary of
incantations of people's voice' or sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath of
office,178 only to preserve and defend the Constitution. Such presidential power
does not, however, extend to allowing her to change the Constitution, but simply
to recommend proposed amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure for
constitutional amendments and revision, her mere recommendation need not be
construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new legislation. One of the more
prominent instances the practice is usually done is in the yearly State of the
Nation Address of the President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget prepared by the
President, which - for all intents and purposes - is a proposal for new legislation
coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the abovediscussed standards
Given the limited nature of the President's authority to propose constitutional
amendments, she cannot guarantee to any third party that the required
amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals as recommendations
either to Congress or the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions
thereof which cannot be reconciled with the present Constitution and laws "shall
come into force upon signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework." This stipulation does not bear
the marks of a suspensive condition - defined in civil law as a future
and uncertain event - but of a term. It is not a question of whether the necessary
changes to the legal framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what follows, for the paragraph goes
on to state that the contemplated changes shall be "with due regard to non
derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the
changes to the legal framework contemplated in the MOA-AD - which changes
would include constitutional amendments, as discussed earlier. It bears noting
that,
By the time these changes are put in place, the MOA-AD itself would be
counted among the "prior agreements" from which there could be no
derogation.
What remains for discussion in the Comprehensive Compact would merely be
the implementing details for these "consensus points" and, notably,
the deadline for effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the
limits of the President's authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws of the Republic of the
Philippines will certainly be adjusted to conform to all the "consensus points"
found in the MOA-AD. Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar
provision appearing in the 1996 final peace agreement between the MNLF and
the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase Icovered a three-year transitional period
involving the putting up of new administrative structures through Executive Order,
such as the Special Zone of Peace and Development (SZOPAD) and the
Southern Philippines Council for Peace and Development (SPCPD), while Phase
II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then the
Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of
the expanded autonomous region envisioned by the parties. To that extent, they
are similar to the provisions of the MOA-AD. There is, however, a crucial
difference between the two agreements. While the MOA-AD virtually
guarantees that the "necessary changes to the legal framework" will be put
in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these
provisions [on Phase II] shall be recommended by the GRP to Congress for
incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its
Constitution in conformity thereto, on the ground that it may be considered either
as a binding agreement under international law, or a unilateral declaration of the
Philippine government to the international community that it would grant to the
Bangsamoro people all the concessions therein stated. Neither ground finds
sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included
foreign dignitaries as signatories. In addition, representatives of other nations
were invited to witness its signing in Kuala Lumpur. These circumstances readily
lead one to surmise that the MOA-AD would have had the status of a binding
international agreement had it been signed. An examination of the prevailing
principles in international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty180 (the Lom
Accord case) of the Special Court of Sierra Leone is enlightening. The Lom
Accord was a peace agreement signed on July 7, 1999 between the Government
of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with
which the Sierra Leone Government had been in armed conflict for around eight
years at the time of signing. There were non-contracting signatories to the
agreement, among which were the Government of the Togolese Republic, the
Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN SecretaryGeneral and the Sierra Leone Government, another agreement was entered into
by the UN and that Government whereby the Special Court of Sierra Leone was
established. The sole purpose of the Special Court, an international court, was to
try persons who bore the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law committed in the territory
of Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision for the full pardon of
the members of the RUF with respect to anything done by them in pursuit of their
objectives as members of that organization since the conflict began.
In the Lom Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries of the
amnesty provided therein, citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization of that agreement.
The Special Court, however, rejected this argument, ruling that the Lome Accord
is not a treaty and that it can only create binding obligations and rights between
the parties in municipal law, not in international law. Hence, the Special Court
held, it is ineffective in depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed
conflict it is easy to assume and to argue with some degree of
plausibility, as Defence counsel for the defendants seem to have
done, that the mere fact that in addition to the parties to the conflict,
the document formalizing the settlement is signed by foreign heads
of state or their representatives and representatives of international
organizations, means the agreement of the parties is

internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict
and the mediator or facilitator of the settlement, or persons or bodies under
whose auspices the settlement took place but who are not at all parties to
the conflict, are not contracting parties and who do not claim any obligation
from the contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of
the State and the RUF which has no status of statehood and is to all
intents and purposes a faction within the state. The non-contracting
signatories of the Lom Agreement were moral guarantors of the
principle that, in the terms of Article XXXIV of the Agreement, "this
peace agreement is implemented with integrity and in good faith by
both parties". The moral guarantors assumed no legal obligation. It is
recalled that the UN by its representative appended, presumably for
avoidance of doubt, an understanding of the extent of the agreement to be
implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create rights
and obligations regulated by international law so that a breach of its terms
will be a breach determined under international law which will also provide
principle means of enforcement. The Lom Agreement created neither
rights nor obligations capable of being regulated by international
law. An agreement such as the Lom Agreement which brings to an
end an internal armed conflict no doubt creates a factual situation of
restoration of peace that the international community acting through
the Security Council may take note of. That, however, will not convert
it to an international agreement which creates an obligation
enforceable in international, as distinguished from municipal, law. A
breach of the terms of such a peace agreement resulting in resumption of
internal armed conflict or creating a threat to peace in the determination of
the Security Council may indicate a reversal of the factual situation of
peace to be visited with possible legal consequences arising from the new
situation of conflict created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from the situation and not
from the agreement, nor from the obligation imposed by it. Such action
cannot be regarded as a remedy for the breach. A peace agreement
which settles an internal armed conflict cannot be ascribed the same
status as one which settles an international armed conflict which,
essentially, must be between two or more warring States. The Lom

Agreement cannot be characterised as an international instrument. x
x x" (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of States
and international organizations not parties to the Agreement would not have
sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a
unilateral declaration of the Philippine State, binding under international law, that
it would comply with all the stipulations stated therein, with the result that it would
have to amend its Constitution accordingly regardless of the true will of the
people. Cited as authority for this view is Australia v. France,181 also known as
the Nuclear Tests Case, decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of
France's nuclear tests in the South Pacific. France refused to appear in the case,
but public statements from its President, and similar statements from other
French officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss the
case.182 Those statements, the ICJ held, amounted to a legal undertaking
addressed to the international community, which required no acceptance from
other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to
be bound to the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making the declaration
that it should become bound according to its terms, that intention
confers on the declaration the character of a legal undertaking, the
State being thenceforth legally required to follow a course of conduct
consistent with the declaration. An undertaking of this kind, if given
publicly, and with an intent to be bound, even though not made within the
context of international negotiations, is binding. In these circumstances,
nothing in the nature of a quid pro quo nor any subsequent acceptance of
the declaration, nor even any reply or reaction from other States, is
required for the declaration to take effect, since such a requirement would
be inconsistent with the strictly unilateral nature of the juridical act by which
the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may
choose to take up a certain position in relation to a particular matter
with the intention of being bound-the intention is to be ascertained by
interpretation of the act. When States make statements by which their
freedom of action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be
the last, the French Government conveyed to the world at large,
including the Applicant, its intention effectively to terminate these
tests. It was bound to assume that other States might take note of
these statements and rely on their being effective. The validity of
these statements and their legal consequences must be considered
within the general framework of the security of international
intercourse, and the confidence and trust which are so essential in the
relations among States. It is from the actual substance of these
statements, and from the circumstances attending their making, that
the legal implications of the unilateral act must be deduced. The
objects of these statements are clear and they were addressed to the
international community as a whole, and the Court holds that they
constitute an undertaking possessing legal effect. The Court considers
*270 that the President of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking to the international
community to which his words were addressed. x x x (Emphasis and
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the
following conditions are present: the statements were clearly addressed to the
international community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a
later case decided by the ICJ entitled Burkina Faso v. Mali,183 also known as
the Case Concerning the Frontier Dispute. The public declaration subject of that
case was a statement made by the President of Mali, in an interview by a foreign
press agency, that Mali would abide by the decision to be issued by a
commission of the Organization of African Unity on a frontier dispute then
pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's
President was not a unilateral act with legal implications. It clarified that its ruling
in the Nuclear Tests case rested on the peculiar circumstances surrounding the
French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act,
account must be taken of all the factual circumstances in which the act
occurred. For example, in the Nuclear Tests cases, the Court took the
view that since the applicant States were not the only ones
concerned at the possible continuance of atmospheric testing by the
French Government, that Government's unilateral declarations had
conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests (I.C.J. Reports 1974, p. 269, para.
51; p. 474, para. 53). In the particular circumstances of those cases,
the French Government could not express an intention to be bound
otherwise than by unilateral declarations. It is difficult to see how it
could have accepted the terms of a negotiated solution with each of
the applicants without thereby jeopardizing its contention that its
conduct was lawful. The circumstances of the present case are
radically different. Here, there was nothing to hinder the Parties from
manifesting an intention to accept the binding character of the
conclusions of the Organization of African Unity Mediation
Commission by the normal method: a formal agreement on the basis
of reciprocity. Since no agreement of this kind was concluded between
the Parties, the Chamber finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11 April 1975 as a unilateral
act with legal implications in regard to the present case. (Emphasis and
Assessing the MOA-AD in light of the above criteria, it would not have amounted
to a unilateral declaration on the part of the Philippine State to the international
community. The Philippine panel did not draft the same with the clear intention of
being bound thereby to the international community as a whole or to any State,
but only to the MILF. While there were States and international organizations
involved, one way or another, in the negotiation and projected signing of the
MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as
facilitator. As held in the Lom Accord case, the mere fact that in addition to the
parties to the conflict, the peace settlement is signed by representatives of states
and international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give
legal effect to such commitments would not be detrimental to the security of
international intercourse - to the trust and confidence essential in the relations

among States.
In one important respect, the circumstances surrounding the MOA-AD are closer
to that of Burkina Faso wherein, as already discussed, the Mali President's
statement was not held to be a binding unilateral declaration by the ICJ. As in
that case, there was also nothing to hinder the Philippine panel, had it really been
its intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion
in the MOA-AD of a clear commitment to be legally bound to the international
community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an
acceptance of that commitment. Entering into such a formal agreement would not
have resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented the
French Government from entering into a formal agreement with other countries.
That the Philippine panel did not enter into such a formal agreement suggests
that it had no intention to be bound to the international community. On that
ground, the MOA-AD may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents' almost consummated act
of guaranteeing amendments to the legal framework is, by itself, sufficient
to constitute grave abuse of discretion. The grave abuse lies not in the fact
that they considered, as a solution to the Moro Problem, the creation of a state
within a state, but in their brazen willingness toguarantee that Congress and
the sovereign Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the
people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an
undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion
of its own territory to the Moros for the sake of peace, for it can change the
Constitution in any it wants, so long as the change is not inconsistent with what,
in international law, is known as Jus Cogens.184 Respondents, however, may not
preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the
local government units or communities affected constitutes a departure by
respondents from their mandate under E.O. No. 3. Moreover, respondents
exceeded their authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public
interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisitelocus
standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel mooted the present petitions,
the Court finds that the present petitions provide an exception to the "moot and
academic" principle in view of (a) the grave violation of the Constitution involved;
(b) the exceptional character of the situation and paramount public interest; (c)
the need to formulate controlling principles to guide the bench, the bar, and the
public; and (d) the fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry
out the GRP-MILF Tripoli Agreement on Peace signed by the government and
the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or
another one drawn up that could contain similar or significantly dissimilar
provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered
moot in view of the respondents' action in providing the Court and the petitioners
with the official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7,
Article III of the Constitution is insplendid symmetry with the state policy of full
public disclosure of all its transactions involving public interest under Sec. 28,
Article II of the Constitution. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands. The complete and
effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature, subject only
to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving
public interest in the highest order. In declaring that the right to information
contemplates steps and negotiations leading to the consummation of the
contract, jurisprudence finds no distinction as to the executory nature or

commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or
process of communication between the government and the people. Corollary to
these twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify
the exercise of the people's right to be consulted on relevant matters relating to
the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on
both national and local levels and for a principal forum for consensus-building. In
fact, it is the duty of the Presidential Adviser on the Peace Process to conduct
regular dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical to
the environment and human ecology including those that may call for the eviction
of a particular group of people residing in such locality, is implemented therein.
The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the recognition and delineation of ancestral
domain, which entails, among other things, the observance of the free and prior
informed consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain
claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general
right to information or the specific right to consultation is untenable. The various
explicit legal provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it unconditionally disclosed the
official copies of the final draft of the MOA-AD, for judicial compliance and public
scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as
mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
furtive process by which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion
of positive duty and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not
only its specific provisions but the very concept underlying them, namely, the
associative relationship envisioned between the GRP and the
BJE, areunconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President
herself is authorized to make such a guarantee. Upholding such an act would
amount to authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome
of the amendment process is through an undue influence or interference with that
process.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and
intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRPMILF Tripoli Agreement on Peace of 2001 is declared contrary to law and the
Constitution.
SO ORDERED.

SUPREME COURT
Manila
EN BANC
G.R. No. L-26379
December 27, 1969
WILLIAM C. REAGAN, ETC., petitioner,

vs.
COMMISSIONER OF INTERNAL REVENUE, respondent.
Quasha, Asperilla, Blanco, Zafra and Tayag for petitioner.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General
Felicisimo R. Rosete, Solicitor Lolita O. Gal-lang and Special Attorney Gamaliel
H. Mantolino for respondent.
FERNANDO, J.:
A question novel in character, the answer to which has far-reaching implications,
is raised by petitioner William C. Reagan, at one time a civilian employee of an
American corporation providing technical assistance to the United States Air
Force in the Philippines. He would dispute the payment of the income tax
assessed on him by respondent Commissioner of Internal Revenue on an
amount realized by him on a sale of his automobile to a member of the United
States Marine Corps, the transaction having taken place at the Clark Field Air
Base at Pampanga. It is his contention, seriously and earnestly expressed, that
in legal contemplation the sale was made outside Philippine territory and
therefore beyond our jurisdictional power to tax.
Such a plea, far-fetched and implausible, on its face betraying no kinship with
reality, he would justify by invoking, mistakenly as will hereafter be more fully
shown an observation to that effect in a 1951 opinion, 1 petitioner ignoring that
such utterance was made purely as a flourish of rhetoric and by way of
emphasizing the decision reached, that the trading firm as purchaser of army
goods must respond for the sales taxes due from an importer, as the American
armed forces being exempt could not be taxed as such under the National
Internal Revenue Code.2 Such an assumption, inspired by the commendable aim
to render unavailing any attempt at tax evasion on the part of such vendee, found
expression anew in a 1962 decision,3 coupled with the reminder however, to
render the truth unmistakable, that "the areas covered by the United States
Military Bases are not foreign territories both in the political and geographical
sense."
As thus clarified, it is manifest that such a view amounts at most to a legal fiction
and is moreover obiter. It certainly cannot control the resolution of the specific
question that confronts us. We declare our stand in an unequivocal manner. The
sale having taken place on what indisputably is Philippine territory, petitioner's
liability for the income tax due as a result thereof was unavoidable. As the Court
of Tax Appeals reached a similar conclusion, we sustain its decision now before
us on appeal.
In the decision appealed from, the Court of Tax Appeals, after stating the nature
of the case, started the recital of facts thus: "It appears that petitioner, a citizen of
the United States and an employee of Bendix Radio, Division of Bendix Aviation
Corporation, which provides technical assistance to the United States Air Force,
was assigned at Clark Air Base, Philippines, on or about July 7, 1959 ... . Nine (9)
months thereafter and before his tour of duty expired, petitioner imported on April
22, 1960 a tax-free 1960 Cadillac car with accessories valued at $6,443.83,
including freight, insurance and other charges."4 Then came the following: "On
July 11, 1960, more than two (2) months after the 1960 Cadillac car was
imported into the Philippines, petitioner requested the Base Commander, Clark
Air Base, for a permit to sell the car, which was granted provided that the sale
was made to a member of the United States Armed Forces or a citizen of the
United States employed in the U.S. military bases in the Philippines. On the
same date, July 11, 1960, petitioner sold his car for $6,600.00 to a certain Willie
Johnson, Jr. (Private first class), United States Marine Corps, Sangley Point,
Cavite, Philippines, as shown by a Bill of Sale . . . executed at Clark Air Base. On
the same date, Pfc. Willie (William) Johnson, Jr. sold the car to Fred Meneses for
P32,000.00 as evidenced by a deed of sale executed in Manila."5
As a result of the transaction thus made, respondent Commissioner of Internal
Revenue, after deducting the landed cost of the car as well as the personal
exemption to which petitioner was entitled, fixed as his net taxable income arising
from such transaction the amount of P17,912.34, rendering him liable for income
tax in the sum of P2,979.00. After paying the sum, he sought a refund from
respondent claiming that he was exempt, but pending action on his request for
refund, he filed the case with the Court of Tax Appeals seeking recovery of the
sum of P2,979.00 plus the legal rate of interest.
As noted in the appealed decision: "The only issue submitted for our resolution is
whether or not the said income tax of P2,979.00 was legally collected by
respondent for petitioner."6 After discussing the legal issues raised, primarily the
contention that the Clark Air Base "in legal contemplation, is a base outside the
Philippines" the sale therefore having taken place on "foreign soil", the Court of
Tax Appeals found nothing objectionable in the assessment and thereafter the
payment of P2,979.00 as income tax and denied the refund on the same. Hence,
this appeal predicated on a legal theory we cannot accept. Petitioner cannot
make out a case for reversal.
1. Resort to fundamentals is unavoidable to place things in their proper
perspective, petitioner apparently feeling justified in his refusal to defer to basic
postulates of constitutional and international law, induced no doubt by the weight
he would accord to the observation made by this Court in the two opinions earlier
referred to. To repeat, scant comfort, if at all is to be derived from such an obiter
dictum, one which is likewise far from reflecting the fact as it is.
Nothing is better settled than that the Philippines being independent and
sovereign, its authority may be exercised over its entire domain. There is no
portion thereof that is beyond its power. Within its limits, its decrees are supreme,
its commands paramount. Its laws govern therein, and everyone to whom it
applies must submit to its terms. That is the extent of its jurisdiction, both
territorial and personal. Necessarily, likewise, it has to be exclusive. If it were not
thus, there is a diminution of its sovereignty.
It is to be admitted that any state may, by its consent, express or implied, submit
to a restriction of its sovereign rights. There may thus be a curtailment of what
otherwise is a power plenary in character. That is the concept of sovereignty as
auto-limitation, which, in the succinct language of Jellinek, "is the property of a
state-force due to which it has the exclusive capacity of legal self-determination
and self-restriction."7 A state then, if it chooses to, may refrain from the exercise
of what otherwise is illimitable competence.
Its laws may as to some persons found within its territory no longer control. Nor
does the matter end there. It is not precluded from allowing another power to
participate in the exercise of jurisdictional right over certain portions of its
territory. If it does so, it by no means follows that such areas become impressed
with an alien character. They retain their status as native soil. They are still
subject to its authority. Its jurisdiction may be diminished, but it does not
disappear. So it is with the bases under lease to the American armed forces by
virtue of the military bases agreement of 1947. They are not and cannot be
foreign territory.
Decisions coming from petitioner's native land, penned by jurists of repute, speak
to that effect with impressive unanimity. We start with the citation from Chief
Justice Marshall, announced in the leading case of Schooner Exchange v.
M'Faddon,8 an 1812 decision: "The jurisdiction of the nation within its own
territory is necessarily exclusive and absolute. It is susceptible of no limitation not

imposed by itself. Any restriction upon it, deriving validity from an external
source, would imply a diminution of its sovereignty to the extent of the restriction,
and an investment of that sovereignty to the same extent in that power which
could impose such restriction." After which came this paragraph: "All exceptions,
therefore, to the full and complete power of a nation within its own territories,
must be traced up to the consent of the nation itself. They can flow from no other
legitimate source."
Chief Justice Taney, in an 1857 decision,9 affirmed the fundamental principle of
everyone within the territorial domain of a state being subject to its commands:
"For undoubtedly every person who is found within the limits of a government,
whether the temporary purposes or as a resident, is bound by its laws." It is no
exaggeration then for Justice Brewer to stress that the United States government
"is one having jurisdiction over every foot of soil within its territory, and acting
directly upon each [individual found therein]; . . ."10
Not too long ago, there was a reiteration of such a view, this time from the pen of
Justice Van Devanter. Thus: "It now is settled in the United States and
recognized elsewhere that the territory subject to its jurisdiction includes the land
areas under its dominion and control the ports, harbors, bays, and other in closed
arms of the sea along its coast, and a marginal belt of the sea extending from the
coast line outward a marine league, or 3 geographic miles."11 He could cite
moreover, in addition to many American decisions, such eminent treatise-writers
as Kent, Moore, Hyde, Wilson, Westlake, Wheaton and Oppenheim.
As a matter of fact, the eminent commentator Hyde in his three-volume work on
International Law, as interpreted and applied by the United States, made clear
that not even the embassy premises of a foreign power are to be considered
outside the territorial domain of the host state. Thus: "The ground occupied by an
embassy is not in fact the territory of the foreign State to which the premises
belong through possession or ownership. The lawfulness or unlawfulness of acts
there committed is determined by the territorial sovereign. If an attache commits
an offense within the precincts of an embassy, his immunity from prosecution is
not because he has not violated the local law, but rather for the reason that the
individual is exempt from prosecution. If a person not so exempt, or whose
immunity is waived, similarly commits a crime therein, the territorial sovereign, if
it secures custody of the offender, may subject him to prosecution, even though
its criminal code normally does not contemplate the punishment of one who
commits an offense outside of the national domain. It is not believed, therefore,
that an ambassador himself possesses the right to exercise jurisdiction, contrary
to the will of the State of his sojourn, even within his embassy with respect to
acts there committed. Nor is there apparent at the present time any tendency on
the part of States to acquiesce in his exercise of it."12
2. In the light of the above, the first and crucial error imputed to the Court of Tax
Appeals to the effect that it should have held that the Clark Air Force is foreign
soil or territory for purposes of income tax legislation is clearly without support in
law. As thus correctly viewed, petitioner's hope for the reversal of the decision
completely fades away. There is nothing in the Military Bases Agreement that
lends support to such an assertion. It has not become foreign soil or territory.
This country's jurisdictional rights therein, certainly not excluding the power to
tax, have been preserved. As to certain tax matters, an appropriate exemption
was provided for.
Petitioner could not have been unaware that to maintain the contrary would be to
defy reality and would be an affront to the law. While his first assigned error is
thus worded, he would seek to impart plausibility to his claim by the ostensible
invocation of the exemption clause in the Agreement by virtue of which a
"national of the United States serving in or employed in the Philippines in
connection with the construction, maintenance, operation or defense of the bases
and residing in the Philippines only by reason of such employment" is not to be
taxed on his income unless "derived from Philippine source or sources other than
the United States sources."13 The reliance, to repeat, is more apparent than real
for as noted at the outset of this opinion, petitioner places more faith not on the
language of the provision on exemption but on a sentiment given expression in a
1951 opinion of this Court, which would be made to yield such an unwarranted
interpretation at war with the controlling constitutional and international law
principles. At any rate, even if such a contention were more adequately pressed
and insisted upon, it is on its face devoid of merit as the source clearly was
Philippine.
In Saura Import and Export Co. v. Meer,14 the case above referred to, this Court
affirmed a decision rendered about seven months previously,15 holding liable as
an importer, within the contemplation of the National Internal Revenue Code
provision, the trading firm that purchased army goods from a United States
government agency in the Philippines. It is easily understandable why. If it were
not thus, tax evasion would have been facilitated. The United States forces that
brought in such equipment later disposed of as surplus, when no longer needed
for military purposes, was beyond the reach of our tax statutes.
Justice Tuason, who spoke for the Court, adhered to such a rationale, quoting
extensively from the earlier opinion. He could have stopped there. He chose not
to do so. The transaction having occurred in 1946, not so long after the liberation
of the Philippines, he proceeded to discuss the role of the American military
contingent in the Philippines as a belligerent occupant. In the course of such a

dissertion, drawing on his well-known gift for rhetoric and cognizant that he was
making an as if statement, he did say: "While in army bases or installations within
the Philippines those goods were in contemplation of law on foreign soil."
It is thus evident that the first, and thereafter the controlling, decision as to the
liability for sales taxes as an importer by the purchaser, could have been reached
without any need for such expression as that given utterance by Justice Tuason.
Its value then as an authoritative doctrine cannot be as much as petitioner would
mistakenly attach to it. It was clearly obiter not being necessary for the resolution
of the issue before this Court.16It was an opinion "uttered by the way."17 It could
not then be controlling on the question before us now, the liability of the petitioner
for income tax which, as announced at the opening of this opinion, is squarely
raised for the first time.18
On this point, Chief Justice Marshall could again be listened to with profit. Thus:
"It is a maxim, not to be disregarded, that general expressions, in every opinion,
are to be taken in connection with the case in which those expressions are used.
If they go beyond the case, they may be respected, but ought not to control the
judgment in a subsequent suit when the very point is presented for decision."19
Nor did the fact that such utterance of Justice Tuason was cited in Co Po v.
Collector of Internal Revenue,20 a 1962 decision relied upon by petitioner, put a
different complexion on the matter. Again, it was by way of pure embellishment,
there being no need to repeat it, to reach the conclusion that it was the purchaser
of army goods, this time from military bases, that must respond for the advance
sales taxes as importer. Again, the purpose that animated the reiteration of such
a view was clearly to emphasize that through the employment of such a fiction,
tax evasion is precluded. What is more, how far divorced from the truth was such
statement was emphasized by Justice Barrera, who penned the Co Po opinion,
thus: "It is true that the areas covered by the United States Military Bases are not
foreign territories both in the political and geographical sense."21
Justice Tuason moreover made explicit that rather than corresponding with
reality, what was said by him was in the way of a legal fiction. Note his stress on
"in contemplation of law." To lend further support to a conclusion already
announced, being at that a confirmation of what had been arrived at in the earlier
case, distinguished by its sound appreciation of the issue then before this Court
and to preclude any tax evasion, an observation certainly not to be taken literally
was thus given utterance.
This is not to say that it should have been ignored altogether afterwards. It could
be utilized again, as it undoubtedly was, especially so for the purpose intended,
namely to stigmatize as without support in law any attempt on the part of a

taxpayer to escape an obligation incumbent upon him. So it was quoted with that
end in view in the Co Po case. It certainly does not justify any effort to render
futile the collection of a tax legally due, as here. That was farthest from the
thought of Justice Tuason.
What is more, the statement on its face is, to repeat, a legal fiction. This is not to
discount the uses of a fictio jurisin the science of the law. It was Cardozo who
pointed out its value as a device "to advance the ends of justice" although at
times it could be "clumsy" and even "offensive".22 Certainly, then, while far from
objectionable as thus enunciated, this observation of Justice Tuason could be
misused or misconstrued in a clumsy manner to reach an offensive result. To
repeat, properly used, a legal fiction could be relied upon by the law, as
Frankfurter noted, in the pursuit of legitimate ends.23 Petitioner then would be
well-advised to take to heart such counsel of care and circumspection before
invoking not a legal fiction that would avoid a mockery of the law by avoiding tax
evasion but what clearly is a misinterpretation thereof, leading to results that
would have shocked its originator.
The conclusion is thus irresistible that the crucial error assigned, the only one
that calls for discussion to the effect that for income tax purposes the Clark Air
Force Base is outside Philippine territory, is utterly without merit. So we have said
earlier.
3. To impute then to the statement of Justice Tuason the meaning that petitioner
would fasten on it is, to paraphrase Frankfurter, to be guilty of succumbing to the
vice of literalness. To so conclude is, whether by design or inadvertence, to
misread it. It certainly is not susceptible of the mischievous consequences now
sought to be fastened on it by petitioner.
That it would be fraught with such peril to the enforcement of our tax statutes on
the military bases under lease to the American armed forces could not have been
within the contemplation of Justice Tuason. To so attribute such a bizarre
consequence is to be guilty of a grave disservice to the memory of a great jurist.
For his real and genuine sentiment on the matter in consonance with the
imperative mandate of controlling constitutional and international law concepts
was categorically set forth by him, not as an obiter but as the rationale of the
decision, in People v. Acierto24 thus: "By the [Military Bases] Agreement, it should
be noted, the Philippine Government merely consents that the United States
exercise jurisdiction in certain cases. The consent was given purely as a matter
of comity, courtesy, or expediency over the bases as part of the Philippine
territory or divested itself completely of jurisdiction over offenses committed
therein."
Nor did he stop there. He did stress further the full extent of our territorial
jurisdiction in words that do not admit of doubt. Thus: "This provision is not and
can not on principle or authority be construed as a limitation upon the rights of
the Philippine Government. If anything, it is an emphatic recognition and
reaffirmation of Philippine sovereignty over the bases and of the truth that all
jurisdictional rights granted to the United States and not exercised by the latter
are reserved by the Philippines for itself."25
It is in the same spirit that we approach the specific question confronting us in
this litigation. We hold, as announced at the outset, that petitioner was liable for
the income tax arising from a sale of his automobile in the Clark Field Air Base,
which clearly is and cannot otherwise be other than, within our territorial
jurisdiction to tax.
4. With the mist thus lifted from the situation as it truly presents itself, there is
nothing that stands in the way of an affirmance of the Court of Tax Appeals
decision. No useful purpose would be served by discussing the other assigned
errors, petitioner himself being fully aware that if the Clark Air Force Base is to be
considered, as it ought to be and as it is, Philippine soil or territory, his claim for
exemption from the income tax due was distinguished only by its futility.
There is further satisfaction in finding ourselves unable to indulge petitioner in his
plea for reversal. We thus manifest fealty to a pronouncement made time and
time again that the law does not look with favor on tax exemptions and that he
who would seek to be thus privileged must justify it by words too plain to be
mistaken and too categorical to be misinterpreted.26 Petitioner had not done so.
Petitioner cannot do so.
WHEREFORE, the decision of the Court of Tax Appeals of May 12, 1966 denying
the refund of P2,979.00 as the income tax paid by petitioner is affirmed. With
costs against petitioner.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Teehankee,
JJ., concur.
Reyes, J.B.L., J., concurs in the result.
Barredo, J., took no part.
[G.R. No. 118295. May 2, 1997]
WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as

members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and
HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES
UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION,
CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES,
LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE
RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG
KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various
taxpayers and as non-governmental organizations, petitioners,
vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOSSHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO
BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE
LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO,
BLAS OPLE, JOHN OSMEA, SANTANINA RASUL, RAMON
REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE
WEBB, in their respective capacities as members of the
Philippine Senate who concurred in the ratification by the
President of the Philippines of the Agreement Establishing the
World Trade Organization; SALVADOR ENRIQUEZ, in his
capacity as Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of
Agriculture; ROBERTO DE OCAMPO, in his capacity as
Secretary of Finance; ROBERTO ROMULO, in his capacity as
Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his
capacity as Executive Secretary, respondents.
DECISION
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries has revolutionized international
business and economic relations amongst states. It has irreversibly propelled the world
towards trade liberalization and economic globalization. Liberalization, globalization,
deregulation and privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national economies like tariffs, export
subsidies, import quotas, quantitative restrictions, tax exemptions and currency

controls. Finding market niches and becoming the best in specific industries in a
market-driven and export-oriented global scenario are replacing age-old beggar-thyneighbor policies that unilaterally protect weak and inefficient domestic producers of
goods and services. In the words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the key to domestic
economic growth and prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World
War, plans for the establishment of three multilateral institutions -- inspired by that grand
political body, the United Nations -- were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; thesecond, the
International Monetary Fund (IMF) which was to deal with currency problems; and the
third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite
challenge, even retaliation, from other states. However, for a variety of reasons,
including its non-ratification by the United States, the ITO, unlike the IMF and WB, never
took off. What remained was only GATT -- the General Agreement on Tariffs and
Trade. GATT was a collection of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the agreements or dependable
system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave birth
to that administering body -- the World Trade Organization -- with the signing of the
Final Act in Marrakesh, Morocco and the ratification of the WTO Agreement by its
members.
[1]
Like many other developing countries, the Philippines joined WTO as a founding
member with the goal, as articulated by President Fidel V. Ramos in two letters to the
Senate (infra), of improving Philippine access to foreign markets, especially its major
trading partners, through the reduction of tariffs on its exports, particularly agricultural
and industrial products. The President also saw in the WTO the opening of new
opportunities for the services sector x x x, (the reduction of) costs and uncertainty
associated with exporting x x x, and (the attraction of) more investments into the
country. Although the Chief Executive did not expressly mention it in his letter, the
Philippines - - and this is of special interest to the legal profession - - will benefit from
the WTO system of dispute settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal. Heretofore, trade disputes were settled mainly through negotiations where
solutions were arrived at frequently on the basis of relative bargaining strengths, and
where naturally, weak and underdeveloped countries were at a disadvantage.
The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines to place nationals and
products of member-countries on the same footing as Filipinos and local products and
(2) that the WTO intrudes, limits and/or impairs the constitutional powers of both
Congress and the Supreme Court, the instant petition before this Court assails the WTO
Agreement for violating the mandate of the 1987 Constitution to develop a self-reliant
and independent national economy effectively controlled by Filipinos x x x (to) give
preference to qualified Filipinos (and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation in
worldwide trade liberalization and economic globalization? Does it prescribe Philippine
integration into a global economy that is liberalized, deregulated and privatized? These
are the main questions raised in this petition for certiorari, prohibition
and mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on
constitutional grounds, of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its
implementation and enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of government
properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December
14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
the Department of Trade and Industry (Secretary Navarro, for brevity), representing
the Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the
Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations
(Final Act, for brevity).
By signing the Final Act, Secretary Navarro on behalf of the Republic of the
Philippines, agreed:
[2]
(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement in
accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated
August 11, 1994 from the President of the Philippines, stating among others that the
[3]
Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another letter
from the President of the Philippines likewise dated August 11, 1994, which stated
among others that the Uruguay Round Final Act, the Agreement Establishing the World
Trade Organization, the Ministerial Declarations and Decisions, and the Understanding
on Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.
[4]
On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled Concurring in the Ratification of
the Agreement Establishing the World Trade Organization.
[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the
ratification by the President of the Philippines of the Agreement Establishing the World
Trade Organization. The text of the WTO Agreement is written on pages 137 et seq. of
Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments (identified in the said
Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral
Trade Agreements, for brevity) as follows:
[6]
ANNEX 1
Annex 1A:
Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the
Agreement on Tariffs and Trade 1994
General
Agreement on Implementation of Article VII of the General on

Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B:
General Agreement on Trade in Services and Annexes
Annex 1C:
Agreement on Trade-Related Aspects of Intellectual Property Rights

ANNEX 2
Understanding on Rules and Procedures Governing the Settlement
of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed the Instrument of
Ratification, declaring:
[7]
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the

Republic of the Philippines, after having seen and considered the aforementioned
Agreement Establishing the World Trade Organization and the agreements and
associated legal instruments included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15
April 1994, do hereby ratify and confirm the same and every Article and Clause
thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is
composed of the Agreement Proper and the associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement which are integral parts
thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not only the
WTO Agreement (and its integral annexes aforementioned) but also (1) the Ministerial
Declarations and Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996, the Solicitor General describes
these two latter documents as follows:
[8]
The Ministerial Decisions and Declarations are twenty-five declarations and

decisions on a wide range of matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial Services dwell on, among other
things, standstill or limitations and qualifications of commitments to existing nonconforming measures, market access, national treatment, and definitions of nonresident supplier of financial services, commercial presence and new financial
service.
On December 29, 1994, the present petition was filed. After careful deliberation on
respondents comment and petitioners reply thereto, the Court resolved on December
12, 1995, to give due course to the petition, and the parties thereafter filed their
respective memoranda. The Court also requested the Honorable Lilia R. Bautista, the
Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to
submit a paper, hereafter referred to as Bautista Paper, for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
[9]
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996, he listed the various
bilateral or multilateral treaties or international instruments involving derogation of
Philippine sovereignty. Petitioners, on the other hand, submitted their Compliance
dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as
follows:
A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the
deliberations and voting leading to the concurrence are estopped from
impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade
Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and
12, Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is vested in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the World Trade
Organization interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they concurred
only in the ratification of the Agreement Establishing the World Trade
Organization, and not with the Presidential submission which included the
Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents synthesized
the several issues raised by petitioners into the following:
[10]
1. Whether or not the provisions of the Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement cited by petitioners directly
contravene or undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the ratification by the President of
the Philippines of the Agreement establishing the World Trade Organization implied
rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by petitioners,
the Solicitor General has effectively ignored three, namely: (1) whether the petition
presents a political question or is otherwise not justiciable; (2) whether petitionermembers of the Senate (Wigberto E. Taada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-members of the Senate
acted in grave abuse of discretion when they voted for concurrence in the ratification of
the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:
(1) The political question issue -- being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this case
-- was deliberated upon by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and
the respondents have effectively waived it by not pursuing it in any of their pleadings;
in any event, this issue, even if ruled in respondents favor, will not cause the
petitions dismissal as there are petitioners other than the two senators, who are not
vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be taken up as an integral part of the disposition of the four issues raised
by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not
question the locus standi of petitioners. Hence, they are also deemed to have waived
the benefit of such issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international commitments of the nation are
involved here, and that transcendental public interest requires that the substantive
issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters.
[11]
To recapitulate, the issues that will be ruled upon shortly are:

(1)
DOES
THE
PETITION
PRESENT
A
JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF
THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE
OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON
EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS,
AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute. The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. Once a controversy as to the application or interpretation of a
constitutional provision is raised before this Court (as in the instant case), it becomes a
legal issue which the Court is bound by constitutional mandate to decide.
[12]
[13]
The jurisdiction of this Court to adjudicate the matters raised in the petition is
clearly set out in the 1987 Constitution, as follows:
[14]
[15]
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial departments duty and power to strike
down grave abuse of discretion on the part of any branch or instrumentality of
government including Congress. It is an innovation in our political law. As explained by
former Chief Justice Roberto Concepcion, the judiciary is the final arbiter on the
question of whether or not a branch of government or any of its officials has acted
without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.
[16]
[17]
As this Court has repeatedly and firmly emphasized in many cases, it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in
[18]
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate remedy in the ordinary course of law, we have no hesitation at all in
holding that this petition should be given due course and the vital questions raised
therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review
and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this,
we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court
will not review the wisdom of the decision of the President and the Senate in enlisting
the country into the WTO, or pass upon the merits of trade liberalization as a policy
espoused by said international body. Neither will it rule on the propriety of the
governments economic policy of reducing/removing tariffs, taxes, subsidies,
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its
constitutional duty to determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the Senate in
ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution
mandating economic nationalism are violated by the so-called parity provisions and
national treatment clauses scattered in various parts not only of the WTO Agreement
and its annexes but also in the Ministerial Decisions and Declarations and in the
Understanding on Commitments in Financial Services.
Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II,
and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx
xx
xx
xx
Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
xx
xx
xx
xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx
xx
xx
xx
Sec. 10. x x x. The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xx
xx
xx
xx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the
following WTO provisions quoted in their memorandum:
[19]
a) In the area of investment measures related to trade in goods (TRIMS, for

brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994. no
Member shall apply any TRIM that is inconsistent with the provisions of
Article III or Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the obligations of
general elimination of quantitative restrictions provided for in paragraph I of
Article XI of GATT 1994 is contained in the Annex to this
Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments, p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment
provided for in paragraph 4 of Article III of GATT 1994 include those
which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an
advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or
from any domestic source, whether specified in terms of particular
products, in terms of volume or value of products, or in terms of
proportion of volume or value of its local production; or
(b) that an enterprises purchases or use of imported products be limited to an
amount related to the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph 1 of Article XI of GATT
1994 include those which are mandatory or enforceable under domestic laws or
under administrative rulings, or compliance with which is necessary to obtain
an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local
production that it exports;
(b) the importation by an enterprise of products used in or related to its local
production by restricting its access to foreign exchange inflows attributable
to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products,
in terms of volume or value of products, or in terms of a preparation of
volume or value of its local production. (Annex to the Agreement on
Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal
Documents, p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that
accorded to like products of national origin in respect of laws, regulations and
requirements affecting their internal sale, offering for sale, purchase, transportation,
distribution or use. the provisions of this paragraph shall not prevent the application
of differential internal transportation charges which are based exclusively on the

economic operation of the means of transport and not on the nationality of the
product. (Article III, GATT 1947, as amended by the Protocol Modifying Part II,
and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to
paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of intellectual property rights (TRIPS,
for brevity):
Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
intellectual property... (par. 1, Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable than it accords to its
own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by according to
services and service suppliers of any other Member, either formally
identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be
less favourable if it modifies the conditions of completion in favour of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII, General Agreement
on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).
It is petitioners position that the foregoing national treatment and parity
provisions of the WTO Agreement place nationals and products of member countries
on the same footing as Filipinos and local products, in contravention of the Filipino
First policy of the Constitution. They allegedly render meaningless the phrase
effectively controlled by Filipinos. The constitutional conflict becomes more manifest
when viewed in the context of the clear duty imposed on the Philippines as a WTO
member to ensure the conformity of its laws, regulations and administrative procedures
with its obligations as provided in the annexed agreements. Petitioners further argue
that these provisions contravene constitutional limitations on the role exports play in
national development and negate the preferential treatment accorded to Filipino labor,
domestic materials and locally produced goods.
[20]
On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that
these nationalistic portions of the Constitution invoked by petitioners should not be read
in isolation but should be related to other relevant provisions of Art. XII, particularly
Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with
the Constitution; and (4) that the WTO Agreement contains sufficient provisions to
protect developing countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a declaration of principles and state
policies. The counterpart of this article in the 1935 Constitution is called the basic
political creed of the nation by Dean Vicente Sinco. These principles in Article II are
not intended to be self-executing principles ready for enforcement through the courts.
They are used by the judiciary as aids or as guides in the exercise of its power of
judicial review, and by the legislature in its enactment of laws. As held in the leading
case of Kilosbayan, Incorporated vs. Morato, the principles and state policies
enumerated in Article II and some sections of Article XII are not self-executing
provisions, the disregard of which can give rise to a cause of action in the courts. They
do not embody judicially enforceable constitutional rights but guidelines for legislation.
[21]
[22]
[23]
[24]
In the same light, we held in Basco vs. Pagcor that broad constitutional principles
need legislative enactments to implement them, thus:
[25]
On petitioners allegation that P.D. 1869 violates Sections 11 (Personal 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 to the legislature. If the executive and the legislature
failed to heed the directives of the article, the available remedy was not judicial but
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).
The reasons for denying a cause of action to an alleged infringement of broad
constitutional principles are sourced from basic considerations of due process and the
lack of judicial authority to wade into the uncharted ocean of social and economic
policy making. Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa
vs. Factoran, Jr., explained these reasons as follows:
[26]
My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right -- a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution -- that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment granting all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an effective opportunity so
to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a
cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless the legal right claimed
to have been violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration -- where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second paragraph of Section 1 of
Article VIII of the Constitution which reads:
Section 1.
xxx
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphases supplied)
When substantive standards as general as the right to a balanced and healthy ecology
and the right to health are combined with remedial standards as broad ranging as a
grave abuse of discretion amounting to lack or excess of jurisdiction, the result will
be, it is respectfully submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of environmental
protection and management, our courts have no claim to special technical competence
and experience and professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments -- the legislative and
executive departments -- must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before the courts
should intervene.
Economic Nationalism Should Be Read with Other Constitutional Mandates to
Attain Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down
general principles relating to the national economy and patrimony, should be read and
understood in relation to the other sections in said article, especially Secs. 1 and 13
thereof which read:
Section 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. x x x
x
x
xxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national
economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;

2. A sustained increase in the amount of goods and services provided by the nation
for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially
the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos in the grant of
rights, privileges and concessions covering the national economy and patrimony and
in the use of Filipino labor, domestic materials and locally-produced goods; (2) by
mandating the State to adopt measures that help make them competitive; and (3) by
requiring the State to develop a self-reliant and independent national economy
effectively controlled by Filipinos. In similar language, the Constitution takes into
account the realities of the outside world as it requires the pursuit of a trade policy that
serves the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity; and speaks of industries which are competitive in
both domestic and foreign markets as well as of the protection of Filipino enterprises
against unfair foreign competition and trade practices.
[27]
[28]
[29]
[30]
It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al., this Court held that Sec. 10, second par., Art. XII of the 1987
Constitution is a mandatory, positive command which is complete in itself and which
needs no further guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable. However, as the constitutional provision itself states, it is
enforceable only in regard to the grants of rights, privileges and concessions covering
national economy and patrimony and not to every aspect of trade and commerce. It
refers to exceptions rather than the rule. The issue here is not whether this paragraph
of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule,
there are enough balancing provisions in the Constitution to allow the Senate to ratify
the Philippine concurrence in the WTO Agreement. And we hold that there are.
[31]
All told, while the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition and trade practices
that are unfair. In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of
the Philippine economy. While the Constitution does not encourage the unlimited entry
of foreign goods, services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning
only on foreign competition that is unfair.
[32]
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats
and veto powers in the Security Council, in the WTO, decisions are made on the basis
of sovereign equality, with each members vote equal in weight to that of any
other. There is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the

Ministerial Conference and the General Council shall be taken by the majority of the
votes cast, except in cases of interpretation of the Agreement or waiver of the
obligation of a member which would require three fourths vote. Amendments would
require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six months from the date of
notice of withdrawals.
[33]
Hence, poor countries can protect their common interests more effectively through
the WTO than through one-on-one negotiations with developed countries. Within the
WTO, developing countries can form powerful blocs to push their economic agenda
more decisively than outside the Organization. This is not merely a matter of practical
alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying
the WTO Agreement recognize the need of developing countries like the Philippines to
share in the growth in international trade commensurate with the needs of their
economic development. These basic principles are found in the preamble of the
WTO Agreement as follows:
[34]
The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should
be conducted with a view to raising standards of living, ensuring full employment and
a large and steadily growing volume of real income and effective demand, and
expanding the production of and trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their respective needs and concerns at
different levels of economic development,
Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure a share
in the growth in international trade commensurate with the needs of their economic
development,
Being desirous of contributing to these objectives by entering into reciprocal and
mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of discriminatory treatment in

international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral
trading system encompassing the General Agreement on Tariffs and Trade, the results
of past trade liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the
foregoing basic principles, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and theperiod
within which the reduction is to be spread out. Specifically, GATT requires an average
tariff reduction rate of 36% for developed countries to be effected within a period of six
(6) years while developing countries -- including the Philippines -- are required to effect
an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce
domestic support to agricultural products by 20% over six (6) years, as compared
to only 13% for developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed
countries to reduce their budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a period of six (6) years. For
developing countries, however, the reduction rate is only two-thirds of that prescribed for
developed countries and a longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures, countervailing
measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be deprived of
control of the economy. Quite the contrary, the weaker situations of developing nations
like the Philippines have been taken into account; thus, there would be no basis to say
that in joining the WTO, the respondents have gravely abused their discretion. True,
they have made a bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside on the ground of grave
abuse of discretion, simply because we disagree with it or simply because we believe

only in other economic policies. As earlier stated, the Court in taking jurisdiction of this
case will not pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant and independent national
economy does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion nor mendicancy in the
international community. As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
[35]
Economic self-reliance is a primary objective of a developing country that is keenly

aware of overdependence on external assistance for even its most basic needs. It does
not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue foreign
control of the national economy, especially in such strategic industries as in the
development of natural resources and public utilities.
[36]
The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on equality and reciprocity, the fundamental law encourages industries
that are competitive in both domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and
tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a policy of laissez faire.
[37]
Constitution Favors Consumers, Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business
or enterprise, nor does it contain any specific pronouncement that Filipino companies
should
be
pampered
with
a
total
proscription of foreign competition. On the other hand, respondents claim
that
WTO/GATT aims to make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most reasonable
prices. Consequently, the question boils down to whether WTO/GATT will favor the
general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to
reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare because it will
-- as promised by its promoters -- expand the countrys exports and generate more
employment?
Will it bring more prosperity, employment, purchasing power and quality products at
the most reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers, for
which they are answerable to our people during appropriate electoral exercises. Such
questions and the answers thereto are not subject to judicial pronouncements based on
grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was
drafted and ratified in 1987. That does not mean however that the Charter is
necessarily flawed in the sense that its framers might not have anticipated the advent of
a borderless world of business. By the same token, the United Nations was not yet in
existence when the 1935 Constitution became effective. Did that necessarily mean that
the then Constitution might not have contemplated a diminution of the absoluteness of
sovereignty when the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the decisions of various UN
organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only
the vagaries of contemporary events. They should be interpreted to cover even future
and unknown circumstances. It is to the credit of its drafters that a Constitution can
withstand the assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As one eminent political
law writer and respected jurist explains:
[38]
The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and framework only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly in the crucible of Filipino minds and hearts, where it will in
time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history the dynamism
and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall ensure the conformity of
its laws, regulations and administrative procedures with its obligations as provided in the
annexed Agreements. Petitioners maintain that this undertaking unduly limits, restricts
and impairs Philippine sovereignty, specifically the legislative power which under Sec. 2,
Article VI of the 1987 Philippine Constitution is vested in the Congress of the
Philippines. It is an assault on the sovereign powers of the Philippines because this
means that Congress could not pass legislation that will be good for our national interest
and general welfare if such legislation will not conform with the WTO Agreement, which
not only relates to the trade in goods x x x but also to the flow of investments and
money x x x as well as to a whole slew of agreements on socio-cultural matters x x x.
[39]
[40]
More specifically, petitioners claim that said WTO proviso derogates from the power
to tax, which is lodged in the Congress. And while the Constitution allows Congress to
authorize the President to fix tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts, such authority is subject to specified limits
and x x x such limitations and restrictions as Congress may provide, as in fact it did
under Sec. 401 of the Tariff and Customs Code.
[41]
[42]
Sovereignty Limited by International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners
stressed their arguments on this issue. However, while sovereignty has traditionally
been deemed absolute and all-encompassing on the domestic level, it is however
subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly
or impliedly, as a member of the family of nations. Unquestionably, the Constitution did
not envision a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity, with all nations." By
the doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws. One
of the oldest and most fundamental rules in international law is pacta sunt servanda -international agreements must be performed in good faith. A treaty engagement is not
a mere moral obligation but creates a legally binding obligation on the parties x x x. A
state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the
obligations undertaken.
[43]
[44]
[45]
By their inherent nature, treaties really limit or restrict the absoluteness of

sovereignty. By their voluntary act, nations may surrender some aspects of their state
power in exchange for greater benefits granted by or derived from a convention or
pact. After all, states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit the exercise of
their otherwise absolute rights. Thus, treaties have been used to record agreements
between States concerning such widely diverse matters as, for example, the lease of
naval bases, the sale or cession of territory, the termination of war, the regulation of
conduct of hostilities, the formation of alliances, the regulation of commercial relations,
the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations. The sovereignty of a state therefore
cannot in fact and in reality be considered absolute. Certain restrictions enter into the
picture: (1) limitations imposed by the very nature of membership in the family of nations
and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy,
Today, no nation can build its destiny alone. The age of self-sufficient nationalism is
over. The age of interdependence is here.
[46]
[47]
UN Charter and Other Treaties Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to restrict its sovereign rights under the concept of sovereignty
as auto-limitation.47-A Under Article 2 of the UN Charter, (a)ll members shall give the
United Nations every assistance in any action it takes in accordance with the present
Charter, and shall refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action. Such assistance includes payment
of its corresponding share not merely in administrative expenses but also in
expenditures for the peace-keeping operations of the organization. In its advisory
opinion of July 20, 1961, the International Court of Justice held that money used by the
United Nations Emergency Force in the Middle East and in the Congo were expenses
of the United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its
members must bear their corresponding share in such expenses. In this sense, the
Philippine Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping expenses or not. So too,
under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic
privileges and immunities, thereby limiting again the exercise of sovereignty of members
within their own territory. Another example: although sovereign equality and domestic
jurisdiction of all members are set forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement measures decided by the Security
Council for the maintenance of international peace and security under Chapter VII of the
Charter. A final example: under Article 103, (i)n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the present
charter shall prevail, thus unquestionably denying the Philippines -- as a member -- the
sovereign power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international
pacts -- both bilateral and multilateral -- that involve limitations on Philippine
sovereignty. These are enumerated by the Solicitor General in his Compliance dated
October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income,
where the Philippines agreed, among others, to exempt from tax, income
received in the Philippines by, among others, the Federal Reserve Bank of the
United States, the Export/Import Bank of the United States, the Overseas
Private Investment Corporation of the United States. Likewise, in said
convention, wages, salaries and similar remunerations paid by the United
States to its citizens for labor and personal services performed by them as
employees or officials of the United States are exempt from income tax by the
Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance
of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.
(d) Bilateral convention with the French Republic for the avoidance of double
taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes
aircrafts of South Korea and the regular equipment, spare parts and supplies
arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar
duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and
Korean air carriers under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where
the Philippines exempted Israeli nationals from the requirement of obtaining
transit or visitor visas for a sojourn in the Philippines not exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding 59
days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed
that premises of Special Missions in the Philippines are inviolable and its
agents can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties, taxes
and related charges.
(k) Multilateral Convention on the Law of Treaties. In this convention, the
Philippines agreed to be governed by the Vienna Convention on the Law of
Treaties.
(l) Declaration of the President of the Philippines accepting compulsory
jurisdiction of the International Court of Justice. The International Court of
Justice has jurisdiction in all legal disputes concerning the interpretation of a
treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise
of its sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and immunities to the Philippines,
its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the

environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of the
reciprocal obligations involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to durable, welldefined substantive norms and objective dispute resolution procedures reduce the risks
of larger countries exploiting raw economic power to bully smaller countries, by
subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide access to a larger set of potential
new trading relationship than in case of the larger country gaining enhanced success to
the smaller countrys market.
[48]
The point is that, as shown by the foregoing treaties, a portion of sovereignty may
be waived without violating the Constitution, based on the rationale that the Philippines
adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of x x x cooperation and amity with all nations.
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) intrudes on the power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures.
[49]
[50]
To understand the scope and meaning of Article 34, TRIPS, it will be fruitful to
restate its full text as follows:
[51]
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights
of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a
patent is a process for obtaining a product, the judicial authorities shall have the
authority to order the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members shall provide,
in at least one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence of proof to
the contrary, be deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by
the process and the owner of the patent has been unable through
reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph
(b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants
in protecting their manufacturing and business secrets shall be taken into
account.
From the above, a WTO Member is required to provide a rule of disputable (note
the words in the absence of proof to the contrary) presumption that a product shown to
be identical to one produced with the use of a patented process shall be deemed to
have been obtained by the (illegal) use of the said patented process, (1) where such
product obtained by the patented product is new, or (2) where there is substantial
likelihood that the identical product was made with the use of the said patented process
but the owner of the patent could not determine the exact process used in obtaining
such identical product. Hence, the burden of proof contemplated by Article 34 should
actually be understood as the duty of the alleged patent infringer to overthrow such
presumption. Such burden, properly understood, actually refers to the burden of
evidence (burden of going forward) placed on the producer of the identical (or fake)
product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof
since, regardless of the presumption provided under paragraph 1 of Article 34, such
owner still has to introduce evidence of the existence of the alleged identical product,
the fact that it is identical to the genuine one produced by the patented process and
the fact of newness of the genuine product or the fact of substantial likelihood that
the identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as
the present law on the subject, Republic Act No. 165, as amended, otherwise known as
the Patent Law, provides a similar presumption in cases of infringement of patented
design or utility model, thus:
SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility

model shall consist in unauthorized copying of the patented design or utility model for
the purpose of trade or industry in the article or product and in the making, using or
selling of the article or product copying the patented design or utility model. Identity
or substantial identity with the patented design or utility model shall constitute
evidence of copying. (underscoring supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the product obtained by the patented process
is NEW or (2) there is a substantial likelihood that the identical product was made by the
process and the process owner has not been able through reasonable effort to
determine the process used. Where either of these two provisos does not obtain,
members shall be free to determine the appropriate method of implementing the
provisions of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third
issue -- derogation of legislative power - will apply to this fourth issue also. Suffice it to
say that the reciprocity clause more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is
with due process and the concept of adversarial dispute settlement inherent in our
judicial system.
So too, since the Philippine is a signatory to most international conventions on
patents, trademarks and copyrights, the adjustment in legislation and rules of procedure
will not be substantial.
[52]
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other
Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its
annexes -- but not in the other documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the Understanding on Commitments in
Financial Services -- is defective and insufficient and thus constitutes abuse of
discretion. They submit that such concurrence in the WTO Agreement alone is flawed
because it is in effect a rejection of the Final Act, which in turn was the document signed
by Secretary Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to the Senate which
enumerated what constitutes the Final Act should have been the subject of concurrence
of the Senate.
[53]
A final act, sometimes called protocol de clture, is an instrument which records

the winding up of the proceedings of a diplomatic conference and usually includes a
reproduction of the texts of treaties, conventions, recommendations and other acts
agreed upon and signed by the plenipotentiaries attending the conference. It is not
the treaty itself. It is rather a summary of the proceedings of a protracted conference
which may have taken place over several years. The text of the Final Act Embodying
the Results of the Uruguay Round of Multilateral Trade Negotiations is contained in just
one page in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations.
By signing said Final Act, Secretary Navarro as representative of the Republic of the
Philippines undertook:
[54]
[55]
"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the
Final Act required from its signatories, namely, concurrence of the Senate in the WTO
Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the members can meet to give effect to those
provisions of this Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this Agreement.
[56]
The Understanding on Commitments in Financial Services also approved in

Marrakesh does not apply to the Philippines. It applies only to those 27 Members which
have indicated in their respective schedules of commitments on standstill, elimination
of monopoly, expansion of operation of existing financial service suppliers, temporary
entry of personnel, free transfer and processing of information, and national treatment
with respect to access to payment, clearing systems and refinancing available in the
normal course of business.
[57]
On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts, as follows:
[58]
Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct of
trade relations among its Members in matters to the agreements and associated
legal instruments included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and
3 (hereinafter referred to as Multilateral Agreements) are integral parts of this
Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4
(hereinafter referred to as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create either obligation or
rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A
(hereinafter referred to as GATT 1994) is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently
rectified, amended or modified (hereinafter referred to as GATT 1947).
It should be added that the Senate was well-aware of what it was concurring in as
shown by the members deliberation on August 25, 1994. After reading the letter of
President Ramos dated August 11, 1994, the senators of the Republic minutely
dissected what the Senate was concurring in, as follows:
[59]
[60]
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came
up in the first day hearing of this Committee yesterday. Was the observation made by
Senator Taada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of order which,
however, he agreed to withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That suggestion was to treat the
proceedings of the Committee as being in the nature of briefings for Senators until the
question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new... is he making
a new submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be
no misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator Tolentino since
they were the ones that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself. The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now
being submitted. The Final Act itself specifies what is going to be submitted to with
the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with their
procedures.
In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional procedures
may provide but it is the World Trade Organization Agreement. And if that is the one
that is being submitted now, I think it satisfies both the Constitution and the Final Act
itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterdays session
and I dont see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to
make any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement,
petitioners are invoking this Courts constitutionally imposed duty to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence therein via Senate
Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of
discretion may be issued by the Court under Rule 65 of the Rules of Court when it is
amply shown that petitioners have no other plain, speedy and adequate remedy in the
ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough. It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law. Failure on the part
[61]
[62]
of the petitioner to show grave abuse of discretion will result in the dismissal of the
petition.
[63]
In rendering this Decision, this Court never forgets that the Senate, whose act is
under review, is one of two sovereign houses of Congress and is thus entitled to great
respect in its actions. It is itself a constitutional body independent and coordinate, and
thus its actions are presumed regular and done in good faith. Unless convincing proof
and persuasive arguments are presented to overthrow such presumptions, this Court
will resolve every doubt in its favor. Using the foregoing well-accepted definition of
grave abuse of discretion and the presumption of regularity in the Senates processes,
this Court cannot find any cogent reason to impute grave abuse of discretion to the
Senates exercise of its power of concurrence in the WTO Agreement granted it by Sec.
21 of Article VII of the Constitution.
[64]
It is true, as alleged by petitioners, that broad constitutional principles require the

State to develop an independent national economy effectively controlled by Filipinos;
and to protect and/or prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles -- while serving as judicial
and legislative guides -- are not in themselves sources of causes of action. Moreover,
there are other equally fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a trade policy that serves the general welfare and utilizes
all forms and arrangements of exchange on the basis of equality and reciprocity and
the promotion of industries which are competitive in both domestic and foreign
markets, thereby justifying its acceptance of said treaty. So too, the alleged impairment
of sovereignty in the exercise of legislative and judicial powers is balanced by the
adoption of the generally accepted principles of international law as part of the law of
the land and the adherence of the Constitution to the policy of cooperation and amity
with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave
its consent to the WTO Agreement thereby making it a part of the law of the land is a
legitimate exercise of its sovereign duty and power. We find no patent and gross
arbitrariness or despotism by reason of passion or personal hostility in such
exercise. It is not impossible to surmise that this Court, or at least some of its members,
may even agree with petitioners that it is more advantageous to the national interest to
strike down Senate Resolution No. 97. But that is not a legal reason to attribute grave
abuse of discretion to the Senate and to nullify its decision. To do so would constitute
grave abuse in the exercise of our own judicial power and duty. Ineludably, what the
Senate did was a valid exercise of its authority. As to whether such exercise was wise,
beneficial or viable is outside the realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to whether the nation should join
the worldwide march toward trade liberalization and economic globalization is a matter
that our people should determine in electing their policy makers. After all, the WTO
Agreement allows withdrawal of membership, should this be the political desire of a
member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an
Asian Renaissance where the East will become the dominant region of the world
[65]
economically, politically and culturally in the next century. He refers to the free market
espoused by WTO as the catalyst in this coming Asian ascendancy. There are at
present about 31 countries including China, Russia and Saudi Arabia negotiating for
membership in the WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure for multilateral
trading and the veritable forum for the development of international trade law. The
alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly
enriched with original membership, keenly aware of the advantages and disadvantages
of globalization with its on-line experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international strategy for economic
prosperity and stability in the new millennium. Let the people, through their duly
authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
Padilla, and Vitug, JJ., in the result.

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 inLa 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 of arresto 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 crossexamination, 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 the Cortesand 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.
1awph!l.net
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.
BERNARDITA R. MACARIOLA, Complainant, v. HONORABLE ELIAS B.
ASUNCION, Judge of the Court of First Instance of Leyte, Respondent.
SYNOPSIS
Respondent judge was charged for having violated (1) Article 1491 of the New Civil
Code when he acquired by purchase portion of a lot which was involved in a civil case
decided by him; (2) Article 14 of the Code of Commerce, the Anti-Graft and Corrupt
Practices Act, the Civil Service Rules, and the Canons of Judicial Ethics, when he
associated himself with the Traders Manufacturing and Fishing Industries, Inc., as a
stockholder and a ranking officer while he was a judge of the Court of First Instance.
The Supreme Court held that there was no violation of Paragraph 5, Article 1491 of the
New Civil Code because the sale took place after finality of the decision; that
respondent may not be held liable under paragraphs 1 and 5, Article 14 of the Code of
Commerce (which is of Spanish vintage), because the provision partakes of the nature
of a political law as it regulates the relationship between the government and certain
public officers and employees and as such is deemed to have been automatically
abrogated with the change of sovereignty from Spain to the United States; that
respondent cannot be held liable under Paragraph H, Section 3 of the Anti-Graft and
Corrupt Practices Act because there is no showing (a) that he participated or intervened
in his official capacity in the business or transaction of the Traders Manufacturing and
Fishing Industries, Inc., or (b) that said corporation gained any undue advantage by
reason of respondents financial involvement in it, and because neither the 1935 nor the
1973 Constitution of the Philippines or any existing law expressly prohibits members of
the Judiciary from engaging or having any interest in any lawful business.
Respondent is reminded to be more discreet in his private and business activities.
SYLLABUS
1. CIVIL LAW; CONTRACTS; SALES; PROHIBITION TO BUY IN ARTICLE 1491 REFERS
TO PROPERTIES UNDER LITIGATION; NO VIOLATION IN CASE AT BAR. The
prohibition in Article 1491 of the Civil Code applies only to the sale or assignment of the
property which is the subject of litigation to the persons disqualified therein. WE have
already ruled that." . . for the prohibition to operate, the sale or assignment of the
property must take place during the pendency of the litigation involving the property"
(The Director of Lands v. Ababa, Et Al., 88 SCRA 513). Consequently, the sale of a
portion of Lot 1184-E to respondent Judge having taken place over one year after the
finality of the decision in Civil Case No. 3010 as well as the two orders approving the
project of partition, and not during the pendency of the litigation, there was no violation
of paragraph 5, Article 1491 of the New Civil Code.
2. JUDICIAL ETHICS; CANONS OF JUDICIAL ETHICS; JUDGES CONDUCT SHOULD BE
FREE FROM APPEARANCE OF IMPROPRIETY; JUDGES TRANSACTIONS REGARDING

PROPERTIES LITIGATED IN HIS COURT, NOT PROPER. Finally, while it is true that
respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code in
acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it
was, however, improper for him to have acquired the same. He should be reminded of
Canon 3 of the Canons of Judicial Ethics which requires that: "A judges official conduct
should be free from the appearance of impropriety, and his personal behavior, not only
upon the bench and in the performance of judicial duties, but also in his everyday life,
should be beyond reproach." Even if respondent honestly believed that Lot 1184-E was
no longer in litigation in his court and that he was purchasing it from a third person and
not from the parties to the litigation, he should nonetheless have refrained from buying
it for himself and transferring it to a corporation in which he and his wife were
financially involved, to avoid possible suspicion that his acquisition was related in one
way or another to his official actuations in civil case 3010. The conduct of respondent
gave cause for the litigants in civil case 3010, the lawyers practising in his court, and
the public in general to doubt the honesty and fairness of his actuations and the
integrity of our courts of justice.
3. MERCANTILE LAW; CODE OF COMMERCE; ARTICLE 14 THEREOF PARTAKES OF THE
NATURE OF A POLITICAL LAW. Although Article 14 of the Code of Commerce is part
of the commercial laws of the Philippines, it, however, partakes of the nature of a
political law as it regulates the relationship between the government and certain public
officers and employees, like justices and judges.
4. CONSTITUTIONAL LAW; POLITICAL LAW, DEFINED. Political law has been defined
as that branch of public law which deals with the organization and operation of the
governmental organs of the State and defines the relations of the state with the
inhabitants of its territory (People v. Perfecto, 43 Phil. 887). It must be recalled that a
political law embraces constitutional law, law of public corporations, administrative law
including the law on public officers and election.
5. MERCANTILE LAW; CODE OF COMMERCE, ARTICLE 14 THEREOF ABROGATED BY
CHANGE OF SOVEREIGNTY. Upon the transfer of sovereignty from Spain to the
United States to the Republic of the Philippines, Article 14 of this Code of Commerce
must be deemed to have abrogated because where there is change of sovereignty, the
political laws of the former sovereign, whether compatible or not with those of the new
sovereign, are automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.
6. CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT; PROHIBITED
PECUNIARY INTEREST UNDER PARAGRAPH H OF SECTION 3 THEREOF REFERS TO ONE
HERE THE PUBLIC OFFICER INTERVENES OR TAKES PART IN HIS OFFICIAL CAPACITY.
Respondent Judge can not be held liable under paragraph 4 Section 3 of the AntiGraft and Corrupt Practices Act because there is- no showing that respondent
participated or intervened in his official capacity in the business or transactions of the
Traders Manufacturing And Fishing Industries, Inc. In the case at bar, the business of
the corporation in which respondent participated has obviously no relation or connection
with his official office. The business of said corporation is not that kind where
respondent intervenes or takes part in his capacity as Judge of the Court of First
Instance. As was held in one case involving the application of Article 216 of the Revised
Penal Code which has a similar prohibition on public officers against directly or indirectly
becoming interested in any contract or business in which it is his official duty to
intervene, "It is not enough to be a public official to be subject to this crime; it is
necessary that by reason of his office, he has to intervene in said contracts or
transactions; and hence, the official who intervenes in contracts or transactions which
have no relation to his office can not commit this crime" (People v. Meneses, C.A. 40
C.G. 11th Supp. 134; Revised Penal Code, p. 1174, Vol 11(1976).
7. JUDICIAL ETHICS; JUDGES NOT PROHIBITED FROM ENGAGING IN LAWFUL
BUSINESS. There is no provision in both the 1935 and 1973 Constitutions of the
Philippines, nor is there an existing law expressly prohibiting members of the Judiciary
from engaging or having interest in any lawful business. It may be pointed out that
Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does not
contain any prohibition to that effect. As a matter of fact, under Section 77 of said law,
municipal judges may engage in teaching or other vocation not involving the practice of
the law after office hours but with the permission of the district judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in
commerce is, as heretofore stated, deemed abrogated automatically upon the transfer
of sovereignty from Spain to America, because it is political in nature.
8. ID.; ID.; CIVIL SERVICE ACT AND RULES PROMULGATED THEREUNDER NOT
APPLICABLE TO MEMBERS OF THE JUDICIARY. On the contention of complainant that
respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules, We hold
that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules
promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the
members of the Judiciary. It must be emphasized at the outset that respondent, being a
member of the Judiciary, 45 covered by Republic Act No. 296, as amended, otherwise
known as the Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution.
Judges cannot be considered as subordinate civil service officers or employees subject
to the disciplinary authority of the Commissioner of Civil Service; for, certainly. the
Commissioner is not the head of the Judicial Department to which they belong. The
Revised Administrative Code (Section 89) and the Civil Service Law itself state thru the
Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260
[1959]); and under the 1973 Constitution, the Judiciary is the only other or second
branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of
Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against
judges because to recognize the same as applicable to them, would be adding another
ground for the discipline of judges and, as aforestated, Section 67 of the Judiciary Act
recognizes only two grounds for their removal, namely, serious misconduct and
inefficiency.
9. ID.; ID.; JUDGES; ENGAGING IN PRIVATE BUSINESS, IMPROPER UNDER THE
CANONS. Although the actuation of respondent Judge in engaging in private business
by joining the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a
ranking officer, is not violative of the provisions of Article 14 of the Code of Commerce
and Section 3 (h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule
XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959,
the impropriety of the same is clearly unquestionable because Canon 25 of the Canons
of Judicial Ethics expressly declares that: "A judge should abstain from making personal
investments in enterprises which are apt to be involved in litigation in his court; and,
after his accession to the bench, he should not retain such investments previously
made, longer than a period sufficient to enable him to dispose of them without serious
loss The disposal or sale by respondent and his wife of their shares in the corporation
only 22 days after the incorporation of the corporation, indicates that respondent
realized that early that their interest in the corporation contravenes the aforesaid Canon
25. Respondent Judge and his wife therefore deserve commendation for their
immediate withdrawal from the firm after its incorporation and before it became
involved in any court litigation.
DECISION
MAKASIAR, J.:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged
respondent Judge Elias B. Asuncion of the Court of First Instance of Leyte, now
Associate Justice of the Court of Appeals, with "acts unbecoming a judge."
cralaw virtua1aw library
The factual setting of the case is stated in the report dated May 27, 1971 of then
Associate Justice Cecilia Muoz Palma of the Court of Appeals now retired Associate
Justice of the Supreme Court, to whom this case was referred on October 28, 1968 for
investigation, thus:
chanroble s lawlibrary : re dnad
"Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition
filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola, defendant,
concerning the properties left by the deceased Francisco Reyes, the common father of
the plaintiff and defendant.
"In her defenses to the complaint for partition, Mrs. Macariola alleged among other
things that: a) plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco
Reyes; b) the only legal heirs of the deceased were defendant Macariola, she being the
only offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the
remaining plaintiffs who were the children of the deceased by his second marriage with
Irene Ondes; c) the properties left by the deceased were all the conjugal properties of
the latter and his first wife, Felisa Espiras, and no properties were acquired by the
deceased during his second marriage; d) if there was any partition to be made, those
conjugal properties should first be partitioned into two parts, and one part is to be
adjudicated solely to defendant it being the share of the latters deceased mother, Felisa
Espiras, and the other half which is the share of the deceased Francisco Reyes was to
be divided equally among his children by his two marriages.
"On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case
3010, the dispositive portion of which reads:
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"IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of

evidence, finds and so holds, and hereby renders judgment (1) Declaring the plaintiffs
Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes as
the only children legitimated by the subsequent marriage of Francisco Reyes Diaz to
Irene Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have been an illegitimate
child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803,
4581, 4506 and 1/4 of Lot 1145 as belonging to the conjugal partnership of the
spouses Francisco Reyes Diaz and Felisa Espiras; (4) Declaring Lot No. 2304 and 1/4 of
Lot No. 3416 as belonging to the spouses Francisco Reyes Diaz and Irene Ondez in
common partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging exclusively to
the deceased Francisco Reyes Diaz; (6) Declaring the defendant Bernardita R.
Macariola, being the only legal and forced heir of her mother Felisa Espiras, as the
exclusive owner of one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581,
4506; and the remaining one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892,
5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as
belonging to the estate of Francisco Reyes Diaz; (7) Declaring Irene Ondez to be the
exclusive owner of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth
(1/4) of Lot No. 3416; the remaining one-half (1/2) of Lot 2304 and the remaining onehalf (1/2) of one fourth (1/4) of Lot No. 3416 as belonging to the estate of Francisco
Reyes Diaz; (8) Directing the division or partition of the estate of Francisco Reyes Diaz
in such a manner as to give or grant to Irene Ondez, as surviving widow of Francisco
Reyes Diaz, a hereditary share of one-twelfth (1/12) of the whole estate of Francisco
Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil Code), and the remaining
portion of the estate to be divided among the plaintiffs Sinforosa R. Bales, Luz R.
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and defendant
Bernardita R. Macariola, in such a way that the extent of the total share of plaintiff
Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of two-fifth
(2/5) of the total share of any or each of the other plaintiffs and the defendant (Art.
983, New Civil Code), each of the latter to receive equal shares from the hereditary
estate, (Ramirez v. Bautista, 14 Phil. 528; Diancin v. Bishop of Jaro, O.G. [3rd Ed.] p.
33); (9) Directing the parties, within thirty days after this judgment shall have become
final to submit to this court, for approval, a project of partition of the hereditary estate
in the proportion above indicated, and in such manner as the parties may, by
agreement, deemed convenient and equitable to them taking into consideration the
location, kind, quality, nature and value of the properties involved; (10) Directing the
plaintiff Sinforosa R. Bales and defendant Bernardita R. Macariola to pay the costs of
this suit, in the proportion of one-third (1/3) by the first named and two-thirds (2/3) by
the second named; and (11) Dismissing all other claims of the parties [pp. 27-29 of
Exh. C].
"The decision in civil case 3010 became final for lack of an appeal, and on October 16,
1963, a project of partition was submitted to Judge Asuncion which is marked Exh. A.
Notwithstanding the fact that the project of partition was not signed by the parties
themselves but only by the respective counsel of plaintiffs and defendant, Judge
Asuncion approved it in his Order dated October 23, 1963, which for convenience is
quoted hereunder in full:
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The parties, through their respective counsels, presented to this Court for approval the
following project of partition:
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COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this
Honorable Court respectfully submit the following Project of Partition:
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1. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita
Reyes Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern
part of the lot shall be awarded likewise to Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western
part of the lot shall likewise be awarded to Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions
awarded under item (2) and (4) above shall be awarded to Luz Reyes Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares,
provided, however that the remaining portion of Lot No. 3416 shall belong exclusively
to Priscilla Reyes.
WHEREFORE, it is respectfully prayed that the Project of Partition indicated above
which is made in accordance with the decision of the Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO
Atty. for the
Defendant
Tacloban City
(SGD) ZOTICO A. TOLETE
Atty. for the Plaintiff
Tacloban City
While the Court thought it more desirable for all the parties to have signed this Project
of Partition, nevertheless, upon assurance of both counsels of the respective parties to
this Court that the Project of Partition, as above-quoted, had been made after a
conference and agreement of the plaintiffs and the defendant approving the above
Project of Partition, and that both lawyers had represented to the Court that they are
given full authority to sign by themselves the Project of Partition, the Court, therefore,
finding the above-quoted project of Partition to be in accordance with law, hereby
approves the same. The parties, therefore, are directed to execute such papers,
documents or instrument sufficient in form and substance for the vesting of the rights,
interests and participations which were adjudicated to the respective parties, as
outlined in the Project of Partition and the delivery of the respective properties
adjudicated to each one in view of said Project of Partition, and to perform such other
acts as are legal and necessary to effectuate the said Project of Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION
Judge
"EXH. B.
"The above Order of October 23, 1963, was amended on November 11, 1963, only for
the purpose of giving authority to the Register of Deeds of the Province of Leyte to
issue the corresponding transfer certificates of title to the respective adjudicatees in
conformity with the project of partition (see Exh. U).
"One of the properties mentioned in the project of partition was Lot 1184 or rather onehalf thereof with an area of 15,162.5 sq. meters. This lot, which according to the
decision was the exclusive property of the deceased Francisco Reyes, was adjudicated
in said project of partition to the plaintiffs Luz, Anacorita, Ruperto, Adela, and Priscilla
all surnamed Reyes in equal shares, and when the project of partition was approved by
the trial court the adjudicatees caused Lot 1184 to be subdivided into five lots
denominated as Lot 1184-A to 1184-E inclusive (Exh. V).
"Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncions
court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq.
meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was issued
transfer certificate of title No. 2338 of the Register of Deeds of the city of Tacloban
(Exh. 12).
"On March 6, 1965, Dr. Arcadio Galapon and his wife sold a portion of Lot 1184-E with
an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion
(Exh. 11), which particular portion was declared by the latter for taxation purposes
(Exh. F).
"On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective
shares and interest in Lot 1184-E to The Traders Manufacturing and Fishing Industries
Inc. (Exh. 15 & 16). At the time of said sale the stockholders of the corporation were
Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and
the latters wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs.
Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of The
Traders Manufacturing and Fishing Industries, Inc. which we shall henceforth refer to as
TRADERS were registered with the Securities and Exchange Commission only on
January 9, 1967 (Exh. E)" [pp. 378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint
dated August 6, 1968 alleging four causes of action, to wit: [1] that respondent Judge
Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by
purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil
Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs 1
and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil
Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself
with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a
ranking officer while he was a judge of the Court of First Instance of Leyte; [3] that
respondent was guilty of coddling an impostor and acted in disregard of judicial
decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and
publicly advertised himself as a practising attorney when in truth and in fact his name
does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar;
and [4] that there was a culpable defiance of the law and utter disregard for ethics by
respondent Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply
was filed on October 16, 1968 by herein complainant. In Our resolution of October 28,
1968, We referred this case to then Justice Cecilia Muoz Palma of the Court of Appeals,
for investigation, report and recommendation. After hearing, the said Investigating
Justice submitted her report dated May 27, 1971 recommending that respondent Judge
should be reprimanded or warned in connection with the first cause of action alleged in
the complaint, and for the second cause of action, respondent should be warned in case
of a finding that he is prohibited under the law to engage in business. On the third and
fourth causes of action, Justice Palma recommended that respondent Judge be
exonerated.
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The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.),
complainant herein instituted an action before the Court of First Instance of Leyte,
entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, Et
Al., Defendants," which was docketed as Civil Case No. 4235, seeking the annulment of
the project of partition made pursuant to the decision in Civil Case No. 3010 and the
two orders issued by respondent Judge approving the same, as well as the partition of
the estate and the subsequent conveyances with damages. It appears, however, that
some defendants were dropped from the civil case. For one, the case against Dr.
Arcadio Galapon was dismissed because he was no longer a real party in interest when
Civil Case No. 4234 was filed, having already conveyed on March 6, 1965 a portion of
lot 1184-E to respondent Judge and on August 31, 1966 the remainder was sold to the
Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant
Victoria Asuncion was dismissed on the ground that she was no longer a real party in
interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of Lot
1184 acquired by her and respondent Judge from Dr. Arcadio Galapon was already sold
on August 31, 1966 to the Traders Manufacturing and Fishing Industries, Inc. Likewise,
the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go,
Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and
Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta
Anota and Atty. Zotico A. Tolete were dismissed with the conformity of complainant
herein, plaintiff therein, and her counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of
Leyte, who was directed and authorized on June 2, 1969 by the then Secretary (now
Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear and
decide Civil Case No. 4234, rendered a decision, the dispositive portion of which reads
as follows:
"A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

"(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction
to take cognizance of the issue of the legality and validity of the Project of Partition
[Exhibit "B" ] and the two Orders [Exhibits C and C-3] approving the partition;
"(2) dismissing the complaint against Judge Elias B. Asuncion;
"(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias
B. Asuncion,
"(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages;
"(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.00] for exemplary
damages;
"(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and
"(d) the sum of TEN THOUSAND PESOS [P10,000.00] for Attorneys Fees.
"B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND
FOR THE HEIRS OF THE DECEASED GERARDO VILLASIN
"(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of
the deceased Gerardo Villasin;
"(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of
Gerardo Villasin the cost of the suit.
"C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE
PLAINTIFFS IN CIVIL CASE NO. 3010
"(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer,
Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.
"D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO
"(1) Dismissing the complaint against Bonifacio Ramo;
"(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.
"SO ORDERED" [pp. 531-533, rec.].
It is further disclosed by the record that the aforesaid decision was elevated to the
Court of Appeals upon perfection of the appeal on February 22, 1971.
I
WE find that there is no merit in the contention of complainant Bernardita R. Macariola,

under her first cause of action, that respondent Judge Elias B. Asuncion violated Article
1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No.
1184-E which was one of those properties involved in Civil Case No. 3010.
That Article provides:
"Article 1491. The following persons cannot acquire by purchase, even at a public or
judicial action, either in person or through the mediation of another:
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"(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and
other officers and employees connected with the administration of justice, the property
and rights in litigation or levied upon an execution before the court within whose
jurisdiction or territory they exercise their respective functions; this prohibition includes
the act of acquiring by assignment and shall apply to lawyers, with respect to the
property and rights which may be the object of any litigation in which they may take
part by virtue of their profession" [Italics supplied].
The prohibition in the aforesaid Article applies only to the sale or assignment of the
property which is the subject of litigation to the persons disqualified therein. WE have
already ruled that." . . for the prohibition to operate, the sale or assignment of the
property must take place during the pendency of the litigation involving the property"
(The Director of Lands v. Ababa, Et Al., 88 SCRA 513, 519 [1979]; Rosario vda. de Laig
v. Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of
Lot 1184-E, the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was
already final because none of the parties therein filed an appeal within the
reglementary period; hence, the lot in question was no longer subject of the litigation.
Moreover, at the time of the sale on March 6, 1965, respondents order dated October
23, 1963 and the amended order dated November 11, 1963 approving the October 16,
1963 project of partition made pursuant to the June 8, 1963 decision, had long become
final for there was no appeal from said orders.
Furthermore, respondent Judge did not buy the lot in question on March 6, 1965
directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who
earlier purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely,
Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in
Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half
thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa,
Ruperto Reyes and Anacorita Reyes in the project of partition, and the same was
subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot
1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338
by the Register of Deeds of Tacloban City, and on March 6, 1965 he sold a portion of
said lot to respondent Judge and his wife who declared the same for taxation purposes
only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses
Galapon of their respective shares and interest in said Lot 1184-E to the Traders
Manufacturing and Fishing Industries, Inc., in which respondent was the president and
his wife was the secretary, took place long after the finality of the decision in Civil Case
No. 3010 and of the subsequent two aforesaid orders therein approving the project of
partition.
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While it appears that complainant herein filed on or about November 9 or 11, 1968 an
action before the Court of First Instance of Leyte docketed as Civil Case No. 4234,
seeking to annul the project of partition and the two orders approving the same, as well
as the partition of the estate and the subsequent conveyances, the same, however, is of
no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot
1184-E from Dr. Arcadio Galapon; hence, after the finality of the decision which he
rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated
October 23, 1963 and November 11, 1963. Therefore, the property was no longer
subject of litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer
alter, change or affect the aforesaid facts that the questioned sale to respondent
Judge, now Court of Appeals Justice, was effected and consummated long after the
finality of the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken
place over one year after the finality of the decision in Civil Case No. 3010 as well as
the two orders approving the project of partition, and not during the pendency of the
litigation, there was no violation of paragraph 5, Article 1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to
Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a
mere scheme to conceal the illegal and unethical transfer of said lot to respondent
Judge as a consideration for the approval of the project of partition. In this connection,
We agree with the findings of the Investigating Justice thus:
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"And so we are now confronted with this all-important question whether or not the
acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer of the
whole lot to TRADERS of which respondent was the President and his wife the
Secretary, was intimately related to the Order of respondent approving the project of
partition, Exh. A.
"Respondent vehemently denies any interest or participation in the transactions
between the Reyeses and the Galapons concerning Lot 1184-E, and he insists that there
is no evidence whatsoever to show that Dr. Galapon had acted, in the purchase of Lot
1184-E, in mediation for him and his wife. (See p. 14 of Respondents Memorandum).
x
"On this point, I agree with respondent that there is no evidence in the record showing
that Dr. Arcadio Galapon acted as a mere dummy of respondent in acquiring Lot 1184E from the Reyeses. Dr. Galapon appeared to this investigator as a respectable citizen,
credible and sincere, and I believe him when he testified that he bought Lot 1184-E in
good faith and for valuable consideration from the Reyeses without any intervention of,
or previous understanding with Judge Asuncion" (pp. 391-394, rec.).
On the contention of complainant herein that respondent Judge acted illegally in
approving the project of partition although it was not signed by the parties, We quote
with approval the findings of the Investigating Justice, as follows:
"1. I agree with complainant that respondent should have required the signature of the
parties more particularly that of Mrs. Macariola on the project of partition submitted to
him for approval; however, whatever error was committed by respondent in that
respect was done in good faith as according to Judge Asuncion he was assured by Atty.
Bonifacio Ramo, the counsel of record of Mrs. Macariola, that he was authorized by his
client to submit said project of partition, (See Exh. B and tsn. p. 24, January 20, 1969).
While it is true that such written authority if there was any, was not presented by
respondent in evidence, nor did Atty. Ramo appear to corroborate the statement of
respondent, his affidavit being the only one that was presented as respondents Exh.
10, certain actuations of Mrs. Macariola lead this investigator to believe that she knew
the contents of the project of partition, Exh. A, and that she gave her conformity
thereto. I refer to the following documents:
"1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban
Cadastral Survey in which the deceased Francisco Reyes holds a 1/4 share (Exh. 9-a).
On this certificate of title the Order dated November 11, 1963, (Exh. U) approving the
project of partition was duly entered and registered on November 26, 1963 (Exh. 9-D);
"2) Exh. 7 Certified copy of a deed of absolute sale executed by Bernardita Reyes
Macariola on October 22, 1963, conveying to Dr. Hector Decena the one-fourth share of
the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated that
she was the absolute owner of said one-fourth share, the same having been
adjudicated to her as her share in the estate of her father Francisco Reyes Diaz as per
decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The
deed of sale was duly registered and annotated at the back of OCT 19520 on December
3, 1963 (see Exh. 9-e).
"In connection with the abovementioned documents it is to be noted that in the project
of partition dated October 16, 1963, which was approved by respondent on October 23,
1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather 1/4
thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which
complainant sold to Dr. Decena on October 22, 1963, several days after the preparation
of the project of partition.
"Counsel for complainant stresses the view, however, that the latter sold her one-fourth
share in Lot 1154 by virtue of the decision in Civil Case 3010 and not because of the
project of partition, Exh. A. Such contention is absurd because from the decision, Exh.
C, it is clear that one-half of one-fourth of Lot 1154 belonged to the estate of Francisco
Reyes Diaz while the other half of said one-fourth was the share of complainants
mother, Felisa Espiras; in other words, the decision did not adjudicate the whole of the
one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant
became the owner of the entire one fourth of Lot 1154 only by means of the project of
partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was
for no other reason than that she was well aware of the distribution of the properties of
her deceased father as per Exhs. A and B. It is also significant at this point to state that
Mrs. Macariola admitted during the cross-examination that she went to Tacloban City in
connection with the sale of Lot 1154 to Dr. Decena (tsn. p. 92, November 28, 1968)
from which we can deduce that she could not have been kept ignorant of the
proceedings in civil case 3010 relative to the project of partition.
"Complainant also assails the project of partition because according to her the
properties adjudicated to her were insignificant lots and the least valuable.
Complainant, however, did not present any direct and positive evidence to prove the
alleged gross inequalities in the choice and distribution of the real properties when she
could have easily done so by presenting evidence on the area, location, kind, the
assessed and market value of said properties. Without such evidence there is nothing in
the record to show that there were inequalities in the distribution of the properties of
complainants father" (pp. 386-389, rec.).
Finally, while it is true that respondent Judge did not violate paragraph 5, Article 1491
of the New Civil Code in acquiring by purchase a portion of Lot 1184-E which was in
litigation in his court, it was, however, improper for him to have acquired the same. He
should be reminded of Canon 3 of the Canons of Judicial Ethics which requires that: "A
judges official conduct should be free from the appearance of impropriety, and his
personal behavior, not only upon the bench and in the performance of judicial duties,
but also in his everyday life, should be beyond reproach." And as aptly observed by the
Investigating Justice: ". . . it was unwise and indiscreet on the part of respondent to
have purchased or acquired a portion of a piece of property that was or had been in
litigation in his court and caused it to be transferred to a corporation of which he and
his wife were ranking officers at the time of such transfer. One who occupies an exalted
position in the judiciary has the duty and responsibility of maintaining the faith and
trust of the citizenry in the courts of justice, so that not only must he be truly honest
and just, but his actuations must be such as not give cause for doubt and mistrust in
the uprightness of his administration of justice. In this particular case of respondent, he
cannot deny that the transactions over Lot 1184-E are damaging and render his
actuations open to suspicion and distrust. Even if respondent honestly believed that Lot
1184-E was no longer in litigation in his court and that he was purchasing it from a
third person and not from the parties to the litigation, he should nonetheless have
refrained from buying it for himself and transferring it to a corporation in which he and
his wife were financially involved, to avoid possible suspicion that his acquisition was
related in one way or another to his official actuations in civil case 3010. The conduct of
respondent gave cause for the litigants in civil case 3010, the lawyers practising in his
court, and the public in general to doubt the honesty and fairness of his actuations and
the integrity of our courts of justice" (pp. 395-396, rec.).
cralawnad
II
With respect to the second cause of action, the complainant alleged that respondent
Judge violated paragraphs 1 and 5, Article 14 of the Code of Commerce when he
associated himself with the Traders Manufacturing and Fishing Industries, Inc. as a
stockholder and a ranking officer, said corporation having been organized to engage in
business. Said Article provides that:
"Article 14 The following cannot engage in commerce, either in person or by proxy,

nor can they hold any office or have any direct, administrative, or financial intervention
in commercial or industrial companies within the limits of the districts, provinces, or
towns in which they discharge their duties:
"1. Justices of the Supreme Court, judges and officials of the department of public
prosecution in active service. This provision shall not be applicable to mayors, municipal
judges, and municipal prosecuting attorneys nor to those who by chance are
temporarily discharging the functions of judge or prosecuting attorney.
x
"5. Those who by virtue of laws or special provisions may not engage in commerce in a
determinate territory."
It is Our considered view that although the aforestated provision is incorporated in the
Code of Commerce which is part of the commercial laws of the Philippines, it, however,
partakes of the nature of a political law as it regulates the relationship between the
government and certain public officers and employees, like justices and judges.
Political Law has been defined as that branch of public law which deals with the
organization and operation of the governmental organs of the State and define the
relations of the state with the inhabitants of its territory (People v. Perfecto, 43 Phil.
887, 897 [1922]). It may be recalled that political law embraces constitutional law, law
of public corporations, administrative law including the law on public officers and
elections. Specifically, Article 14 of the Code of Commerce partakes more of the nature
of an administrative law because it regulates the conduct of certain public officers and
employees with respect to engaging in business; hence, political in essence.
It is significant to note that the present Code of Commerce is the Spanish Code of
Commerce of 1885, with some modifications made by the "Comision de Codificacion de
las Provincias de Ultramar," which was extended to the Philippines by the Royal Decree
of August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States and later on from the
United States to the Republic of the Philippines, Article 14 of this Code of Commerce
must be deemed to have been abrogated because where there is change of sovereignty,
the political laws of the former sovereign, whether compatible or not with those of the
new sovereign, are automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.
Thus, We held in Roa v. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:
"By well-settled public law, upon the cession of territory by one nation to another,
either following a conquest or otherwise, . . . those laws which are political in their
nature and pertain to the prerogatives of the former government immediately cease
upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).
"While municipal laws of the newly acquired territory not in conflict with the laws of the
new sovereign continue in force without the express assent or affirmative act of the
conqueror, the political laws do not. (Hallecks Int. Law, chap. 34, par. 14). However,
such political laws of the prior sovereignty as are not in conflict with the constitution or
institutions of the new sovereign, may be continued in force if the conqueror shall so
declare by affirmative act of the commander-in-chief during the war, or by Congress in
time of peace. (Elys Administrator v. United States, 171 U.S. 220, 43 L. Ed. 142). In
the case of American and Ocean Ins. Cos. v. 356 Bales of Cotton (1 Pet. [26 U.S.] 511,
542, 7 L. Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never been held that the relations of
the inhabitants with each other undergo any change. Their relations with their former
sovereign are dissolved, and new relations are created between them and the
government which has acquired their territory. The same act which transfers their
country, transfers the allegiance of those who remain in it; and the law which may be
denominated political, is necessarily changed, although that which regulates the
intercourse and general conduct of individuals, remains in force, until altered by the
newly-created power of the State."
Likewise, in People v. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "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."
There appears no enabling or affirmative act that continued the effectivity of the
aforestated provision of the Code of Commerce after the change of sovereignty from
Spain to the United States and then to the Republic of the Philippines. Consequently,
Article 14 of the Code of Commerce has no legal and binding effect and cannot apply to
the respondent, then Judge of the Court of First Instance, now Associate Justice of the
Court of Appeals.
It is also argued by complainant herein that respondent Judge violated paragraph H,
Section 3 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, which provides that:
"Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be unlawful:
"(h) Directly or indirectly having financial or pecuniary interest in any business, contract
or transaction in connection with which he intervenes or takes part in his official
capacity, or in which he is prohibited by the Constitution or by any law from having any
interest."
Respondent Judge cannot be held liable under the aforestated paragraph because there
is no showing that respondent participated or intervened in his official capacity in the

business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the
case at bar, the business of the corporation in which respondent participated has
obviously no relation or connection with his judicial office. The business of said
corporation is not that kind where respondent intervenes or takes part in his capacity as
Judge of the Court of First Instance. As was held in one case involving the application of
Article 216 of the Revised Penal Code which has a similar prohibition on public officers
against directly or indirectly becoming interested in any contract or business in which it
is his official duty to intervene," (I)t is not enough to be a public official to be subject to
this crime: it is necessary that by reason of his office, he has to intervene in said
contracts or transactions; and, hence, the official who intervenes in contracts or
transactions which have no relation to his office cannot commit this crime" (People v.
Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised
Penal Code, p. 1174, Vol. II [1976]).
It does not appear also from the records that the aforesaid corporation gained any
undue advantage in its business operations by reason of respondents financial
involvement in it, or that the corporation benefited in one way or another in any case
filed by or against it in court. It is undisputed that there was no case filed in the
different branches of the Court of First Instance of Leyte in which the corporation was
either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R.
Macariola, plaintiff, versus Sinforosa O. Bales, Et Al.," wherein the complainant herein
sought to recover Lot 1184-E from the aforesaid corporation. It must be noted,
however, that Civil Case No. 4234 was filed only on November 9 or 11, 1968 and
decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when respondent
Judge was no longer connected with the corporation, having disposed of his interest
therein on January 31, 1967.
chanrobles virtual lawlibrary
Furthermore, respondent is not liable under the same paragraph because there is no
provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an
existing law expressly prohibiting members of the Judiciary from engaging or having
interest in any lawful business.
It may be pointed out that Republic Act No. 296, as amended, also known as the
Judiciary Act of 1948, does not contain any prohibition to that effect. As a matter of
fact, under Section 77 of said law, municipal judges may engage in teaching or other
vocation not involving the practice of law after office hours but with the permission of
the district judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in
commerce is, as heretofore stated, deemed abrogated automatically upon the transfer
of sovereignty from Spain to America, because it is political in nature.
Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the
purchase by judges of a property in litigation before the court within whose jurisdiction
they perform their duties, cannot apply to respondent Judge because the sale of the lot
in question to him took place after the finality of his decision in Civil Case No. 3010 as
well as his two orders approving the project of partition; hence, the property was no
longer subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to
the Civil Service Act of 1959 prohibits an officer or employee in the civil service from
engaging in any private business, vocation, or profession or be connected with any
commercial, credit, agricultural or industrial undertaking without a written permission
from the head of department, the same, however, may not fall within the purview of
paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last
portion of said paragraph speaks of a prohibition by the Constitution or law on any
public officer from having any interest in any business and not by a mere administrative
rule or regulation. Thus, a violation of the aforesaid rule by any officer or employee in
the civil service, that is, engaging in private business without a written permission from
the Department Head may not constitute graft and corrupt practice as defined by law.
On the contention of complainant that respondent Judge violated Section 12, Rule XVIII
of the Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260)
and the Civil Service Rules promulgated thereunder, particularly Section 12 of Rule
XVIII, do not apply to the members of the Judiciary. Under said Section 12: "No officer
or employee shall engage directly in any private business, vocation, or profession or be
connected with any commercial, credit, agricultural or industrial undertaking without a
written permission from the Head of Department . . ."
It must be emphasized at the outset that respondent, being a member of the Judiciary,
is covered by Republic Act No. 296, as amended, otherwise known as the Judiciary Act
of 1948 and by Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss judges was then vested in
the President of the Philippines, not in the Commissioner of Civil Service, and only on
two grounds, namely, serious misconduct and inefficiency, and upon the
recommendation of the Supreme Court, which alone is authorized, upon its own motion,
or upon information of the Secretary (now Minister) of Justice to conduct the
corresponding investigation. Clearly, the aforesaid section defines the grounds and
prescribes the special procedure for the discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme
Court can discipline judges of inferior courts as well as other personnel of the Judiciary.
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virtual lawlibrary
It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner
may, for . . . violation of the existing Civil Service Law and rules or of reasonable office
regulations, or in the interest of the service, remove any subordinate officer or
employee from the service, demote him in rank, suspend him for not more than one
year without pay or fine him in an amount not exceeding six months salary." Thus, a
violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil
service officers and employees.
However, judges cannot be considered as subordinate civil service officers or employees
subject to the disciplinary authority of the Commissioner of Civil Service; for, certainly,
the Commissioner is not the head of the Judicial Department to which they belong. The
Revised Administrative Code (Section 89) and the Civil Service Law itself state that the
Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260)
[1959]); and under the 1973 Constitution, the Judiciary is the only other or second
branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of
Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against
judges because to recognize the same as applicable to them, would be adding another
ground for the discipline of judges and, as aforestated, Section 67 of the Judiciary Act
recognizes only two grounds for their removal, namely, serious misconduct and
inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of
Civil Service who has original and exclusive jurisdiction" (T)o decide, within one
hundred twenty days, after submission to it, all administrative cases against permanent
officers and employees in the competitive service, and, except as provided by law, to
have final authority to pass upon their removal, separation, and suspension and upon
all matters relating to the conduct, discipline, and efficiency of such officers and
employees; and prescribe standards, guidelines and regulations governing the
administration of discipline" (Emphasis supplied). There is no question that a judge
belong to the non-competitive or unclassified service of the government as a
Presidential appointee and is therefore not covered by the aforesaid provision. WE have
already ruled that." . . in interpreting Section 16(i) of Republic Act No. 2260, we
emphasized that only permanent officers and employees who belong to the classified
service come under the exclusive jurisdiction of the Commissioner of Civil Service"
(Villaluz v. Zaldivar, 15 SCRA 710, 713 [1965l, Ang-Angco v. Castillo, 9 SCRA 619
[1963]).
Although the actuation of respondent Judge in engaging in private business by joining
the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking
officer, is not violative of the provisions of Article 14 of the Code of Commerce and
Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule
XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959,
the impropriety of the same is clearly unquestionable because Canon 25 of the Canons
of Judicial Ethics expressly declares that:
"A judge should abstain from making personal investments in enterprises which are apt
to be involved in litigation in his court; and, after his accession to the bench, he should
not retain such investments previously made, longer than a period sufficient to enable
him to dispose of them without serious loss. It is desirable that he should, so far as
reasonably possible, refrain from all relations which would normally tend to arouse the
suspicion that such relations warp or bias his judgment, or prevent his impartial
attitude of mind in the administration of his judicial duties. . . ."
WE are not, however, unmindful of the fact that respondent Judge and his wife had
withdrawn on January 31, 1967 from the aforesaid corporation and sold their respective
shares to third parties, and it appears also that the aforesaid corporation did not in
anyway benefit in any case filed by or against it in court as there was no case filed in
the different branches of the Court of First Instance of Leyte from the time of the
drafting of the Articles of Incorporation of the corporation on March 12, 1966, up to its
incorporation on January 9, 1967, and the eventual withdrawal of respondent on
January 31, 1967 from said corporation. Such disposal or sale by respondent and his
wife of their shares in the corporation only 22 days after the in corporation of the
corporation, indicates that respondent realized that early that their interest in the
corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife
therefore deserve the commendation for their immediate withdrawal from the firm after
its incorporation and before it became involved in any court litigation.
III
With respect to the third and fourth causes of action, complainant alleged that
respondent was guilty of coddling an impostor and acted in disregard of judicial
decorum, and that there was culpable defiance of the law and utter disregard for ethics.
WE agree, however, with the recommendation of the Investigating Justice that
respondent Judge be exonerated because the aforesaid causes of action are groundless,
and WE quote the pertinent portion of her report which reads as follows:
"The basis for complainants third cause of action is the claim that respondent
associated and closely fraternized with Dominador Arigpa Tan who openly and publicly
advertised himself as a practising attorney (see Exhs. I, I-1 and J) when in truth and in
fact said Dominador Arigpa Tan does not appear in the Roll of Attorneys and is not a
member of the Philippine Bar as certified to in Exh. K.
The "respondent denies knowing that Dominador Arigpa Tan was an impostor and
claims that all the time he believed that the latter was a bona fide member of the bar. I
see no reason for disbelieving this assertion of Respondent. It has been shown by
complainant that Dominador Arigpa Tan represented himself publicly as an attorney-atlaw to the extent of putting up a signboard with his name and the words Attorney-atLaw (Exh. I and I-1) to indicate his office, and it was but natural for respondent and
any person for that matter to have accepted that statement on its face value.
"Now with respect to the allegation of complainant that respondent is guilty of
fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to be a
godmother of Mr. Tans child at baptism (Exh. M & M-1), that fact even if true did not
render respondent guilty of violating any canon of judicial ethics as long as his friendly
relations with Dominador A. Tan and family did not influence his official actuations as a
judge where said persons were concerned. There is no tangible convincing proof that
herein respondent gave any undue privileges in his court to Dominador Arigpa Tan or
that the latter benefitted in his practice of law from his personal relations with
respondent, or that he used his influence, if he had any, on the Judges of the other
branches of the Court to favor said Dominador Tan.
"Of course it is highly desirable for a member of the judiciary to refrain as much as
possible from maintaining close friendly relations with practising attorneys and litigants
in his court so as to avoid suspicion that his social or business relations or friendship
constitute an element in determining his judicial course" (par. 30, Canons of Judicial
Ethics), but if a Judge does have social relations, that in itself would not constitute a
ground for disciplinary action unless it be clearly shown that his social relations
beclouded his official actuations with bias and partiality in favor of his friends" (pp. 403405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of
Appeals, did not violate any law in acquiring by purchase a parcel of land which was in
litigation in his court and in engaging in business by joining a private corporation during
his incumbency as judge of the Court of First Instance of Leyte, he should be reminded
to be more discreet in his private and business activities, because his conduct as a
member of the Judiciary must not only be characterized with propriety but must always
be above suspicion.
chanrobles.com :cralaw:red
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS

HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS
ACTIVITIES.
SO ORDERED.
Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and
Gutierrez, JJ., concur.
Fernando, C.J. Abad Santos and Escolin, JJ., took no part.
Barredo, J., I vote with Justice Aquino.
Aquino, J., I vote for respondents unqualified exoneration.
Concepcion, Jr., J., is on leave.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-22374 December 18, 1974

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
EMILIO G. GUANZON, defendant-appellee.
Office of the Solicitor General Arturo A. Alafriz Solicitor Camilo D. Quiason and
Special Attorney Maria C. Paraiso for plaintiff-appellant.
Romeo C. Gonzaga for defendant-appellee.
FERNANDO, J.:p
A lower court decision, which on its face ignores the controlling statute as well as
the applicable doctrines of this Court, is appealed by the Republic of the
Philippines. It filed an action for the foreclosure of certain real estate and chattel
mortgages executed by defendant Emilio G. Guanzon, now appellee, in favor of
the former Bank of Taiwan, Ltd., as security for the payment of the loans obtained
by him from said bank. The amount involved is P3,722.13, representing the
principal and interest as of September 30, 1961, with an additional sum
equivalent to ten percent of the total indebtedness as attorney's fees. The loan
transaction took place in 1943 during the period of Japanese occupation. Upon
the liberation of the Philippines in 1945, the United States, through its Alien
Property Custodian, acquired such credit. Thereafter, by virtue of the Philippine
Property Act of 1946, it was transferred to our government. With the statute and
the controlling judicial decisions, 1 clearly pointing to one direction, the lower court, in a hasty
and improvident exercise of judicial power, apparently oblivious of the law, took the other way. It held that
the Republic of the Philippines lacked legal interest over such mortgage loan and dismissed the case. We
have no choice but to reverse.
The facts are undisputed. As set forth in the brief for appellant Republic of the
Philippines: "On May and June, 1943, the defendant obtained two (2) loans from
the former Bank of Taiwan, Ltd., at its offices in Bacolod City, in the total sum of
P1,600.00, with interest at the rate of six per centum (6%) per annum,
compounded quarterly, evidenced by two (2) promissory notes ... executed,
signed and delivered by him to said bank. To secure prompt and full payment of
the loans, the defendant executed a real estate mortgage ... on the two parcels of
land covered by Transfer Certificate of Title Nos. 1848 and 1855 of the Register
of Deeds of Negros Occidental and a Chattel Mortgage on standing crops ...
growing on the same properties ... . By virtue of Vesting Order No. P-4, dated
January 21, 1946, and under the authority of the Trading with the Enemy Act, as
amended, the United States of America vested in the Government of the United
States the assets in the Philippines of the Bank of Taiwan, Ltd. Pursuant to the
Philippine Property Act of 1946, these assets were subsequently transferred to
the Republic of the Philippines by the Attorney General of the United States
under Transfer Agreements dated July 20, 1954 and June 15, 1957, and are now
administered by the Board of Liquidators, a government agency created under
Executive Order No. 372, dated November 24, 1950, and in accordance with
Republic Acts Nos. 477 and 8, and other pertinent laws." 2 According to the brief for
appellee Guanzon: "The statement of facts stated in appellant's brief is substantially correct so that this
representation finds no necessity in offering counter-statement of facts." 3
It is not easy to explain, and certainly there is no justification, in the light of the
above facts and considering the state of the law, why the lower court, in its
decision, dismissed the case on the ground that the Republic of the Philippines
lacks legal interest. As noted, we have to reverse.
1. In the very able brief for appellant Republic of the Philippines, prepared by the
then Solicitor General Arturo A. Alafriz and the former Solicitor, later Assistant
Solicitor General Camilo D. Quiason, it was made clear that while the Bank of
Taiwan, Ltd. was the original creditor of the loans thus secured, with defendant,
now appellee, executing the mortages in question, the United States, pursuant to
the Trading with the Enemy Act 4 acquired such account, being among the assets of a bank
which was a declared national of an enemy country. This it did through a vesting order, 5 the legal effect of
which was to effectuate immediately the transfer of title by operation of law without any necessity for any
court action. Thus, title over such credit passed to the United States "as completely as if by conveyance,
transfer, or assignment, ... . " 6 The brief for the Republic continues: "In accordance with the Philippine
Property Act of 1946, the United States Government transferred, conveyed and assigned to the
Government of the Republic of the Philippines under Transfer Agreements, dated July 20, 1954 and June
15, 1957, all its rights, title and interest to the loans in question. As such transferee, the Republic of the
Philippines acquired the title and interest thereto ... . It follows, therefore, that plaintiff has a legal interest
in the promissory notes and in the real and chattel mortgages and has a cause of action against the
debtor-mortgagor, the defendant herein." 7
All that was set forth in the three-page brief of counsel for appellee Guanzon
reads as follows: "There is no showing as to how plaintiff-appellant was able to
acquire the Real and Chattel Mortgage executed by the defendant-appellee in
favor of the Bank of Taiwan Ltd. a private bank of Japan, and therefore has no
legal interest in the subject matter. The transfer of obligation in question cannot
be taken Judicial Notice by our courts because the vesting order P-4 of the
Government of the United States, pursuant to the Trading with the Enemy Act, as
amended, of any and all property of any nature whatsoever subject to the
Jurisdiction of the United States affecting alien property in the Philippines cannot
be taken Judicial Notice in the light of Sec. 1 of Rule 129 of the New Rules of
Court, inasmuch as the Trading with the Enemy Act is a foreign law enacted by
the U.S. Government which is not enumerated in the aforecited new Rules of
Court. Consequently, proof should have been introduced to show how the United
States Government was able to acquire the subject matter in litigation which was
later transferred to the plaintiff-appellant." 8
It thus appears obvious that counsel for appellee lacks awareness of the
controlling doctrine announced in the leading case of Brownell, Jr. v. Sun Life
Assurance Company, 9 where Justice Labrador explicitly set forth: "This purpose of conveying
enemy properties to the Philippines after all claims against them shall have been settled is expressly
embodied in the Philippine Property Act of 1946," 10 A brief history of the Philippine Property Act of 1946 is
likewise found in his opinion: "On July 3, 1946, the Congress of the United States passed Public Law 48579th Congress, known as the Philippine Property Act of 1946. Section 3 thereof provides that "The
Trading with the Enemy Act of October 6, 1917 (40 Stat. 411), as amended, shall continue in force in the
Philippines after July 4, 1946, ... ." To implement the provisions of the act, the President of the United
States on July 3, 1946, promulgated Executive Order No. 9747, "continuing the functions of the Alien
Property Custodian and the Department of the Treasury in the Philippines." Prior to and preparatory to the
approval of said Philippine Property Act of 1946, and agreement was entered into between President
Manuel Roxas of the Commonwealth and U.S. Commissioner Paul V. McNutt whereby title to enemy
agricultural lands and other properties was to be conveyed by the United States to the Philippines in order
to help the rehabilitation of the latter, but that in order to avoid complex legal problems in relation to said
enemy properties, the Alien Property Custodian of the United States was to continue operations in the
Philippines even after the latter's independence, that he may settle all claims that may exist or arise
against the above-mentioned enemy properties, in accordance with the Trading with the Enemy Act of the
United States." 11
Nothing can be clearer, therefore, than that the lower court grievously erred in
failing to perceive that precisely the Republic of the Philippines, contrary to its
holding, possesses a legal interest over the subject matter of this controversy.
2. Apparently, the lower court, perhaps taken in by the contention of appellee,
could not see its way clear to applying the Philippine Property Act of 1946
enacted by the United States Congress as it was a foreign statute not susceptible
to judicial notice. Again, if it were cognizant of the leaning of the above Brownell
decision, it would have realized how erroneous such a view is. For, as was made
clear in the above decision, there was "conformity to the enactment of the
Philippine Property Act of 1946 of the United States [as] announced by President
Manuel Roxas in a joint statement signed by him and by Commissioner McNutt
Ambassador Romulo also formally expressed the conformity of the Philippine
Government to the approval of said act to the American Senate prior to its
approval." 12 It was further stressed by Justice Labrador that after the grant of independence, the
Congress of the Philippines approved Republic Act No. 8, which authorized the President of the
Philippines to enter into such contract or undertakings as may be necessary to effectuate the transfer to
the Republic of the Philippines under the Philippine Property Act of 1946 of any property or property rights
or the proceeds thereof authorized to be transferred thereunder. Then his opinion continues: "The
Congress of the Philippines also approved Republic Act No. 7, which established a Foreign Funds Control
Office. After the approval of the Philippine Property Act of 1946 of the United States, the Philippine
Government also formally expressed, through the Secretary of Foreign Affairs conformity thereto. ... The
Congress of the Philippines has also approved Republic Act No. 477, which provides for the
administration and disposition of properties which have been or may hereafter be transferred to the
Republic of the Philippines in accordance with the Philippine Property Act of 1946 of the United States." 13
From which, the above conclusion follows: "It is evident, therefore, that the
consent of the Philippine Government to the application of the Philippine Property
Act of 1946 to the Philippines after independence was given, not only by the
Executive Department of the Philippine Government, but also by the Congress,
which enacted the laws that would implement or carry out the benefits accruing
from the operation of the United States
law." 14 Under the circumstances, there is no question, as was pointed out by the same jurist, "that a
foreign law may have extraterritorial effect in a country other than the country of origin, provided the latter,
in which it is sought to be made operative, gives its consent thereto." 15 That is a sound legal proposition.
It is a juridical norm that has found acceptance in the Philippines at the close of the nineteenth century
after its acquisition by the United States. Its origins in American law can be traced back to Chief Justice
Marshall's opinion in The Schooner Exchange v. M'Faddon, 16 an 1812 decision. It was cited with
approval in the recent case of Reagan v. Commissioner of Internal Revenue. 17 The doctrine is not
unknown to European law. So it was noted in Reagan, with a citation from Jellinek: "It is to be admitted
that any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There
may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of
sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a state-force
due to which it has the exclusive capacity of legal self-determination and self-restriction." A state then, if it
chooses to, may refrain from the exercise of what otherwise is illimitable competence." 18
It is thus undoubted that the lower court misapplied the rule on judicial
notice. 19 The lower court could not simply have closed its eyes to the plain command of the Philippine
Property Act of 1946, which is a part of Philippine law, as was held so categorically by the above Brownell
decision. To repeat, there is no justification for the appealed decision.
3. The tone of certitude with which the lower court summarily dismissed the claim
of the Republic on the ground of lack of legal interest is thus uncalled for. It could
have been avoided by an acquaintance, even of the slightest, with the doctrines
enunciated by this Tribunal. An excerpt from Barrera v. Barrera 20 is of some relevance:
"The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision,
an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus
discharges a role no less crucial than that appertaining to the other two departments in the maintenance
of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice.
It does so with finality, logically and rightly , through the highest judicial organ, this Court. What it says
then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial
hierarchy. They have to defer and to submit." 21
WHEREFORE, the decision of August 29, 1963 dismissing the complaint of the
Republic of the Philippines is reversed and set aside. Costs against defendant
Guanzon.
Barredo, Antonio, Fernandez and Aquino, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-49
November 12, 1945
WILLIAM F. PERALTA, petitioner,

vs.
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 safety temporarily
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 socalled 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 muchpropagandized "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 self-preservation 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 selfincrimination.
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 crossexamined 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 sub-section 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 preexisting 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. 121123).
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. 331-337;
Hall, International Law, 6th ed. (1909), pp. 464, 465,475,476; Lawrence,
International Law, 7th ed., pp. 421-413; 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 liberty-loving 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 selfincrimination, 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: selfincrimination 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 selfincrimination 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. L5, 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 so-called 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 Vice-President
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
simple fiat 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,
570-581; 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.

SUPREME COURT
Manila
EN BANC
G.R. No. L-200
March 28, 1946
ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, as Director of Prisons, respondent.
Sulpicio V. Cea for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr. for
respondent.
Arturo A. Alafriz as amicus curiae.
BENGZON, J.:
Anastacio Laurel demands his release form Bilibid Prison, mainly asserting that
Commonwealth Act No. 682, creating the People's Court, specially section 19,
under which he is detained as a political prisoner, is unconstitutional and void.
The Solicitor General, meeting the issue, sustains the validity of the whole law.
According to the pleadings, the petitioner, a Filipino citizen, was arrested in
Camarines Sur in May, 1945, by the United States Army, and was interned, under
a commitment order "for his active collaboration with the Japanese during the
Japanese occupation," but in September, 1945, he was turned over to the
Commonwealth Government, and since then has been under the custody of the
respondent Director of Prisons.
The legality of the prisoner's arrest and detention by the military authorities of the
United States is now beyond question.1His present incarceration, which is merely
continuation of his previous apprehension, has lasted "more than six hours"
counted from his delivery to the respondent; but section 19 of Commonwealth Act
No. 682 provides in part as follows:
Upon delivery by the Commander-in-Chief of the Armed Forces of the

United States in the Philippines of the persons detained by him as political
prisoners, to the Commonwealth Government, the Office of Special
Prosecutors shall receive all records, documents, exhibits, and such other
things as the Government of the United States may have turned over in
connection with and/or affecting said political prisoners, examine the
aforesaid records, documents, exhibits, etc., and take, as speedily as
possible, such action as maybe proper: Provided, however, . . .. And,
provided, further, That, in the interest of public security, the provisions of
article one hundred twenty-five of the Revised Penal Code, as amended,
shall be deemed, as they are hereby, suspended, insofar as the aforesaid
political prisoners are concerned, until the filing of the corresponding
information with the People's Court, but the period of suspension shall not
be more than six (6) months from the formal delivery of said political
prisoners by the Commander-in-Chief of the Armed Forces of the United
States in the Philippines to the Commonwealth Government.
In view of the provision, and the statement of the Solicitor General that even on
the date the petition was presented his office had, ready for filing, an information
charging herein petitioner with treason, we fail to see how petitioner's release
may now be decreed.
However, he contends that the aforesaid section violates our Constitution,
because it is (a) discriminatory in nature; (b) unlawful delegation of legislative
powers; and (c) retroactive in operation.
(a) It is first argued that the suspension is not general in application, it being
made operative only to "the political prisoners concerned," that other citizens are
not denied the six-hour limitation in article 125 of the Revised Penal Code, that
such discrimination is unexcusable and amounts to denial of the equal protection
of the laws.
It is accepted doctrine in constitutional law that the "equal protection" clause
does not prevent the Legislature from establishing classes of individuals or
objects upon which different rules shall operate so long as the classification is
not unreasonable.2 Instances of valid classification are numerous. The point to be
determined then, is whether the differentiation in the case of the political prisoner
is unreasonable or arbitrary.
One of the proclamations issued by General MacArthur upon his arrival in Leyte
(December 29, 1944) referred to those Filipino citizens who had voluntarily given
aid, comfort and sustenance to the Japanese. It announced his purpose to to
hold them in restraint for the duration of the war, "whereafter they shall be turned
over to the Philippine Government for its judgment upon their respective cases."
When active hostilities with Japan terminated, General MacArthur ordered the
delivery of the Commonwealth of all the prisoners theretofore taken under his
said proclamation. There was 6,000 in round numbers. The problem problem was
momentous and urgent. Criminal informations against all, or a majority, or even a
substantial number of them could not be properly filed in the six-hour period.
They could not obviously be turned loose, considering the conditions of peace
and order, and the safety of the prisoners themselves. So the President, by virtue
of his emergency powers, promulgated Executive Order No. 65 suspending
article 125 of the Revised Penal Code, for not more than thirty days, with regard
to said detainees or internees, having found such suspension necessary to
"enable the Government to fulfill its responsibilities and to adopt temporary
measures in relation with their custody and the investigation, prosecution and
disposal of their respective cases." The Order added that it shall be in force and
effect until the Congress shall provide otherwise. Congress later approved
Commonwealth Act. No. 682, establishing the People's Court and the Office of
Special Prosecutors for the prosecution and trial of crimes against national
security committed during the second World War. It found the thirty-day period
too short compared with the facilities available to the prosecution, and set the
limit at six months.
Considering the circumstances, we are not prepared to hold the extension of the
period for the political detainees was unreasonable. The Legislature chose to
give the prosecutor's office sufficient time to investigate and to file the proper
charge or to discharge those whom it may find innocent. If time had not been
granted, the prosecutor would perhaps have been forced to indict all the
detainees indiscriminately; reserving, of course, its right subsequently to request
the liberation of those it may think not guilty. But such wholesale indictment was
obviously neither practical nor desirable. We will allow that there may be some
dispute as to the wisdom or adequacy of the extension. Yet the point is primarily
for the Legislature to decide. The only issue is the power to promulgate special
rules for the custody and investigation of active collaborationists, and so long as
reasons exist in support of the legislative action courts should be careful not to
deny it.
In this connection, it must be stated there can really be no substantial ground to
assail the six-month extension, in view of the provisions authorizing the release
under bail. Article 125 of the Revised Penal Code was intended to prevent any
abuse resulting from confining a person without informing him of his offense and
without permitting him to go on bail. Commonwealth Act No. 682 gives no
occasion to such abuse. The political prisoners know, or ought to know, they are
being kept for crimes against national security. And they are generally permitted
to furnish bail bonds.
(b) There is hardly any merit to the argument that as "the duration of the
suspension of article 125 is placed in the hands of the Special Prosecutor's
Office," the section constitutes an invalid delegation of legislative powers; for as
explained by the Solicitor-General, the result some informations filed before,
others afterwards is merely the "consequence of the fact that six thousand
informations could not be filed simultaneously, and that some one had to be first
or some one else, necessarily the last." The law, in effect, permitted the SolicitorGeneral to file the informations within six months. And statutes permitting officers
to perform their duties within certain periods of time may not surely be declared
invalid delegations of legislative power.
(c) Nor is the position correct that section 19 is retroactive in its operation. It
refers to detention after its passage not before. Incidentally, there is no
constitutional objection to retroactive statutes where they relate, to remedies or
procedure.3
The argument is advanced that when he was arrested, (May, 1945), article 125 of
the Revised Penal Code was in force, and petitioner could have asked for
release after six hours and, therefore, Commonwealth Act No. 682 that takes
away that right is ex post facto, retroactive and fundamentally objectionable. The
premises are incorrect. In May, 1945, he could not have asked for release after
six hours. In other words, he would not have been discharged from the custody.
(Raquiza vs. Branford, supra.) Article 125 of the Revised Penal Code was in
force, it is true; but not as to him. The laws of the Commonwealth were revived in
Camarines Sur by operation of General MacArthur's proclamation of October 23,
1944, upon its liberation from enemy control; but subject to his reservation to
hold active collaborationists in restraint "for the duration of the war." So, persons
apprehended under that directive, for treasonable collaboration, could not
necessarily invoke the benefits of article 125 of the Revised Penal Code.
Undoubtedly the Legislature could validly repeal section 125 of the Revised
Penal Code. Had it done so, herein petitioner would have no ground to protest on
constitutional principles, as he could claim no vested right to the continued
enforcement of said section.4 Therefore, a fortiori he may not complain, if, instead
of repealing that section, our lawmaking body merely suspended its operation for
a definite period of time. Should he counter that such repeal or suspension must
be general to be valid, he will be referred to the preceding considerations
regarding classification and the equal protection of the laws.
Wherefore, we perceive no irreconcilable conflict between the Constitution and
the challenged portions of section 19 of Commonwealth Act No. 682.
The other features of the People's Court Act which are the subject of
denunciation by petitioner do not, in our opinion, require specific elucidation at
this time, because he has not as yet been held into that court, and the issues
appear to have no important or necessary connection with his current deprivation
of liberty.5
The petition for the writ of habeas corpus will be denied. With costs.
Moran, C.J., Jaranilla, Feria, De Joya, Pablo, Hilado, and Briones, JJ., concur.
Separate Opinions
OZAETA, J., with whom Paras, J., concurring in the result:
I concur with the majority in upholding the constitutionality of section 19 of the
People's Court Act. In the view I held in the Raquiza case the detention of the
petitioner by the military authorities was illegal for lack of due process. But the
same thing cannot be said as to his present detention by the respondent Director
of Prisons, especially now that an information for treason has been filed against
him.

On or about May 6, 1945, petitioner was arrested by the C.I.C., United States
Army, Camarines Sur. On September 6, 1945 he was turned over to the
Commonwealth Government by the United States Army and since that date he
remained in prison under the personal custody of the respondent Director of
Prisons, and now he comes before us complaining that his arrest and detention
are illegal and in violation of many of his constitutional rights, in that: "(a) He was
arrested and detained without a lawful warrant of arrest. (See Constitution, Article
III, section 3.) (b) No information or charge has been lodged against him,
informing him of the nature and cause of his arrest. (See Constitution, Article III,
section 17.) (c) He was not given an opportunity to confront the witnesses who
caused his arrest and detention. (See Constitution, Article III, section 17.) (d) He
was not accorded the benefit of compulsory process to secure the attendance of
witnesses in his behalf. (See Constitution, Article III, section 17.) (e) He was and
is being denied the right to a prompt, speedy and public trial. (See Constitution,
Article III, section 17.) (f) His arrest and detention was and is without due process
of law. (See Constitution, Article III, section 15.) (g) He was not accorded the
equal protection of the laws. (See Constitution, Article III, section 1.) (h) He was
subjected to cruel and unusual punishment. (See Constitution, Article III, section
19.) (i) He was committed to prison and detained by the respondent under a bill
of attainder. (See Constitution, Article III, section 11.)"
Petitioner also maintains that the People's Court Act No. 682, under which the
respondent herein purports to act, violates not only the spirit but also the letter of
the fundamental law in many ways, in that: "(a) It constitutes an assault upon the
independence of the judiciary. (See Tydings-McDuffie Law, section 2, par. [a].) (b)
It deprives the accused of certain rights already acquired at the time of its
passage, and therefore is ex-post facto in nature (See Constitution, Article III,
section 11.) (c) It partakes of the nature of a bill of attainder. (See Constitution,
Article III, section 11.) (d) It denies the equal protection of the laws.
(See Constitution, Article III, section 1.) (e) It provides for cruel and unusual
punishment. (See Constitution, Article III, section 19.) (f) It deprives the citizen of
his day in court. (See Constitution, Article III, section 21.) (g) It constitutes an
unlawful delegation of legislative and executive functions. (See Tydings-McDuffie
Law, section 2, par. [a].) (h) It covers more than one subject matter.
(See Constitution, Article IV, section 12, par. 1.) (i) It authorizes the charging and
multifarious crimes in one complaint or information thereby making it impossible
to be informed to the real nature and cause of the accusation against the
accused. (See Constitution, Article III, section 17.) (j) It denies the constitutional
right of a person to bail before conviction. (See Constitution, Article III, section
16.)"
Consequently, petitioner prays that Commonwealth Act No. 682 be declared
unconstitutional and null and void, that his detention, irrespective of the validity of
said act, be declared illegal and in violation of many of his constitutional rights,
and that an order be issued for his complete and absolute release.
Respondent answered that, pursuant to the authority of the proclamation issued
by the Commander in Chief of the American Armed Forces, Southwest Pacific
Area, General Douglas MacArthur, dated December 29, 1944, petitioner was
arrested and thereafter detained on May 10, 1945, under a security commitment
order, issued by the commanding officer of 904th Counter Intelligence Corps
Detachment, United States Army, upon the charge of "active collaboration with
the Japanese during the Japanese occupation"; that his subsequent detention as
a political prisoner, upon the transfer of his person to the Commonwealth
Government by the United States Army, pursuant to the terms of the
proclamation issued by General Douglas MacArthur on December 29, 1944, of
Executive Order No. 65, issued by the President of the Philippines on September
3, 1945, and pursuant to the provisions of Commonwealth Act No. 682, approved
on September 25, 1945, was a mere logical sequence of his previous
commitment and hence equally valid and legal.
Respondent alleges also that petitioner has not as yet availed of the benefits of
section 19 of Commonwealth Act No. 682, which confers upon political prisoners
the privilege of securing their release on bail upon proper application therefor
with the People's Court; that Commonwealth Act No. 682 does not trench upon,
nor contravene any of the provisions of the Constitution; that it is not ex post
facto in nature in that it suspends, in the interests of national security, the
provision of article 125 of the Revised Penal Code for a period of not more than
six months, which is fully justified by the practical necessities of the situation,
considering the circumstances that there are more than 6,000 political prisoners
charged with the grave crime of treason and other offenses against national
security; that said law does not materially impair the substantial rights of the
accused to have the question of his guilt determined according to the substantive
law existing at the time of the commission of the offense, that it is not a bill of
attainder, since it does not inflict punishment without a judicial trial; that it neither
deprives the citizen of his day in court, nor it provides for cruel and unusual
punishment; that it applies equally and uniformly to all persons similarly situated;
that it complies with the constitutional requisites of due process of law as applied
in criminal procedure; that it does not contravene the constitutional requirement
that the accused must be informed of the nature of the accusation against him;
that instead of suppressing or denying the constitutional right of an accused to
bail before conviction, said act recognizes and concedes to all accused in section
19 the right to bail, except those charged with capital offenses when evidence of
guilt is strong; that the information against the petitioner, charging him with
treason upon ten counts was ready for filing in the People's Court even on the
date the petition in this proceeding was presented; and that in due deference to
this Supreme Court, the filing of the said information has been held in abeyance
pending the final disposition of this habeas corpus proceeding.
For purposes of this discussion, the discrepancy between petitioner and
respondent as to the correct date when petitioner was arrested, May 6 or May
10, cannot affect the merits of the case.
Without a lawful warrant of arrest. Whether the arrest took place on May 6,
1945, as alleged by petitioner or on May 10, as alleged by respondent, there is
absolutely no question that petitioner was arrested without lawful warrant of
arrest.
Section 1:3 of Article III of the Constitution provides that "no warrants shall issue
but upon probable cause, to be determined by the judge after examination under
oath or affirmation of the complaint and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized." This provision, considered in connection with the provision of section 1:1
of article III of the Constitution and section 1:15 of the same article that no person
shall be deprived of liberty or be held to answer for a criminal offense without due
process of law, implies necessarily that one of the essential requisites for
depriving a person of his liberty, when he is accused of an offense, is the
existence of a warrant of arrest issued in accordance with the provisions of the
Constitution.
We are of opinion that the arrest of petitioner was executed in flagrant violation of
the above-mentioned constitutional provisions.
No information as to any charge. The Constitution provides that one of the
fundamental rights of an accused is "to be informed of the nature and cause of
the accusation against him." (Section 1:17, Article III of the Constitution.)
This constitutional guarantee appears equally to have been violated in
petitioner's case.
Respondent's allegation that petitioner is detained because of his active
collaboration with the Japanese during the Japanese occupation does not inform
petitioner of the nature and cause of the accusation against him, it appearing that
there is no such offense described in any law applicable to petitioner as "active
collaboration with the Japanese during the Japanese regime."
Meeting witnesses face to face. Petitioner complains that he was not given an
opportunity to confront his witnesses who caused his arrest detention.
The complaint is equally well-taken. There is nothing in the record to show that
before, during, or at any time after his arrest, petitioner has ever been accorded
the opportunity of meeting the witnesses "face to face" as provided in section
1:17 of Article III of the Constitution.
Attendance of witnesses in his behalf. Petitioner complains he was not
accorded of the benefit of compulsory process to secure the attendance of the
witnesses in his behalf as provided in section 1:17 of Article III of the
Constitution. This allegation has not been disputed.
We have, therefore, here another flagrant violation of a constitutional right of
petitioner.
Speedy and public trial. Petitioner invokes also his constitutional right to "have
a speedy and public trial" as provided in section 1:17 of Article III of the
Constitution.
There is absolutely no question that this constitutional right of petitioner has been
equally violated.
Equal protection of the laws. Petitioner complains that he was not accorded
equal protection of the laws as provided in section 1:1 of Article III of the
Constitution.
Petitioner's allegation is equally well-founded, there being no question as to the
fact that he was and he is being deprived of several of his fundamental rights
under the Constitution without any legal process.
Cruel and unusual punishment. Petitioner complains that he was subjected to
cruel and unusual punishment in violation of section 1:19 of Article III of the
Constitution.
There is no question that petitioner is being deprived of his liberty without any
information or complaint charging him of any specified offense under the laws of
the land.
So it appears that he is being, in effect, subjected to the punishment of
deprivation of liberty for almost one year, without any definite information as to
when will it end. This means that he is being subjected to imprisonment for an
indefinite term. It is certainly a cruel and unusual punishment, not only because it
is not authorized by any law of the land, but because it is meted out to petitioner
for no specific offense at all. The violation of section 1:19 of Article III of the
Constitution is indispensable.
Petitioner complains that those responsible for his detention appear to have
never heard of such trifles as those contained in the Bill of Rights and even if
they did, they contend that the Constitution was never meant for the
"untouchables" known in the contemporary Philippine history as a "collaborators,"
and that no one can imagine a more glaring case for the granting of a writ
of habeas corpus than that of the petitioner, it appearing that the circumstances
of his arrest are self-demonstrative of the most scandalous violation of the Bill of
Rights ever perpetrated under the American flag.
Petitioner, as has been shown, appears well supported in his complaint.
Now, as one of the questions raised in this case, let us determine the validity of
that portion of section 19 of Commonwealth Act No. 682, an act creating the
People's Court, which provides as follows:
. . . And, provided, further, That, in the interest of public security, the
provisions of article one hundred twenty-five of the Revised Penal Code,
as amended, shall be deemed, as they are hereby, suspended, insofar as
the aforesaid political prisoners are concerned, until the filing of the
corresponding information with the People's Court, but the period of
suspension shall not be more than six (6) months from the formal delivery
of said political prisoners by the Commander-in-Chief of the Armed Forces
of the United States in the Philippines to the Commonwealth Government.
The provision of the Revised Penal Code which has been virtually suspended by
this law is:
ART. 125. Delay in the delivery of detained persons to the proper judicial
authorities. The penalties provided in the next preceding article shall be
imposed upon the public officer or employee who shall detain any person
for some legal ground and shall fail to deliver such person to the proper
judicial authorities within the period of six hours. (As amended by Act No.
3940.)
The pertinent provisions of our fundamental law which limit the powers of the
legislative branch of our government in the enactment of laws are as follows:
ART. III. BILL OF RIGHTS
SECTION 1. (1) 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.
xxx
xxx
xxx
(15) No person shall be held to answer for a criminal offense without due
process of law.
xxx
xxx
xxx
(17) 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.
Development of the Doctrine of Due Process of Law.
Though the words "due process of law" have not a long history, the
doctrine implied by them has a history in Anglo-American law which
extends for more than seven hundred years back, indeed, to the signing
of Magna Charta. And yet, notwithstanding this long period during which
countless opportunities have presented themselves for its application and
judicial definition, the doctrine has not yet received a statement in such a
form that its specific applications can, in all cases, be determined. This
failure has been due, not to any lack of judicial effort or acumen, but to the
very nature of the doctrine which, asserting a fundamental principle of
justice rather than a specific rule of law, is not susceptible of more than
general statement. The result is, that the meaning of the phrase has to be
sought in the history of its specific applications, and, as the variety of these
possible applications is infinite, it will probably never be possible to say
that the full content of that meaning has been determined. In
Twining vs. New Jersey (211 U.S., 78), we find the court saying: "Few
phrases in the law are so elusive of exact apprehension as this. This court
has always declined to give a comprehensive definition of it, and has
preferred that its full meaning should be gradually ascertained by the
process of inclusion and exclusion in the course of the decisions of cases
as they arise." So also in Davidson vs. New Orleans (96 U.S., 97), the
court said: "to define what it is for a state to deprive a person of life, liberty
or property without due process of law, in terms which would cover every
exercise of power thus forbidden to the state, and exclude those which are
not, no more useful construction could be furnished by this or any other
court to any part of the fundamental law." And, later in the same opinion:
"There is wisdom in the ascertaining of the intent and application of such
an important phrase in the Federal Constitution by the gradual process of
judicial inclusion and exclusion as the cases presented for decision shall
require, with the reasoning on which such discussions may be founded."
In Holden vs. Hardy (169 U.S., 366) the court said: "This court has never
attempted to define with precision the words "due process of law." It is
sufficient to say that there are certain immutable principles of justice which
inhere in the very idea of free government which no member of the Union
may disregard."
It would appear, then, that a complete knowledge of the meaning of the
doctrine of due process of law in American constitutional jurisprudence can
be obtained only by a study of every case in which its application has been
sought. . . .
Per Legem Terrae.
The historical antecedents of the phrase "due process of law" may be
clearly traced back to the expression per legem terrae as it occurs in the
Charter wrung by the Barons from King John. The 39th chapter of that
document provides that "no freeman shall be taken, or imprisoned, or
disseized, or outlawed, or exiled, or in any way destroyed; nor shall we go
upon him nor send upon him, but by the lawful judgment of his peers or by
the law of the land" (per legem terrae). In the later re-issues and
reaffirmations of this charter by Henry III, in 1216, 1217 and 1225, this
provision was repeated, with, however, in the issues of 1217 and 1225, the
addition of the words after disseized, "of his freehold, or liberties, or free
customs," (de libera tenemento suo vel libertatibus, vel liberis
consuetudinibus suis).
The words of Magna Charta, per legem terrae, probably had at this time
the technical meaning that no civil or criminal plea should be decided
against a freeman until he had been given the opportunity to furnish the
customary "proof" which the law, as it then stood, recognized and
permitted him to offer. This proof might be by battle, or ordeal, or by
compurgation. Whatever form it might assume it was technically known as
a law (lex), that is, as a test according to which the defendant's claim was
to be upheld or denied. (McKechnie, Magna Charta, 102, 441, 442;
Thayer, Evidence, 200; Bigelow, History of Procedure, 155. Thayer and
Bigelow are cited by McKechnie.)
In the various petitions of the Parliament in the Fourteenth Century against
the arbitrary acts of the King's Council, the guaranty of the law of the land
was appealed to, and these petitions, when assented to by the King,
became, of course, statutes of the realm. Thus, in 1331, in Stat. 5 Edw. III,
C. 9, it was declared that "no man from henceforth shall be attacked by
any accusation, nor forejudged of life or limb, nor his lands, tenements,
goods nor chattels seized into the King's hands against the form of the
Great Charter and the law of the land." So again, in 1351, in Stat. 25, Edw.
III, C. 4, it was declared that "from henceforth none shall be taken by
petition or suggestion made to our lord the King or his Council, unless it be
by presentment or indictment of his good and lawful people of the same
neighborhood, where such deeds be done, in due manner, or by process
made by writ original at the common law, nor that none be ousted of his
franchises, nor of his household, unless he be fully brought in to answer
and forejudged of the same by the courts of the law." Still again, in 1355, in
Stat. 28, Edw. III, C. 3, there was a substantially similar provision, and
there, for what would appear to be the first time, we have the modern
phrase employed. "No man," it was declared, "of what state or condition so
ever he be, shall be put out of his lands, or tenements, nor taken, nor
imprisoned, nor indicted, nor put to death, without he be brought in to
answer by due process of law." (Par due process de lei.) (Cf.
McGehee, Due Process of Law, Chap. I.)
It is thus apparent that in these petitions and statutes of Edward III, the
phrases "due process of law" and "the law of the land" had come to be
synonymous, both indicating, as the substance of the petitions shows, that
the guaranty insisted upon was that persons should not be imprisoned
except upon due indictment, or without an opportunity on their parts to test
the legality of their arrest and detention, and that their property should not
be taken except in proceedings conducted in due form in which fair
opportunity was offered to the one claiming ownership or right to
possession to appear and show cause, if any, why the seizure should not
be made.
The Petition of Right of 1628, approved by Charles I, recited various
arbitrary acts complained of, and appealed to "the laws and franchises of
the realm." Coke, in his Second Institute, defined the phrase per legem
terrae as meaning "the common law, statute law or custom of England,"
and then declared: "For the true sense and exposition of these words, see
the Statute 37, Edw. III, C. 8, where the words "by the law of the land" are
rendered "without due process of law", for there it is said, though it be
contained in the Great Charter, that no man be taken, imprisoned, or put
out of his freehold without due process of law; that is by indictment or
presentment of good and lawful men where such deeds be done or by writ
original of the common law.
It was in this sense as employed in the statutes of Edward III and by Coke,
and as relating solely to matters of procedure, that the phrase due process
of law was introduced into, American law. (3 Willoughby on the Constitution
of the United States, 2d ed., sections 1113, 1114, pp. 1685, 1688,)
English and American Use of the Phrase "Due Process of Law"
Contrasted.
Coming now to American practice we find that the exact phrase "due
process of law" was not employed in any of the eleven State constitutions
adopted prior to the Federal Constitution, but that it early found expression
in substance, if not in very words, in those instruments. The very words do,
however, appear in the Declaration of Rights of the State of New York,
adopted in 1777, and in one of the amendments proposed by that State to
the Federal Constitution as drafted by the convention of 1787. The first
appearance of the express provision in an American instrument of
government is in the Fifth Article of Amendment to the Constitution of the
United States, adopted in 1791. That amendment provides, inter alia, that
"nor shall any person . . . be deprived of life, liberty or property, without due
process of law." The Federal imposition of this requirement upon the
States did not come until 1868 when the Fourteenth Amendment was
ratified.
It is a very remarkable fact that not until our written Constitution was more
than half a century old did the phrase receive an interpretation and
application which approximates that which it has today, and not, indeed,
until a hundred years had passed away was resort had to it as the usual
device of those disapproving of the acts of their legislatures. This, however,
is no doubt in a measure explainable by the fact that not until the increased
complexity of social and industrial life had led, upon the one hand, to the
use by the State and Federal Governments of administrative process more
or less summary in character and, upon the other hand, to a marked
increase in the regulative control of law over private acts and the use of
public property, did there appear the necessity for the appeal to this
limitation by those who conceived themselves injured by the exercise of
such administrative powers or by the enforcement of these legislative
regulations.
In two most important respects the application in America of the
requirement of due process of law has differed from that which it had
received in England prior to 1776, and which, indeed, it still receives in that
country. These are: (1) that, in the United States, it operates as a limitation
upon the legislative as well as upon the executive branch of the
government, and (2) that it relates to substantive as well as to procedural
rights. This second application is, however, one which, as we shall see,
was not at first developed.
Before the requirement could be recognized as one upon the legislature
there had first to be established the doctrine that the courts, when called
upon to apply the enactments of the lawmaking branch of the government
of which they themselves constitute the judiciary, may declare the invalidity
of enactments which, in their judgment, conflict with the provisions of the
written Constitution. This doctrine, as is well known, was not accepted
without protest, but may be said to have received final and decisive
sanction as a fundamental principle of American constitutional

jurisprudence in the great opinion of Marshall, rendered in 1803, in the
case of Marbury vs. Madison (1 Cr., 137).
That, as contrasted with English practice, the requirement of due process
of law was a limitation upon the legislative power, so far, at least, as to
render void an enactment authorizing a taking of life, liberty or property by
an arbitrary or otherwise defective procedure, seems early to have been
held, the argument being founded upon the obvious fact that, as
contrasted with the English constitutional documents, American written
instruments of government and their accompanying Bills of Rights have for
their primary aim the delimitation of the powers of all the departments of
government, of the legislative as well as the executive and judicial. (3
Willoughby, 2d ed., section 1115, pp. 1689, 1690.)
The possibility, under a popular form of government, of oppression in the
form of laws enacted by their own representatives, does not appear to
have been keenly felt by the people. So far, however, as it was
apprehended, the early view seems to have been that the restraints of
natural law would be operative, according to the doctrine that the lawmaking branch of every government is inherently without the power
arbitrarily and oppressively to invade the sphere of private rights of
persons and property. This natural law doctrine, though it can never be
said to have gained a definite establishment, even for a time, nevertheless
received frequent obiter assertion, and its influence was for a long time
seen in discussions of our higher courts. Thus, for example, in 1875, in
Loan Association vs. Topeka the court said: "It must be conceded that
there are such rights in every free government beyond the control of the
state, a government which recognized no such rights, which held the
lives, the liberty and the property of its citizens subject at all times to the
absolute disposition and unlimited control of even the most democratic
depository of power is, after all, but a despotism .. The theory of our
governments, state and municipal, is opposed to the deposit of unlimited
power anywhere. The executive, the legislative and the judicial branches of
these governments are all of limited and defined powers. There are
limitations on such power which grow out of the essential nature of all free
governments implied reservations of individual rights, without which the
social compact could not exist, and which are respected by all
governments entitled to the name. No court, for instance, would hesitate to
declare void a statute which enacted that A And B who were husband and
wife to each other should be no longer, but that A should thereafter be the
husband of C, and B the wife of D, or which should enact that the
homestead now owned by A should henceforth be the property of B." 3
Willoughby, United States Constitutional Law, section 1116, pp. 1692,

1693.)
There are certain general principles, well settled, however, which narrow
the field of discussion, and may serve as helps to correct conclusions.
These principles grow out of the proposition universally accepted by
American courts on the authority of Coke, that the words "due process of
law" are equivalent in meaning to the words "law of the land," contained in
that chapter of Magna Charta which provides that "no freeman shall be
taken, or imprisoned, disseized, or outlawed, or exiled, or any wise
destroyed; nor shall we go upon him, nor send upon him, but by lawful
judgment of his peers, or by the law of the land."
In Hagar vs. Reclamation Dist. it was said: "It is sufficient to say that by
due process of law is meant one which, following the forms of law, is
appropriate to the case and just to the parties to be affected. It must be
pursued in the ordinary mode prescribed by the law, it must be adapted to
the end to be attained, and whenever it is necessary for the protection of
the parties, it must give them an opportunity to be heard respecting the
justness of the judgment sought. The clause, therefore, means that there
can be no proceeding against life, liberty, or property which may result in
deprivation of either, without the observance of those general rules
established in our system of jurisprudence for the security of private
rights."
"By the law of the land," said Webster in a much quoted paragraph, "is
most clearly intended the general law which hears before it condemns;
which proceeds upon inquiry and renders judgment only after trial. The
meaning is that every citizen shall hold his life, liberty and property and
immunities under the protection of general rules which govern society.
Everything which may pass under the form of an enactment is not law of
the land." (3 Willoughby, 2d ed., pp. 1708, 1709.)
The fact that the requirement as to due process includes, to a very
considerable extent at least, the guarantee of equal protection of the laws,
is especially shown in the opinion of the court in Smyth vs. Ames where it
is said: "The equal protection of the laws, which by the Fourteenth
Amendment no State can deny to the individual, forbids legislation, in
whatever form it may be enacted, by which the property of an individual is,
without compensation, wrested from him for the benefit of another, or of
the public."
The possible distinction between the two prohibitions we find touched upon
by Chief Justice Taft in his opinion in Truax vs. Corrigan. He there said: "It
may be that they (the two prohibitions) overlap, that a violation of one may
involve at times the violation of the other, but the spheres of the protection
they offer are not conterminous. . . . The due process clause . . . of course
tends to secure equality of law in the sense that it makes a required
minimum of protection for everyone's right of life, liberty, and property,
which the Congress of the legislature may not withhold. Our whole system
of law is predicated on the general fundamental principle of equality of
application of the law. . . . But the farmers and adopters of this (Fourteenth)
Amendment were not content to depend on a mere minimum secured by
the due process clause, or upon the spirit of equality which might not be
insisted on by local public opinion. They therefore embodied that spirit in a
specific guaranty. The guaranty was aimed at undue favor and individual or
class privilege, on the one hand, and at hostile discrimination or the
oppression of inequality, on the other. It sought an equality of treatment of
all persons, even though all enjoyed the protection of due process." Thus,
in the instant case, the Chief Justice pointed out that the State statute
under examination which prohibited interference by injunctions in disputes
between employers and employees concerning terms or conditions of
employment resulted in the recognition of one set of actions against
ordinary tort feasors and another set against tort feasors in labor disputes.
The contention that no one has a vested right to injunctive relief, he said,
did not meet the objection that the granting of equitable relief to one man
or set of men, and denying it to others under like circumstances and in the
same jurisdiction was a denial of the equal protection of the laws.
In Hayes vs. Missouri the court said of the Fourteenth Amendment that it
"does not prohibit legislation which is limited either in the objects to which it
is directed or by the territory within which it is to operate. It merely requires
that all persons subject to such legislation shall be treated alike, under like
circumstances and conditions both in the privileges conferred and in the
liabilities imposed." Having quoted this statement, Chief Justice Taft in
Truax vs. Corrigan added: "Indeed, protection is not protection unless it
does so. Immunity granted to a class, however limited, having the effect to
deprive another class, however limited, of a personal or property right, is
just clearly a denial of equal protection of the laws to the latter class as if
the immunity were in favor of, or the deprivation of right permitted worked
against, a larger class."
From what has been said it is clear that, in many cases, laws which have
been held invalid as denying due process of law might also have been so
held as denying equal protection of the laws, or vice versa, and that, in
fact, in not a few cases the courts have referred to both prohibitions
leaving it uncertain which prohibition was deemed the most pertinent and
potent in the premises. "One of the best general statements of the scope
and intent of the provision for the equal protection of the laws is that given
by Justice Field in his opinion in Barbier vs. Connolly, in which, speaking
for the court, he said:
"The Fourteenth Amendment in declaring that no State "shall deprive any
person of life, liberty or property without due process of law, nor deny to
any person within its jurisdiction the equal protection of the laws,"
undoubtedly intended, not only that there should be no arbitrary
deprivation of life or liberty or arbitrary spoliation of property but that equal
protection and security should be given to all under like circumstances in
the enjoyment of their personal and civil rights; that all persons should be
equally entitled to pursue their happiness and acquire and enjoy property;
that they should have like access to the courts of the country for the
protection of their persons and property, the prevention and redress of
wrongs, and the enforcement of contracts; that no impediment should be
interposed to the pursuits by anyone except as applied to the same
pursuits by others under like circumstances; that no greater burdens
should be laid upon one than are laid upon others in the same calling and
condition, and that in the administration of criminal justice no different or
higher punishment should be imposed upon one that such as is prescribed
to all for like offenses." (3 Willoughby 2d ed., pp. 1928, 1930.)
The legislature may suspend the operation of the general laws of the
State, but when it does so the suspension must be general, and cannot be
made for individual cases or for particular localities. Privileges may be
granted to particular individuals when by so doing the rights of others are
not interferred with; disabilities may be removed; the legislature as parens
patriae, when not forbidden, may grant authority to the guardians or
trustees of incompetent persons to exercise a statutory control over their
states for their assistance, comfort, or support, or for the discharge of legal
or equitable liens upon their property; but every one has a right to demand
that he be governed by general rules, and a special statute which, without
his consent, singles his case out as one to be regulated by a different law
from that which is applied in all similar cases, would not be legitimate
legislation, but would be such an arbitrary mandate as is not within the
province of free governments. Those make the laws "are to govern by
promulgated, established laws, not to be varied in particular cases, but to
have one rule for rich and poor, for the favorite at court and the
countryman at plough." This is a maxim in constitutional law, and by it we
may test the authority and binding force of legislative enactments.

(Cooley's Constitutional Limitations, 7th ed., pp. 558, 559.)
Equality of rights, privileges, and capacities unquestionably should be the
aim of the law; and if special privileges are granted, or special burdens or
restrictions imposed in any case, it must be presumed that the legislature
designed to depart as little as possible from this fundamental maxim of
government.
The State, it is to be presumed, has no favors to bestow, and designs to
inflict no arbitrary deprivation of rights. Special privileges are always
obnoxious, and discriminations against persons or classes are still more
so; and, as a rule of construction, it is to be presumed they were probably
not contemplated or designed. (Cooley's Constitutional Limitations, 7th ed.,
pp. 562, 563.)
It is usual for state constitutions and statutes to provide for the accused a
speedy and public trial. By a speedy trial is meant one that can be had as
soon after indictment as the prosecution can with reasonable diligence
prepare for, regard being had to the terms of court; a trial conducted
according to fixed rules, regulations, and proceedings of law, free from
vexatious, capricious, and oppressive delays. The term "speedy" as thus
used, being a word of indeterminate meaning, permits legislative definition
to some extent; and the authorities uniformly hold that such statutes are
enacted for the purpose of enforcing the constitutional right, and that they
constitute a legislative construction or definition of the constitutional
provision, and must be construed fairly to the accomplishment of that end.
Any act of the legislature which infringes the constitutional provision is
necessarily nugatory. (16 C. J., pp. 439, 440.)
"The purpose of the statute (1) is to prevent continued incarceration
without opportunity to the accused, within a reasonable time, to meet the
proofs upon which the charge is based." (State vs. Miller, 72 Wash., 154,
159, 163; 129 P., 1140.) (2) "The constitutional privilege of a speedy trial
was intended to prevent an arbitrary, indefinite imprisonment, without any
opportunity to the accused to face his accusers in a public trial. It was
never intended as furnishing a technical means for escaping trial."
(State vs. Miller, supra.) (3) "The sole object and purpose of all the laws
from first to last, was to ensure the speedy trial to the accused, and to
guard against the a protracted imprisonment or harrassment by a criminal
prosecution, an object but little if any less interesting to the public than to
him." (Com. vs. Adcock, 8 Grat. [49 Va.], 661, 680.) (Quote
Denham vs. Robinson, 72 W. Va. 243, 255; 77 S. E., 970; 45 L.R.A., N.S.,
1123; Ann. Cas. 1915D, 997.) (See also Ex parte Santee (2 Va. Cas. [4
Va.], 363, 365) (where the court said: that whilst it has an eye to the
solemn duty of protecting the public against the wrongs of those who are
regardless of their obligations to society, and to the delays which the
Commonwealth may unavoidably encounter in prosecuting breaches of
these obligations, it is studious to shield the accused from consequences
of the laches of those to whom the duty of conducting the prosecution may
have been assigned. The public has rights as well as the accused, and
one of the first of these is, that of redressing, or punishing their wrongs. It
would not seem reasonable that this right, so necessary for the
preservation of society, should be forfeited without its default).
"This provision of our constitutions must receive a reasonable
interpretation. It can not be held to mean that in all the possible
vicissitudes of human affairs, a person who is accused of a crime shall
have a speedy and public trial in due form of law, because there may be
times when the civil administration will be suspended by the force of
uncontrollable circumstances. This constitutional provision was adopted
upon general considerations growing out of the experience of past times,
and was intended to prevent the government from oppressing the citizen
by holding criminal prosecutions suspended over him for an indefinite time;
and it was also intended to prevent delays in the customary administration
of justice, by imposing upon the judicial tribunals an obligation to proceed
with reasonable dispatch in the trial of criminal accusations." (Ex
parte Turman, 26 Tex., 708, 710; 84 Am. D., 598.). (16 C.J., 440, footnote.)
In any criminal case, the person accused may not be deprived of life,
liberty, or property except by due process of law, even though he is guilty.
The law by which the question of due process is determined is the law of
the jurisdiction where the offense was committed and the trial is had.
Due process of law in a criminal case requires a law creating or defining
the offense, a court of competent jurisdiction, accusation in due form,
notice and opportunity to defend, trial before an impartial judge or judge
and jury according to established criminal procedure, and a right to be
discharged unless found guilty. . . .
While the freedom of the state and federal governments to control and
regulate the procedure of their courts for the prosecution of criminal
offenses is limited by the requirement of the process of law, and the
procedure must not work a denial of fundamental rights of accused
included within the conception of due process, no particular form or
method of procedure in criminal cases is required by the guaranty of due
process so long accused as accused has due and sufficient notice of the
charge or accusation and an adequate opportunity to be heard in defense.
(16 C.J.S., pp. 1171-1173.)
An emergency existing does not increase constitutional power or diminish
constitutional restrictions; hence while emergency legislation may
temporarily limit available remedies, it does not contemplate the
permanent denial of due process. (16 C.J. S., p. 1157.)
Although a law is fair on its face and impartial in appearance, yet, if it is
applied and administered with an evil eye and unequal hand, so as to
make unjust and illegal discrimination, it is within the prohibition of the
Federal Constitution. (Chy Lung vs. Freeman, 92 U.S., 275; 23 Law, ed.,
550.)
The action of a state through its officers charged with the administration of
a law fair in appearance may be of such a character as to constitute a
denial of the equal protection of the laws. (Bailey vs. Alabama, 219 U.S.,
219; 31 Sup. Ct. Rep., 145; 55 Law. ed., 191.)
The clause "due process of law" means that there can be no proceeding
against life, liberty or property which may result in the deprivation of either,
without the observance of those general rules established in our system of
jurisprudence for the security of private rights. (Turpin vs. Lemon, 187
U.S., 51; 23 Sup. Ct. Rep., 20; 47 Law. ed., 70.)
CRIMINAL ACCUSATIONS
Perhaps the most important of the protections to personal liberty consist in
the mode of trial which is secured to every person accused of crime. At the
common law, accusations of felony were made in the form of an indictment
by a grand jury; and this process is still retained in many of the States,
while others have substituted in its stead an information filed by the
prosecuting officer of the State or country. The mode of investigating the
facts, however, is the same in all; and this through a trial by jury,
surrounded by certain safeguards which are a well understood part of the
system, and which the government cannot dispense with.
First, we may mention that the humanity of our law always presumes an
accused party innocent until he is proved to be guilty. This is a presumption
which attends all the proceedings against him, from their initiation until they
result in a verdict, which either finds the party guilty or converts the
presumption of innocence into an adjudged fact.
If there were any mode short of confinement which would, with reasonable
certainty, insure the attendance of the accused to answer the accusation, it
would not be justifiable to inflict upon him that indignity, when the effect is
to subject him, in a greater or less degree, to the punishment of a guilty
person, while as yet it is not determined that he has committed any crime.
If the punishment on conviction cannot exceed in severity the forfeiture of a
large sum of money, then it is reasonable to suppose that such a sum of
money, or an agreement by responsible parties to pay it to the government
in case the accused should fail to appear, would be sufficient security for
his attendance; and therefore, at the common law, it was customary to take
security of this character in all cases of misdemeanor; one or more friends
of the accused undertaking for his appearance for trial, and agreeing that a
certain sum of money should be levied of their goods and chattels, lands
and tenements, if he made default. . . . The presumption of innocence is an
absolute protection against conviction and punishment, except either, first
on confession in open court; or, second, on proof which places the guilt
beyond any reasonable doubt. Formerly, if a prisoner arraigned for felony
stood mute wilfully, and refused to plead, a terrible mode was resorted to
for the purpose of compelling him to do so; and this might even end in his
death; but a more merciful proceeding is now substituted; the court
entering a plea of not guilty for a party who, for any reason, fails to plead
for himself.
Again, it is required that the trial be speedy; and here also the injunction is
addressed to the sense of justice and sound judgment of the court. In this
country, where officers are specially appointed or elected to represent the
people in these prosecutions, their position gives them an immense power
for oppression; and it is so to be feared they do not always sufficiently
appreciate the responsibility, and wield the power with due regard to the
legal rights and privileges of the accused. When a person charged with
crime is willing to proceed at once to trial, no delay on the part of the
prosecution is reasonable, except only that which is necessary for proper
preparation and to secure the attendance of witnesses. Very much,
however, must be left to the judgment of the prosecuting officer in these
cases; and the court would not compel the government to proceed to trial
at the first term after indictment found or information filed, if the officer who
represents it should state, under the responsibility of his official oath, that
he was not and could not be ready at that time. But further delay would not
generally be allowed without a more specific showing of the causes which
prevent the State proceeding to trial, including the names of the witnesses,
the steps taken to procure them, and the facts expected to be proved by
them, in order that the court might judge of the reasonableness of the
application, and that the prisoner, might, if he saw fit to take that course,
secure an immediate trial by admitting that the witnesses, if present, would

testify to the facts which the prosecution have claimed could be proven by
them. (Cooley's Constitutional Limitations, 7th ed., pp. 436-441.)
Section 19 of our Bill of Rights provides that "no citizen of this state shall
be deprived of life, liberty, property, privileges or immunities, or in any
manner disfranchised, except by the due course of the law of the land."
"Law of the land" is interpreted to mean a general public law, operating
equally upon every member of the community. (Re Jilz, 3 Mo. App., 246.)
"No state shall . . . deny to any person within its jurisdiction the equal
protection of the laws;" "nor shall any state deprive any person of life,
liberty, or property without due process of law." . . . U.S. Constitution,
section 1, article 14.
Due process of law under the 14th Amendment and the equal protection of
the law are secured if the law operates on all alike and does not subject
the individual to the arbitrary exercise of the powers of government.
(Duncan vs. Missouri, 152 U.S., 382; 38 Law. ed. 487; 14 Sup. Ct. Rep.,
570; Hurtado vs.California, 110 U.S., 535; 28 Law. ed., 232; 4 Sup. Ct.
Rep., 111, 292.)
Do laws operate equally upon the citizens of the Commonwealth of Texas
which will imprison under like verdicts one man for a month and another for
six months? Manifestly not.
Section 3 of the Bill of Rights to the State Constitution provides: "All
freemen, when they form a social compact, have equal rights."
A law which makes different punishments follow the same identical criminal
acts in the different political subdivisions of Texas violates both our state
and Federal Constitutions. It fails to accord equal rights and equal
protection of the law, and a conviction under it is not in due course of the
"law of the land." Re Jilz (3 Mo. App., 246); Re H.F. Millon (16 Idaho, 737;
22 L.R.A. [N.S.], 1123; 102 Pac., 374), and Jackson vs.State (55 Tex.
Crim. Rep., 557; 117 S.W., 818), are cited in support of our view in their
reasoning.
We think the principles announced in the case of Ex parte Jones (106 Tex.
Crim. Rep., 185; 290 S.W., 177), apply in some degree to the instant case.
It was there held that article 793, Code Crim. Proc., superseded and
controlled an ordinance of the city of Dallas which allowed only 50 cents
per day to be credited upon the fine of a convict for labor performed.
Provisions similar to those quoted in our state constitution have been a
part of Anglo-Saxon jurisprudence since there was wrung from the
unwilling hands of King John at Runnymede in 1215 the Magna Charta,
which itself provides that a freeman shall not be passed upon or
condemned but "by the lawful judgment of his peers and the law of the
land." "Law of the land" has the same legal meaning as "due process of
law," and one of its accepted meanings is that quoted above. Re Jilz, 3 Mo.
App., 243; 3 Words & Phrases, pp. 2227-2232. (Ex parte Sizemore, 59
A.L.R., Annotated, pp. 430, 432.)
And in Re Jilz ([1877]), 3 Mo. App., 243), an act of the legislature of
Missouri, which, by limiting the power of a court established in a certain
county to assess punishments, varied the penalties for crimes committed
therein from those fixed by the general law for the whole state, was held to
be unconstitutional in so far as it had that effect, the court saying: "A law
which should prescribe death as the punishment of murder in one county,
and imprisonment as the penalty for the same crime in other parts of the
state, would be void, because not operating equally upon all inhabitants of
the state. The general law applicable to the state prescribes, as the
punishment for the offense for which the petitioner was convicted,
imprisonment in the county jail not exceeding one year, or fine not
exceeding $500, or both such fine imprisonment. . . . A law prescribing a
different punishment from this in St. Louis county is clearly
unconstitutional. It follows that so much of the act referred to, establishing
the court of criminal correction, as limits the punishment for this
misdemeanor in St. Louis county to imprisonment for six months, is void."
So, in State vs. Buchardt (Mo.) supra, where the same legislative act was
in question, the court says: "Under our Constitution, it is not permissible to
punish the same offense or violation of some public or general law by one
species of punishment in one locality, and by a different or more heavy
punishment in other localities in the state. A law inflicting such different
penalties for the perpetration of any given crime cannot bear the test of
judicial examination."
And, in State vs. Gregori ([1928], Mo , 2 S.W. [2d], 747), an act of the
legislature which made children seventeen years of age in counties of
50,000 population or more subject to the juvenile court act, while in
counties of less than 50,000 population children seventeen years of age
were not subject to the juvenile court act, but were subject to full criminal
responsibility, was held unconstitutional as denying equal protection of the
laws; the court stating that it was the general doctrine that the law relative
to those who might be charged with and convicted of crime, as well as to

the punishment to be inflicted therefor, should operate equally upon every
citizen or inhabitant of the state.
And, in State vs. Fowler ([1927], 193 N.C., 290; 136 S.E., 709), an act of
the North Carolina legislature, applicable to five counties of the state only,
which imposed as punishment for a specified offense a fine only, while a
statute applicable to the whole state imposed a fine or imprisonment, was
held to be unconstitutional under both the Federal and State Constitutions
as a denial of the equal protection of the laws. The court says: "But the
statute under consideration cannot be sustained on the ground that it was
enacted in the exercise of the police power. The question is whether it shall
supersede "the law of land" the general public law which was designed
to operate without exception or partiality throughout the state. It is needful
to remember that indictment was drafted under the general law, and that
the decisive question is whether offenders in the five counties referred to
may lawfully be exempted from the punishment prescribed by the general
law; whether they shall be subject only to a fine when the offenders in
ninety-five other counties may be punished by imprisonment. In our
judgment this part of section 2 is neither equal protection of the laws nor
the protection of equal laws. . . . It is the grant of a special exemption from
punishment or an exclusive or separate privilege which is forbidden by the
cited provision. . . . The principle of uniformity in the operation of a general
law extends to the punishment, and denounces as arbitrary and
unreasonable the imposition in one county of any kind of punishment
which is different from that which is prescribed under the general law to all
who may be guilty of the same offense. It follows that the provision limiting
the punishment for the first offense to a fine must be regarded as an
arbitrary class distinction which cannot be sustained because forbidden by
the fundamental law, and the judgment which was pronounced by authority
of the general law must be upheld. (Annotation, 59 A.L.R., Annotated, p.
434.)
Bills of attainder were prohibited to be passed, either by the Congress or
by the legislatures of the several States. Attainder, in a strict sense, means
an extinction of civil and political rights and capacities; and at the common
law it followed, as of course, on conviction and sentence to death for
treason; and, in greater or less degree, on conviction and sentence for the
different classes of felony.
A bill of attainder was legislative conviction for alleged crime, with
judgment of death. Such convictions have not been uncommon under
other governments, and the power to pass these bills has been exercised
by the Parliament of England at some periods in its history, under the most
oppressive and unjustifiable circumstances, greatly aggravated by an
arbitrary course of procedure, which had few of the incidents of a judicial
investigation into alleged crime. For some time before the American
Revolution, however, no one had attempted to defend it as a legitimate
exercise of power; and if it would be unjustifiable anywhere, there were
many reasons why it would be specially obnoxious under a free
government, and why consequently its prohibition, under the existing
circumstances of our country, would be a matter of more than ordinary
importance. Every one must concede that a legislative body, from its
numbers and organization, and from the very intimate dependence of its
members upon the people, which renders them liable to be peculiarly
susceptible to popular clamor, it not properly constituted to try with
coolness, caution, and impartiality a criminal charge, especially in those
cases in which the popular feeling is strongly excited the very class of
cases most likely to be prosecuted by this mode. And although it would be
conceded that, if such bills were allowable, they should properly be
presented only for offenses against the general laws of the land, and be
proceeded with on the same full opportunity for investigation and defense
which is afforded in the courts of the common law, yet it was remembered
that in practice they were often resorted to because an obnoxious person
was not subject to punishment under the general law, or because, in
proceeding against him this mode, some rule of the common law requiring
a particular species of degree of evidence might be evaded, and a
conviction secured on proofs that a jury would not be suffered to accept as
overcoming the legal presumption of innocence. Whether the accused
should necessarily be served with process; what the degree or species of
evidence should be required; whether the rules of law should be followed,
either in determining what constituted a crime, or in dealing with the
accused after conviction were all questions which would necessarily
address themselves to the legislative discretion and sense of justice; and
the very qualities which are essential in a court to protect individuals on
trial before them against popular clamor, or the hate of those in powers,
were precisely those which were likely to prove weak or wanting in the
legislative body at such a time. And what could be more obnoxious in a
free government than the exercise of such a power by a popular body,
controlled by a mere majority, fresh from the contests of exciting elections,
and quite too apt, under the most favorable circumstances, to suspect the
motives of their adversaries, and to resort to measures of doubtful
propriety to secure party ends?
Nor were legislative punishments of this severe character the only ones
known to parliamentary history; there were others of a milder form, which
were only less obnoxious in that the consequences were less terrible.
These legislative convictions which imposed punishments less than that of
death were called bills of pains and penalties, as distinguished from bills of
attainder; but the constitutional provisions we have referred to were
undoubtedly aimed at any and every species of legislative punishment for
criminal or supposed criminal offenses; and the term "bill of attainder" is
used in a generic sense, which would include bills of pains and penalties
also.
The thoughtful reader will not fail to discover, in the acts of the American
States during the Revolutionary period, sufficient reason for this
constitutional provision, even if the still more monitory history of the
English attainders had not been so freshly remembered. Some of these
acts provided for the forfeiture of the estates, within the Commonwealth, of
those British subjects who had withdrawn from the jurisdiction because not
satisfied that grievances existed sufficiently serious to justify the last resort
of an oppressed people, or because of other reasons not satisfactory to
the existing authorities; and the only investigation provided for was an
inquiry into the desertion. Others mentioned particular persons by name,
adjudged them guilty of adhering to the enemies of the State, and
proceeded to inflict punishment upon them so far as the presence of
property within the Commonwealth would enable the government to do so.
These were the resorts of a time of extreme peril, and if possible to justify
them in a period of revolution, when everything was staked on success,
and when the public safety would not permit too much weight to scruples
concerning the private rights of those who were not aiding the popular
cause, the power to repeat such acts under any conceivable
circumstances in which the country could be placed again was felt to be
too dangerous to be felt in the legislative hands. So far as proceedings had
been completed under those acts before the treaty of 1783, by the actual
transfer of property, they remained valid and effectual afterwards; but so
far as they were then incomplete, they were put an end to by that treaty.
The conviction of the propriety of this constitutional provision has been so
universal, that it has never been questioned, either in legislative bodies or
elsewhere. Nevertheless, cases have recently arisen, growing out of the
attempt to break up and destroy the government of the United States, in
which the Supreme Court of the United States has adjudged certain
actions of Congress to be in violation of this provision and consequently
void. The action referred to was designed to exclude from practice in the
United States courts all persons who had taken up arms against the
government during the recent rebellion, or who had voluntarily given aid
and encouragement to its enemies; and the mode adopted to effect the
exclusion was to require of all persons, before they should be admitted to

the bar or allowed to practice, an oath negativing any such disloyal action.
This decision was not at first universally accepted as sound; and the
Supreme Courts of West Virginia and of the District of Columbia declined
to follow it, insisting that permission to practice in the courts is not a right,
but a privilege, and that the withholding it for any reason of State policy or
personal unfitness could not be regarded as the infliction of criminal
punishment.
The Supreme Court of the United States has also, upon the same
reasoning, held a clause in the Constitution of Missouri, which, among
other things, excluded all priests and clergymen from practising or teaching
unless they should first take a similar oath of loyalty, to be void, overruling
in so doing a decision of the Supreme Court of that State. (Cooley's
Constitutional Limitations, 7th ed., pp. 368-372.)
The legal problem confronting us is characterized by the fact that we have to
avoid the misleading effect resulting from the difference between the text and
letter of the law and their grammatical sense and effect on one side, and as it is
interpreted and applied in actual practice.
Apparently, there is nothing so harmless as the provision of section 19 of Act No.
682, suspending for a period of not more than six months the provision of article
125 of the Revised Penal Code as amended.
Article 125 of the Revised Penal Code punishes the public officer or employee
who "shall detain any person for some legal ground and shall fail to deliver such
person to the proper judicial authorities within the period of six hours."
Said article has nothing to show that it bears constitutional sanction. It is only a
part of the penal laws which are within the full jurisdiction of the legislative power
to enact or not to enact. The Philippine Legislature which enacted the Revised
Penal Code could have failed to do so without, by that very fact, violating any
provision of the Constitution. The succeeding legislative bodies the unicameral
National Assembly and the Congress may, without question, repeal or
suspend article 125 of the Revised Penal Code, as any other article of the same,
or even the whole code.
Therefore, as an abstract proposition, as a matter of legal technicality, we believe
that there is absolutely no ground for disputing the power of the legislative body
to suspend or even repeal article 125 of the Revised Penal Code.
But the provision is vitiated:
(1) By the fact that it is a class legislation, excluding the political prisoners
concerned from the same benefits and protection afforded all other persons by
article 125.
(2) By the fact that it is interpreted and applied, not only in a negative sense as a
deterrent against public officials or employees bent on encroaching and trampling
upon the personal freedom of any person, but as a positive authority to said
officers and employees to deprive and continue depriving the political prisoners
concerned of their personal liberty, without due or any legal process of law
provided the deprivation of liberty did not exceed six months, but without
reckoning the previous many months of illegal detention they had already
suffered before their formal transfer to the Commonwealth Government.
For these two radical and incurable defects, section 19 of Act No. 682 runs
counter to the Constitution when it prohibits that no person shall be deprived of
his liberty without due process of law nor shall any person be denied the equal
protection of the laws. (Article III, section 1 [1], Constitution of the Philippines.)
No one can, with candor and fairness, deny the discriminatory character of the
provision. If all discriminations are abhorrent under any regime of law and justice,
imperatively more in a democracy such as ours, tribunals must be recreant to
their duties if they fail to deny validity to such an odious legal measure,
conceived, adopted, and unhappily enacted by the legislative power in one of its
blundering moods in utter defiance of the fundamental law of the land.
Petitioner points out that in the provision there is an unconstitutional delegation of
legislative powers, because the power to suspend the provision of article 125 of
the Revised Penal Code within the maximum period of six months, in fact, is
transferred to the Special Prosecutors' Office, which may shorten or lengthen
said suspension by filing the corresponding criminal information at any time it
may deem convenient.
The Special Prosecutors' Office may not suspend altogether article 125 of the
Revised Penal Code by filing immediately the information. It may suspend it for
10 days, by filing the information within that time. It may suspend it for one
month, two months, or three months, by filing the information within the desired
time. It may suspend it for a maximum period of six months just by mere inaction,
by not filing any information at all. The result is, in fact, to place in the hands of
the Special Prosecutors' Office the power to suspend article 125 for any length of
time within the maximum period of six months. And what is worst is that the
suspension that the Special Prosecutors' Office may decree is individualized, and
not of general effect to all the political prisoners concerned, thus making the
Special Prosecutors' Office a kind of dictatorship which may dispense its favors
and disfavors to individual prisoners under no other test than its convenience and
whims.
Evidently, petitioner's complaint is well-taken, giving additional ground for the
nullity of the provision in question, the legislative power having been reserved by
the Constitution exclusively to Congress.
Lastly, the provision in question appears to legalize the many months of illegal
detention already endured by the political prisoners concerned. The legislative
power can not legalize illegal detention, much more if that illegal detention has
been perpetrated in utter violation of the Bill of Rights of the Constitution.
Petitioner assails the validity of the whole Act No. 682, aside from what has been
already said about section 19 thereof, upon the following grounds:
(1) Because it is an ex post facto law, violating section 1 (11), Article III, of the
Constitution, petitioner having been deprived of his acquired right to be freed,
under penalty to his detainers, within six hours after his detention under article
125 of the Revised Penal Code.
(2) Because section 2 set up a legal trap by which a person, accused in the
information of an offense, may be convicted and sentenced for a different one,
thus violating his constitutional right "to be informed of the nature and cause of
the accusation against him." (Section 1 [17], Article III, Constitution of the
Philippines.)
(3) Because it creates a special court to try cases arising years before its
creation, transferring a jurisdiction belonging to courts of first instance to the
People's Court, a blunder identical in nature and viciousness to the former
practice of shuffling judges of first instance, the judicial rigodon resorted to before
to suit certain purposes of the government and which was stopped by Judge
Borromeo's courageous defense of the independence of the judiciary, in a
leading case before the Supreme Court which made history.
(4) Because the creation of the People's Court is a judicial gerrymandering.
(5) Because the name "People's Court" suggests a political entity, a popular
dispenser of political justice, in contrast with the stable, impartial, cultured nature
of a judiciary, detached from momentary interests and influences.
(6) Because the self-extinguishing character of the People's Court makes it an
agency for special mission, more an agency of the legislature than that of the
administration of justice.
(7) Because it disqualifies members of the judiciary who served under the
Japanese regime.
We cannot but recognize that strength of the objections, specially objections (1),
(2) and (7).
But we are not ready to support petitioner's contention that the whole act should
be declared null and void, considering that the unconstitutional provisions thereof
may be segregated and the remaining portions of the text may stand on their own
feet.
Objection (1) adds only another ground to show the unconstitutionality of the
provision of section 19, suspending article 125 of the Revised Penal Code; and
objection (2) only affects the corresponding provision of section 2 of the act.
Objection (7), upon which we have already expressed our opinion in the case
of De la Rama vs. Misa (42 off. Gaz., 1544), only affects the provision concerning
the disqualification of certain justices of the Supreme Court.
Regarding objections (3), (4), (5), and (6), although they are meritorious, we
believe that they are offset by the collegiate character of the newly created court.
We are inclined to believe that the main purpose in creating the the People's
Court was precisely to afford those who will be charged and tried before it a
special safeguard, in the fact that more than one judge will have to hear and try a
case, to counterbalance the prevailing prejudice in the community against the
persons who are accused for having allegedly collaborated with the enemy. For
this reason, we are of opinion that the act creating the People's Court must not
be invalidated.
But it is our hope that its creation will not set a precedent that will sanction a
wrong principle. Generally speaking, the creation of temporary tribunals to
administer justice in specifically pre-determined existing cases is contrary to the
nature and character of judicial functions and the purposes of the administration
of justice, which must be characterized by the independence of judicial officers,
independence that cannot be secured without guaranteeing the stability of tenure
of office.
Judges are not supposed to decide on what may appear right or wrong in the
evanescent moment when the voice of passion grows louder in the market of
human activities. They must not make decisions in the spur of news that make
screaming headlines and arouse the uncontrollable emotions of political leaders
of the populace. They must decide between right and wrong by the criterion of
universal conscience, by the judgment, not only of the fleeting instance of
evolving history, but the unending caravans of generations to come.
The inherent justice of their decisions must continue being sensed as the
treasured human heritage long long after they had rendered their inescapable
tribute to death, like the aroma which continues enriching and sweetening the air
long after the flowers have been crushed in the chemist's retorts to give way to
their perfumed essence, like the beauty of the temples and palaces of Palmyra
which continues charming our memory millenniums after they have become lust
dusty ruins, like the heavenly melodies which continue lingering in our ears long
after we have heard those musical gems, such as the masterpieces of Bach and
the symphonies of Beethoven, like light emitted by stars which ceased to exist
centuries ago still traveling in the immensity of space to attract our admiration
and arouse dreams of immortality.
In order that judges could render judgments of lasting value which would embody
the wisdom of the ages and the moral sense of all time, it is necessary that they
should preside over tribunals which must be looked upon as permanent
institutions of justice, not temporary makeshifts, more appropriate to serve
ephemeral purposes than to be the inviolable temples of an eternal goddess. And
the judges themselves, to acquire the olympic serenity, the awesome and noble
austerity, the hieratic aloofness, the majestic equanimity proper of their great
mission, there being none greater that can be entrusted to a person as the image
of God, must feel, by the permanency, stability, and security of their tenure of
office, that they owe an undivided loyalty, not to any transient idols or to any
momentary masters, no matter how powerful they are, but to the inseparable twin
divinities of truth and justice.
Judge Robert N. Wilkin said that the special function of a judicial officer is to
determine what is right and what is wrong, not only for the clamorous present,
but for silent generations yet come. From him we quote these illuminating
paragraphs:
The guiding force in social evolution is not to be found in the arbitrary will
of groups, nor in a common purpose. It is to be found in the law of our
nature, that imminent or inherent law founded on the characteristics of
human kind. "A law instilled and not imposed," as Cicero said, "a law in
which we are fashioned, not instructed." It is not created by proclamation
or legislative fiat. It is discovered by patient research and spiritual insight.
The true judge must have something of the vision of a prophet. He must be
able to see the trends of his time extended, so that principles which he
announces may be adjusted to conditions yet to come. The observation of
Graham Wallas that a great judge needs a touch of the qualities that make
a poet has been quoted with approval by Professor Chafee, Justice
Cardozo, and others. Poets, as has been stated, bear the same relation to
society as the antennae of an insect to its body; they are "feelers" of the
body politic. Their sensibilities are more acute, more advanced than those
of their contemporaries, and what they feel and express today their fellows
will feel and understand tomorrow. Poets, prophets, judges they are
Gods elect; we cannot elect them.
The great judge cannot be a child of his ages. If his judgments are to be
great they must be timeless, or at least timed to the future. The spirit of the
law should enable him to transcend the spirit of his times and he should be
able to speak sub specie aeternitatis. What a desecration of the office to
choose its incumbent by any system which forces him to temporize!
Judges in early times were priests, or more accurately stated, the priests
performed the functions of judges. There is still much about the judicial
office that is priestly. This has ever seemed quite natural to those who took
seriously their first legal learning from Blackstone, who stated at the outset
that all human laws depend upon divine law. While for a time that teaching
seemed out of fashion, the more recent trend is to acknowledge again our
subjection to a law of nature, a law divine. Be that as it may, it will not
disputed that a proper performance of judicial duties requires a devotion
quite similar to the consecration of the priest. Judges, like the clergy,
should be kept unspotted from the world. Any personal interest, selfish
concern, or party consciousness, corrupts not only the judge but the
judicial function. Any want of honest detachment in the judge undermines
public faith in judicial administration. As has frequently been stated, it is
quite as important to the public that judges should be free from the
appearance of evil as that they should be free from actual evil. The
prevalent disrespect for law is prompted not so much by corruption in the
courts, as by that system of choosing judges which makes every judge
suspect.
The taking of judicial office should be much like the taking of holy orders
one should not do so who is unwilling to suffer a kind of civil death. The
only way in which one can be worthy of the office is by submerging self in
the performance of the duties of the office. A judge should be only the
voice of the law. As Cicero said, "While the law is voiceless magistrate, the
magistrate is law made vocal." It is arrogant presumption for a judge to
pose as anything more, and gross indiscretion for him to assert his own
voice. The only way in which he can avoid violation of the injunction,
"Judge not, that ye be not judged," is by pronouncing, not his personal will,
but the judgment of the law. How otherwise could a judge impose a death
sentence and live in peace? If the judgment is his own, the blood of the
condemned is upon him. If his judgment is at the behest of popular clamor
he has given sanction to lynching. But if his judgment is the

pronouncement of the law, the judicial function is fulfilled and his
conscience is clear. The judicial robe should submerge personality and
make its bearer, like a priest in vestment, an impersonal part of a divine
function. (The Judicial Function and the Need of Professional Section of
Judges by Robert N. Wilkin, Journal of the American Judicature Society,
Vol. 29, No. 4, Dec., 1945.)
The facts of current experience showed the imperative need of an intellectual
overhauling as part of the work of post-war rehabilitation in all orders of our
national life. Many elemental tenets and ideals need be restated, if not
rediscovered. The worries and psychological shocks caused by the Japanese
initial victories and brutal oppressions concomitant with their occupation of our
country, had the effect of warping the mentality and sense of moral values of not
a negligible number of persons. There are men whose intellectual outlook and
views of freedom and fundamental human rights, tethered by defective
development of ideology, are not only outmoded, but absolutely incompatible with
the trends of the progress, whose brains appear not to be completely freed from
the embryonic amnion and are in need of allantoic nutrition, who would rather
wield the bludgeon of jungle arbitrariness and make a coffle of serfs of free
people, than abide by the constitutional precepts and the noble doctrines of the
UNO Charter, whose juridical ideas, rather than in the forum of modern
democracy, have their proper place among the fossils of apteryx, megatheria,
and dinosaurs' museum and, notwithstanding, are being haled in apparently
responsible sectors of the press as heroes of progressiveness. Such nonsense
and intellectual travesty are inconceivable except in a topsy-turvy world which
has adopted the thyrsus as the choicest emblem of human happiness, where the
frenzied mental processes have been inverted as if in the Corinthian order, the
frieze, cornice, and architrave are place at the foot of the column and above it the
stylobate.
Among the basic concepts that must be included in the wholesale intellectual
overhauling which we need undergo, if we have to follow the mental, social,
legal, and moral thread which was cut at the impact of the disastrous invasion of
our soil, is the one we have on personal liberty, upon which the traditional
democratic principles we had been accepting and following before the enemy
occupation, as part of the nature of our social and political institutions, appear to
have been forgotten, the present case being one of a series of instances
evidencing it, as can be seen in our opinions in Raquiza vs. Bradford (75 Phil.,
50); Reyes vs. Crisologo (75 Phil., 225); Duran vs. Abad Santos (75 Phil.,
410); Herras Teehankee vs. Rovira (75 Phil., 634); Herras Teehankee vs.
Director of Prisons p. 756, post; Taada vs. Quirino (42 Off. Gaz., 394), the
pronouncements in which we are reiterating here.
The moral hiatus in our national life is over, and in this hour of resumption of
democratic processes, there is an imperative need, as one of the cornerstones of
our national structure, to redefine and reaffirmed our pre-war concept of human
freedom.
The petitioner is entitled to be immediately set free, and we vote for restoring him
to his personal freedom of which he was deprived without any legal process.
SUPREME COURT
Manila
EN BANC
G.R. No. L-5
September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First
Instance of Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent judge of
the lower court be ordered to continue the proceedings in civil case No. 3012 of
said court, which were initiated under the regime of the so-called Republic of the
Philippines established during the Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the
proceedings in said case on the ground that the proclamation issued on October
23, 1944, by General Douglas MacArthur had the effect of invalidating and
nullifying all judicial proceedings and judgements of the court of the Philippines
under the Philippine Executive Commission and the Republic of the Philippines
established during the Japanese military occupation, and that, furthermore, the
lower courts have no jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts of the defunct Republic of the Philippines in
the absence of an enabling law granting such authority. And the same
respondent, in his answer and memorandum filed in this Court, contends that the
government established in the Philippines during the Japanese occupation were

no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila,
and on the next day their Commander in Chief proclaimed "the Military
Administration under law over the districts occupied by the Army." In said
proclamation, it was also provided that "so far as the Military Administration
permits, all the laws now in force in the Commonwealth, as well as executive and
judicial institutions, shall continue to be effective for the time being as in the
past," and "all public officials shall remain in their present posts and carry on
faithfully their duties as before."
A civil government or central administration organization under the name of
"Philippine Executive Commission was organized by Order No. 1 issued on
January 23, 1942, by the Commander in Chief of the Japanese Forces in the
Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was
instructed to proceed to the immediate coordination of the existing central
administrative organs and judicial courts, based upon what had existed therefore,
with approval of the said Commander in Chief, who was to exercise jurisdiction
over judicial courts.
The Chairman of the Executive Commission, as head of the central
administrative organization, issued Executive Orders Nos. 1 and 4, dated
January 30 and February 5, 1942, respectively, in which the Supreme Court,
Court of Appeals, Courts of First Instance, and the justices of the peace and
municipal courts under the Commonwealth were continued with the same
jurisdiction, in conformity with the instructions given to the said Chairman of the
Executive Commission by the Commander in Chief of Japanese Forces in the
Philippines in the latter's Order No. 3 of February 20, 1942, concerning basic
principles to be observed by the Philippine Executive Commission in exercising
legislative, executive and judicial powers. Section 1 of said Order provided that
"activities of the administration organs and judicial courts in the Philippines shall
be based upon the existing statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated,
but no substantial change was effected thereby in the organization and
jurisdiction of the different courts that functioned during the Philippine Executive
Commission, and in the laws they administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General
Douglas MacArthur issued a proclamation to the People of the Philippines which
declared:
1. That the Government of the Commonwealth of the Philippines is, subject

to the supreme authority of the Government of the United States, the sole
and only government having legal and valid jurisdiction over the people in
areas of the Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of
the Philippines and the regulations promulgated pursuant thereto are in full
force and effect and legally binding upon the people in areas of the
Philippines free of enemy occupation and control; and
and control.
On February 3, 1945, the City of Manila was partially liberated and on February
27, 1945, General MacArthur, on behalf of the Government of the United States,
solemnly declared "the full powers and responsibilities under the Constitution
restored to the Commonwealth whose seat is here established as provided by
law."
In the light of these facts and events of contemporary history, the principal
questions to be resolved in the present case may be reduced to the following:(1)
Whether the judicial acts and proceedings of the court existing in the Philippines
under the Philippine Executive Commission and the Republic of the Philippines
were good and valid and remained so even after the liberation or reoccupation of
the Philippines by the United States and Filipino forces; (2)Whether the
proclamation issued on October 23, 1944, by General Douglas MacArthur,
Commander in Chief of the United States Army, in which he declared "that all
laws, regulations and processes of any of the government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas
of the Philippines free of enemy occupation and control," has invalidated all
judgements and judicial acts and proceedings of the said courts; and (3) If the
said judicial acts and proceedings have not been invalidated by said
proclamation, whether the present courts of the Commonwealth, which were the
same court existing prior to, and continued during, the Japanese military
occupation of the Philippines, may continue those proceedings pending in said
courts at the time the Philippines were reoccupied and liberated by the United
States and Filipino forces, and the Commonwealth of the Philippines were
reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under
the rules of international law the judicial acts and proceedings of the courts
established in the Philippines under the Philippine Executive Commission and

the Republic of the Philippines were good and valid and remained good and valid
even after the liberation or reoccupation of the Philippines by the United States
and Filipino forces.
1. It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a de
facto government are good and valid. The question to be determined is whether
or not the governments established in these Islands under the names of the
Philippine Executive Commission and Republic of the Philippines during the
Japanese military occupation or regime were de facto governments. If they were,
the judicial acts and proceedings of those governments remain good and valid
even after the liberation or reoccupation of the Philippines by the American and
Filipino forces.
There are several kinds of de facto governments. The first, or government de
facto in a proper legal sense, is that government that gets possession and control
of, or usurps, by force or by the voice of the majority, the rightful legal
governments and maintains itself against the will of the latter, such as the
government of England under the Commonwealth, first by Parliament and later
by Cromwell as Protector. The second is that which is established and
maintained by military forces who invade and occupy a territory of the enemy in
the course of war, and which is denominated a government of paramount force,
as the cases of Castine, in Maine, which was reduced to British possession in the
war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the
troops of the United States. And the third is that established as an independent
government by the inhabitants of a country who rise in insurrection against the
parent state of such as the government of the Southern Confederacy in revolt not
concerned in the present case with the first kind, but only with the second and
third kinds of de factogovernments.
Speaking of government "de facto" of the second kind, the Supreme Court of the
United States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is
another description of government, called also by publicists a government de
facto, but which might, perhaps, be more aptly denominated a government of
paramount force. Its distinguishing characteristics are (1), that its existence is
maintained by active military power with the territories, and against the rightful
authority of an established and lawful government; and (2), that while it exists it
obedience rendered in submission to such force, do not become responsible, or
wrongdoers, for those acts, though not warranted by the laws of the rightful
government. Actual governments of this sort are established over districts
differing greatly in extent and conditions. They are usually administered directly
by military authority, but they may be administered, also, civil authority, supported
more or less directly by military force. . . . One example of this sort of government
is found in the case of Castine, in Mine, reduced to British possession in the war
of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case
of Tampico, occupied during the war with Mexico, by the troops of the United
States . . . Fleming vs. Page (9 Howard, 614). These were cases of temporary
possessions of territory by lawfull and regular governments at war with the
country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated
in Section III of the Hague Conventions of 1907, which is a revision of the
provisions of the Hague Conventions of 1899 on the same subject of said
Section III provides "the authority of the legislative power having actually passed
into the hands of the occupant, the latter shall take steps in his power to
reestablish and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant
has the right and is burdened with the duty to insure public order and safety
during his military occupation, he possesses all the powers of a de
facto government, and he can suspended the old laws and promulgate new ones
and make such changes in the old as he may see fit, but he is enjoined to
respect, unless absolutely prevented by the circumstances prevailing in the
occupied territory, the municipal laws in force in the country, that is, those laws
which enforce public order and regulate social and commercial life of the country.
On the other hand, laws of a political nature or affecting political relations, such
as, among others, the right of assembly, the right to bear arms, the freedom of
the press, and the right to travel freely in the territory occupied, are considered as
suspended or in abeyance during the military occupation. Although the local and
civil administration of justice is suspended as a matter of course as soon as a
country is militarily occupied, it is not usual for the invader to take the whole
administration into his own hands. In practice, the local ordinary tribunals are
authorized to continue administering justice; and judges and other judicial officers
are kept in their posts if they accept the authority of the belligerent occupant or
are required to continue in their positions under the supervision of the military or
civil authorities appointed, by the Commander in Chief of the occupant. These
principles and practice have the sanction of all publicists who have considered
the subject, and have been asserted by the Supreme Court and applied by the
President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on
International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and
govern the territory of the enemy while in its military possession, is one of the
incidents of war, and flows directly from the right to conquer. We, therefore, do
not look to the Constitution or political institutions of the conqueror, for authority
to establish a government for the territory of the enemy in his possession, during
its military occupation, nor for the rules by which the powers of such government
are regulated and limited. Such authority and such rules are derived directly from
the laws war, as established by the usage of the of the world, and confirmed by
the writings of publicists and decisions of courts in fine, from the law of
nations. . . . The municipal laws of a conquered territory, or the laws which
regulate private rights, continue in force during military occupation, excepts so far
as they are suspended or changed by the acts of conqueror. . . . He,
nevertheless, has all the powers of a de facto government, and can at his
pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied
territory, which were later embodied in the said Hague Conventions, President
McKinley, in his executive order to the Secretary of War of May 19,1898, relating
to the occupation of the Philippines by United States forces, said in part: "Though
the powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the
conquered territory, such as affect private rights of person and property and
provide for the punishment of crime, are considered as continuing in force, so far
as they are compatible with the new order of things, until they are suspended or
superseded by the occupying belligerent; and in practice they are not usually
abrogated, but are allowed to remain in force and to be administered by the
ordinary tribunals, substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to on the present
occasion. The judges and the other officials connected with the administration of
justice may, if they accept the authority of the United States, continue to
administer the ordinary law of the land as between man and man under the
supervision of the American Commander in Chief." (Richardson's Messages and
Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United
States, in the same case of Thorington vs. Smith, supra, recognized the
government set up by the Confederate States as a de factogovernment. In that
case, it was held that "the central government established for the insurgent
States differed from the temporary governments at Castine and Tampico in the
circumstance that its authority did no originate in lawful acts of regular war; but it
was not, on the account, less actual or less supreme. And we think that it must
be classed among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the
United States, discussing the validity of the acts of the Confederate States, said:
"The same general form of government, the same general laws for the
administration of justice and protection of private rights, which had existed in the
States prior to the rebellion, remained during its continuance and afterwards. As
far as the Acts of the States do not impair or tend to impair the supremacy of the
national authority, or the just rights of citizens under the Constitution, they are, in
general, to be treated as valid and binding. As we said in Horn vs. Lockhart (17
Wall., 570; 21 Law. ed., 657): "The existence of a state of insurrection and war
did not loosen the bonds of society, or do away with civil government or the
regular administration of the laws. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts enforced, marriages
celebrated, estates settled, and the transfer and descent of property regulated,
precisely as in the time of peace. No one, that we are aware of, seriously
questions the validity of judicial or legislative Acts in the insurrectionary States
touching these and kindered subjects, where they were not hostile in their
purpose or mode of enforcement to the authority of the National Government,
and did not impair the rights of citizens under the Constitution'. The same
doctrine has been asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held:
"That what occured or was done in respect of such matters under the authority of
the laws of these local de facto governments should not be disregarded or held
to be invalid merely because those governments were organized in hostility to
the Union established by the national Constitution; this, because the existence of
war between the United States and the Confederate States did not relieve those
who are within the insurrectionary lines from the necessity of civil obedience, nor
destroy the bonds of society nor do away with civil government or the regular
administration of the laws, and because transactions in the ordinary course of
civil society as organized within the enemy's territory although they may have
indirectly or remotely promoted the ends of the de facto or unlawful government
organized to effect a dissolution of the Union, were without blame 'except when
proved to have been entered intowith actual intent to further invasion or
insurrection:'" and "That judicial and legislative acts in the respective states
composing the so-called Confederate States should be respected by the courts if
they were not hostile in their purpose or mode of enforcement to the authority of
the National Government, and did not impair the rights of citizens under the
Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission,
which was organized by Order No. 1, issued on January 23, 1942, by the
Commander of the Japanese forces, was a civil government established by the
military forces of occupation and therefore a de facto government of the second
kind. It was not different from the government established by the British in
Castine, Maine, or by the United States in Tampico, Mexico. As Halleck says,
"The government established over an enemy's territory during the military

occupation may exercise all the powers given by the laws of war to the conqueror
over the conquered, and is subject to all restrictions which that code imposes. 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 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. In
1806, when Napoleon occupied the greater part of Prussia, he retained the
existing administration under the general direction of a french official (Langfrey
History of Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on
invading France, authorized the local authorities to continue the exercise of their
functions, apparently without appointing an English superior. (Wellington
Despatches, XI, 307.). The Germans, on the other hand, when they invaded
France in 1870, appointed their own officials, at least in Alsace and Lorraine, in
every department of administration and of every rank. (Calvo, pars. 2186-93;
Hall, International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized
as a sovereign state independent from any other government by the Filipino
people, was, in truth and reality, a government established by the belligerent
occupant or the Japanese forces of occupation. 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 people's will nor the sanction of the
Government of the United States." Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty of the United States
to, or recognize the latent sovereignty of, the Filipino people, before its military
occupation and possession of the 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
International Law, recognized in Article 45 of the Hauge Conventions of 1907
(which prohibits compulsion of the population of the occupied territory to swear
allegiance to the hostile power), the belligerent occupation, being essentially
provisional, does not serve to transfer sovereignty over the territory controlled
although the de jure government is during the period of occupancy deprived of
the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9
Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs.Page, 9 Howard,
603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the
Philippines was a scheme contrived by Japan to delude the Filipino people into
believing in the apparent magnanimity of the Japanese gesture of transferring or
turning over the rights of government into the hands of Filipinos. 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.
Indeed, even if the Republic of the Philippines had been established by the free
will of the Filipino who, taking advantage of the withdrawal of the American forces
from the Islands, and the occupation thereof by the Japanese forces of invasion,
had organized an independent government under the name with the support and
backing of Japan, such government would have been considered as one
established by the Filipinos in insurrection or rebellion against the parent state or
the Unite States. And as such, it would have been a de facto government similar
to that organized by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United States in
numerous cases, notably those of Thorington vs. Smith, Williams vs.Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived government
established by the Filipino insurgents in the Island of Cebu during the SpanishAmerican war, recognized as a de facto government by the Supreme Court of the
United States in the case of McCleod vs. United States (299 U. S., 416).
According to the facts in the last-named case, the Spanish forces evacuated the
Island of Cebu on December 25, 1898, having first appointed a provisional
government, and shortly afterwards, the Filipinos, formerly in insurrection against
Spain, took possession of the Islands and established a republic, governing the
Islands until possession thereof was surrendered to the United States on
February 22, 1898. And the said Supreme Court held in that case that "such
government was of the class of de facto governments described in I Moore's
International Law Digest, S 20, . . . 'called also by publicists a government de
facto, but which might, perhaps, be more aptly denominated a government of
paramount force . . '." That is to say, that the government of a country in
possession of belligerent forces in insurrection or rebellion against the parent
state, rests upon the same principles as that of a territory occupied by the hostile
army of an enemy at regular war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of
the Philippines during the Japanese military occupation being de
facto governments, it necessarily follows that the judicial acts and proceedings of
the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of
postliminy (postliminium) in international law, remained good and valid after the
liberation or reoccupation of the Philippines by the American and Filipino forces
under the leadership of General Douglas MacArthur. According to that wellknown principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government
of sovereignty, "does not, except in a very few cases, wipe out the effects of acts
done by an invader, which for one reason or another it is within his competence
to do. Thus judicial acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that they take effect during
the continuance of his control, and the various acts done during the same time by
private persons under the sanction of municipal law, remain good. Were it
otherwise, the whole social life of a community would be paralyzed by an
invasion; and as between the state and the individuals the evil would be scarcely
less, it would be hard for example that payment of taxes made under duress
should be ignored, and it would be contrary to the general interest that the
sentences passed upon criminals should be annulled by the disappearance of
the intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when
the occupation and the abandonment have been each an incident of the same
war as in the present case, postliminy applies, even though the occupant has
acted as conqueror and for the time substituted his own sovereignty as the
Japanese intended to do apparently in granting independence to the Philippines
and establishing the so-called Republic of the Philippines. (Taylor, International
Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are
not of a political complexion, are and remain valid after reoccupation of a territory
occupied by a belligerent occupant, is confirmed by the Proclamation issued by
General Douglas MacArthur on October 23, 1944, which declares null and void
all laws, regulations and processes of the governments established in the
Philippines during the Japanese occupation, for it would not have been
necessary for said proclamation to abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes
of any other government" as used in the above-quoted proclamation of General
Douglas MacArthur of October 23, 1944 that is, whether it was the intention of
the Commander in Chief of the American Forces to annul and void thereby all
judgments and judicial proceedings of the courts established in the Philippines
during the Japanese military occupation.
The phrase "processes of any other government" is broad and may refer not only
to the judicial processes, but also to administrative or legislative, as well as
constitutional, processes of the Republic of the Philippines or other governmental
agencies established in the Islands during the Japanese occupation. Taking into
consideration the fact that, as above indicated, according to the well-known
principles of international law all judgements and judicial proceedings, which are
not of a political complexion, of the de facto governments during the Japanese

military occupation were good and valid before and remained so after the
occupied territory had come again into the power of the titular sovereign, it
should be presumed that it was not, and could not have been, the intention of
General Douglas MacArthur, in using the phrase "processes of any other
government" in said proclamation, to refer to judicial processes, in violation of
said principles of international law. The only reasonable construction of the said
phrase is that it refers to governmental processes other than judicial processes of
court proceedings, for according to a well-known rule of statutory construction,
set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to violate
the law of nations if any other possible construction remains."
It is true that the commanding general of a belligerent army of occupation, as an
agent of his government, may not unlawfully suspend existing laws and
promulgate new ones in the occupied territory, if and when the exigencies of the
military occupation demand such action. But even assuming that, under the law
of nations, the legislative power of a commander in chief of military forces who
liberates or reoccupies his own territory which has been occupied by an enemy,
during the military and before the restoration of the civil regime, is as broad as
that of the commander in chief of the military forces of invasion and occupation
(although the exigencies of military reoccupation are evidently less than those of
occupation), it is to be presumed that General Douglas MacArthur, who was
acting as an agent or a representative of the Government and the President of
the United States, constitutional commander in chief of the United States Army,
did not intend to act against the principles of the law of nations asserted by the
Supreme Court of the United States from the early period of its existence, applied
by the Presidents of the United States, and later embodied in the Hague
Conventions of 1907, as above indicated. It is not to be presumed that General
Douglas MacArthur, who enjoined in the same proclamation of October 23, 1944,
"upon the loyal citizens of the Philippines full respect and obedience to the
Constitution of the Commonwealth of the Philippines," should not only reverse
the international policy and practice of his own government, but also disregard in
the same breath the provisions of section 3, Article II, of our Constitution, which
provides that "The Philippines renounces war as an instrument of national policy,
and adopts the generally accepted principles of international law as part of the
law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship
would result, and great public interests would be endangered and sacrificed, for
disputes or suits already adjudged would have to be again settled accrued or
vested rights nullified, sentences passed on criminals set aside, and criminals
might easily become immune for evidence against them may have already
disappeared or be no longer available, especially now that almost all court
records in the Philippines have been destroyed by fire as a consequence of the

war. And it is another well-established rule of statutory construction that where
great inconvenience will result from a particular construction, or great public
interests would be endangered or sacrificed, or great mischief done, such
construction is to be avoided, or the court ought to presume that such
construction was not intended by the makers of the law, unless required by clear
and unequivocal words. (25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his
representatives who reoccupies a territory occupied by an enemy, may set aside
or annul all the judicial acts or proceedings of the tribunals which the belligerent
occupant had the right and duty to establish in order to insure public order and
safety during military occupation, would be sufficient to paralyze the social life of
the country or occupied territory, for it would have to be expected that litigants
would not willingly submit their litigation to courts whose judgements or decisions
may afterwards be annulled, and criminals would not be deterred from
committing crimes or offenses in the expectancy that they may escaped the
penalty if judgments rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of
the courts of justice during the Japanese regime, is impliedly confirmed by
Executive Order No. 37, which has the force of law, issued by the President of
the Philippines on March 10, 1945, by virtue of the emergency legislative power
vested in him by the Constitution and the laws of the Commonwealth of the
Philippines. Said Executive order abolished the Court of Appeals, and provided
"that all case which have heretofore been duly appealed to the Court of Appeals
shall be transmitted to the Supreme Court final decision." This provision impliedly
recognizes that the judgments and proceedings of the courts during the
Japanese military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or refer
to cases which have been duly appealed to said court prior to the Japanese
occupation, but to cases which had therefore, that is, up to March 10, 1945, been
duly appealed to the Court of Appeals; and it is to be presumed that almost all, if
not all, appealed cases pending in the Court of Appeals prior to the Japanese
military occupation of Manila on January 2, 1942, had been disposed of by the
latter before the restoration of the Commonwealth Government in 1945; while
almost all, if not all, appealed cases pending on March 10, 1945, in the Court of
Appeals were from judgments rendered by the Court of First Instance during the
Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which
say: "Moreover when it is said that an occupier's acts are valid and under
international law should not be abrogated by the subsequent conqueror, it must
be remembered that no crucial instances exist to show that if his acts should be
reversed, any international wrong would be committed. What does happen is that
most matters are allowed to stand by the restored government, but the matter
can hardly be put further than this." (Wheaton, International Law, War, 7th
English edition of 1944, p. 245.) And from this quotion the respondent judge
"draws the conclusion that whether the acts of the occupant should be
considered valid or not, is a question that is up to the restored government to
decide; that there is no rule of international law that denies to the restored
government to decide; that there is no rule of international law that denies to the
restored government the right of exercise its discretion on the matter, imposing
upon it in its stead the obligation of recognizing and enforcing the acts of the
overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate most of
the acts of the occupier, such as the laws, regulations and processes other than
judicial of the government established by the belligerent occupant. But in view of
the fact that the proclamation uses the words "processes of any other
government" and not "judicial processes" prisely, it is not necessary to determine
whether or not General Douglas MacArthur had power to annul and set aside all
judgments and proceedings of the courts during the Japanese occupation. The
question to be determined is whether or not it was his intention, as representative
of the President of the United States, to avoid or nullify them. If the proclamation
had, expressly or by necessary implication, declared null and void the judicial
processes of any other government, it would be necessary for this court to decide
in the present case whether or not General Douglas MacArthur had authority to
declare them null and void. But the proclamation did not so provide, undoubtedly
because the author thereof was fully aware of the limitations of his powers as
Commander in Chief of Military Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as
they result from the usages established between civilized nations, the laws of
humanity and the requirements of the public of conscience, constitute or from the
law of nations. (Preamble of the Hague Conventions; Westlake, International
Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or
Conventions which we have already quoted in discussing the first question,
imposes upon the occupant the obligation to establish courts; and Article 23 (h),
section II, of the same Conventions, which prohibits the belligerent occupant "to
declare . . . suspended . . . in a Court of Law the rights and action of the nationals
of the hostile party," forbids him to make any declaration preventing the
inhabitants from using their courts to assert or enforce their civil rights. (Decision
of the Court of Appeals of England in the case of Porter vs. Fruedenburg, L.R.
[1915], 1 K.B., 857.) If a belligerent occupant is required to establish courts of
justice in the territory occupied, and forbidden to prevent the nationals thereof
from asserting or enforcing therein their civil rights, by necessary implication, the
military commander of the forces of liberation or the restored government is
restrained from nullifying or setting aside the judgments rendered by said courts
in their litigation during the period of occupation. Otherwise, the purpose of these
precepts of the Hague Conventions would be thwarted, for to declare them null
and void would be tantamount to suspending in said courts the right and action of
the nationals of the territory during the military occupation thereof by the enemy.
It goes without saying that a law that enjoins a person to do something will not at
the same time empower another to undo the same. Although the question
whether the President or commanding officer of the United States Army has
violated restraints imposed by the constitution and laws of his country is
obviously of a domestic nature, yet, in construing and applying limitations
imposed on the executive authority, the Supreme Court of the United States, in
the case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise
from general rules of international law and from fundamental principles known
wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the
officer in command of the forces of the United States in South Carolina after the
end of the Civil War, wholly annulling a decree rendered by a court of chancery in
that state in a case within its jurisdiction, was declared void, and not warranted
by the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19 of
the same year (15 id., 14), which defined the powers and duties of military
officers in command of the several states then lately in rebellion. In the course of
its decision the court said; "We have looked carefully through the acts of March
2, 1867 and July 19, 1867. They give very large governmental powers to the
military commanders designated, within the States committed respectively to
their jurisdiction; but we have found nothing to warrant the order here in question.
. . . The clearest language would be necessary to satisfy us that Congress
intended that the power given by these acts should be so exercised. . . . It was
an arbitrary stretch of authority, needful to no good end that can be imagined.
Whether Congress could have conferred the power to do such an act is a
question we are not called upon to consider. It is an unbending rule of law that
the exercise of military power, where the rights of the citizen are concerned, shall
never be pushed beyond what the exigency requires. (Mithell vs. Harmony, 13
How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161;
s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the
standpoint indicated, we hold that the order was void."
It is, therefore, evident that the proclamation of General MacArthur of October 23,
1944, which declared that "all laws, regulations and processes of any other
government in the Philippines than that of the said Commonwealth are null and
void without legal effect in areas of the Philippines free of enemy occupation and
control," has not invalidated the judicial acts and proceedings, which are not a
political complexion, of the courts of justice in the Philippines that were continued
by the Philippine Executive Commission and the Republic of the Philippines
during the Japanese military occupation, and that said judicial acts and
proceedings were good and valid before and now good and valid after the
reoccupation of liberation of the Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the Commonwealth,
which are the same as those existing prior to, and continued during, the
Japanese military occupation by the Philippine Executive Commission and by the
so-called Republic of the Philippines, have jurisdiction to continue now the
proceedings in actions pending in said courts at the time the Philippine Islands
were reoccupied or liberated by the American and Filipino forces, and the
Commonwealth Government was restored.
Although in theory the authority the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military occupation
takes place, in practice the invader does not usually take the administration of
justice into his own hands, but continues the ordinary courts or tribunals to
administer the laws of the country which he is enjoined, unless absolutely
prevented, to respect. As stated in the above-quoted Executive Order of
President McKinley to the Secretary of War on May 19, 1898, "in practice, they
(the municipal laws) are not usually abrogated but are allowed to remain in force
and to be administered by the ordinary tribunals substantially as they were before
the occupation. This enlightened practice is, so far as possible, to be adhered to
on the present occasion." And Taylor in this connection says: "From a theoretical
point of view it may be said that the conqueror is armed with the right to
substitute his arbitrary will for all preexisting forms of government, legislative,
executive and judicial. From the stand-point of actual practice such arbitrary will
is restrained by the provision of the law of nations which compels the conqueror
to continue local laws and institution so far as military necessity will permit."
(Taylor, International Public Law, p.596.) Undoubtedly, this practice has been
adopted in order that the ordinary pursuits and business of society may not be
unnecessarily deranged, inasmuch as belligerent occupation is essentially
provisional, and the government established by the occupant of transient
character.
Following these practice and precepts of the law of nations, Commander in Chief
of the Japanese Forces proclaimed on January 3, 1942, when Manila was
occupied, the military administration under martial law over the territory occupied
by the army, and ordered that "all the laws now in force in the Commonwealth, as
well as executive and judicial institutions, shall continue to be affective for the
time being as in the past," and "all public officials shall remain in their present
post and carry on faithfully their duties as before." When the Philippine Executive
Commission was organized by Order No. 1 of the Japanese Commander in
Chief, on January 23, 1942, the Chairman of the Executive Commission, by
Executive Orders Nos. 1 and 4 of January 30 and February 5, respectively,
continued the Supreme Court, Court of Appeals, Court of First Instance, and
justices of the peace of courts, with the same jurisdiction in conformity with the
instructions given by the Commander in Chief of the Imperial Japanese Army in
Order No. 3 of February 20, 1942. And on October 14, 1943 when the so-called
Republic of the Philippines was inaugurated, the same courts were continued
with no substantial change in organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the
Japanese military occupation had been continued during the Japanese military
administration, the Philippine Executive Commission, and the so-called Republic
of the Philippines, it stands to reason that the same courts, which had become
reestablished and conceived of as having in continued existence upon the
reoccupation and liberation of the Philippines by virtue of the principle of
postliminy (Hall, International Law, 7th ed., p. 516), may continue the
proceedings in cases then pending in said courts, without necessity of enacting a
law conferring jurisdiction upon them to continue said proceedings. As Taylor
graphically points out in speaking of said principles "a state or other
governmental entity, upon the removal of a foreign military force, resumes its old
place with its right and duties substantially unimpaired. . . . Such political
resurrection is the result of a law analogous to that which enables elastic bodies
to regain their original shape upon removal of the external force, and subject
to the same exception in case of absolute crushing of the whole fibre and
content." (Taylor, International Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support in
his conclusion that the Court of First Instance of Manila presided over by him
"has no authority to take cognizance of, and continue said proceedings (of this
case) to final judgment until and unless the Government of the Commonwealth of
the Philippines . . . shall have provided for the transfer of the jurisdiction of the
courts of the now defunct Republic of the Philippines, and the cases commenced
and the left pending therein," is "that said courts were a government alien to the
Commonwealth Government. The laws they enforced were, true enough, laws of
the Commonwealth prior to Japanese occupation, but they had become the laws
and the courts had become the institutions of Japan by adoption
(U.S. vs. Reiter. 27 F. Cases, No. 16146), as they became later on the laws and
institutions of the Philippine Executive Commission and the Republic of the
Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the
laws and institutions of the country occupied if continued by the conqueror or
occupant, become the laws and the courts, by adoption, of the sovereign nation
that is militarily occupying the territory. Because, as already shown, belligerent or
military occupation is essentially provisional and does not serve to transfer the
sovereignty over the occupied territory to the occupant. What the court said was
that, if such laws and institutions are continued in use by the occupant, they
become his and derive their force from him, in the sense that he may continue or
set them aside. The laws and institution or courts so continued remain the laws
and institutions or courts of the occupied territory. The laws and the courts of the
Philippines, therefore, did not become, by being continued as required by the law
of nations, laws and courts of Japan. The provision of Article 45, section III, of the
Hague Conventions of 1907 which prohibits any compulsion of the population of
occupied territory to swear allegiance to the hostile power, "extends to prohibit
everything which would assert or imply a change made by the invader in the
legitimate sovereignty. This duty is neither to innovate in the political life of the
occupied districts, nor needlessly to break the continuity of their legal life. Hence,
so far as the courts of justice are allowed to continue administering the territorial
laws, they must be allowed to give their sentences in the name of the legitimate
sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According to
Wheaton, however, the victor need not allow the use of that of the legitimate
government. When in 1870, the Germans in France attempted to violate that rule
by ordering, after the fall of the Emperor Napoleon, the courts of Nancy to
administer justice in the name of the "High German Powers occupying Alsace
and Lorraine," upon the ground that the exercise of their powers in the name of
French people and government was at least an implied recognition of the
Republic, the courts refused to obey and suspended their sitting. Germany
originally ordered the use of the name of "High German Powers occupying
Alsace and Lorraine," but later offered to allow use of the name of the Emperor or
a compromise. (Wheaton, International Law, War, 7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law
once established continues until changed by the some competent legislative
power. It is not change merely by change of sovereignty." (Joseph H. Beale,
Cases on Conflict of Laws, III, Summary Section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his
Treatise on the Conflict on Laws (Cambridge, 1916, Section 131): "There can no
break or interregnum in law. From the time the law comes into existence with the
first-felt corporateness of a primitive people it must last until the final
disappearance of human society. Once created, it persists until a change take
place, and when changed it continues in such changed condition until the next
change, and so forever. Conquest or colonization is impotent to bring law to an
end; in spite of change of constitution, the law continues unchanged until the new
sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the
laws which create and confer upon them their jurisdiction, it is evident that such
laws, not being a political nature, are not abrogated by a change of sovereignty,
and continue in force "ex proprio vigore" unless and until repealed by legislative
acts. A proclamation that said laws and courts are expressly continued is not
necessary in order that they may continue in force. Such proclamation, if made,
is but a declaration of the intention of respecting and not repealing those laws.
Therefore, even assuming that Japan had legally acquired sovereignty over
these Islands, which she had afterwards transferred to the so-called Republic of
the Philippines, and that the laws and the courts of these Islands had become the
courts of Japan, as the said courts of the laws creating and conferring jurisdiction
upon them have continued in force until now, it necessarily follows that the same
courts may continue exercising the same jurisdiction over cases pending therein
before the restoration of the Commonwealth Government, unless and until they
are abolished or the laws creating and conferring jurisdiction upon them are
repealed by the said government. As a consequence, enabling laws or acts
providing that proceedings pending in one court be continued by or transferred to
another court, are not required by the mere change of government or
sovereignty. They are necessary only in case the former courts are abolished or
their jurisdiction so change that they can no longer continue taking cognizance of
the cases and proceedings commenced therein, in order that the new courts or
the courts having jurisdiction over said cases may continue the proceedings.
When the Spanish sovereignty in the Philippine Islands ceased and the Islands
came into the possession of the United States, the "Audiencia" or Supreme Court
was continued and did not cease to exist, and proceeded to take cognizance of
the actions pending therein upon the cessation of the Spanish sovereignty until
the said "Audiencia" or Supreme Court was abolished, and the Supreme Court
created in Chapter II of Act No. 136 was substituted in lieu thereof. And the
Courts of First Instance of the Islands during the Spanish regime continued
taking cognizance of cases pending therein upon the change of sovereignty, until
section 65 of the same Act No. 136 abolished them and created in its Chapter IV
the present Courts of First Instance in substitution of the former. Similarly, no
enabling acts were enacted during the Japanese occupation, but a mere
proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136
was enacted abolishing the civil jurisdiction of the provost courts created by the
military government of occupation in the Philippines during the Spanish-American
War of 1898, the same section 78 provided for the transfer of all civil actions then
pending in the provost courts to the proper tribunals, that is, to the justices of the
peace courts, Court of First Instance, or Supreme Court having jurisdiction over
them according to law. And later on, when the criminal jurisdiction of provost
courts in the City of Manila was abolished by section 3 of Act No. 186, the same
section provided that criminal cases pending therein within the jurisdiction of the
municipal court created by Act No. 183 were transferred to the latter.
That the present courts as the same courts which had been functioning during
the Japanese regime and, therefore, can continue the proceedings in cases
pending therein prior to the restoration of the Commonwealth of the Philippines,
is confirmed by Executive Order No. 37 which we have already quoted in support
of our conclusion in connection with the second question. Said Executive Order
provides"(1) that the Court of Appeals created and established under
Commonwealth Act No. 3 as amended, be abolished, as it is hereby abolished,"
and "(2) that all cases which have heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court for final decision. . . ." In so
providing, the said Order considers that the Court of Appeals abolished was the
same that existed prior to, and continued after, the restoration of the
Commonwealth Government; for, as we have stated in discussing the previous
question, almost all, if not all, of the cases pending therein, or which had
theretofore (that is, up to March 10, 1945) been duly appealed to said court, must
have been cases coming from the Courts of First Instance during the so-called
Republic of the Philippines. If the Court of Appeals abolished by the said
Executive Order was not the same one which had been functioning during the
Republic, but that which had existed up to the time of the Japanese occupation, it
would have provided that all the cases which had, prior to and up to that
occupation on January 2, 1942, been dully appealed to the said Court of Appeals
shall be transmitted to the Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue, to
final judgment, the proceedings in cases, not of political complexion, pending
therein at the time of the restoration of the Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First Instance
of Manila has jurisdiction to continue to final judgment the proceedings in civil
case No. 3012, which involves civil rights of the parties under the laws of the
Commonwealth Government, pending in said court at the time of the restoration
of the said Government; and that the respondent judge of the court, having
refused to act and continue him does a duty resulting from his office as presiding
judge of that court, mandamus is the speedy and adequate remedy in the
ordinary course of law, especially taking into consideration the fact that the
question of jurisdiction herein involved does affect not only this particular case,
but many other cases now pending in all the courts of these Islands.
In view of all the foregoing it is adjudged and decreed that a writ

of mandamus issue, directed to the respondent judge of the Court of First
Instance of Manila, ordering him to take cognizance of and continue to final
judgment the proceedings in civil case No. 3012 of said court. No
pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.
Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this case is the validity of the proceedings held
in civil case No. 3012, in the Court of First Instance of the City of Manila, under
the now defunct Philippine Republic, during Japanese occupation; and the effect
on said proceedings of the proclamation of General Douglas MacArthur, dated
October 23, 1944. The decision of this question requires the application of
principles of International Law, in connection with the municipal law in force in
this country, before and during Japanese occupation.
Questions of International Law must be decided as matters of general law
(Juntington vs. Attril, 146 U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and
International Law is no alien in this Tribunal, as, under the Constitution of the
Commonwealth of the Philippines, it is a part of the fundamental law of the land
(Article II, section 3).
As International Law is an integral part of our laws, it must be ascertained and
administered by this Court, whenever questions of right depending upon it are
presented for our determination, sitting as an international as well as a domestic
Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed.,
838).
Since International Law is a body of rules actually accepted by nations as
regulating their mutual relations, the proof of the existence of a given rule is to be
found in the consent of nations to abide by that rule; and this consent is
evidenced chiefly by the usages and customs of nations, and to ascertain what
these usages and customs are, the universal practice is to turn to the writings of
publicists and to the decisions of the highest courts of the different countries of
the world (The Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320).
But while usage is the older and original source of International Law, great
international treaties are a later source of increasing importance, such as The
Hague Conventions of 1899 and 1907.
The Hague Conventions of 1899, respecting laws and customs of war on land,
expressly declares that:
ARTICLE XLII. Territory is considered occupied when it is actually placed
under the authority of the hostile army.
The occupation applies only to be territory where such authority is
established, and in a position to assert itself.
ARTICLE XLIII. The authority of the legitimate power having actually
passed into the hands of the occupant, the later shall take all steps in his
power to reestablish and insure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force in the
country. (32 Stat. II, 1821.)
The above provisions of the Hague Convention have been adopted by the
nations giving adherence to them, among which is United States of America (32
Stat. II, 1821).
The commander in chief of the invading forces or military occupant may exercise
governmental authority, but only when in actual possession of the enemy's
territory, and this authority will be exercised upon principles of international Law
(New Orleans vs. Steamship Co, [1874], 20 Wall., 387; Kelly vs. Sanders [1878],
99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57 Law Ed.,
1260; II Oppenheim of International Law, section 167).
There can be no question that the Philippines was under Japanese military
occupation, from January, 1942, up to the time of the reconquest by the armed
forces of the United States of the Island of Luzon, in February, 1945.
It will thus be readily seen that the civil laws of the invaded State continue in
force, in so far as they do not affect the hostile occupant unfavorably. The regular
judicial Tribunals of the occupied territory continue usual for the invader to take
the whole administration into his own hands, partly because it is easier to
preserve order through the agency of the native officials, and partly because it is
easier to preserve order through the agency of the native officials, and partly
because the latter are more competent to administer the laws in force within the
territory and the military occupant generally keeps in their posts such of the
judicial and administrative officers as are willing to serve under him, subjecting
them only to supervision by the military authorities, or by superior civil authorities

appointed by him.(Young vs. U.S., 39; 24 Law, ed., 992; Coleman vs. Tennessee,
97 U.S., 509; 24 Law ed., 1118; MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct.,
955; 57 Law. ed., 1260; Taylor on International Law, sections 576. 578; Wilson on
International Law; pp. 331-37; Hall on International Law, 6th Edition [1909], pp.
464, 465, 475, 476; Lawrence on International Law, 7th ed., pp. 412, 413; Davis,
Elements of International Law, 3rd ed., pp. 330-332 335; Holland on International
Law pp. 356, 357, 359; Westlake on International Law, 2d ed., pp. 121-23.)
It is, therefore, evident that the establishment of the government under the socalled Philippine Republic, during Japanese occupation, respecting the laws in
force in the country, and permitting the local courts to function and administer
such laws, as proclaimed in the City of Manila, by the Commander in Chief of the
Japanese Imperial Forces, on January 3, 1942, was in accordance with the rules
and principles of International Law.
If the military occupant is thus in duly bound to establish in the territory under
military occupation governmental agencies for the preservation of peace and
order and for the proper administration of justice, in accordance with the laws in
force within territory it must necessarily follow that the judicial proceedings
conducted before the courts established by the military occupant must be
considered legal and valid, even after said government establish by the military
occupant has been displaced by the legitimate government of the territory.
Thus the judgments rendered by the Confederate Courts, during the American
Civil War, merely settling the rights of private parties actually within their
jurisdiction, not tending to defeat the legal rights of citizens of the United States,
nor in furtherance of laws passed in aid of the rebellion had been declared valid
and binding (Cock vs.Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williamsvs. Bruffy, 96
U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459;
Texas vs. White, 7id., 700; Ketchum vs. Buckley [1878], 99 U.S., 188); and the
judgment of a court of Georgia rendered in November, 1861, for the purchase
money of slaves was held valid judgment when entered, and enforceable in
1871(French vs. Tumlin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).
Said judgments rendered by the courts of the states constituting the Confederate
States of America were considered legal and valid and enforceable, even after
the termination of the American Civil War, because they had been rendered by
the courts of a de facto government. The Confederate States were a de
facto government in the sense that its citizens were bound to render the
government obedience in civil matters, and did not become responsible, as
wrong-doers, for such acts of obedience (Thorington vs. Smith, 8 Wall. [U.S.], 9;
19 Law. ed., 361).
In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held "It is
now settled law in this court that during the late civil war the same general form
of government, the same general law for the administration of justice and the
protection of private rights, which had existed in the States prior to the rebellion,
remained during its continuance and afterwards. As far as the acts of the States
did not impair or tend to impair the supremacy of the national authority, or the just
and legal rights of the citizens, under the Constitution, they are in general to be
treated as valid and binding." (William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart,
17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700.)
The government established in the Philippines, during Japanese occupation,
would seem to fall under the following definition of de facto government given by
the Supreme Court of the United States:
But there is another description of government, called also by publicists, a
government de facto, but which might, perhaps, be more aptly
denominateda government of paramount force. 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 exists it must
obedience rendered in submission to such force, do not become
responsible, as wrong doers, for those acts, though not warranted by the
laws of the rightful government. Actual government of this sort are
established over districts differing greatly in extent and conditions. They
are usually administered directly by military authority, but they may be
administered, also, by civil authority, supported more or less directly by
military force. (Macleod vs. United States [1913] 229 U.S., 416.)
The government established in the Philippines, under the so-called Philippine
Republic, during Japanese occupation, was and should be considered as a de
facto government; and that the judicial proceedings conducted before the courts
which had been established in this country, during said Japanese occupation, are
to be considered legal and valid and enforceable, even after the liberation of this
country by the American forces, as long as the said judicial proceedings had
been conducted, under the laws of the Commonwealth of the Philippines.
The judicial proceedings involved in the case under consideration merely refer to
the settlement of property rights, under the provisions of the Civil Code, in force
in this country under the Commonwealth government, before and during

Japanese occupation.
Now, petitioner contends that the judicial proceedings in question are null and
void, under the provisions of the proclamation issued by General Douglas
MacArthur, dated October 23, 1944; as said proclamation "nullifies all the laws,
regulations and processes of any other government of the Philippines than that of
the Commonwealth of the Philippines."
In other words, petitioner demands a literal interpretation of said proclamation
issued by General Douglas MacArthur, a contention which, in our opinion, is
untenable, as it would inevitably produce judicial chaos and uncertainties.
When an act is susceptible of two or more constructions, one of which will
maintain and the others destroy it, the courts will always adopt the former (U.
S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of
Granada County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5 Sup. Ct.
Rep., 125; In re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons
[1924], 46 Phil., 385). The judiciary, always alive to the dictates of national
welfare, can properly incline the scales of its decisions in favor of that solution
which will most effectively promote the public policy (Smith, Bell & Co.,
Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible
construction. General terms should be so limited in their application as not lead
to injustice, oppression or an absurd consequence. It will always, therefore, be
presumed that the legislature intended exceptions to its language, which would
avoid results of this character. The reason of the law in such cases should prevail
over its letter (U. S. vs. Kirby, 7 Wall. [U.S.], 482; 19 Law. ed., 278; Church of
Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed., 226;
Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643;
3 Ann. Cas., 765; In re Allen, 2 Phil., 630). The duty of the court in construing a
statute, which is reasonably susceptible of two constructions to adopt that which
saves is constitutionality, includes the duty of avoiding a construction which
raises grave and doubtful constitutional questions, if it can be avoided (U.
S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836).
According to the rules and principles of International Law, and the legal doctrines
cited above, the judicial proceedings conducted before the courts of justice,
established here during Japanese military occupation, merely applying the
municipal law of the territory, such as the provisions of our Civil Code, which
have no political or military significance, should be considered legal, valid and
binding.
It is to be presumed that General Douglas MacArthur is familiar with said rules

and principles, as International Law is an integral part of the fundamental law of
the land, in accordance with the provisions of the Constitution of the United
States. And it is also to be presumed that General MacArthur his acted, in
accordance with said rules and principles of International Law, which have been
sanctioned by the Supreme Court of the United States, as the nullification of all
judicial proceedings conducted before our courts, during Japanese occupation
would lead to injustice and absurd results, and would be highly detrimental to the
public interests.
For the foregoing reasons, I concur in the majority opinion.

Law must be obeyed. To keep the bonds of society, it must not be evaded. On its
supremacy depends the stability of states and nations. No government can
prevail without it. The preservation of the human race itself hinges in law.
Since time immemorial, man has relied on law as an essential means of attaining
his purposes, his objectives, his mission in life. More than twenty-two centuries
before the Christian Era, on orders of the Assyrian King Hammurabi, the first
code was engrave in black diorite with cunie form characters. Nine centuries later
Emperor Hung Wu, in the cradle of the most ancient civilization, compiled the
Code of the Great Ming. The laws of Manu were written in the verdic India.
Moses received at Sinai the ten commandments. Draco, Lycurgus, Solon made
laws in Greece. Even ruthless Genghis Khan used laws to keep discipline among
the nomad hordes with which he conquered the greater part of the European and
Asiastic continents.
Animal and plants species must follow the mendelian heredity rules and other
biological laws to survive. Thanks to them, the chalk cliffs of the infusoria show
the marvel of an animal so tiny as to be imperceptible to the naked eye creating a
whole mountain. Even the inorganic world has to conform the law. Planets and
stars follow the laws discovered by Kepler, known as the law-maker of heavens.
If, endowed with rebellious spirit, they should happen to challenge the law of
universal gravity, the immediate result would be cosmic chaos. The tiny and
twinkling points of light set above us on the velvet darkness of the night will
cease to inspire us with dreams of more beautiful and happier worlds.
Again we are called upon to do our duty. Here is a law that we must apply. Shall
we shrink? Shall we circumvent it ? Can we ignore it?
The laws enacted by the legislators shall be useless if courts are not ready to
apply them. It is actual application to real issues which gives laws the breath of
life.
In the varied and confused market of human endeavor there are so many things
that might induce us to forget the elementals. There are so many events, so
many problem, so many preoccupations that are pushing among themselves to
attract our attention, and we might miss the nearest and most familiar things, like
the man who went around his house to look for a pencil perched on one of his
ears.
THE OCTOBER PROCLAMATION
In October, 1944, the American Armed Forces of Liberation landed successfully
in Leyte.
When victory in islands was accomplished, after the most amazing and
spectacular war operations, General of the Army Douglas MacArthur as a
commander in Chief of the American Army, decided to reestablish, in behalf of
the United States, the Commonwealth Government.
Then he was confronted with the question as to what policy to adopt in regards to
the official acts of the governments established in the Philippines by the
Japanese regime. He might have thought of recognizing the validity of some of
said acts, but, certainly, there were acts which he should declare null and void,
whether against the policies of the American Government, whether inconsistent
with military strategy and operations, whether detrimental to the interests of the
American or Filipino peoples, whether for any other strong or valid reasons.
But, which to recognize, and which not? He was not in a position to gather
enough information for a safe basis to distinguished and classify which acts must
be nullified, and which must validated. At the same time he had to take
immediate action. More pressing military matters were requiring his immediate
attention. He followed the safe course: to nullify all the legislative, executive, and
judicial acts and processes under the Japanese regime. After all, when the
Commonwealth Government is already functioning, with proper information, he
will be in a position to declare by law, through its Congress, which acts and
processes must be revived and validated in the public interest.
So on October 23, 1944, the Commander in Chief issued the following

proclamation:
GENERAL HEADQUARTERS
SOUTHWEST PACIFIC AREA
OFFICE OF THE COMMANDER IN CHIEF
PROCLAMATION
To the People of the Philippines:
WHEREAS, the military forces under my command have landed in the
Philippines soil as a prelude to the liberation of the entire territory of the
Philippines; and
WHEREAS, the seat of the Government of the Commonwealth of the
Philippines has been re-established in the Philippines under President
Sergio Osmea and the members of his cabinet; and
WHEREAS, under enemy duress, a so-called government styled as the
"Republic of the Philippines" was established on October 14, 1943, based
upon neither the free expression of the people's will nor the sanction of the
Government of the United States, and is purporting to exercise Executive,
Judicial and Legislative powers of government over the people;
Now, therefore, I, Douglas MacArthur, General, United States Army, as
Commander in Chief of the military forces committed to the liberation of the
Philippines, do hereby proclaim and declare:
1. That the Government of the Commonwealth of the Philippines is,
subject to the supreme authority of the Government of the United
States, the sole and the only government having legal and valid
jurisdiction over the people in areas of the Philippines free of enemy
occupation and control;
2. The laws now existing on the statute books of the Commonwealth
of the Philippines and the regulation promulgated pursuant thereto
are in full force and effect and legally binding upon the people in
areas of the Philippines free of enemy occupation and control; and
3. That all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and
void and without legal effect in areas of the Philippines free enemy
occupation and control; and
I do hereby announce my purpose progressively to restore and extend to
the people of the Philippines the sacred right of government by
constitutional process under the regularly constituted Commonwealth
Government as rapidly as the several occupied areas are liberated to the
military situation will otherwise permit;
I do enjoin upon all loyal citizens of the Philippines full respect for and
obedience to the Constitution of the Commonwealth of the Philippines and
the laws, regulations and other acts of their duly constituted government
whose seat is now firmly re-established on Philippine soil.
October 23, 1944.
DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief
IS THE OCTOBER PROCLAMATION LAW?
In times of war the Commander in Chief of an army is vested with extraordinary
inherent powers, as a natural result of the nature of the military operations aimed
to achieve the purposes of his country in the war, victory being paramount among
them.
Said Commander in Chief may establish in the occupied or reoccupied territory,
under his control, a complete system of government; he may appoint officers and
employees to manage the affairs of said government; he may issue
proclamations, instructions, orders, all with the full force of laws enacted by a
duly constituted legislature; he may set policies that should be followed by the
public administration organized by him; he may abolish the said agencies. In fact,
he is the supreme ruler and law-maker of the territory under his control, with
powers limited only by the receipts of the fundamental laws of his country.
California, or the port of San Francisco, had been conquered by the arms
of the United States as early as 1846. Shortly afterward the United States
had military possession of all upper California. Early in 1847 the President,
as constitutional commander in chief of the army and navy, authorized the
military and naval commander of our forces in California to exercise the
belligerent rights of a conqueror, and form a civil government for the
conquered country, and to impose duties on imports and tonnage as
military contributions for the support of the government, and of the army
which has the conquest in possession. . . Cross of Harrison, 16 Howard,
164, 189.)
In May, 1862, after the capture of New Orleans by the United States Army,
General Butler, then in command of the army at that place, issued a
general order appointing Major J. M. Bell, volunteer aide-de-camp, of the
division staff, provost judge of the city, and directed that he should be
obeyed and respected accordingly. The same order appointed Capt. J. H.
French provost marshal of the city, the Capt. Stafford deputy provost
marshal. A few days after this order the Union Bank lent to the plaintiffs the
sum of $130,000, and subsequently, the loan not having been repaid,
brought suit before the provost judge to recover the debt. The defense was
taken that the judge had no jurisdiction over the civil cases, but judgement
was given against the borrowers, and they paid the money under protest.
To recover it back is the object of the present suit, and the contention of
the plaintiffs is that the judgement was illegal and void, because the
Provost Court had no jurisdiction of the case. The judgement of the District
Court was against the plaintiffs, and this judgement was affirmed by the
Supreme Court of the State. To this affirmance error is now assigned.
The argument of the plaintiffs in error is that the establishment of the
Provost Court, the appointment of the judge, and his action as such in the
case brought by the Union Bank against them were invalid, because in
violation of the Constitution of the United States, which vests the judicial
power of the General government in one Supreme Court and in such
inferior courts as Congress may from time to time ordain and establish,
and under this constitutional provision they were entitled to immunity from
liability imposed by the judgment of the Provost Court. Thus, it is claimed,
a Federal question is presented, and the highest court of the State having
decided against the immunity claimed, our jurisdiction is invoked.
Assuming that the case is thus brought within our right to review it, the
controlling question is whether the commanding general of the army which
captured New Orleans and held it in May 1862, had authority after the
capture of the city to establish a court and appoint a judge with power to try
and adjudicate civil causes. Did the Constitution of the United States
prevent the creation of the civil courts in captured districts during the war of
the rebellion, and their creation by military authority?
This cannot be said to be an open question. The subject came under the
consideration by this court in The Grapeshot, where it was decided that
when, during the late civil war, portions of the insurgent territory were
occupied by the National forces, it was within the constitutional authority of

the President, as commander in chief, to establish therein provisional
courts for the hearing and determination of all causes arising under the
laws of the States or of the United States, and it was ruled that a court
instituted by President Lincoln for the State of Louisiana, with authority to
hear, try, and determine civil causes, was lawfully authorized to exercise
such jurisdiction. Its establishment by the military authority was held to be
no violation of the constitutional provision that "the judicial power of the
United States shall be vested in one Supreme Court and in such inferior
courts as the Congress may form time to time ordain and establish." That
clause of the Constitution has no application to the abnormal condition of
conquered territory in the occupancy of the conquering, army. It refers only
to courts of United States, which military courts are not. As was said in the
opinion of the court, delivered by Chief Justice Chase, in The Grapeshot,
"It became the duty of the National government, wherever the insurgent
power was overthrown, and the territory which had been dominated by it
was occupied by the National forces, to provide, as far as possible, so long
as the war continued, for the security of the persons and property and for
the administration of justice. The duty of the National government in this
respect was no other than that which devolves upon a regular belligerent,
occupying during war the territory of another belligerent. It was a military
duty, to be performed by the President, as Commander in Chief, and
instructed as such with the direction of the military force by which the
occupation was held."
Thus it has been determined that the power to establish by military
authority courts for the administration of civil as well as criminal justice in
portions of the insurgent States occupied by the National forces, is
precisely the same as that which exists when foreign territory has been
conquered and is occupied by the conquerors. What that power is has
several times been considered. In Leitensdorfer & Houghton vs. Webb,
may be found a notable illustration. Upon the conquest of New Mexico, in
1846, the commanding officer of the conquering army, in virtue of the
power of conquest and occupancy, and with the sanction and authority of
the President, ordained a provisional government for the country. The
ordinance created courts, with both civil and criminal jurisdiction. It did not
undertake to change the municipal laws of the territory, but it established a
judicial system with a superior or appellate court, and with circuit courts,
the jurisdiction of which declared to embrace, first, all criminal causes that
should not otherwise provided for by law; and secondly, original and
exclusive cognizance of all civil cases not cognizable before the prefects
and alcades. But though these courts and this judicial system were
established by the military authority of the United States, without any
legislation of Congress, this court ruled that they were lawfully established.
And there was no express order for their establishment emanating from the
President or the Commander in Chief. The ordinance was the act of the
General Kearney the commanding officer of the army occupying the
conquered territory.
In view of these decisions it is not to be questioned that the Constitution
did not prohibit the creation by the military authority of court for the trial of
civil causes during the civil war in conquered portions of the insurgent
States. The establishment of such courts is but the exercise of the ordinary
rights of conquest. The plaintiffs in error, therefore, had no constitutional
immunity against subjection to the judgements of such courts. They argue,
however, that if this be conceded, still General Butler had no authority to
establish such a court; that the President alone, as a Commander in Chief,
had such authority. We do not concur in this view. General Butler was in
command of the conquering and the occupying army. He was
commissioned to carry on the war in Louisina. He was, therefore, invested
with all the powers of making war, so far as they were denied to him by the
Commander in Chief, and among these powers, as we have seen, was of
establishing courts in conquered territory. It must be presumed that he
acted under the orders of his superior officer, the President, and that his
acts, in the prosecution of the war, were the acts of his commander in
chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)
There is no question, therefore, that when General of the Army Douglas
MacArthur issued on October Proclamation, he did it in the legitimate exercise of
his powers. He did it as the official representative of the supreme authority of the
United States of America. Consequently, said proclamation is legal, valid, and
binding.
Said proclamation has the full force of a law. In fact, of a paramount law. Having
been issued in the exercise of the American sovereignty, in case of conflict, it can
even supersede, not only the ordinary laws of the Commonwealth of the
Philippines, but also our Constitution itself while we remain under the American
flag.
"PROCESS" IN THE OCTOBER PROCLAMATION
In the third section of the dispositive part of the October Proclamation, it is
declared that all laws, regulations and processes of any other government in the
Philippines than that of the Commonwealth, are null and void.
Does the word "processes" used in the proclamation include judicial processes?
In its broadest sense, process is synonymous with proceedings or procedures

and embraces all the steps and proceedings in a judicial cause from it
commencement to its conclusion.
PROCESS. In Practice. The means of compelling a defendant to appear
in court after suing out the original writ, in civil, and after indictment, in
criminal cases.
The method taken by law to compel a compliance with the original writ or
command as of the court.
A writ, warrant, subpoena, or other formal writing issued by authority law;
also the means of accomplishing an end, including judicial proceedings;
Gollobitch vs. Rainbow, 84 la., 567; 51 N. W., 48; the means or method
pointed out by a statute, or used to acquire jurisdiction of the defendants,
whether by writ or notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286;
32 Am. St. Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.)
A. Process generally. 1. Definition. As a legal term process is a generic
word of every comprehensive signification and many meanings. It is
broadest sense it is equivalent to, or synonymous with, "proceedings" or
"procedure," and embraces all the steps and proceedings in a cause from
its commencement to its conclusion. Sometimes the term is also broadly
defined as the means whereby a court compels a compliance with it
demands. "Process" and "writ" or "writs" are synonymous in the sense that
every writ is a process, and in a narrow sense of the term "process" is
limited to judicial writs in an action, or at least to writs or writings issued
from or out of court, under the seal thereof, and returnable thereto; but it is
not always necessary to construe the term so strictly as to limit it to a writ
issued by a court in the exercise of its ordinary jurisdiction; the term is
sometimes defined as a writ or other formal writing issued by authority of
law or by some court, body, or official having authority to issue it; and it is
frequently used to designate a means, by writ or otherwise , of acquiring
jurisdiction of defendant or his property, or of bringing defendant into, or
compelling him to appear in, court to answer.
As employed in the statutes the legal meaning of the word "process" varies
according to the context, subject matter, and spirit of the statute in which it
occurs. In some jurisdictions codes or statutes variously define "process"
as signifying or including: A writ or summons issued in the course of
judicial proceedings; all writs, warrants, summonses, and orders of courts
of justice or judicial officers; or any writ, declaration, summons, order, or
subpoena whereby any action, suit or proceeding shall be commenced, or
which shall be issued in or upon any action, suit or proceeding. (50 C. J.,
PP. 441, 442.)
The definition of "process" given by Lord Coke comprehends any lawful
warrant, authority, or proceeding by which a man may be arrested. He
says: "Process of law is two fold, namely, by the King's writ, or by
proceeding and warrant, either in deed or in law, without writ."
(People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869;
73 Vt., 149.)
Baron Comyn says that process, in a large acceptance, comprehends the
whole proceedings after the original and before judgement; but generally it
imports the writs which issue out of any court to bring the party to answer,
or for doing execution, and all process out of the King's court ought to be in
the name of the King. It is called "process" because it proceeds or goes
upon former matter, either original or judicial. Gilmer, vs. Bird 15 Fla., 410,
421. (34 Words and Phrases, permanent edition, 1940 edition, p. 147.)
In a broad sense the word "process" includes the means whereby a court
compels the appearance of the defendant before it, or a compliance with it
demands, and any every writ, rule order, notice, or decree, including any
process of execution that may issue in or upon any action, suit, or legal
proceedings, and it is not restricted to mesne process. In a narrow or
restricted sense it is means those mandates of the court intending to bring
parties into court or to require them to answer proceedings there pending.
(Colquitt Nat. Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329. (34
Words and Phrases, permanent edition, 1940 edition, p. 148.)
A "process" is an instrument in an epistolary from running in the name of
the sovereign of a state and issued out of a court of justice, or by a judge
thereof, at the commencement of an action or at any time during its
progress or incident thereto, usually under seal of the court, duly attested
and directed to some municipal officer or to the party to be bound by it,
commanding the commission of some act at or within a specified time, or
prohibiting the doing of some act. The cardinal requisites are that the
instrument issue from a court of justice, or a judge thereof; that it run in the
name of the sovereign of the state; that it be duly attested, but not
necessarily by the judge, though usually, but not always, under seal; and
that it be directed to some one commanding or prohibiting the commission
of an act. Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70 Kan.,
43. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.)
Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it
is largely taken for all proceedings in any action or prosecution, real or
personal, civil or criminal, from the beginning to the end; secondly, that is
termed the "process" by which a man is called into any temporal court,
because the beginning or principal part thereof, by which the rest is
directed or taken. Strictly, it is a proceeding after the original, before the
judgement. A policy of fire insurance contained the condition that if the
property shall be sold or transferred, or any change takes place in title or
possession, whether by legal process or judicial decree or voluntary
transfer or convenience, then and in every such case the policy shall be
void. The term "legal process," as used in the policy, means what is known
as a writ; and, as attachment or execution on the writs are usually
employed to effect a change of title to property, they are or are amongst
the processes contemplated by the policy. The words "legal process" mean
all the proceedings in an action or proceeding. They would necessarily
embrace the decree, which ordinarily includes the proceedings.
Perry vs. Lorillard Fire Ins. Co., N. Y., 6 Lans., 201, 204. See, also,
Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words and Phrases, permanent
edition, 1940 edition, p. 148.)
"Process" in a large acceptation, is nearly synonymous with "proceedings,"
and means the entire proceedings in an action, from the beginning to the
end. In a stricter sense, it is applied to the several judicial writs issued in
an action. Hanna vs. Russell, 12 Minn., 80, 86 (Gil., 43, 45). (34 Words
and Phrases, permanent edition, 1940, edition 149.)
The term "process" as commonly applied, intends that proceeding by
which a party is called into court, but it has more enlarged signification,
and covers all the proceedings in a court, from the beginning to the end of
the suit; and, in this view, all proceedings which may be had to bring
testimony into court, whether viva voce or in writing, may be considered
the process of the court. Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id.
"Process" in its broadest sense comprehends all proceedings to the
accomplishment of an end, including judicial proceedings. Frequently its
signification is limited to the means of bringing a party in court. In the
Constitution process which at the common law would have run in the name
of the king is intended. In the Code process issued from a court is meant.
McKenna vs. Cooper, 101 P., 662, 663; 79 Kan., 847, quoting
Hanna vs. Russel, 12 Minn., 80. (Gil., 43 ); Black Com. 279; Bou vs. Law.
Dict. (34 Words and Phrases, permanent edition 1940 edition, p. 149.)
"Judicial process" includes the mandate of a court to its officers, and a

means whereby courts compel the appearance of parties, or compliance
with its commands, and includes a summons. Ex parte Hill, 51 So., 786,
787; 165 Ala., 365.
"Judicial process" comprehends all the acts of then court from the
beginning of the proceeding to its end, and in a narrower sense is the
means of compelling a defendant to appear in court after suing out the
original writ in civil case and after the indictment in criminal cases, and in
every sense is the act of the court and includes any means of acquiring
jurisdiction and includes attachment, garnishment, or execution, and also a
writ. Blair vs. Maxbass Security Bank of Maxbass, 176 N. W., 98, 199; 44
N. D. 12 (23 Words and Phrases, permanent edition 1940 edition, p. 328.)
There is no question that the word process, as used in the October Proclamation,
includes all judicial processes or proceedings.
The intention of the author of the proclamation of including judicial processes
appears clearly in the preamble of the document.
The second "Whereas," states that so-called government styled as the "Republic
of the Philippines," based upon neither the free expression of the people's will
nor the sanction of the Government of the United States, and is purporting to the
exercise Executive, Judicial, and Legislative powers of government over the
people."
It is evident from the above-mentioned words that it was the purpose of General
MacArthur to declare null and void all acts of government under the Japanese
regime, and he used, in section 3 of he dispositive part, the word laws, as
pertaining to the legislative branch, the word regulations, as pertaining to the
executive branch, and lastly, the word processes, as pertaining to the judicial
branch of the government which functioned under the Japanese regime.
It is reasonable to assume that he might include in the word "process." besides
those judicial character, those of executive or administrative character. At any
rate, judicial processes cannot be excluded.
THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY
THE INTENTION OF THE AUTHOR
The October Proclamation is written in such a way that it is impossible to make a
mistake as to the intention of its author.
Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the
Supreme Court of the United States, the following:
When the words in their literal sense have a plain meaning, courts must be
very cautious in allowing their imagination to give them a different one.
Guild vs. Walter, 182 Mass., 225, 226 (1902)
Upon questions of construction when arbitrary rule is involved, it is always
more important to consider the words and the circumstances than even
strong analogies decisions. The successive neglect of a series of small
distinctions, in the effort to follow precedent, is very liable to end in
perverting instruments from their plain meaning. In no other branch of the
law (trusts) is so much discretion required in dealing with authority. . . .
There is a strong presumption in favor of giving them words their natural
meaning, and against reading them as if they said something else, which
they are not fitted to express. (Merrill vs. Preston, 135 Mass., 451, 455
(1883).
When the words of an instrument are free from ambiguity and doubt, and express
plainly, clearly and distinctly the sense of the framer, there is no occasion to
resort to other means of interpretation. It is not allowable to interpret what needs
no interpretation.
Very strong expression have been used by the courts to emphasize the principle
that they are to derive their knowledge of the legislative intention from the words
or language of the statute itself which the legislature has used to express it. The
language of a statute is its most natural guide. We are not liberty to imagine an
intent and bind the letter to the intent.
The Supreme Court of the United States said: "The primary and general rule of
statutory construction is that the intent of the law-maker is to be found in the
language that he has used. He is presumed to know the meaning of the words
and the rules of grammar. The courts have no function of legislation, and simply
seek to ascertain the will of the legislator. It is true that there are cases in which
the letter of the statute is not deemed controlling, but the cases are few and
exceptional and only arise where there are cogent reasons for believing that the
letter does not fully and accurately disclose the intent. No mere ommission, no
mere failure to provide for contingencies, which it may seem wise should have
specifically provided for will justify any judicial addition to the language of the
statute." (United States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep.,
3; 42 Law. ed., 394.)
That the Government of the Commonwealth of the Philippines shall be the sole
and only government in our country; that our laws are in full force and effect and
legally binding; that "all laws, regulations and processes of any other government
are null and void and without legal effect", are provisions clearly, distinctly,
unmistakably expressed in the October Proclamation, as to which there is no
possibility of error, and there is absolutely no reason in trying to find different
meanings of the plain words employed in the document.
As we have already seen, the annulled processes are precisely judicial
processes, procedures and proceedings, including the one which is under our
consideration.
THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY
Although, as we have already stated, there is no possible mistakes as to the
meaning of the words employed in the October Proclamation, and the text of the
document expresses, in clear-cut sentences, the true purposes of its author, it
might not be amiss to state here what was the policy intended to be established
by said proclamation.
It is a matter of judicial knowledge that in the global war just ended on September
2, 1945, by the signatures on the document of unconditional surrender affixed by
representatives of the Japanese government, the belligerents on both sides
resorted to what may call war weapons of psychological character.
So Japan, since its military forces occupied Manila, had waged an intensive
campaign propaganda, intended to destroy the faith of the Filipino people in
America, to wipe out all manifestations of American or occidental civilization, to
create interest in all things Japanese, which the imperial officers tried to present
as the acme of oriental culture, and to arouse racial prejudice among orientals
and occidentals, to induce the Filipinos to rally to the cause of Japan, which she
tried to make us believe is the cause of the inhabitants of all East Asia.
It is, then, natural that General MacArthur should take counter-measures to
neutralize or annul completely all vestiges of Japanese influence, specially those
which might jeopardize in any way his military operations and his means of
achieving the main objective of the campaign of the liberation, that is, to restore
in our country constitutional processes and the high ideals constitute the very
essence of democracy.
It was necessary to free, not only our territory, but also our spiritual patrimony. It
was necessary, not only to restore to us the opportunity of enjoying the physical
treasures which a beneficent Providence accumulated on this bountiful land, the
true paradise in the western Pacific, but to restore the full play of our ideology,
that wonderful admixture of sensible principles of human conduct, bequeathed to
us by our Malayan ancestors, the moral principles of the Christianity assimilated
by our people from teachers of Spain, and the common-sense rules of the
American democratic way of life.
It was necessary to free that ideology from any Japanese impurity.
Undoubtedly, the author of the proclamation thought that the laws, regulations,
and processes of all the branches of the governments established under the
Japanese regime, if allowed to continue and to have effect, might be a means of
keeping and spreading in our country the Japanese influence, with the same
deadly effects as the mines planted by the retreating enemy.
The government offices and agencies which functioned during the Japanese
occupation represented a sovereignty and ideology antagonistic to the
sovereignty and ideology which MacArthur's forces sought to restore in our
country.
Under chapter I of the Japanese Constitution, it is declared that Japan shall
reigned and governed by a line Emperors unbroken for ages eternal (Article 1);
that the Emperor is sacred and inviolable (Article 3); that he is the head of the
Empire, combining in himself the rights of the sovereignty (Article 4); that he
exercises the legislative power (Article 5); that he gives sanction to laws, and
orders to be promulgated and executed (Article 6);that he has the supreme
command of the Army and Navy (Article 11); that he declares war, makes peace,
and concludes treaties (Article 13).
There is no reason for allowing to remain any vestige of Japanese ideology, the
ideology of a people which as confessed in a book we have at our desk, written
by a Japanese, insists in doing many things precisely in a way opposite to that
followed by the rest of the world.
It is the ideology of a people which insists in adopting the policy of self-delusion;
that believes that their Emperor is a direct descendant of gods and he himself is
a god, and that the typhoon which occured on August 14, 1281, which destroyed
the fleet with which Kublai Khan tried to invade Japan was the divine wind of Ise;
that defies the heinous crime of the ronin, the 47 assassins who, in order to
avenge the death of their master Asano Naganori, on February 3, 1703, entered
stealthily into the house of Yoshinaka Kiro and killed him treacherously.
It is an ideology which dignifies harakiri or sepukku, the most bloody and
repugnant from suicide, and on September 13, 1912, on the occasion of the
funeral of Emperor Meiji, induced General Maresuke Nogi and his wife to practice
the abhorrent "junshi", and example of which is offered to us in the following
words of a historian:
When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that,
following the occasion, his attendants were assembled to from the hitobashira (pillar-men) to gird the grave. They were buried alive in circle up to
the neck around the thomb and "for several days they died not, but wept
and wailed day night. At last they died not, but wept and wailed day night.
At last they did not rotted. Dogs and cows gathered and ate them."
(Gowen, an Outline of History of Japan, p. 50.)
The practice shows that the Japanese are the spiritual descendants of the
Sumerians, the ferocious inhabitants of Babylonia who, 3500 years B. C.,
appeared in history as the first human beings to honor their patesis by killing and
entombing with him his window, his ministers, and notable men and women of his
kingdom, selected by the priests to partake of such abominable honor. (Broduer,
The Pageant of Civilization, pp. 62-66.)
General MacArthur sought to annul completely the officials acts of the
governments under the Japanese occupation, because they were done at the
shadow of the Japanese dictatorship, the same which destroyed the
independence of Korea, the "Empire of Morning Frehsness"; they violated the
territorial integrity of China, invaded Manchuria, and initiated therein the deceitful
system of puppet governments, by designating irresponsible Pu Yi as Emperor of
Manchukuo; they violated the trusteeship granted by the Treaty of Versailles by
usurping tha mandated islands in the Pacific; they initiated that they call China
Incident, without war declaration, and, therefore, in complete disregard of an
elemental international duty; they attacked Pearl Harbor treacherously, and
committed a long series of the flagrant violations of international law that have
logically bestowed on Japan the title of the bandit nation in the social world.
The conduct of the Japanese during the occupation shows a shocking an
anchronism of a modern world power which seems to be re-incarnation of one
whose primitive social types of pre-history, whose proper place must be found in
an archeological collection. It represents a backward jump in the evolution of
ethical and juridical concepts, a reversion that, more than a simple pathological
state, represents a characteristics and well defined case of sociological
teratology.
Since they entered the threshold of our capital, the Japanese had announced
that for every one of them killed they would kill ten prominent Filipinos. They
promised to respect our rights by submitting us to the wholesale and
indiscriminate slapping, tortures, and atrocious massacres. Driving nails in the

cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical
zonings, looting of properties, establishments of redlight districts, machine
gunning of women and children, interment of alive persons, they are just mere
preludes of the promised paradised that they called "Greater East Asia CoProsperity Sphere".
They promised religious liberty by compelling all protestant sects to unite, against
the religious scruples and convictions of their members, in one group, and by
profaning convents, seminaries, churches, and other cult centers of the
Catholics, utilizing them as military barracks, munitions dumps, artillery base,
deposits of bombs and gasoline, torture chambers and zone, and by compelling
the government officials and employees to face and to bow in adoration before
that caricature of divinity in the imperial palace of Tokyo.
The Japanese offered themselves to be our cultural mentors by depriving us of
the use of our schools and colleges, by destroying our books and other means of
culture, by falsifying the contents of school texts, by eliminating free press, the
radio, all elemental principles of civilized conduct, by establishing classes of
rudimentary Japanese so as to reduce the Filipinos to the mental level of the
rude Japanese guards, and by disseminating all kinds of historical, political, and
cultural falsehoods.
Invoking our geographical propinquity and race affinity, they had the insolence of
calling us their brothers, without the prejuce of placing of us in the category of
slaves, treating the most prominent Filipinos in a much lower social and political
category than that of the most ignorant and brutal subject of the Emperor.
The civil liberties of the citizens were annulled. Witnesses and litigants were
slapped and tortured during investigations. In the prosecuting attorney's offices,
no one was safe. When the Japanese arrested a person, the lawyer who dared
to intercede was also placed under arrest. Even courts were not free from their
dispotic members. There were judges who had to trample laws and shock their
conscience in order not to disgust a Nipponese.
The most noble of all professions, so much so that the universities of the world
could not conceive of higher honor that may be conferred than that of Doctor of
Laws, became the most despised. It was dangerous to practice the profession by
which faith in the effectiveness of law is maintained; citizens feel confident in the
protection of their liberties, honor, and dignity; the weak may face the powerful;
the lowest citizen is not afraid of the highest official; civil equality becomes reality;
justice is admnistered with more efficiency; and democracy becomes the best
system of government and the best guaranty for the welfare and happiness of the
individual human being. In fact, the profession of law was annulled, and the best
lawyers for the unfortunate prisoners in Fort Santiago and other centers of torture
were the military police, concubines, procurers, and spies, the providers of war
materials and shameful pleasures, and the accomplices in fraudulent
transactions, which were the specialty of many naval and military Japanese
officers.
The courts and Filipino government officials were completely helpless in the
question of protecting the constitutional liberties and fundamental rights of the
citizens who happen to be unfortunate enough to fall under the dragnet of the
hated kempei. Even the highest government officials were not safe from arrest
and imprisonment in the dreaded military dungeons, where torture or horrible
death were always awaiting the defenseless victim of the Japanese brutality.
May any one be surprised if General MacArthur decided to annul all the judicial
processes?
The evident policy of the author of the October Proclamation can be seen if we
take into consideration the following provisions of the Japanese Constitution:
ART. 57. The Judicature shall be exercised by the Courts of Law according
to law, in the name of the Emperor.
ART. 61. No suit at law, which relates to rights alleged to have been
infringed by the illegal measures of the executive authority .. shall be taken
cognizance of by a Court of Law.
INTERNATIONAL LAW
Nobody dared challenge the validity of the October Proclamation.
Nobody dared challenge the authority of the military Commander in Chief who
issued it.
Certainly not because of the awe aroused by the looming figure of General of the
Army Douglas MacArthur, the Allied Supreme Commander, the military hero, the
greatest American general, the Liberator of the Philippines, the conqueror of
Japan, the gallant soldier under whose authority the Emperor of the Japan, who
is supposed to rule supreme for ages as a descendant of gods, is receiving
orders with the humility of a prisoner of war.
No challenge has been hurled against the proclamation or the authority of the
author to issue it, because everybody acknowledges the full legality of its
issuance.
But because the proclamation will affect the interest and the rights of a group of
individuals, and to protect the same, a way is being sought to neutralize the
effect of the proclamation.
The way found is to invoke international law. The big and resounding word is
considered as a shibboleth powerful enough to shield the affected persons from
the annulling impact.
Even then, international law is not invoked to challenge the legality or authority of
the proclamation, but only to construe it in a convenient way so that judicial
processes during the Japanese occupation, through an exceptional effort of the
imagination, might to segregated from the processes mentioned in the
proclamation.
An author said that the law of nations, the "jus gentiun", is not a fixed nor
immutable science. On the country, it is developing incessantly, it is perpetually
changing in forms. In each turn it advances or recedes, according to the
vicissitudes of history, and following the monotonous rythm of the ebb and rise of
the tide of the sea.
Le driot des gens, en effet, n'est point une science fixe est immuable: bein
au contraire, il se developpe sans cesse, il change eternellement de
formes; tour il avance et il recule, selon less vicissitudes de histoire et
suivan un rhythm monotone qui est comme le flux et le reflux d'un mer. (M.
Revon, De l'existence du driot international sous la republique romain.)
Another author has this to say:
International law, if it is or can be a science at all, or can be, at most a
regulative science, dealing with the conduct of States, that is, human
beings in a certain capacity; and its principles and prescriptions are not,
like those of science proper, final and unchanging. The substance of
science proper is already made for man; the substance of international is
actually made by man, and different ages make differently." (Coleman
Philippson, The International Law and Custom of Ancient Greece of Rome,
Vol. I, p. 50.)
"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of
Legal History., p. 1. ) Justice Cardozo adds: "Here is the great antimony
confronting us at every turn. Rest and motion, unrelieved and unchecked, are
equally destructive. The law, like human kind, if life is to continue, must find some
path compromise." (The Growth of Law p. 2.) Law is just one of the
manifestations of human life, and "Life has relations not capable of division into
inflexible compartments. The moulds expand and shrink," (Glanzer vs.Shepard,
233 N.Y., 236, 241.)
The characteristic plasticity of law is very noticeable, much more than in any
other department, in international law.
In a certain matters it is clear we have made substantial progress, but in
other points, he (M. Revon) maintains, we have retrograded; for example,
in the middle ages the oath was not always respected as faithfully as in
ancient Rome; and nearer our own times, in the seventeenth century,
Grotius proclaims the unquestioned right of the belligerents to massacre
the women and the children of the enemy; and in our more modern age the
due declaration of war which Roman always conformed to has not been
invariably observed. (Coleman Philippson, The International Law and
Custom of Ancient Greece and Rome, Vol. I, p. 209.)
Now let us see if any principle of international law may effect the enforcement of
the October Proclamation.
In this study we should be cautioned not to allow ourselves to be deluded by
generalities and vagueness which are likely to lead us easily to error, in view of
the absence of codification and statutory provisions.
Our Constitution provides:
The Philippines renounces war as an instrument of national policy, and
adopts the generally accepted principles of international law as part of the
law of the Nation. (Sec. 3, Art. II.)
There being no codified principles of international law, or enactments of its rules,
we cannot rely on merely legal precepts.
With the exception of international conventions and treaties and, just recently, the
Charter of the United Nations, adopted in San Francisco Conference on June 26,
1945, we have to rely on unsystemized judicial pronouncements and reasonings
and on theories, theses, and propositions that we may find in the works of
authors and publicists.
Due to that characteristic pliability and imprecision of international law, the

drafters of our Constitution had to content themselves with "generally accepted
principles."
We must insists, therefore, that the principles should be specific and
unmistakably defined and that there is definite and conclusive evidence to the
effect that they generally accepted among the civilized nations of the world and
that they belong to the current era and no other epochs of history.
The temptation of assuming the role of a legislator is greater in international law
than in any other department of law, since there are no parliaments, congresses,
legislative assemblies which can enact laws and specific statutes on the subject.
It must be our concern to avoid falling in so a great temptation, as its, dangers
are incalculable. It would be like building castles in the thin air, or trying to find an
exit in the thick dark forest where we are irretrievably lost. We must also be very
careful in our logic. In so vast a field as international law, the fanciful wandering
of the imagination often impair the course of dialistics.
THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW
Is there any principle of international law that may effect the October
Proclamation?
We tried in vain to find out in the majority opinion anything as to the existence of
any principle of international law under which the authority of General MacArthur
to issue the proclamation can effectively be challenged.
No principle of international law has been, or could be invoked as a basis for
denying the author of the document legal authority to issue the same or any part
thereof.
We awaited in vain for any one to dare deny General MacArthur the authority,
under international law, to declare null and void and without effect, not only the
laws and regulations of the governments under the Japanese regime, but all the
processes of said governments, including judicial processes.
If General MacArthur, as commander in Chief of the American Armed Forces of
Liberation, had authority, full and legal, to issue the proclamation, the
inescapable result will be the complete viodance and nullity of all judicial
processes, procedures, and proceedings of all courts under the Japanese
regime.
But those who are sponsoring the cause of said judicial processes try to achieve
their aim, not by direct means, but by following a tortuous side-road.
They accept and recognize the full authority of the author of the proclamation to
issue it and all its parts, but they maintain that General MacArthur did not and
could not have in mind the idea of nullifying the judicial processes during the
Japanese occupation, because that will be in violation of the principles of
international law.
If we follow the reasoning of the majority opinion we will have to reach the
conlusion that the world "processes" does not appear at all in the October
Proclamation.
It is stated more than once, and reiterated with dogmatic emphasis, that under
the principles of international law the judicial processes under an army
occupation cannot be invalidated.
But we waited in vain for the specific principle of international law, only one of
those alluded to, to be pointed out to us.
If the law exist, it can be pointed out. If the principle exists, it can stated
specifically. The word is being used very often in plural, principles, but we need
only one to be convinced.
The imagined principles are so shrouded in a thick maze of strained analogies
and reasoning, that we confess our inability even to have a fleeting glimpse at
them through their thick and invulnerable wrappers.
At every turn international law, the blatant words, are haunting us with the
deafening bray of a trumpet, but after the transient sound has fled away,
absorbed by the resiliency of the vast atmosphere, the announced principles,
which are the very soul of international law, would disappear too with the lighting
speed of a vanishing dream.
WEAKNESS OF THE MAJORITY POSITION
In the majority opinion three questions are propounded: first, whether judicial acts
and proceedings during the Japanese occupation are valid even after liberation;
second whether the October Proclamation had invalidated all judgement and
judicial proceedings under the Japanese regime; and third, whether the present
courts of the Commonwealth may continue the judicial proceedings pending at
the time of liberation.
As regards the first question, it is stated that it is a legal tourism in political and
international law that all acts of ade facto government are good and valid, that
the governments established during the Japanese occupation. that is, the
Philippine Executive Commission and the Republic of the Philippines, were de
facto governments, and that it necessarily follows that the judicial acts and
proceedings of the courts of those governments, "which are not of a political
complexion," were good and valid, and by virtue of the principle of postliminium,
remain good and valid after the liberation.
In the above reasoning we will see right away how the alleged legal truism in
political and international law, stated as a premise in a sweeping way, as an
absolute rule, is immediately qualified by the exception as to judicial acts and
proceedings which are of a "political complexion."
So it is the majority itself which destroys the validity of what it maintains as a
legal truism in political and international law, by stating from the beginning of the
absolute proposition that all acts and proceedings of the legislative, executive,
and judicial departments of a de facto governments are good and valid.
It is be noted that no authority, absolutely no authority, has been cited to support
the absolute and sweeping character of the majority proposition as stated in their
opinion.
No authority could be cited, because the majority itself loses faith in the validity of
such absolute and sweeping proposition, by establishing an unexplained
exception as regards the judicial acts and proceedings of a "political complexion."
Besides, it is useless to try to find in the arguments of the majority anything that
may challenge the power, the authority of a de jure government to annul the
official acts of a de facto government, or the legal and indisputable authority of
the restored legitimate government to refuse to recognize the official acts,
legislative, executive and judicial, of the usurping government, once the same is
ousted.
As to the second question, the majority argues that the judicial proceedings and
judgments of the de factogovernments under the Japanese regime being good
and valid, "it should be presumed that it was not, and could not have been, the
intention of General Douglas MacArthur to refer to judicial processes, when he
used the last word in the October Proclamation, and that it only refers to
government processes other than judicial processes or court proceedings."
The weakness and absolute ineffectiveness of the argument are self-evident.
It is maintained that when General MacArthur declared the processes of the

governments under the Japanese regime null and void, he could not refer to
judicial processes, because the same are valid and remained so under the legal
truism announced by the majority to the effect that, under political and
international law, all official acts of a de facto government, legislative, executive
or judicial, are valid.
But we have seen already how the majority excepted from said legal truism the
judicial processes of "political complexion."
And now it is stated that in annulling the processes of the governments under
Japanese occupation, General MacArthur referred to "processes other than
judicial processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and proceedings of legislative and
executive departments of a de facto governments are good and valid? Did it not
maintain that they are so as a "legal truism in political and international law?"
Now if the reasoning of the majority to the effect that General MacArthur could
not refer to judicial processes because they are good and valid in accordance
with international law, why should the same reasoning not apply to legislative and
executive processes?
Why does the majority maintain that, notwithstanding the fact that, according that
said legal truism, legislative and executive official acts of de facto governments
are good and valid, General MacArthur referred to the latter in his annulling
proclamation, but not to judicial processes?
If the argument is good so as to exclude judicial processes from the effect of the
October Proclamation, we can see no logic in considering it bad with respect to
legislative and executive processes.
If the argument is bad with respect to legislative and executive processes, there
is no logic in holding that it is not good with respect to judicial processes.
Therefore, if the argument of the majority opinion is good, the inevitable
conclusion is that General MacArthur did not declare null and void any
processes, at all, whether legislative processes, executive processes, or judicial
processes, and that the word "processes" used by him in the October
Proclamation is a mere surplusage or an ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the position of the
majority, which is but a mere legal pretense that cannot stand the least analysis
or the test of logic.
A great legal luminary admonished that we must have courage to unmasks
pretense if we are to reach a peace that will abide beyond the fleeting hour.
It is admitted that the commanding general of a belligerent army of occupation as
an agent of his government, "may not unlawfully suspend existing laws and
promulgate new ones in the occupied territory if and when exigencies of the
military occupation demand such action," but it is doubted whether the
commanding general of the army of the restored legitimate government can
exercise the same broad legislative powers.
We beg to disagree with a theory so unreasonable and subversive.
We cannot accept that the commanding general of an army of occupation, of a
rebellious army, of an invading army, or of a usurping army, should enjoy greater
legal authority during the illegal, and in the case of the Japanese, iniquitous and
bestial occupation, than the official representative of the legitimate government,
once restored in the territory wrested from the brutal invaders and aggressors.
We cannot agree with such legal travesty.
Broad and unlimited powers are granted and recognized in the commanding
general of an army of invasion, but the shadow of the vanishing alleged principle
of international law is being brandished to gag, manacle, and make completely
powerless the commander of an army of liberation to wipe out the official acts of
the government for usurpation, although said acts might impair the military
operation or neutralize the public policies of the restored legitimate government.
We are not unmindful of the interest of the persons who might be adversely
affected by the annulment of the judicial processes of the governments under the
Japanese regime, but we cannot help smiling when we hear that chaos will reign
or that the world will sink.
It is possible that some criminals will be let loose unpunished, but nobody has
ever been alarmed that the President, in the exercise of his constitutional powers
of pardon and amnesty, had in the past released many criminals from
imprisonment. And let us not forget that due to human limitations, in all countries,
under all governments, in peace or in war, there were, there are, and there will
always be unpunished criminals, and that situation never caused despair to any
one.
We can conceive of inconveniences and hardships, but they are necessary

contributions to great and noble purposes. Untold sacrifices were always offered
to attain high ideals and in behalf of worthy causes.
We cannot refrain from feeling a paternal emotion for those who are trembling
with all sincerity because of the belief that the avoidance of judicial proceedings
of the governments under the Japanese regime "would paralyze the social life of
the country." To allay such fear we must remind them that the country that
produced many great hereos and martyrs; that contributed some of highest
morals figures that humanity has ever produced in all history; which inhabited by
a race which was able to traverse in immemorial times the vast expanses of the
Indian Ocean and the Pacific with inadequate means of navigation, and to inhabit
in many islands so distantly located, from Madagascar to the eastern Pacific;
which made possible the wonderful resistance of Bataan and Corregidor, can not
have a social life so frail as to be easily paralyzed by the annulment of some
judicial proceedings. The Japanese vandalisms during the last three years of
nightmares and bestial oppression, during the long period of our national slavery,
and the wholesale massacres and destructions in Manila and many other cities
and municipalities and populated areas, were not able to paralyze the social life
of our people. Let us not loss faith so easily in the inherent vitality of the social
life of the people and country of Rizal and Mabini.
It is insinuated that because of the thought that the representative of the restored
sovereign power may set aside all judicial processes of the army of occupation,
in the case to courts of a future invasions, litigants will not summit their cases to
courts whose judgement may afterwards be annulled, and criminals would not be
deterred from committing offenses in the expectancy that they may escape
penalty upon liberation of the country. We hope that Providence will never allow
the Philippines to fall again under the arms of an invading army, but if such
misfortune will happen, let the October Proclamation serve as a notice to the
ruthless invaders that the official acts of the government of occupation will not
merit any recognition from the legitimate government, especially if they should
not conduct themselves, as exemplified by the Japanese, in accordance with the
rules of action of a civilized state.
One conclusive evidence of the untenableness of the majority position is the fact
that it had to resort to Executive Order No. 37, issued on March 10, 1945,
providing "that all cases that have heretofore been appealed to the Court of
Appeals shall be transmitted to the Supreme Court for final decision." The farfetched theory is advanced that this provision impliedly recognizes the court
processes during the Japanese military occupation, on the false assumption that
it refers to the Court of Appeals existing during the Japanese regime. It is selfevident that the Executive Order could have referred only to the Commonwealth
Court of Appeals, which is the one declared abolished in said order. Certainly no
one will entertain the absurd idea that the President of the Philippines could have
thought of abolishing the Court of Appeals under the government during the
Japanese occupation. Said Court of Appeals disappeared with the ouster of the
Japanese military administration from which it derived its existence and powers.
The Court of Appeals existing on March 10, 1945, at the time of the issuance of
Executive Order No. 37, was the Commonwealth Court of Appeals and it was the
only one that could be abolished.
Without discussing the correctness of principle stated the majority opinion quotes
from Wheaton the following: "Moreover when it is said that occupier's acts are
valid and under international law should not be abrogated by the subsequent
conqueror, it must be remembered that on crucial instances exist to show that if
his acts should be reversed, any international wrong would be committed. What
does happen is that most matters are allowed to stand by the stored government,
but the matter can hardly be put further than this." (Wheaton, International Law,
War, 7th English edition of 1944, p. 245)
Then it says that there is no doubt that the subsequent conqueror has the right to
abrogate most of the acts of the occupier, such as the laws, regulations and
processes other than the judicial of the government established by the belligerent
occupant.
It is evident that the statement just quoted is a complete diversion from the
principle stated in the in an unmistakable way by Wheaton, who says in definite
terms that "it must be remembered that no crucial instances exist to show that if
his acts (the occupant's) should be reversed, any international wrong would be
committed."
It can be clearly seen that Wheaton does not make any distinction or point out
any exception.
But in the majority opinion the principle is qualified, without stating any reason
therefore, by limiting the right of the restored government to annul "most of the
acts of the occupier" and "processes other than judicial."
The statement made by the respondent judge after quoting the above-mentioned
principle, as stated by Wheaton, to the effect that whether the acts of military
occupant should be considered valid or not, is a question that is up to the
restored government to decide, and that there is no rule of international law that
denies to the restored government the right to exercise its discretion on the
matter, is quoted without discussion in the majority opinion.
As the statement is not disputed, wee are entitled to presume that it is concurred
in and, therefore, the qualifications made in the statement in the majority opinion
seem to completely groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO
THE RIGHTS OF THE LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many duties
imposed by international law on the military occupant of an invaded country.
And from said duties it is deduced that the legitimate government, once restored
in his own territory, is bound to respect all the official acts of the government
established by the usurping army, except judicial processes political complexion.
The reasoning calls for immediate opposition. It is absolutely contrary to all
principles of logic.
Between the duties imposed in the military occupant and the legal prerogatives of
the legitimate government there are no logical relationship or connection that
might bind the ones with the others.
The military occupants is duty bound to protect the civil rights of the inhabitants,
but why should the legitimate government necessarily validate the measures
adopted by the said occupant in the performance of this duty, if the legitimate
government believes his duty to annul them for weighty reasons?
The military occupant is duty bound to establish courts of justice. Why should the
legitimate government validate the acts of said courts, if it is convinced that said
courts were absolutely powerless, as was the case during the Japanese
occupation, to stop the horrible abuses of the military police, to give relief to the
victims of zoning and Fort Santiago tortures, to protect the fundamental human
rights of the Filipinos life, property, and personal freedom?
The majority opinion recognizes in the military occupant the power to annul the
official acts of the ousted and supplanted legitimate government, a privilege
which is inversely denied to the last. This preference and predilection in favor of
the military occupant, that is in favor of the invader and usurper, and against the
legitimate government, is simply disconcerting, if we have to say the least.
PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS
The invading military occupant is duty bound to establish and maintain courts of
justice in the invaded territory, for the protection of the inhabitants thereof. It is
presumed that the restored legitimate government will respect the acts of said
courts of the army of occupation. Therefore, it is a principle of international law
that said acts are valid and should be respected by the legitimate government. It
is presumed that General MacArthur is acquainted with such principle,
discovered or revealed through presumptive operations, and it is presumed that
he had not the intention of declaring null and void the judicial processes of the
government during the Japanese regime. Therefore, his October Proclamation,
declaring null and void and without effect "all processes" of said governments, in
fact, did not annul the Japanese regime judicial processes.
So run the logic of the majority.
They don't mind the that General MacArthur speaks in the October Proclamation
as follows:
NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as
Commander-in-Chief of the military forces committed to the liberation of the
Philippines, do hereby proclaim and declare:
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Philippines than that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free of enemy occupation and control.
(emphasis supplied.)
General MacArthur says categorically "all processes", but the majority insists on
reading differently, that, is: "NOT ALL processes." The majority presume,
suppose, against the unequivocal meaning of simple and well known words, that
when General MacArthur said "all processes", in fact, he said "not all processes",
because it is necessary, by presumption, by supposition, to exclude judicial
processes.
If where General MacArthur says "all", the majority shall insist on reading "not
all", it is impossible to foresee the consequences of such so stubborn attitude,
but it is possible to understand how they reached the unacceptable possible
conclusion which we cannot be avoid opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted to our
consideration, by presumption and suppositions putting aside truths and facts?
Are we to place in the documents presented to us, such as the October
Proclamation, different words than what are written therein? Are we to read "not
all", where it is written "all"?
We are afraid to such procedure is not precisely the most appropriate to keep
public confidence in the effectiveness of the administration of justice.
That is why we must insists that in the October Proclamation should be read
what General MacArthur has written in it, that is, that, besides laws and
regulations, he declared and proclaimed null and void "ALL PROCESSES",
including naturally judicial processes, of the governments under the Japanese
regime.
THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE
JAPANESE REGIME JUDICIAL PROCESSES
Now we come to the third and last question propounded in the majority opinion.
The jurisdiction of the Commonwealth tribunals is defined, prescribed, and
apportioned by legislative act.
It is provided so in our Constitution. (Section 2, Article VIII.)
The Commonwealth courts of justice are continuations of the courts established
before the inauguration of the Commonwealth and before the Constitution took
effect on November 15, 1935. And their jurisdiction is the same as provided by
existing laws at the time of inauguration of the Commonwealth Government.
Act No. 136 of the Philippine Commission, known as the Organic Act of the
courts of justice of the Philippines, is the one that defines the jurisdiction of
justice of the peace and municipal courts, Courts of First Instance, and the
Supreme Court. It is not necessary to mention here the jurisdiction of the Court of
Appeals, because the same has been abolished by Executive Order No. 37.
No provision may be found in Act. No. 136, nor in any other law of the
Philippines, conferring on the Commonwealth tribunals jurisdiction to continue
the judicial processes or proceedings of tribunals belonging to other
governments, such as the governments established during the Japanese
occupation.
The jurisdiction of our justice of the peace and municipal courts is provided in
section 68, chapter V, of Act No. 136. The original and appellate jurisdiction of the
Courts of First Instance is provided in the sections 56, 57, Chapter IV, of Act No.
136. The original and appellate jurisdiction of the Supreme Court is provided in
17 and 18, Chapter II, of the same Act. The provisions of the above-cited do not
authorize, even implicitly, any of the decisions and judgements of tribunals of the
governments, nor to continue the processes or proceedings of said tribunals.
NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE

PREVAILING IN THE PHILIPPINES AND IN THE UNITED STATES
Taking aside the question as to whether the judicial processes of the government
established during the Japanese occupation should be considered valid or not, in
order that said processes could be continued and the Commonwealth tribunals
could exercise proper jurisdiction to continue them, under the well- established
legal doctrine, prevailing not only in the Philippines, but also in the proper
enabling law.
Almost a half a century ago, in the instructions given by President McKinley on
April 7, 1900, for the guidance of the Philippine Commission, it was stated that, in
all the forms of the govenment and administrative provisions which they were
authorized to prescribed, the Commission should bear in mind that the
government which they were establishing was designed not for the satisfaction of
the Americans or for the expression of their of their theoretical views, but for the
happiness, peace and prosperity of the people of the Philippines, and the
measures adopted should be made to conform to their customs, their habits, and
even their prejudices, to the fullest extent consistent with the accomplishment of
the indispensable requisites of just and effective government.
Notwithstanding the policy so outlined, it was not enough for the Philippine
Commission to create and establish the courts of justice provided in Act No. 136,
in order that said tribunals could take cognizance and continue the judicial
proceedings of the tribunals existing in the Philippines at the time the American
occupation.
It needed specific enabling provisions in order that the new tribunals might
continue the processes pending in the tribunals established by the Spaniards,
and which continued to function until they were substituted by the courts created
by the Philippine Commission.
So it was done in regards to the transfer of the cases pending before the Spanish
Audiencia to the newly created Supreme Court, in sections 38 and 39 of Act No.
136 quoted as follows:
SEC. 38. Disposition of causes, actions, proceedings, appeals, records,
papers, and so forth, pending in the existing Supreme Court and in
the "Contencioso Administravo." All records, books, papers, causes,
actions, proceedings, and appeals logged, deposited, or pending in the
existing Audiencia or Supreme Court, or pending by appeal before the
Spanish tribunal called "Contencioso Administravo," are transferred to the
Supreme Court above provided for which, has the same power and
jurisdiction over them as if they had been in the first instance lodged, filed,
or pending therein, or, in case of appeal, appealed thereto.
SEC. 39. Abolition of existing Supreme Court. The existing Audiencia or
Supreme Court is hereby abolished, and the Supreme Court provided by
this Act is substituted in place thereof.
Sections 64 and 65 of the same Act allowed the same procedure as regards the
transfer of cases and processes pending in the abolished Spanish Courts of First
Instance to the tribunals of the same name established by the Philippine
Commission.
SEC. 64. Disposition of records, papers, causes, and appeals, now
pending in the existing Courts of First Instance. All records, books,
papers, actions, proceedings, and appeals lodged, deposited, or pending
in the Court of First Instance as now constituted of or any province are
transferred to the Court of First Instance of such province hereby
established, which shall have the same power and jurisdiction over them
as if they had been primarily lodged, deposited, filed, or commenced
therein, or in case of appeal, appealed thereto.
SEC. 65. Abolition of existing Courts of First Instance. The existing
Courts First Instance are hereby abolished, and the Courts of First
Instance provided by this Act are substituted in place thereof.
The same procedure has been followed by the Philippine Commission
eventhough the courts of origin of the judicial processes to be transferred and
continued belonged to the same government and sovereignty of the courts which
are empowered to continue said processes.
So section 78 of Act No. 136, after the repeal of all acts conferring upon
American provost courts in the Philippines jurisdiction over civil actions,
expressly provided that said civil actions shall be transferred to the newly created
tribunals.
And it provided specifically that "the Supreme Court, Courts of the First Instance
and courts of the justice of the peace established by this Act (No. 136) are
authorized to try and determine the actions so transferred to them respectively
from the provost courts, in the same manner and with the same legal effect as
though such actions had originally been commenced in the courts created" by
virtue of said Act.
MUNICIPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission enacted the Organic Act of the City
of Manila, No. 183.
Two municipal courts for the city were created by section 40 of said Act, one for
the northern side of Pasig River and the other for the southern side.
They were courts with criminal jurisdiction or identical cases under the jurisdiction
of the justices of the peace then existing in Manila. Although both courts were of
the same jurisdiction, in order that the criminal cases belonging to the justice of
the peace courts may be transferred to the municipal courts just created, and the
proceedings may be continued by the same, the Philippine Commission
considered it necessary to pas the proper enabling act.
So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all
criminal cases and proceedings pending in the justices of the peace of Manila
are transferred to the municipal courts, which are conferred the jurisdiction to
continue said cases and proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was convicted of murder by a military
commission. (Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on
December 10, 1901, and his execution by hanging was set for January 12,1902. .
On December 26, 1901, he fled, but surrendered to the authorities on July 18,
1902. The Civil Governor on December 2, 1903, commuted the death penalty to
20 years imprisonment. The commutation was approved by the Secretary of War,
following instructions of the President.
Cabantag filed later a writ of habeas corpus on the theory that, with the abolition
of the military commission which convicted him, there was no existing tribunal
which could order the execution of the penalty of imprisonment.
The Supreme Court denied the writ, but stated that, if the petitioner had filed the
writ before the enactment of Act No. 865, the question presented to the Supreme
Court would have been different.
Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is
provided that decisions rendered by the provost courts and military commission
shall be ordered executed by the Courts of First Instance in accordance with the
procedure outlined in said Act.
It is evident from the foregoing that this Supreme Court has accepted and
confirmed the doctrine of the necessity of an enabling act in order that our Courts
of First Instance could exercise jurisdiction to execute the decision of the
abolished provost courts and military commission.
It is evident that the doctrine is applicable, with more force, to the judicial
processes coming from governments deriving their authority from a foreign
enemy state.
THE DOCTRINE IN THE UNITED STATES
It is also evident that the Congress of the United States, by enacting the Bill of
the Philippines on July 1, 1902, confirmed also the same doctrine.
In effect, in section 9 of said Act, the Congress approved what the Philippine
Commission did as to the jurisdiction of the courts established and transfer of
cases and judicial processes, as provided in Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United States government as part of its
international policy, as could be seen in Article XII of the Treaty concluded with
Spain on December 10, 1898, in Paris.
Even in 1866 the Congress of the United States followed the same doctrine.
The suit, shown by the record, was originally instituted in the District Court
of the United States for the District of Louisiana, where a decree was
rendered for the libellant. From the decree an appeal was taken to the
Circuit Court, where the case was pending, when in 1861, the proceedings
of the court were interrupted by the civil war. Louisiana had become
involved in the rebellion, and the courts and officers of the United States
were excluded from its limits. In 1862, however, the National authority had
been partially reestablished in the State, though still liable to the
overthrown by the vicissitudes of war. The troops of the Union occupied
New Orleans, and held military possession of the city and such other
portions of the State as had submitted to the General Government. The
nature of this occupation and possession was fully explained in the case of
The Vinice.
Whilst it continued, on the 20th of October, 1862, President Lincoln, by
proclamation, instituted a Provisional Court of the State of Louisiana, with
authority, among other powers, to hear, try, and determine all causes in
admiralty. Subsequently, by consent of parties, this cause was transferred
into the Provisional Court thus, constituted, and was heard, and a decree
was again rendered in favor of the libellants. Upon the restoration of civil
authority in the State, the Provincial Court, limited in duration, according to
the terms of the proclamation, by the event, ceased to exist.
On the 28th of July, 1866, Congress enacted that all suits, causes and
proceedings in the Provisional Court, proper for the jurisdiction of the
Circuit Court of the United States for the Eastern District of Louisiana,
should be transferred to that court, and heard, and determined therein; and
that all judgements, orders, and decrees of the Provisional Court in causes
transferred to the Circuit Court should at once become the orders,
judgements, and decrees of that court, and might be enforced, pleaded,
and proved accordingly.
It is questioned upon these facts whether the establishment by the
President of a Provisional Court was warranted by the Constitution.
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We have no doubt that the Provisional Court of Louisiana was properly

established by the President in the exercise of this constitutional authority
during war; or that Congress had power, upon the close of the war, and the
dissolution of the Provisional Court, to provide for the transfer of cases
pending in that court, and of its judgement and decrees, to the proper
courts of the United States. (U. S. Reports, Wallace, Vol. 9, The
Grapeshot, 131-133.)
JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE
VALIDATED BY CONSTITUTIONAL PROVISION
During the civil war in 1861, the prevailing rebel forces established their own
government in Louisiana.
When the rebel forces were overpowered by the Union Forces and the de
facto government was replaced by the de jure government, to give effect to the
judgments and other judicial acts of the rebel government, from January 26,
1861, up to the date of the adoption of the State Constitution, a provision to said
effect was inserted in said document.
Section 149 of the Louisiana Constitution reads as follows:
All the rights, actions, prosecutions, claims, contracts, and all laws in force
at the time of the adoption of this Constitution, and not inconsistent
therewith, shall continue as if it had not been adopted; all judgments and
judicial sales, marriages, and executed contracts made in good faith and in
accordance with existing laws in this State rendered, made, or entered
into, between the 26th day of January, 1861, and the date when this
constitution shall be adopted, are hereby declared to be valid, etc. (U. S.
Report, Wallace, Vol. 22, Mechanics' etc. Bank vs. Union Bank, 281.)
EVEN AMONG SISTERS STATES OF THE UNITED STATES
JUDGEMENTS ARE NOT EXECUTORY
The member states of the United States of America belong to the same nation, to
the country, and are under the same sovereignty.
But judgements rendered in one state are not executory in other states.
To give them effect in other states it is necessary to initiate an original judicial
proceedings, and therein the defendants in the domestic suit may plead bar the
sister state judgement puis darrien continuance. (Wharton, on the Conflict of
Laws, Vol. II, p. 1411.)
Under the Constitution of the United States, when a judgement of one
state in the Union is offered in a court of a sister state as the basis of a
suit nil debet cannot be pleaded. The only proper plea is nul tielrecord. (Id.,
p. 1413.).
It is competent for the defendant, however, to an action on a judgement of
a sister state, as to an action on a foreign judgement, to set up as a
defense, want of jurisdiction of the court rendering the judgement; and, as
indicating such want of jurisdiction, to aver by plea that the defendant was
not an inhabitant of the state rendering the judgement, and had not been
served with process, and did not enter his appearance; or that the attorney
was without authority to appear. (Id., pp. 1414-1415.)
The inevitable consequence is that the courts of the Commonwealth of the
Philippines, in the absence of an enabling act or of an express legislative grant,
have no jurisdiction to take cognizance and continue the judicial processes,
procedures, and proceedings of the tribunals which were created by the
Japanese Military Administration and functioned under the Vargas Philippine
Executive Commission of the Laurel Republic of the Philippines, deriving their
authority from the Emperor, the absolute ruler of Japan, the invading enemy, and
not from the Filipino people in whom, according to the Constitution, sovereignty
resides, and from whom all powers of government emanate.
The position of Honorable Asenio P. Dizon, the respondent judge of the Court of
the First Instance of Manila in declaring himself without jurisdiction nor authority
to continue the proceedings which provoked the present controversy, being a
judicial process of a Japanese sponsored government, is absolutely correct,
under the legal doctrines established by the United States and the Philippine
Government, and consistently, invariably, and without exception, followed by the
same.
If we accept, for the sake of argument, the false hypothesis that the
Commonwealth tribunals have jurisdiction to continue the judicial processes left
pending by the courts of the governments established under the Japanese
regime, the courts which disappeared and, automatically, ceased to function with
the ouster of the enemy, the position of the Judge Dizon, in declining to continue
the case, is still unassailable, because, for all legal purposes, it is the same as if
the judicial processes in said case were not taken at all, as inevitable result of the
sweeping and absolute annulment declared by the General MacArthur in the
October Proclamation.
In said proclamation it is declared in unmistakable and definite terms that "ALL
PROCESSES" of the Japanese sponsored governments "ARE NULL AND VOID
AND WITHOUT LEGAL EFFECT", and they shall remain so until the
Commonwealth, through its legislative power, decides otherwise in a proper
validating act.
The fact that the Japanese invaders, under international law, were in duty bound
to establish courts of justice during the occupation, although they made them
completely powerless to safeguard the constitutional rights of the citizens, and
mere figureheads as regards the fundamental liberties of the helpless men,
women and children of our people, so much so that said courts could not offer
even the semblance of protection when the life, the liberty, the honor and dignity
of our individual citizens were wantonly trampled by any Japanese, military or
civilian, does not change the situation. "ALL PROCESSES" of said court are
declared "NULL AND VOID AND WITHOUT LEGAL EFFECT" in the October
proclamation, and we do not have any other alternative but to accept the law, as
said proclamation has the full force of a law.
The fact that in the past, the legitimate governments, once restored in their own
territory, condescended in many cases to recognize and to give effect to
judgments rendered by courts under the governments set up by an invading
military occupant or by a rebel army, does not elevate such condescension to the
category of a principle, when Wheaton declares that no international wrong is
done if the acts of the invader are reversed.
Many irrelevant authorities were cited to us as to the duties imposed by the

international law on military occupants, but no authority has been cited to the
effect that the representative of the restored legitimate government is a bound to
recognize and accept as valid the acts and processes of said occupants. On the
contrary, Wheaton says that if the occupant's acts are reversed "no international
wrong would be committed."
Following the authority of Wheaton, undisputed by the majority, General
MacArthur thought, as the wisest course, of declaring "NULL AND VOID AND
WITHOUT EFFECT," by official proclamation, "ALL PROCESSES" under the
Japanese regime, that is legislative, executive and judicial processes, which fall
under the absolute adjective "ALL".
That declaration is a law. It is a law that everybody bound to accept and respect,
as all laws must be accepted and respected. It is a law that the tribunals are duty
bound to give effect and apply.
We are not unmindful of the adverse consequences to some individuals of the
annullment of all the judicial processes under the Japanese regime, as provided
in the October Proclamation, but the tribunals are not guardians of the legislative
authorities, either an army commander in chief, during war, or a normal
legislature, in peace time. The tribunals are not called upon to guide the
legislative authorities to the wisdom of the laws to be enacted. That is the
legislative responsibility. Our duty and our responsibility is to see to it that the
law, once enacted, be applied and complied with.
No matter the consequences, no matter who might be adversely affected, a
judge must have the firm resolve and the courage to do his duty, as, in the
present case, Judge Dizon did, without fear nor favor. We cannot see any reason
why we should not uphold him in his stand in upholding the law.
It is our official duty, national and international duty. Yes. Because this Supreme
Court is sitting, not only as a national court, but as an international court, as is
correctly stated in the concurring opinion of Justice De Joya, and we should feel
the full weight of the corresponding responsibility, as the American courts with
admiralty jurisdiction and the Prize Courts of England did feel. In fact, it is in the
judiciary where, more than in any point of view is more pressing, more
imperative, more unavoidable. Justice has no country. It is of all countries. The
horizon of justice cannot be limited by the scene where our tribunals are
functioning and moving. That horizon is boundless. That is why in our constitution
the bill of rights has been written not for Filipinos, but for all persons. They are
rights that belong to men, not as Filipinos, Americans, Russians, Chinese or
Malayan, but as a members of humanity. The international character of our duty
to administer justice has become more specific by the membership of our country
in the United Nations. And let us not forget, as an elemental thing, that our
primary duty is to uphold and apply the law, as it is; that we must not replace the
words of the law with what we might be inclined to surmise; that what is clearly
and definitely provided should not be substituted with conjectures and
suppositions; that we should not try to deduce a contrary intention to that which is
unequivocally stated in the law; that we should not hold valid what is conclusively
declared null and void.
The October Proclamation declared "ALL PROCESSES" under the Japanese
regime "AND VOID WITHOUT EFFECT", so they must stand. There is no
possible way of evasion. "ALL PROCESSES", in view of the meaning of the
absolute adjective "ALL", include "JUDICIAL PROCESSES". Allegatio contra
factum non est admittenda.
CONCLUSION
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal authority to issue the October
Proclamation, and that no principle of the international law is violated by said
proclamation, no international wrong being committed by the reversal by the
legitimate government of the acts of the military invader.
2. That said proclamation was issued in full conformity with the official policies to
which the United States and Philippine Governments were committed, and the
annulment of all the facts of the governments under the Japanese regime,
legislative, executive, and judicial, is legal, and justified by the wrongs committed
by the Japanese.
3. That when General MacArthur proclaimed and declared in the October
Proclamation "That all laws, regulations and processes" of the Japanese
sponsored governments, during enemy occupation, "are null and void and
without effect", he meant exactly what he said.
4. That where General MacArthur said "all processes" we must read and
understand precisely and exactly "all processes", and not "some processes". "All"
and "some" have incompatible meanings and are not interchangeable.
5. That the word "processes" includes judicial procedures, proceedings,

processes, and cases. Therefore, "all processes" must include "all judicial
processes.".
6. That we have no right to attribute General MacArthur an intention different
from what he has plainly, clearly, unmistakably expressed in unambiguous words
with familiar meaning generally understood by the common man.
7. That the judicial proceedings here in question are included among those
adversely affected by the October Proclamation.
8. That the Commonwealth tribunals have no jurisdiction to take cognizance of
nor to continue the judicial proceedings under the Japanese regime.
9. That to exercise said jurisdiction an enabling act of the Congress is necessary.
10. That respondent Judge Dizon did not commit the error complained of in the
petition, and that the petition has no merits at all.
We refuse to follow the course of action taken by the majority in the present
case. It is a course based on a mistaken conception of the principles of
international law and their interpretation and application, and on a pinchbeck. It is
a course based on misconstruction or misunderstanding of the October
Proclamation, in utter disregard of the most elemental principles of legal here
meneutics. It is a course that leads to nowhere, except to the brink of disaster,
because it is following the dangerous path of ignoring or disobeying the law.
Let us not allow ourselves to be deceived. The issue confronting us is not of
passing importance. It is an issue of awesome magnitude and transcendency. It
goes to and reaches the very bottom. It is simple. Lacking in complexities. But it
may shake the very foundation of society, the cornerstone of the state, the
primary pillar of the nation. It may dry the very foundation of social life, the source
of vitalizing sap that nurtures the body politic. The issue is between the validity of
one or more Japanese regime processes and the sanctity of the law.
That is the question, reduced to its ultimate terms. it is a simple dilemma that is
facing us. It is the alpha and the omega of the whole issue. Either the processes,
or the law. We have to select between two, which to uphold. It is a dilemma that
does not admit of middle terms, or of middle ways where we can loiter with happy
unconcern . We are in the cross road: which way shall we follow? The processes
and the law are placed in the opposite ends of the balance. Shall we inclined the
balance of justice to uphold the processes and defeat law, or vice versa?
We feel jittery because some judicial processes might be rescinded or annulled,

but we do not tremble with sincere alarm at the thought of putting the law under
the axe, of sentencing law to be executed by the guillotine. We feel uneasy,
fancying chaos and paralyzation of social life, because some litigants in cases
during the Japanese regime will be affected in their private interests, with the
annulment of some judicial processes, but we adopt an attitude of complete
nonchalance in throwing law overboard. This baffling attitude is a judicial puzzle
that nobody will understand. So it is better that we should shift to a more
understandable way, that which is conformable to the standard that the world
expects in judicial action.
No amount of arguments and lucubration's, no amount of speculative
gymnastics, no amount of juggling of immaterial principles of international law, no
amount of presumptions and suppositions, surmises and conjectures, no amount
of dexterity in juridical exegesis can divert our attention from the real, simple,
looming, hypostasis of the issue before us: Law. It is Law with all its majestic
grandeur which we are defying and intending to overthrow from the sacred
pedestal where the ages had placed her as a goddess, to be enshrined, obeyed,
and venerated by men, forever. Let us not dare to lay our profaning hands on her
vestal virginity, lest the oracle should fling at us the thunder of his prophetic
anathema.
We cannot therefore vote except for the denial of the petition.
HILADO, J., dissenting:

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

restored, is to be bound by the acts of either or both of those Japanesesponsored governments;
5. Even consideration of policy of practical convenience militate against
petitioner's contention.
I
The proceedings in said civil case No. 3012 are null and void under
General of the Army MacArthur's proclamation of October 23, 1944 (41 Off.
Gaz., 147, 148).
In this proclamation, after reciting certain now historic facts, among which was
that the so-called government styled as the "Republic of the Philippines" was
established on October 14, 1943 "under enemy duress, . . . based upon neither
the free expression of the people's will nor the sanction of the Government of the
United States," the great Commander-in-Chief proclaimed and declared:
xxx
xxx
xxx
and control; and
xxx
xxx
xxx
I do enjoin upon all loyal citizens of the Philippines full respect for and
obedience to the Constitution of the Commonwealth of the Philippines and
the laws, regulations and other acts of their duly constituted government
whose seat is now firmly re-established on Philippine soil.
The evident meaning and effect of the 3rd paragraph above quoted is, I think,
that as the different areas of the Philippines were progressively liberated, the
declaration of nullity therein contained shall attach to the laws, regulations and
processes thus condemned in so far as said areas were concerned. Mark that
the proclamation did not provide that such laws, regulations and processes shall
be or are annulled, but that they are null and void. Annulment implies some
degree of the effectiveness in the act annulled previous to the annulment, but a
declaration of nullity denotes that the act is null and void ab initio the nullity
precedes the declaration. The proclamation speaks in the present tense, not in
the future. If so, the fact that the declaration of nullity as to the condemned laws,
regulations, and processes in areas not yet free from enemy occupation and
control upon the date of the proclamation, would attach thereto at a later date, is
no argument for giving them validity or effectiveness in the interregnum. By the
very terms of the proclamation itself, that nullity had to date back from the
inception of such laws, regulations and processes; and to dispel any shadow of
doubt which may still remain, we need only consider the concluding paragraph of
the proclamation wherein the Commander in Chief of the army liberation
solemnly enjoined upon all loyal citizens of the Philippines full respect for and
obedience to the Constitution of the Commonwealth of the Philippines and the
laws, regulations and other acts of their duly constituted government. This is allinclusive it comprises not only the loyal citizens in the liberated areas but also
those in areas still under enemy occupation and control. It will be noticed that the
complaint in said civil case No. 3012 was filed twenty-six days after the abovequoted proclamations of General of the Army MacArthur. If the parties to said
case were to consider the proceedings therein up to the date of the liberation of
Manila valid and binding, they would hardly be complying with the severe
injunction to render full respect for and obedience to our Constitution and the
laws, regulations and other acts of our duly constituted government from October
23, 1944, onwards. Indeed, to my mind, in choosing between these two courses
of action, they would be dangerously standing on the dividing line between
loyalty and disloyalty to this country and its government.
The proceeding in question, having been had before the liberation of Manila,
were unquestionably "processes" of the Japanese-sponsored government in the
Philippines within the meaning of the aforesaid proclamation of General of the
Army MacArthur and, consequently, fall within the condemnation of the
proclamation. Being processes of a branch of a government which had been
established in the hostility to the Commonwealth Government, as well as the
United States Government, they could not very well be considered by the parties
to be valid and binding, at least after October 23, 1944, without said parties
incurring in disobedience and contempt of the proclamation which enjoins them
to render full respect for the obedience to our Constitution and the laws,
regulations and other acts of our duly constituted government. Nine days after
the inauguration of the so-called "Republic of the Philippines," President Franklin
Delano Roosevelt of the United States declared in one of his most memorable
pronouncements about the activities of the enemy in the Philippines, as follows:
One of the fourtheenth of this month, a puppet government was set up in
the Philippine Island with Jose P. Laurel, formerly a justice of the Philippine
Supreme Court, as "president." Jorge Vargas, formerly as a member of the
Commonwealth Cabinet, and Benigno Aquino, also formerly a member of
that cabinet, were closely associated with Laurel in this movement. The
first act of the new puppet regime was to sign a military alliance with
Japan. The second act was a hyphocritical appeal for American sympathy
which was made in fraud and deceit, and was designed to confuse and
mislead the Filipino people.
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 symphaty goes out to those who remain loyal to the United States and
the Commonwealth that great majority of the Filipino people who have
not been deceived by the promises of the enemy.
October 23, 1943.
FRANKLIN DELANO ROOSEVELT
President of the United States
(Form U.S. Naval War College International Law Documents, 1943, pp. 93,
94.).
It is a fact of contemporary history that while President Manuel L. Quezon of the
Philippines was in Washington, D.C., with his exiled government, he also
repeatedly condemned both the "Philippine Executive Commission" and the
"Philippine Republic," as they had been established by or under orders of the
Commander in Chief of the Imperial Japanese Forces. With these two heads of
the Governments of the United States and the Commonwealth of the Philippines
condemning the "puppet regime" from its very inception, it is beyond my
comprehension to see how the proceedings in question could be considered
valid and binding without adopting an attitude incompatible with theirs. As
President Roosevelt said in his above quoted message, "Our symphaty goes out
to those remain loyal to the United States and the Commonwealth that great
majority of the Filipino people who have not been deceived by the promises of
the enemy.
The most that I can concede is that while the Japanese Army of occupation was
in control in the Islands and their paramount military strength gave those of our
people who were within their reach no other alternative, these had to obey their
orders and decrees, but the only reason for such obedience would be that
paramount military strength and not any intrinsic legal validity in the enemy's
orders and decrees. And once that paramount military strength disappeared, the
reason for the obedience vanished, and obedience should likewise cease.
As was stated by the Supreme Court of the United States in the case of
Williams vs. Bruffy (96 U.S., 176; 24 Law. ed., 719), "In the face of
an overwhelming force, obedience in such matters may often be a necessity and,
in the interest of order, a duty. No concession is thus made to the rightfulness of
the authority exercised." (Emphasis ours.) The court there refers to its own
former decision in Thorington vs. Smith, and makes it clear that the doctrine in
the Thorington case, so far as the effects of the acts of the provisional
government maintained by the British in Casetine, from September, 1814 to the
Treaty of Peace in 1815, and the consideration of Tampico as United States
territory, were concerned, was limited to the period during which the British, in the
first case, retained possession of Castine, and the United States, in the second,
retained possession of Tampico. In referring to the Confederate Government
during the Civil War, as mentioned in the Thorington case, the court again says in
effect that the actual supremacy of the Confederate Government over a portion
of the territory of the Union was the only reason for holding that its inhabitants
could not but obey its authority. But the court was careful to limit this to the time
when that actual supremacy existed, when it said: . . . individual resistance to its
authority then would have been futile and, therefore, unjustifiable." (Emphasis
ours.)
Because of its pertinence, we beg leave to quote the following paragraph from
that leading decision:
There is nothing in the language used in Thorington vs. Smith (supra),
which conflicts with these views. In that case, the Confederate
Government is characterized as one of paramount force, and classed
among the governments of which the one maintained by great Britain in
Castine, from September 1814, to the Treaty of Peace in 1815, and the
one maintained by the United States in Tampico, during our War with
Mexico, are examples. Whilst the British retained possession of Castine,
the inhabitants were held to be subject to such laws as the British
Government chose to recognize and impose. Whilst the United
Statesretained possession of Tampico, it was held that it must regarded
and respected as their territory. The Confederate Government, the court
observed, differed from these temporary governments in the circumstance
that its authority did not justifying acts of hostility to the United States,
"Made obedience to its authority in civil and local matters not only a
necessity, but a duty." All that was meant by this language was, that as
the actual supremancy of the Confederate Government existed over
certain territory, individual resistance to its authority then would have been
futile and, therefore, unjustifiable. In the face of an overwhelming force,
obedience in such matters may often be a necessity and, in the interest of
order, a duty. No concession is thus made to the rightfulness of the

authority exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.)
The majority opinion, in considering valid the proceedings in question, invokes
the rule that when a belligerent army occupies a territory belonging to the enemy,
the former through its Commander in Chief, has the power to establish thereon
what the decisions and treaties have variously denominated provisional or
military government, and the majority holds that the Japanese-sponsored
government in the Philippines was such a government. Without prejudice to later
discussing the effects which the renunciation of war as an instrument of national
policy contained in our Commonwealth Constitution, as well as in the BriandKellog Pact, must have produced in this rule in so far as the Philippines is
concerned, let us set forth some considerations apropos of this conclusion of the
majority. If the power to establish here such a provisional government is
recognized in the Commander in Chief of the invasion army, why should we not
recognize at least an equal power in the Commander in Chief of the liberation
army to overthrow that government will all of its acts, at least of those of an
executory nature upon the time of liberation? Considering the theory maintained
by the majority, it would seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the Commonwealth Government,
and all of its acts and institutions if he had choosen to. Why should at least an
equal power be denied the Commander in Chief of the United States Army to
overthrow the substitute government thus erected by the enemy with all of its
acts and institutions which are still not beyond retrieve? Hereafter we shall have
occasion to discuss the aspects of this question from the point of view of policy or
the practical convenience of the inhabitants. If the Japanese Commander in
Chief represented sovereignty of Japan, the American Commander in Chief
represented the sovereignty of the United States, as well as the Government of
the Commonwealth. If Japan had won this war, her paramount military
supremacy would have continued to be exerted upon the Filipino people, and out
of sheer physical compulsion this country would have had to bow to the
continuance of the puppet regime that she had set up here for an indefinite time.
In such a case, we admit that, not because the acts of that government would
then have intrinsically been legal and valid, but simply because of the paramount
military force to which our people would then have continued to be subjected,
they would have had to recognize as binding and obligatory the acts of the
different departments of that government. But fortunately for the Filipinos and for
the entire civilized world, Japan was defeated. And I now ask: Now that Japan
has been defeated, why should the Filipinos be still bound to respect or
recognize validity in the acts of the Japanese-sponsored government which has
been so severely condemned by both the heads of the United States and our
Commonwealth Government throughout the duration of the war? If we were to
draw a parallel between that government and that which was established by the
Confederate States during the American Civil War, we will find that both met with
ultimate failure. And, in my opinion, the conclusion to be drawn should be the
same in both cases.
As held by the United States Supreme Court in Williams vs. Bruffy (supra),
referring to the Confederate Government, its failure carried with it the dissipation
of its pretentions and the breaking down in pieces of the whole fabric of its
government. The Court said among other things:
The immense power exercised by the government of the Confederate
States for nearly four years, the territory over which it extended, the vast
resources it wielded, and the millions who acknowledged its authority,
present an imposing spectacle well fitted to mislead the mind in
considering the legal character of that organization. It claimed to represent
an independent nation and to posses sovereign powers; as such to
displace to jurisdiction and authority of the United States from nearly half of
their territory and, instead of their laws, to substitute and enforce those of
its own enactment. Its pretentions being resisted, they were submitted to
the arbitrament of war. In that contest the Confederacy failed; and in its
failure its pretentions were dissipated, its armies scattered, and the whole
fabric of its government broken in pieces. (24 Law, ed., 719; emphasis
ours.)
By analogy, if the Japanese invasion and occupation of the Philippines had been
lawful which, however, is not the case and if Japan had succeeded in
permanently maintaining the government that she established in the Philippines,
which would have been the case had victory been hers, there would be more
reason for holding the acts of that government valid, but because Japan has lost
the war and, therefore, failed in giving permanence to that government, the
contrary conclusion should legitimately follow.
The validity of legislation exercised by either contestant "depends not upon the
existence of hostilities but upon the ultimate success of the party which it is
adopted" (emphasis ours). And, referring to the overthrow of the of the
Confederacy, the Court, said, "when its military forces were overthrown, it utterly
perished, and with it all its enactments" (emphasis ours)
The majority cite on page 9-10 of their opinion a passage from the same case of
Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion
says that in this passage the Court was "discussing the validity of the acts of the
Confederate States." In the first place, an examination of the decision will reveal
that the controversy dealt with an act of the Confederate Government, not of the
Confederate States individually; and in the second place, the quoted passage
refers to something which was not in issue in the case, namely, the acts of the
individual States composing the Confederacy. But even this passage clearly
places the case at bar apart from the Court's pronouncement therein. The quoted
passage commences by stating that "The same general form of government the
same general laws for the administration of justice and the protection of private
rights, which has existed in the States prior to the rebellion, remanded during (its)
continuance and afterwards. "In the case at bar, the same general form of the
Commonwealth Government did not continue under the Japanese, for the simple
reason that one of the first acts of the invaders was to overthrow the
Commonwealth Constitution and, therefore, the constitutional government which
existed thereunder, as an effect of the following acts and decrees of the
Commander in Chief of the Imperial Japanese Forces:
1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the
Imperial Japanese Forces to the Chairman of the Philippine Executive
Commission directed that, in the exercise of legislative, executive and judicial
powers in the Philippines, the "activities" of the "administrative organs and
judicial courts in the Philippines shall be based upon the existing status, order,
ordinances and the Commonwealth Constitution (1 Official Journal of the
Japanese Military Administration, page 34). Under the frame of government
existing in this Commonwealth upon the date of the Japanese invasion, the
Constitution was the very fountain-head of the validity and effects of all the
"status, orders, and ordinances" mentioned by the Japanese Commander in
Chief, and in overthrowing the Constitution he, in effect, overthrew all of them.
2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et
seq., Official Gazette, edited at the Office of the Executive Commission) gave the
"Detailed Instruction Based on Guiding Principle of the Administration," and
among other things required "The entire personnel shall be required to pledge
their loyalty to the Imperial Japanese Forces. . . ." (This, of course, was
repugnant to the frame of government existing here under the Commonwealth
Constitution upon the date of invasion.)
3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief
provided in paragraph 3 that "The Authorities and the People of the
Commonwealth should sever their relations with the U.S. o . . ." (This is, likewise,
repugnant to the Commonwealth Constitution and the to the Government of that
Commonwealth Constitution and to the Government of that Commonwealth
which was expressly made subject to the supreme sovereignty of the United
States until complete independence is granted, not by the mere will of the United
States, but by virtue of an agreement between that Government and ours, under
the Tydings-McDuffie Act.)
The individual States of the Confederate and their governments existed prior to
the Civil War and had received the sanction and recognition of the Union
Government, for which the Federal Supreme Court was speaking in the WilliamsBruffy case; while the Japanese-sponsored governments of the "Philippine
Executive Commission" and the Republic of the Philippines" neither existed here
before the war nor had received the recognition or sanction of either the United
States or the Commonwealth Government nay, they had received the most
vigorous condemnation of both.
The Court further says in Williams vs. Bruffy (supra):
No case has been cited in argument, and we think unsuccesfully
attempting to establish a separate revolutionary government have been
sustained as a matter of legal right. As justly observed by the late Chief
Justice in the case of Shortridge vs. Macon, I Abb. U.S., 58, decided at the
circuit, and, in all material respects like the one at bar, "Those who engage
in rebellion must consider the consequences. If theysucceed, rebellion
becomes revolution, and the new government will justify is founders. If they
fail, all their acts hostile to the rightful government are violations of law, and
originate no rights which can be recognized by the courts of the nation
whose authority and existence have been alike assailed. S.C., Chase,
Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.)
(Emphasis ours.)
I am of opinion that the principles thus enunciated for the case of an
unsuccessful rebellion should be applied with greater force to the case of a
belligerent who loss the war. And since the founding of the Japanese-sponsored
government in the Philippines was designed to supplant and did actually supplant
the rightful government and since all its acts could not but a hostile to the latter
(however blameless the officials who acted under enemy duress might be), and
since Japan failed, all said acts, particularly those of the Japanese-sponsored
court in said civil case No. 3012, "are violations of law, and originate no rights
which can be recognized by the courts of the nation whose authority and
existence have been alike assailed", quoting the language of the court in
Shortridgevs. Macon, cited by Mr. Justice Field in Williams vs. Bruffy, supra (24
Law. ed., 718).
II
(a) The government styled as, first, the "Philippine Executive Commission"
and later as the Republic of the Philippines", established here by the
Commander in Chief of the Imperial Japanese Forces or by the his order
was not a de facto government--the so-called Court of First Instance of
Manila was not a de factocourt and the who presided it was not a de
facto judge;
(b) The rules of International Law regarding the establishment of a de
facto government in territory belonging to a belligerent but occupied or
controlled by an opposing belligerent are inapplicable to the governments
thus established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein
cited, the short-lived provisional government thus established by the Japanese in
the Philippines should be classified, at best, as a government of paramount
force. But this is not all. The Constitution of this Commonwealth which has been
expressly approved by the United States Government, in Article II, section 3,
under the heading "Declaration of Principles", renounces war as an instrument of
national policy. This renunciation of war as an instruments of national policy
follows an equal renunciation in the Briand-Kellog Pact. The rules of International
Law , cited in support of the power or right of a belligerent army of occupation to
set up a provisional government on occupied enemy territory, were evolved prior
to the first World War, but the horrors and devastations of that war convinced, at
least the governments of the United States and France, that they should
thereafter renounce war as an instrument of national policy, and they
consequently subscribed the Briand-Kellog Pact. Those horrors and devastations
were increased a hundred fold, if not more, in this second World War, but even
before this war occurred, our own people, through our Constitutional delegates,
who framed the Commonwealth Constitution also adopted the same doctrine,
and embodied an express renunciation of war as an instrument of national policy
in the instrument that they drafted. It is true that in section 3, Article II, abovecited, our Constitution adopts the generally accepted principles of International
Law as a part of the law of the Nation. But, of course, this adoption is exclusive of
those principles of International Law which might involve recognition of war as an
instrument of national policy. It is plain that on the side of the Allies, the present
war is purely defensive. When Japan started said war, treacherously and without
previous declaration, and attacked Pearl Harbor and the Philippines on those two
fateful days of December 7 and 8, 1941, she employed war as an instrument of
the national policy. Under the Briand-Kellog Pact and our Commonwealth
Constitution, the United States and the Commonwealth Government could not
possibly have recognized in Japan any right, as against them, to employ that war
as an instrument of her national policy, and, consequently, they could not have
recognized in Japan power to set up in the Philippines the puppet government
that she later set up, because such power would be a mere incident or
consequence of the war itself. The authorities agree that such a power, under the
cited rules, is said to a right derived from war. (67 C.J., p. 421, sec. 171.) There
can be no question that the United States and the Commonwealth Governments
were free to refuse to be bound by those rules when they made their respective
renunciations above referred to. Indeed, all the United Nations have exercised
this free right in their Charter recently signed at San Francisco.
As necessary consequence of this, those rules of International Law were no
longer applicable to the Philippines and to the United States at the time of the
Japanese invasion as a corollary, it follows that we have no legal foundation on
which to base the proposition that the acts of that Japanese-sponsored
government in the Philippines were valid and binding. Moreover, I am of opinion,
that although at the time of the Japanese invasion and up to the present, the
United States retains over the Philippines, a certain measure of sovereignty, it is
only for certain specified purposes enumerated in the Tydings-McDufie Act of the
Commonwealth Constitution. (Ordinance appended to the Constitution.) And
our territory was at the time of the Japanese invasion not a territory of the United
States, within the meaning of the laws of war governing war-like operations on
enemy territory. Our territory is significantly called "The National Territory" in
Article I of our Constitution and this bears the stamps of express approval of the
United States Government. The Philippines has been recognized and admitted
as a member of the United Nations. We, therefore, had our own national and
territorial identity previous to that invasion. Our nation was not at war with the
Filipinos. And line with this, the Japanese army, in time, released Filipino war
prisoners captured in Bataan. Lt. Gen. Maeda, Chief of Staff, Imperial Japanese
Forces, in his speech of January 2, 1942, said:
. . . we had not the slighest intensions to make your people our enemy;
rather we considered them as our friends who will join us has hand-in-hand
in the establishment of an orderly Greater East Asia. . . ., (Official Gazette,
edited at the Office of the Executive Commission, Vol. I, p. 55.)
If the Philippines was a neutral territory when invaded by the Japanese, the
following principles from Lawrence, International Law (7th ed.), p. 603, are
pertinent:
The Duties of Belligerent States Towards Neutral States. . . . To refrain
from carrying on hostilities within neutral territory. We have already seen
that, though this obligation was recognized in theory during the infancy of
International law, it was often very imperfectly observed in practice. But in
modern times it has been strickly enforced, and any State which knowingly
ordered warlike operations to be carried on in neutral territory . . . would
bring down upon itself the reprobation of civilized mankind. Hostilities may
be carried on in the territory of either belligerent, on the high seas, and in
territory belonging to no one. Neutral land and neutral territorial waters are
sacred. No acts of warfare may lawfully take place within them. . . .

(Emphasis ours.)
In all the cases and authorities supporting the power or right to set up a
provisional government, the belligerent had the right to invade or occupy the
territory in the first instance. Such was not the case with the Philippines.
President Roosevelt, in his message to the Filipino people, soon after the landing
of American Forces in Leyte, on October 20, 1944, characterized Japan's
invasion and occupation of the Philippines as "the barbarous, unprovoked and
treacherous attack upon the Philippines," and he announced the American
people's "firm determination to punish the guilty." (41 Off. Gaz., 149.) (Emphasis
ours.) The illustrious leader of the United Nations could not have in more
unmistakable terms the utter illegality of that invasion and occupation. If the
establishment of a provinsional government in occupied territory by a belligerent
is "a mere application or extension of the force by which the invasion or
occupation was effected" (67 C.J., p. 421, sec 171), the illegality of the invasion,
would necessarily permeate the government, which was its mere application or
extention.
The fact that shortly before December 8, 1941, the date of the "barbarous,
unprovoked and treacherous attack," the meager and almost untrained forces of
the Philippine Army had been inducted into the American Army, did not change
the neutral status of the Philippines. That military measure had been adopted for
purely defensive purposes. Nothing could be farther from the minds of the
government and military leaders of the United States and the Philippines in
adopting it than to embark upon any aggressive or warlike enterprise against any
other nation. It is an old and honored rule dating as far back as the 18th century
that even solemn promises of assistance made before the war by a neutral to a
nation which later becomes a belligerent, would not change the status of the
neutral even if such promises were carried out, so long as they were made for
purely defensive purposes. In the words of Vattel "when a sovereign furnishes
the succor due in virtue of a former defensive alliance, he does not associate
himself in the war. Therefore he may fulfill his engagements and yet preserve an
exact neutrality." (Lawrence, Principles of International Law [7th ed.], pp. 585,
586.)
If the Filipinos had, from contemptible cowardice and fear, allowed their shores to
be invaded, and their territory occupied by the Japanese without resistance, such
invasion occupation would undoubtedly have been considered in violation of
International Law. Should the Filipinos be punished for having had the patriotism,
bravery, and heroism to fight in defense of the sacredness of their land, the
sanctity of their homes, and the honor and dignity of their government by giving
validity, in whatever limited measure, to the lawless acts of the ruthless enemy
who thus overran their country, and robbed them of the tranquility and happiness
of their daily lives? And yet, to my mind, to give any measure of validity or binding
effect to the proceedings of the Japanese-sponsored Court of First Instance of
Manila, involved herein, would be to give that much validity or effect to the acts of
those same invaders. To equalize the consequences of a lawful and a wrongful
invasion of occupation, would be to equalize right and wrong, uphold the creed
that might makes right, and adopt "the law of the jungle."
If said Japanese-sponsored government was not a de facto government, it would
seem clearly to follow that its "Court of First Instance of Manila" was not a de
facto court. But it should additionally be stated that for it be a de facto court, its
judge had to be a de facto judge, which he could not be, as presently
demonstrated.
As said by President Osmea, in replying to the speech of General of the Army
MacArthur when the latter turned over to him the full powers and responsibilities
of the Commonwealth Government, on February 27, 1945:
xxx
xxx
xxx
The time has come when the world should know that when our forces
surrendered in Bataan and Corregidor, resistance to the enemy was taken
up by the people itself resistance which was inarticulate and
disorganized in its inception but which grew from the day to day and from
island until it broke out into an open warfare against the enemy.
The fight against the enemy was truly a people's war because it counted
with the wholehearted support of the masses. From the humble peasant to
the barrio school teacher, from the volunteer guard to the women's
auxilliary service units, from the loyal local official to the barrio folk each
and every one of those contributed his share in the great crusade for
liberation.
The guerrillas knew that without the support of the civilian population, they
could not survive. Whole town and villages dared enemy reprisal to oppose
the hated invader openly or give assistance to the underground movement.
. . . (41 Off. Gaz., 88, 89.)
Under these facts, taken together with the General of the Army MacArthur's
accurate statement that the "Republic of the Philippines" had been established
under enemy duress, it must be presumed to say the least that the judge
who presided over the proceedings in question during the Japanese occupation,
firstly, accepted his appointment under duress; and secondly, acted by virtue of
that appointment under the same duress. In such circumstances he could not
have acted in the bona fide belief that the new "courts" created by or under the
orders of the Japanese Military Commander in chief had been legally created-among them the "Court of first Instance of Manila," that the Chairman of the
"Philippine Executive Commission" or the President of the "Republic of the
Philippines", whoever appointed him, and conferred upon him a valid title to his
office and a legitimate jurisdiction to act as such judge. Good faith is essential for
the existence of a de facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The
very idea of enemy duress would necessarily imply that but for the duress
exerted upon him by the enemy he would have refused to accept the
appointment and to act thereunder. And why? Because he must be presumed to
know that the office to which he was thus appointed had been created by the
enemy in open defiance of the Commonwealth Constitution and the laws and
regulation promulgated by our Commonwealth Government, and that his
acceptance of said office and his acting therein, if willfully done, would have been
no less than an open hostility to the very sovereignty of the United Sates and to
the Commonwealth Government, and a renunciation of his allegiance to both.
There is no middle ground here. Either the judge acted purely under duress, in
which case his acts would be null and void; or maliciously in defiance of said
governments, in which case his acts would be null and void for more serious
reasons.
The courts created here by the Japanese government had to look for the source
of their supposed authority to the orders of the Japanese Military Commander in
chief and the so-called Constitution of the "Republic of the Philippines," which
had been adopted in a manner which would shock the conscience of democratic
peoples, and which was designed to supplant the Constitution which had been
duly adopted by the Filipino people in a Constitutional Convention of their duly
elected Constitutional Delegates. And it was decreed that the Commander in
chief of the Imperial Japanese Forces "shall exercise jurisdiction over judicial
courts." (Vol. 1, p. 7, Official Journal of the Japanese Military Administration, cited
on pp. 2, 3, of the order of the respondent judge complained of and marked
Exhibit H of the petition for mandamus.) How can our present courts legitimately
recognize any efficacy in the proceedings of such an exotic judicial system,
wherein the Commander in Chief of the Imperial Japanese Forces possessed the
highest judicial jurisdiction?
III
The courts of those governments were entirely different from our
Commonwealth courts before and after the Japanese occupation.
Executive Order No. 36 of the President of the Philippines, dated March 10,
1945, in its very first paragraph, states the prime concern of the government "to
re-establish the courts as fast as provinces are liberated from the Japanese
occupation." If the courts under the Japanese-sponsored government of the
"Republic of the Philippines" were the same Commonwealth courts that existed
here under the Constitution at the time of the Japanese invasion, President
Osmea would not be speaking of re-establishing those courts in his aforesaid
Executive Order. For soothe, how could those courts under the "Republic of the
Philippines" be the courts of the Commonwealth of the Philippines when they
were not functioning under the Constitution of the Commonwealth and the laws
enacted in pursuance of said Constitution? The jurisdiction of the Commonwealth
courts was defined and conferred under the Commonwealth Constitution and the
pertinent legislation enacted thereunder, that of the Japanese-sponsored courts
was defined and conferred by the orders and decrees of the Japanese
Commander in Chief, and, perhaps, the decrees of the "Philippine Executive
Commission" and the laws of the so-called Legislature under the Republic, which
was not composed of the elected representatives of the people. The Justices and
Judges of the Commonwealth courts had to be appointed by the President of the
Commonwealth with confirmation by the Commission on Appointments, pursuant
to the Commonwealth Constitution. The Chief Justice of the Supreme Court,
under the "Philippine Executive Commission" was appointed by the Commander
in Chief of the Imperial Japanese Forces, and the Associate Justices of the
Supreme Court, the Presiding Justice and Associate Justices of the Court of
Appeals, the Judges of first Instance and of all inferior courts were appointed by
the Chairman of the Executive Commission, at first, and later, by the President of
the Republic, of course, without confirmation by the Commission on
Appointments under the Commonwealth Constitution. The Chief Justice and
Associate Justices of the Supreme Court, the President and Associate Justices
of the Court of Appeals, and the Judges of First Instance and of all inferior courts
in the Commonwealth judicial system, had to swear to support and defend the
Commonwealth Constitution, while this was impossible under the Japanesesponsored government. In the Commonwealth judicial system, if a Justice or
Judge should die or incapacitated to continue in the discharge of his official
duties, his successor was appointed by the Commonwealth President with
confirmation by the Commission on Appointments, and said successor had to
swear to support and defend the Commonwealth Constitution; in the exotic
judicial system implanted here by the Japanese, if a Justice or Judge should die
or incapacitated, his successor would be appointed by the Japanese
Commander in Chief, if the dead or incapacitated incumbent should be the Chief
Justice of the Supreme Court, or otherwise, by the Chairman of the "Executive
Commission" or the President of the "Republic", of course without confirmation
by the Commission on Appointments of the Commonwealth Congress, and, of
course, without the successor swearing to support and defend the

Commonwealth Constitution.
If, as we believe having conclusively shown, the Japanese-sponsored courts
were not the same Commonwealth courts, the conclusion is unavoidable that any
jurisdiction possessed by the former and any cases left pending therein, were not
and could not be automatically transfered to the Commonwealth courts which we
re-established under Executive Order No. 36. For the purpose, a special
legislation was necessary.
Executive Order No. 37, in my humble opinion, does not, as held by the majority,
imply that the President recognized as valid the proceedings in all cases
appealed to the Court of Appeals. Section 2 of that order simply provides that all
cases which have been duly appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final decision. The adverb "duly" would
indicate that the President foresaw the possibility of appeals not having been
duly taken. All cases appealed to the Court of Appeals before the war and the
otherwise duly appealed, would come under the phrase "duly appealed" in this
section of the Executive Order. But considering the determined and firm attitude
of the Commonwealth Government towards those Japanese-sponsored
governments since the beginning, it would seem inconceivable that the President
Osmea, in section 2 of Executive Order No. 37, intended to include therein
appeals taken to the Japanese-sponsored Court of Appeals, or from the
Japanese-sponsored inferior courts. It should be remembered that in the
Executive Order immediately preceeding and issued on the same date, the
President speaks of re-establishing the courts as fast as provinces were liberated
from the Japanese occupation.
IV
The question boils down to whether the Commonwealth Government, as
now restored, is to be bound by the acts of either or both of those
Japanese-sponsored governments.
In the last analysis, in deciding the question of validity or nullity of the
proceedings involved herein, we are confronted with the necessity to decide
whether the Court of first Instance of Manila and this Supreme Court, as reestablished under the Commonwealth Constitution, and the entire
Commonwealth Government, are to be bound by the acts of the said Japanesesponsored court and government. To propound this question is, to my mind, to
answer it most decidedly in the negative, not only upon the ground of the legal
principles but also for the reasons of national dignity and international decency.
To answer the question in the affirmative would be nothing short for legalizing the
Japanese invasion and occupation of the Philippines. Indeed, it would be virtual

submission to the dictation of an invader our people's just hatred of whom gave
rise to the epic Philippine resistance movement, which has won the admiration of
the entire civilized world.
V
Even considerations of policy or practical convenience militate against
petitioner's contention.
In this connection, the respondent judge, in his order of June 6, 1945,
complained of, has the following to say:
It is contended, however, that the judicial system implanted by the
Philippine Executive Commission and the Republic was the same as that
of the Commonwealth prior to Japanese occupation; that the laws
administered and enforced by said courts during the existence of said
regime were the same laws on the statute books of Commonwealth before
Japanese occupation, and that even the judges who presided them were,
in many instances, the same persons who held the position prior to the
Japanese occupation. All this may be true, but other facts are just as
stubborn and pitiless. One of them is that said courts were of a
government alien to the Commonwealth Government. The laws they
enforced were, true enough, laws of the Commonwealth prior to Japanese
occupation, but they had become the laws and the Courts had become
the institutions-of Japan by adoption (U.S. vs. Reiter, 27 F. Case No.
16,146), as they became later on the laws and institution of the Philippine
Executive Commission and the Republic of the Philippines. No amount of
argument or legal fiction can obliterate this fact.
Besides, I am of the opinion that the validity of the acts of the courts in the
"judicial system implanted by the Philippine Executive Commission and the
Republic "would not depend upon the laws that they "administered and
enforced", but upon the authority by virtue of which they acted. If the members of
this Court were to decide the instant case in strict accordance with the
Constitution and the laws of the Commonwealth but not by the authority that they
possess in their official capacity as the Supreme Court of the Philippines, but
merely as lawyers, their decision would surely be null and void. And yet, I am
firmly of opinion that whoever was the "judge" of the Japanese sponsored Court
of First Instance of Manila who presided over the said court when the
proceedings and processes in the dispute were had, in acting by virtue of the
supposed authority which he was supposed to have received from that
government, did so with no more legal power than if he had acted as a mere
lawyer applying the same laws to the case. If duplication of work or effort, or
even if confussion, should be alleged to possibly arise from a declaration of
nullity or judicial proceedings had before those Japanese-sponsored courts, it
should suffice to answer that the party so complaining in voluntarily resorting to
such courts should be prepared to assume the consequences of his voluntary
act. On the other hand, his convenience should not be allowed to visit upon the
majority of the inhabitants of this country, the dire consequences of a sweeping
and wholesale validation of judicial proceedings in those courts. Let us set forth a
few considerations apropos of this assertion. It is a fact of general knowledge
that during the Japanese occupation of the Philippines, the overwhelming
majority of our people and other resident inhabitants were literally afraid to go
any place where there were Japanese sentries, soldiers or even civilians, and
that these sentries were posted at the entrance into cities and towns and at
government offices; that the feared Japanese "M. P.'s" or Kempeitai's" were a
constant terror to them; and lastly, that the greater number who lived or had
evacuated to places for from the Japanese, were found precisely in the cities and
towns where the courts were located; and as a consequence, the great majority
of the people were very strongly adverse to traveling any considerable distance
from their homes and were, one might say, in constant hiding. Add to these
circumstances, the fact of the practical absence of transportation facilities and
the no less important fact of the economic structure having been so dislocated as
to have impoverished the many in exchange for the enrichment of the few and
we shall have a fair picture of the practical difficulties which the ordinary litigant
would in those days have encountered in defending his rights against anyone of
the favored few who would bring him to court. It should be easy to realize how
hard it was for instances, to procure the attendance of witnesses, principally
because of the fact that most of them were in hiding or, at least, afraid to enter
the cities and towns, and also because of then generally difficult and abnormal
conditions prevailing. Under such conditions, cases or denial of a party's day in
court expected. Such denial might arise from many a cause. It might be party's
fear to appear before the court because in doing so, he would have had to get
near the feared Japanese. It might be because he did not recognize any legal
authority in that court, or it might be his down-right repugnance of the hated
enemy. And I dare say that among such people would be found more than
seventeen million Filipinos. These are but a few of countless cause. So that if
some form of validation of such judicial proceedings were to be attempted, all
necessary safeguards should be provided to avoid that in any particular case the
validation should violate any litigant's constitutional right to his day in court, within
the full meaning of the phrase, or any other constitutional or statutory right of his.
More people, I am afraid, would be prejudiced than would be benefited by a
wholesale validation of said proceedings.
Much concern has been shown for the possible confusion which might result
from a decision declaring null and void the acts processes of the Japanesesponsored governments in the Philippines. I think, this aspect of the question has
been unduly stressed. The situation is not without remedy, but the remedy lies
with the legislature and not with the courts. As the courts cannot create a new or
special jurisdiction for themselves, which is a legislative function, and as the
situation demands such new or special jurisdiction, let the legislature act in the
premises. For instance, the Congress may enact a law conferring a special
jurisdiction upon the courts of its selection, whereby said courts may, after
hearing all the parties interested, and taking all the necessary safeguards, so
that, a party's day in court or other constitutional or statutory right under the
Commonwealth Government should not be prejudiced by any of said acts,
processes or proceedings, particullarly, those in Japanese-sponsored courts, and
subject to such other conditions as the special law may provide, validate the
corresponding acts, processes or proceedings. This, to my mind, would be more
conducive to a maximum of benefit and a minimum of prejudice to the inhabitants
of this country, rather than the procedure favored by the majority.
Finally, let us not equalize the conditions then prevailing in Manila to that
prevailing in the provinces, where the greater number of the people where then
living outside the towns, in the farms and the hills. These people constitute the
great majority of the eighteen million Filipinos. To them the semblance of an
administration of justice which Japanese allowed, was practically unknown. But
they constituted the majority of loyal citizens to whom President Roosevelt's
message of October 23, 1943 refers. They the majority of our people had
an unshaken faith in the arrival of American aid here and the final triumph of the
Allied cause. They were willing to wait for the restoration of their rightful
government, with its courts and other institutions, for the settlement of their
differences. May in their common hardship and sufferings under yoke of foreign
oppression, they had not much time to think of such differences, if they did not
utterly forget them. Their undoubted hatred of the invader was enough to keep
them away from the judicial system that said invader allowed to have. Those who
voluntarily went to the courts in those tragic days belong to the small minority.
As to the public order why! any public order which then existed was not due to
the courts or other departments of the puppet government. It was maintained at
the point of the bayonet by the Japanese army, and in their own unique fashion.
SUPREME COURT
Manila
EN BANC
G.R. No. L-1870
February 27, 1948
ANTONIO C. OGNIR, petitioner,

vs.
Vamenta and Maclang for petitioner.
First Assistant Solicitor General Roberto A. Gianzon, Solicitor Antonio A. Torres
and Lieutenant Colonel Fred Ruiz Castro, J.A.G.S. (NDF), for respondent.
FERIA, J.:
This is a petition for habeas corpus by the petitioner against the Director of
Prisons.
The petitioner was convicted by the General Court Martial appointed or convened
during the year 1943 in Lanao by Colonel Wendel W. Fertig, Commanding Officer
of the 10th Military District of Mindanao, and sentenced to life imprisonment, for
violation of the 93rd Article of War of the Philippine Army. He now claims that his
imprisonment is null and void because the said General Court-Martial was not
legally constituted, inasmuch as District Commander that appointed or convened
it had no authority to do so, and therefore the judgment of said court is null and
void for want of jurisdiction.
The only question to be determined in the present case is whether or not the
General Court-Martial which sentenced the petitioner to life imprisonment, was
legally appointed or convened. For it is a well established rule that a judgment
rendered by a military court which is not legally constituted is treated not only as
voidable but void and subject to collateral attack, McClaughry vs. Deming, 186 U.
S., 49; 46 Law. ed., 1049.
Article 8, Commonwealth Act. No. 408 which provides the following:.
General Courts-Martial. The President of the Philippines, the Chief of
Staff of the Philippine Army, and, when empowered by the President, the
Provost Martial General, the Commanding Officer of a Division, the District
Commander, the Superintendent of the Military Academy, the Commanding
Officer of a separate brigade or body of troops may appoint general courtsmartial; but when any such commander is the accuser or prosecutor of the
person or persons to be tried, the court shall be appointed by superior
competent authority, and no officer shall be eligible to sit as a member of
such court when he is the accuser or a witness for the prosecution or for
the defense.
There is nothing in the record or in the return filed by the respondent to show that
Col. Wendel W. Fertig, Commanding Officer of the 10th Military District of
Mindanao had ever been empowered to appoint a General Court-Martial, by the
President of the Commonwealth, or by General McArthur, Supreme Commander
of the U.S. Army in Southwest Pacific Area, assuming that the military powers of
the President of the Commonwealth as Commander in Chief of the Philippine
Army was ipso facto transferred to said Supreme Commander when the
Commonwealth Government of the Philippines evacuated to Australia and then
to the United States. The appointment of Colonel Fertig as Commander of the
10th Military District of Mindanao does not carry with it the power to convene the
General Court-Martial. According to the above-quoted provision of article 8,
Commonwealth No. 408, the only officers who have such inherent power by
virtue of their position are the President of the Commonwealth and the Chief of
Staff of the Philippine Army. All other officers such as the Provost Marshall and
Commanding Officer of a separate brigade or body of troops, and Colonel Fertig
may come within the latter category, can not appoint a General Court Martial
unless expressly empowered by the President to do so.
"While courts-martial, not being 'inferior courts' to the Supreme Court under the
Constitution, cannot be appealed from to any civil court, or controlled or directed
by the decree or mandate of such a court, yet in our U.S. Courts, similarly as in
the English tribunals, the writ of habeas corpus may be availed of by a prisoner
claiming to be illegally detained under trial or sentence of court martial, and
this proceeding the legality of the action of the court as whether it was legally
constituted, or had jurisdiction, or its sentence was authorized by the code--may
be inquired into." (Winthrop's Military Law and Precedents, 2d ed., Vols. 1 and 2,
p. 52.)
In view of the foregoing, we are of the opinion and so hold that the judgment
rendered by the General Court Martial that sentenced the petitioner to life
imprisonment is null and void, because said court was not duly convened or
appointed in accordance with law and therefore, had no jurisdiction to render said
sentence.
The petitioner being illegally detained, respondent is ordered to release him
immediately. So ordered.
Moran, C.J., Pablo, Hilado, Bengzon, Briones, Padilla and Tuason, JJ., concur.
PERFECTO, J.:.
We concur in this decision, but we do not accept Winthrop's theory that courtsmartial are not inferior courts to the Supreme Court under the Constitution. All
other courts are inferior to the Supreme Court. The constitutional text is clear
enough.
RESOLUTION ON A MOTION FOR RECONSIDERATION
May 12, 1948
FERIA, J.:
A motion for reconsideration of our decision was filed in this case by the Judge
Advocate General of the Philippine Army and Solicitor Antonio A. Torres, on the
ground: (1) that the General Court Martial which convicted the defendant had
been convened not by Col. Fertig but by Lt. Col. Hodges of the 18th Decision,
10th Military District; (2) that as a matter of fact Col. Fertig was expressly
authorized by Gen. MacArthur to convene such court; and (3) that the decision of
the General Court-Martial which convicted the petitioner may be given the same
effects as the actuation of the civil courts during the Japanese occupation.
As to the first ground, according to the return filed by the First Assistant Solicitor
General and the Solicitor Antonio Torres, "The records of this case on file with the
Judge Advocate General Office, Philippine Army, disclose that the petitioner,
together with one Private Elino Pagaling, was charged with violation of the 93rd
Articles of War before a general court martial appointed by Colonel Wendell W.
Fertig, Commanding Officer of the 10th Military District (Mindanao) pursuant to
paragraph 9, Special Order 124, Headquarters, 108th Division, CPQ, Series of
1944, as amended." According to section 13, Rule 102 of the Rules of Court, the
return is prima facie evidence of the cause of restraint, that is, that the petitioner
was confined by virtue of a judgment of conviction rendered by a Court-Martial
convened or appointed by said officer Colonel Fertig, and there is no mention
whatever of Lt. Col. Hodges in said return. Therefore, the contention or allegation
in paragraph 4 of the motion for reconsideration that "the decision of this
Honorable Court was erroneously based on the assumption that the CourtMartial which convicted the petitioner was appointed and convened by Colonel
Wendell W. Fertig, when in truth and in fact said Court was appointed by Lt. Col.
Hodges, Division Commander of the 108 Division, 10th Military District," is a
reckless allegation.
With regard to the second ground, assuming, contrary to the return, that Lt. Col.
Hodges was the one who convened the General Court-Martial, and not Col.
Fertig, there is nothing in the record to show or support the allegation that either
Col. Fertig or Lt. Col. Hodges was ever authorized by General MacArthur to
convene or appoint the General Court-Martial which convicted the petitioner. The
Exhibit I attached to the motion for reconsideration, that purports to be an
affidavit dated March 8, 1948, of one Captain F. S. Lagman, states among others
that "a radiogram to GHQ, SWPA was transmitted requesting for an authorization
sometime in 1943, as far as I remember. After the said request, it is
my recollection that an authority was granted him to appoint Special and General
Court-Martial." The statement in Exhibit I does not deserve any credit. In the first
place, the so-called affidavit is not signed; the names F.S. Lagman appearing as
affiant, and Jose R. Catibog as the officer before whom the so-called affidavit is
supposed to have been sworn to, are not signed but typewritten. (2) Secondly,
said Lagman does not affirm that his recollection is based on the fact that he
personally received such radiogram. On the contrary, as he states that "as an
Adjutant General, I had access, as custodian of all records to all incoming and
outgoing official communications of our headquarters," it is to be inferred that he
had obtained such information from the record, and the best evidence is the
record itself or the original transcription of radiogram received, there being no
showing that it was lost or destroyed. Thirdly, Lagman refers to an authority
granted (he does not say by whom) to Colonel Fertig to convene Special and
General Courts-Martial, and not to Lt. Colonel Hodges who, according to Exhibit
3 of the motion for reconsideration, convened the General Court-Martial in
question; and therefore, even assuming without deciding that Col. Fertig was
granted such authority, the General Court-Martial in question convened by Lt.
Col. Hodges is null and void for the latter had no authority to do so. And fourthly,
Circular No. 34 of the Commonwealth of the Philippine Army Headquarters Apo
75, Appendix B to the petitioner's petition (admitted and not denied as a correct
copy of the original), belies the gratuitous assumption that Lt. Col. Hodges had
authority to convene said General Courts-Martial, for said circular provides that
"General Courts-Martial, appointed by District Commanders from 1942 to 1944
are not covered by this order (Executive Order that empowers District
Commander to convene general courts-martial, otherwise it would be giving the
order its retroactive effect," and that "General Courts-Martial appointed by
recognized guerrilla District Commanders prior to June 6, 1945, must show
authority for the appointment." (Emphasis ours.)
(3) and regarding the third ground, the contention that the proceedings of the
General Court-Martial under consideration "may be given effect as the actuation
of de facto officers in the same manner as the pronouncement of Civil Tribunals
set up during the second Republic." is untenable; because there is no analogy
between the decision of the courts established by the Military Government or the
so-called second Republic, and that of the General Court-Martial which convicted
the petitioner. The Courts of the Commonwealth legally constituted which were
continued during the so-called Philippine Republic, and the other courts during
the Japanese occupation were legally created by laws which, under the
International Law, the military occupant had the right to promulgate. While the
said General Court-Martial was created or convened by an officer having no
power or authority to do so.
Paras, Pablo, Bengzon, Padilla, and Tuason, JJ., concur.
HILADO, J.:
I concur in the result, but dissent from the declaration that the Commonwealth
courts were continued during the so-called Philippine Republic. As I have so
often contended, the occupation courts were different from the Commonwealth
courts the majority have held the former de facto, but we all agree the latter
were de jure. The former were courts of the occupation regime, the latter of the
lawful government.
Lawyers League for a Better Philippines v. Aquino

G.R. No. 73748 May 22, 1986
NONE ONLINE

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. 90183.
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. 20-21).
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. In World 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 DefensorSantiago, 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.

SUPREME COURT
Manila
EN BANC
G.R. No. 152154
July 15, 2003
REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
HONORABLE SANDIGANBAYAN (SPECIAL FIRST DIVISION), FERDINAND
E. MARCOS (REPRESENTED BY HIS ESTATE/HEIRS: IMELDA R. MARCOS,
MARIA IMELDA [IMEE] MARCOS-MANOTOC, FERDINAND R. MARCOS, JR.
AND IRENE MARCOS-ARANETA) AND IMELDA ROMUALDEZ
MARCOS, respondents.
CORONA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court seeking to (1)
set aside the Resolution dated January 31, 2002 issued by the Special First
Division of the Sandiganbayan in Civil Case No. 0141 entitledRepublic of the
Philippines vs. Ferdinand E. Marcos, et. al., and (2) reinstate its earlier decision
dated September 19, 2000 which forfeited in favor of petitioner Republic of the
Philippines (Republic) the amount held in escrow in the Philippine National Bank
(PNB) in the aggregate amount of US$658,175,373.60 as of January 31, 2002.
BACKGROUND OF THE CASE
On December 17, 1991, petitioner Republic, through the Presidential
Commission on Good Government (PCGG), represented by the Office of the
Solicitor General (OSG), filed a petition for forfeiture before the Sandiganbayan,
docketed as Civil Case No. 0141 entitled Republic of the Philippines vs.
Ferdinand E. Marcos, represented by his Estate/Heirs and Imelda R. Marcos,
pursuant to RA 13791 in relation to Executive Order Nos. 1,2 2,3 144 and 14-A.5
In said case, petitioner sought the declaration of the aggregate amount of
US$356 million (now estimated to be more than US$658 million inclusive of
interest) deposited in escrow in the PNB, as ill-gotten wealth. The funds were
previously held by the following five account groups, using various foreign
foundations in certain Swiss banks:
(1) Azio-Verso-Vibur Foundation accounts;

(2) Xandy-Wintrop: Charis-Scolari-Valamo-Spinus- Avertina Foundation
accounts;
(3) Trinidad-Rayby-Palmy Foundation accounts;
(4) Rosalys-Aguamina Foundation accounts and
(5) Maler Foundation accounts.
In addition, the petition sought the forfeiture of US$25 million and US$5 million in
treasury notes which exceeded the Marcos couple's salaries, other lawful income
as well as income from legitimately acquired property. The treasury notes are
frozen at the Central Bank of the Philippines, now Bangko Sentral ng Pilipinas,
by virtue of the freeze order issued by the PCGG.
On October 18, 1993, respondents Imelda R. Marcos, Maria Imelda M. Manotoc,
Irene M. Araneta and Ferdinand R. Marcos, Jr. filed their answer.
Before the case was set for pre-trial, a General Agreement and the Supplemental
Agreements6 dated December 28, 1993 were executed by the Marcos children
and then PCGG Chairman Magtanggol Gunigundo for a global settlement of the
assets of the Marcos family. Subsequently, respondent Marcos children filed a
motion dated December 7, 1995 for the approval of said agreements and for the
enforcement thereof.
The General Agreement/Supplemental Agreements sought to identify, collate,
cause the inventory of and distribute all assets presumed to be owned by the
Marcos family under the conditions contained therein. The aforementioned
General Agreement specified in one of its premises or "whereas clauses" the fact
that petitioner "obtained a judgment from the Swiss Federal Tribunal on
December 21, 1990, that the Three Hundred Fifty-six Million U.S. dollars
(US$356 million) belongs in principle to the Republic of the Philippines provided
certain conditionalities are met x x x." The said decision of the Swiss Federal
Supreme Court affirmed the decision of Zurich District Attorney Peter Consandey,
granting petitioner's request for legal assistance.7 Consandey declared the
various deposits in the name of the enumerated foundations to be of illegal
provenance and ordered that they be frozen to await the final verdict in favor of
the parties entitled to restitution.
Hearings were conducted by the Sandiganbayan on the motion to approve the
General/Supplemental Agreements. Respondent Ferdinand, Jr. was presented
as witness for the purpose of establishing the partial implementation of said

agreements.
On October 18, 1996, petitioner filed a motion for summary judgment and/or
judgment on the pleadings. Respondent Mrs. Marcos filed her opposition thereto
which was later adopted by respondents Mrs. Manotoc, Mrs. Araneta and
Ferdinand, Jr.
In its resolution dated November 20, 1997, the Sandiganbayan denied
petitioner's motion for summary judgment and/or judgment on the pleadings on
the ground that the motion to approve the compromise agreement "(took)
precedence over the motion for summary judgment."
Respondent Mrs. Marcos filed a manifestation on May 26, 1998 claiming she was
not a party to the motion for approval of the Compromise Agreement and that she
owned 90% of the funds with the remaining 10% belonging to the Marcos estate.
Meanwhile, on August 10, 1995, petitioner filed with the District Attorney in
Zurich, Switzerland, an additional request for the immediate transfer of the
deposits to an escrow account in the PNB. The request was granted. On appeal
by the Marcoses, the Swiss Federal Supreme Court, in a decision dated
December 10, 1997, upheld the ruling of the District Attorney of Zurich granting
the request for the transfer of the funds. In 1998, the funds were remitted to the
Philippines in escrow. Subsequently, respondent Marcos children moved that the
funds be placed in custodia legis because the deposit in escrow in the PNB was
allegedly in danger of dissipation by petitioner. The Sandiganbayan, in its
resolution dated September 8, 1998, granted the motion.
After the pre-trial and the issuance of the pre-trial order and supplemental pretrial order dated October 28, 1999 and January 21, 2000, respectively, the case
was set for trial. After several resettings, petitioner, on March 10, 2000, filed
another motion for summary judgment pertaining to the forfeiture of the US$356
million, based on the following grounds:
I
THE ESSENTIAL FACTS WHICH WARRANT THE FORFEITURE OF THE
FUNDS SUBJECT OF THE PETITION UNDER R.A. NO. 1379 ARE
ADMITTED BY RESPONDENTS IN THEIR PLEADINGS AND OTHER
SUBMISSIONS MADE IN THE COURSE OF THE PROCEEDING.
II
RESPONDENTS' ADMISSION MADE DURING THE PRE-TRIAL THAT

THEY DO NOT HAVE ANY INTEREST OR OWNERSHIP OVER THE
FUNDS SUBJECT OF THE ACTION FOR FORFEITURE TENDERS NO
GENUINE ISSUE OR CONTROVERSY AS TO ANY MATERIAL FACT IN
THE PRESENT ACTION, THUS WARRANTING THE RENDITION OF
SUMMARY JUDGMENT.8
Petitioner contended that, after the pre-trial conference, certain facts were
established, warranting a summary judgment on the funds sought to be forfeited.
Respondent Mrs. Marcos filed her opposition to the petitioner's motion for
summary judgment, which opposition was later adopted by her co-respondents
Mrs. Manotoc, Mrs. Araneta and Ferdinand, Jr.
On March 24, 2000, a hearing on the motion for summary judgment was
conducted.
In a decision9 dated September 19, 2000, the Sandiganbayan granted petitioner's
motion for summary judgment:
CONCLUSION
There is no issue of fact which calls for the presentation of evidence.
The Motion for Summary Judgment is hereby granted.
The Swiss deposits which were transmitted to and now held in escrow at
the PNB are deemed unlawfully acquired as ill-gotten wealth.
DISPOSITION
WHEREFORE, judgment is hereby rendered in favor of the Republic of the
Philippines and against the respondents, declaring the Swiss deposits
which were transferred to and now deposited in escrow at the Philippine
National Bank in the total aggregate value equivalent to
US$627,608,544.95 as of August 31, 2000 together with the increments
thereof forfeited in favor of the State.10
Respondent Mrs. Marcos filed a motion for reconsideration dated September 26,
2000. Likewise, Mrs. Manotoc and Ferdinand, Jr. filed their own motion for
reconsideration dated October 5, 2000. Mrs. Araneta filed a manifestation dated
October 4, 2000 adopting the motion for reconsideration of Mrs. Marcos, Mrs.
Manotoc and Ferdinand, Jr.
Subsequently, petitioner filed its opposition thereto.

In a resolution11 dated January 31, 2002, the Sandiganbayan reversed its
September 19, 2000 decision, thus denying petitioner's motion for summary
judgment:
CONCLUSION
In sum, the evidence offered for summary judgment of the case did not
prove that the money in the Swiss Banks belonged to the Marcos spouses
because no legal proof exists in the record as to the ownership by the
Marcoses of the funds in escrow from the Swiss Banks.
The basis for the forfeiture in favor of the government cannot be deemed
to have been established and our judgment thereon, perforce, must also
have been without basis.
WHEREFORE, the decision of this Court dated September 19, 2000 is
reconsidered and set aside, and this case is now being set for further
proceedings.12
Hence, the instant petition. In filing the same, petitioner argues that the
Sandiganbayan, in reversing its September 19, 2000 decision, committed grave
abuse of discretion amounting to lack or excess of jurisdiction considering that -I
PETITIONER WAS ABLE TO PROVE ITS CASE IN ACCORDANCE WITH
THE REQUISITES OF SECTIONS 2 AND 3 OF R.A. NO. 1379:
A. PRIVATE RESPONDENTS CATEGORICALLY ADMITTED NOT
ONLY THE PERSONAL CIRCUMSTANCES OF FERDINAND E.
MARCOS AND IMELDA R. MARCOS AS PUBLIC OFFICIALS BUT
ALSO THE EXTENT OF THEIR SALARIES AS SUCH PUBLIC
OFFICIALS, WHO UNDER THE CONSTITUTION, WERE
PROHIBITED FROM ENGAGING IN THE MANAGEMENT OF
FOUNDATIONS.
B. PRIVATE RESPONDENTS ALSO ADMITTED THE EXISTENCE
OF THE SWISS DEPOSITS AND THEIR OWNERSHIP THEREOF:
1. ADMISSIONS IN PRIVATE RESPONDENTS' ANSWER;
2. ADMISSION IN THE GENERAL / SUPPLEMENTAL

AGREEMENTS THEY SIGNED AND SOUGHT TO
IMPLEMENT;
3. ADMISSION IN A MANIFESTATION OF PRIVATE
RESPONDENT IMELDA R. MARCOS AND IN THE MOTION
TO PLACE THE RES IN CUSTODIA LEGIS; AND
4. ADMISSION IN THE UNDERTAKING TO PAY THE HUMAN
RIGHTS VICTIMS.
C. PETITIONER HAS PROVED THE EXTENT OF THE
LEGITIMATE INCOME OF FERDINAND E. MARCOS AND IMELDA
R. MARCOS AS PUBLIC OFFICIALS.
D. PETITIONER HAS ESTABLISHED A PRIMA
FACIE PRESUMPTION OF UNLAWFULLY ACQUIRED WEALTH.
II
SUMMARY JUDGMENT IS PROPER SINCE PRIVATE RESPONDENTS
HAVE NOT RAISED ANY GENUINE ISSUE OF FACT CONSIDERING
THAT:
A. PRIVATE RESPONDENTS' DEFENSE THAT SWISS DEPOSITS
WERE LAWFULLY ACQUIRED DOES NOT ONLY FAIL TO
TENDER AN ISSUE BUT IS CLEARLY A SHAM; AND
B. IN SUBSEQUENTLY DISCLAIMING OWNERSHIP OF THE
SWISS DEPOSITS, PRIVATE RESPONDENTS ABANDONED
THEIR SHAM DEFENSE OF LEGITIMATE ACQUISITION, AND
THIS FURTHER JUSTIFIED THE RENDITION OF A SUMMARY
JUDGMENT.
III
THE FOREIGN FOUNDATIONS NEED NOT BE IMPLEADED.
IV
THE HONORABLE PRESIDING JUSTICE COMMITTED GRAVE ABUSE
OF DISCRETION IN REVERSING HIMSELF ON THE GROUND THAT
ORIGINAL COPIES OF THE AUTHENTICATED SWISS DECISIONS AND
THEIR "AUTHENTICATED TRANSLATIONS" HAVE NOT BEEN
SUBMITTED TO THE COURT, WHEN EARLIER THE SANDIGANBAYAN

HAS QUOTED EXTENSIVELY A PORTION OF THE TRANSLATION OF
ONE OF THESE SWISS DECISIONS IN HIS "PONENCIA" DATED JULY
29, 1999 WHEN IT DENIED THE MOTION TO RELEASE ONE HUNDRED
FIFTY MILLION US DOLLARS ($150,000,000.00) TO THE HUMAN
RIGHTS VICTIMS.
V
PRIVATE RESPONDENTS ARE DEEMED TO HAVE WAIVED THEIR
OBJECTION TO THE AUTHENTICITY OF THE SWISS FEDERAL
SUPREME COURT DECISIONS.13
Petitioner, in the main, asserts that nowhere in the respondents' motions for
reconsideration and supplemental motion for reconsideration were the
authenticity, accuracy and admissibility of the Swiss decisions ever challenged.
Otherwise stated, it was incorrect for the Sandiganbayan to use the issue of lack
of authenticated translations of the decisions of the Swiss Federal Supreme
Court as the basis for reversing itself because respondents themselves never
raised this issue in their motions for reconsideration and supplemental motion for
reconsideration. Furthermore, this particular issue relating to the translation of
the Swiss court decisions could not be resurrected anymore because said
decisions had been previously utilized by the Sandiganbayan itself in resolving a
"decisive issue" before it.
Petitioner faults the Sandiganbayan for questioning the non-production of the
authenticated translations of the Swiss Federal Supreme Court decisions as this
was a marginal and technical matter that did not diminish by any measure the
conclusiveness and strength of what had been proven and admitted before the
Sandiganbayan, that is, that the funds deposited by the Marcoses constituted illgotten wealth and thus belonged to the Filipino people.
In compliance with the order of this Court, Mrs. Marcos filed her comment to the
petition on May 22, 2002. After several motions for extension which were all
granted, the comment of Mrs. Manotoc and Ferdinand, Jr. and the separate
comment of Mrs. Araneta were filed on May 27, 2002.
Mrs. Marcos asserts that the petition should be denied on the following grounds:
A.
PETITIONER HAS A PLAIN, SPEEDY, AND ADEQUATE REMEDY AT
THE SANDIGANBAYAN.
B.
THE SANDIGANBAYAN DID NOT ABUSE ITS DISCRETION IN SETTING
THE CASE FOR FURTHER PROCEEDINGS.14
Mrs. Marcos contends that petitioner has a plain, speedy and adequate remedy
in the ordinary course of law in view of the resolution of the Sandiganbayan
dated January 31, 2000 directing petitioner to submit the authenticated
translations of the Swiss decisions. Instead of availing of said remedy, petitioner
now elevates the matter to this Court. According to Mrs. Marcos, a petition for
certiorari which does not comply with the requirements of the rules may be
dismissed. Since petitioner has a plain, speedy and adequate remedy, that is, to
proceed to trial and submit authenticated translations of the Swiss decisions, its
petition before this Court must be dismissed. Corollarily, the Sandiganbayan's
ruling to set the case for further proceedings cannot and should not be
considered a capricious and whimsical exercise of judgment.
Likewise, Mrs. Manotoc and Ferdinand, Jr., in their comment, prayed for the
dismissal of the petition on the grounds that:
(A)
BY THE TIME PETITIONER FILED ITS MOTION FOR SUMMARY
JUDGMENT ON 10 MARCH 2000, IT WAS ALREADY BARRED FROM
DOING SO.
(1) The Motion for Summary Judgment was based on private respondents'
Answer and other documents that had long been in the records of the
case. Thus, by the time the Motion was filed on 10 March 2000, estoppel
by laches had already set in against petitioner.
(2) By its positive acts and express admissions prior to filing the Motion for
Summary Judgment on 10 March 1990, petitioner had legally bound itself
to go to trial on the basis of existing issues. Thus, it clearly waived
whatever right it had to move for summary judgment.
(B)
EVEN ASSUMING THAT PETITIONER WAS NOT LEGALLY BARRED
FROM FILING THE MOTION FOR SUMMARY JUDGMENT, THE
SANDIGANBAYAN IS CORRECT IN RULING THAT PETITIONER HAS
NOT YET ESTABLISHED A PRIMA FACIE CASE FOR THE FORFEITURE
OF THE SWISS FUNDS.
(1) Republic Act No. 1379, the applicable law, is a penal statute. As such,
its provisions, particularly the essential elements stated in section 3
thereof, are mandatory in nature. These should be strictly construed
against petitioner and liberally in favor of private respondents.
(2) Petitioner has failed to establish the third and fourth essential elements
in Section 3 of R.A. 1379 with respect to the identification, ownership, and
approximate amount of the property which the Marcos couple allegedly
"acquired during their incumbency".
(a) Petitioner has failed to prove that the Marcos couple "acquired"
or own the Swiss funds.
(b) Even assuming, for the sake of argument, that the fact of
acquisition has been proven, petitioner has categorically admitted
that it has no evidence showing how much of the Swiss funds was
acquired "during the incumbency" of the Marcos couple from 31
December 1965 to 25 February 1986.
(3) In contravention of the essential element stated in Section 3 (e)
of R.A. 1379, petitioner has failed to establish the other proper
earnings and income from legitimately acquired property of the
Marcos couple over and above their government salaries.
(4) Since petitioner failed to prove the three essential elements provided in
paragraphs (c)15 (d),16 and (e)17 of Section 3, R.A. 1379, the inescapable
conclusion is that the prima facie presumption of unlawful acquisition of the
Swiss funds has not yet attached. There can, therefore, be no premature
forfeiture of the funds.
(C)
IT WAS ONLY BY ARBITRARILY ISOLATING AND THEN TAKING
CERTAIN STATEMENTS MADE BY PRIVATE RESPONDENTS OUT OF
CONTEXT THAT PETITIONER WAS ABLE TO TREAT THESE AS
"JUDICIAL ADMISSIONS" SUFFICIENT TO ESTABLISH A PRIMA FACIE
AND THEREAFTER A CONCLUSIVE CASE TO JUSTIFY THE
FORFEITURE OF THE SWISS FUNDS.
(1) Under Section 27, Rule 130 of the Rules of Court, the General and
Supplemental Agreements, as well as the other written and testimonial
statements submitted in relation thereto, are expressly barred from being
admissible in evidence against private respondents.
(2) Had petitioner bothered to weigh the alleged admissions together with
the other statements on record, there would be a demonstrable showing
that no such "judicial admissions" were made by private respondents.
(D)
SINCE PETITIONER HAS NOT (YET) PROVEN ALL THE ESSENTIAL
ELEMENTS TO ESTABLISH A PRIMA FACIE CASE FOR FORFEITURE,
AND PRIVATE RESPONDENTS HAVE NOT MADE ANY JUDICIAL
ADMISSION THAT WOULD HAVE FREED IT FROM ITS BURDEN OF
PROOF, THE SANDIGANBAYAN DID NOT COMMIT GRAVE ABUSE OF
DISCRETION IN DENYING THE MOTION FOR SUMMARY JUDGMENT.
CERTIORARI, THEREFORE, DOES NOT LIE, ESPECIALLY AS THIS
COURT IS NOT A TRIER OF FACTS.18
For her part, Mrs. Araneta, in her comment to the petition, claims that obviously
petitioner is unable to comply with a very plain requirement of respondent
Sandiganbayan. The instant petition is allegedly an attempt to elevate to this
Court matters, issues and incidents which should be properly threshed out at the
Sandiganbayan. To respondent Mrs. Araneta, all other matters, save that
pertaining to the authentication of the translated Swiss Court decisions, are
irrelevant and impertinent as far as this Court is concerned. Respondent Mrs.
Araneta manifests that she is as eager as respondent Sandiganbayan or any
interested person to have the Swiss Court decisions officially translated in our
known language. She says the authenticated official English version of the Swiss
Court decisions should be presented. This should stop all speculations on what
indeed is contained therein. Thus, respondent Mrs. Araneta prays that the
petition be denied for lack of merit and for raising matters which, in elaborated
fashion, are impertinent and improper before this Court.
PROPRIETY OF PETITIONER'S ACTION FOR CERTIORARI
But before this Court discusses the more relevant issues, the question regarding
the propriety of petitioner Republic's action for certiorari under Rule 6519 of the
1997 Rules of Civil Procedure assailing the Sandiganbayan Resolution dated
January 21, 2002 should be threshed out.
At the outset, we would like to stress that we are treating this case as an
exception to the general rule governing petitions for certiorari. Normally,
decisions of the Sandiganbayan are brought before this Court under Rule 45, not
Rule 65.20 But where the case is undeniably ingrained with immense public
interest, public policy and deep historical repercussions, certiorari is allowed
notwithstanding the existence and availability of the remedy of appeal.21
One of the foremost concerns of the Aquino Government in February 1986 was
the recovery of the unexplained or ill-gotten wealth reputedly amassed by former
President and Mrs. Ferdinand E. Marcos, their relatives, friends and business
associates. Thus, the very first Executive Order (EO) issued by then President
Corazon Aquino upon her assumption to office after the ouster of the Marcoses
was EO No. 1, issued on February 28, 1986. It created the Presidential
Commission on Good Government (PCGG) and charged it with the task of
assisting the President in the "recovery of all ill-gotten wealth accumulated by
former President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the Philippines or abroad,
including the takeover or sequestration of all business enterprises and entities
owned or controlled by them during his administration, directly or through
nominees, by taking undue advantage of their public office and/or using their
powers, authority, influence, connections or relationship." The urgency of this
undertaking was tersely described by this Court in Republic vs. Lobregat22:
surely x x x an enterprise "of great pith and moment"; it was attended by
"great expectations"; it was initiated not only out of considerations of
simple justice but also out of sheer necessity - the national coffers were
empty, or nearly so.
In all the alleged ill-gotten wealth cases filed by the PCGG, this Court has
seen fit to set aside technicalities and formalities that merely serve to delay
or impede judicious resolution. This Court prefers to have such cases
resolved on the merits at the Sandiganbayan. But substantial justice to the
Filipino people and to all parties concerned, not mere legalisms or
perfection of form, should now be relentlessly and firmly pursued. Almost
two decades have passed since the government initiated its search for and
reversion of such ill-gotten wealth. The definitive resolution of such cases
on the merits is thus long overdue. If there is proof of illegal acquisition,
accumulation, misappropriation, fraud or illicit conduct, let it be brought out
now. Let the ownership of these funds and other assets be finally
determined and resolved with dispatch, free from all the delaying
technicalities and annoying procedural sidetracks.23
We thus take cognizance of this case and settle with finality all the issues therein.
ISSUES BEFORE THIS COURT
The crucial issues which this Court must resolve are: (1) whether or not
respondents raised any genuine issue of fact which would either justify or negate
summary judgment; and (2) whether or not petitioner Republic was able to prove
its case for forfeiture in accordance with Sections 2 and 3 of RA 1379.
(1) THE PROPRIETY OF SUMMARY JUDGMENT

We hold that respondent Marcoses failed to raise any genuine issue of fact in
their pleadings. Thus, on motion of petitioner Republic, summary judgment
should take place as a matter of right.
In the early case of Auman vs. Estenzo24, summary judgment was described as a
judgment which a court may render before trial but after both parties have
pleaded. It is ordered by the court upon application by one party, supported by
affidavits, depositions or other documents, with notice upon the adverse party
who may in turn file an opposition supported also by affidavits, depositions or
other documents. This is after the court summarily hears both parties with their
respective proofs and finds that there is no genuine issue between them.
Summary judgment is sanctioned in this jurisdiction by Section 1, Rule 35 of the
1997 Rules of Civil Procedure:
SECTION 1. Summary judgment for claimant.- A party seeking to recover
upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief
may, at any time after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or admissions for a summary
judgment in his favor upon all or any part thereof.25
Summary judgment is proper when there is clearly no genuine issue as to any
material fact in the action.26 The theory of summary judgment is that, although an
answer may on its face appear to tender issues requiring trial, if it is
demonstrated by affidavits, depositions or admissions that those issues are not
genuine but sham or fictitious, the Court is justified in dispensing with the trial
and rendering summary judgment for petitioner Republic.
The Solicitor General made a very thorough presentation of its case for forfeiture:
xxx
4. Respondent Ferdinand E. Marcos (now deceased and represented by
his Estate/Heirs) was a public officer for several decades continuously and
without interruption as Congressman, Senator, Senate President and
President of the Republic of the Philippines from December 31, 1965 up to
his ouster by direct action of the people of EDSA on February 22-25, 1986.
5. Respondent Imelda Romualdez Marcos (Imelda, for short) the former
First Lady who ruled with FM during the 14-year martial law regime,
occupied the position of Minister of Human Settlements from June 1976 up
to the peaceful revolution in February 22-25, 1986. She likewise served
once as a member of the Interim Batasang Pambansa during the early

years of martial law from 1978 to 1984 and as Metro Manila Governor in
concurrent capacity as Minister of Human Settlements. x x x
xxx
xxx
xxx
11. At the outset, however, it must be pointed out that based on the Official
Report of the Minister of Budget, the total salaries of former President
Marcos as President form 1966 to 1976 was P60,000 a year and from
1977 to 1985, P100,000 a year; while that of the former First Lady, Imelda
R. Marcos, as Minister of Human Settlements from June 1976 to February
22-25, 1986 was P75,000 a year xxx.
ANALYSIS OF RESPONDENTS LEGITIMATE INCOME
xxx
12. Based on available documents, the ITRs of the Marcoses for the years
1965-1975 were filed under Tax Identification No. 1365-055-1. For the
years 1976 until 1984, the returns were filed under Tax Identification No. M
6221-J 1117-A-9.
13. The data contained in the ITRs and Balance Sheet filed by the
"Marcoses are summarized and attached to the reports in the following
schedules:
Schedule A:
Schedule of Income (Annex "T" hereof);
Schedule B:
Schedule of Income Tax Paid (Annex "T-1" hereof);
Schedule C:
Schedule of Net Disposable Income (Annex "T-2" hereof);
Schedule D:
Schedule of Networth Analysis (Annex "T-3" hereof).
14. As summarized in Schedule A (Annex "T" hereof), the Marcoses

reported P16,408,442.00 or US$2,414,484.91 in total income over a period
of 20 years from 1965 to 1984. The sources of income are as follows:
Official
Salaries
Legal
Practice
Farm
Income
Others
Total
- P 2,627,581.00 - 16.01%
-
11,109,836.00 - 67.71%
149,700.00 -
.91%
2,521,325.00 - 15.37%
P16,408,442.00 - 100.00%
15. FM's official salary pertains to his compensation as Senate President in

1965 in the amount of P15,935.00 and P1,420,000.00 as President of the
Philippines during the period 1966 until 1984. On the other hand, Imelda
reported salaries and allowances only for the years 1979 to 1984 in the
amount of P1,191,646.00. The records indicate that the reported income
came from her salary from the Ministry of Human Settlements and
allowances from Food Terminal, Inc., National Home Mortgage Finance
Corporation, National Food Authority Council, Light Rail Transit Authority
and Home Development Mutual Fund.
16. Of the P11,109,836.00 in reported income from legal practice, the
amount of P10,649,836.00 or 96% represents "receivables from prior
years" during the period 1967 up to 1984.
17. In the guise of reporting income using the cash method under Section
38 of the National Internal Revenue Code, FM made it appear that he had
an extremely profitable legal practice before he became a President (FM
being barred by law from practicing his law profession during his entire
presidency) and that, incredibly, he was still receiving payments almost 20
years after. The only problem is that in his Balance Sheet attached to his
1965 ITR immediately preceeding his ascendancy to the presidency he did
not show any Receivables from client at all, much less the P10,65-M that
he decided to later recognize as income. There are no documents showing
any withholding tax certificates. Likewise, there is nothing on record that
will show any known Marcos client as he has no known law office. As
previously stated, his networth was a mere P120,000.00 in December,
1965. The joint income tax returns of FM and Imelda cannot, therefore,
conceal the skeletons of their kleptocracy.
18. FM reported a total of P2,521,325.00 as Other Income for the years

1972 up to 1976 which he referred to in his return as "Miscellaneous
Items" and "Various Corporations." There is no indication of any payor of
the dividends or earnings.
19. Spouses Ferdinand and Imelda did not declare any income from any
deposits and placements which are subject to a 5% withholding tax. The
Bureau of Internal Revenue attested that after a diligent search of pertinent
records on file with the Records Division, they did not find any records
involving the tax transactions of spouses Ferdinand and Imelda in
Revenue Region No. 1, Baguio City, Revenue Region No.4A, Manila,
Revenue Region No. 4B1, Quezon City and Revenue No. 8, Tacloban,
Leyte. Likewise, the Office of the Revenue Collector of Batac. Further, BIR
attested that no records were found on any filing of capital gains tax return
involving spouses FM and Imelda covering the years 1960 to 1965.
20. In Schedule B, the taxable reported income over the twenty-year
period was P14,463,595.00 which represents 88% of the gross income.
The Marcoses paid income taxes totaling P8,233,296.00 or
US$1,220,667.59. The business expenses in the amount of P861,748.00
represent expenses incurred for subscription, postage, stationeries and
contributions while the other deductions in the amount of P567,097.00
represents interest charges, medicare fees, taxes and licenses. The total
deductions in the amount of P1,994,845.00 represents 12% of the total
gross income.
21. In Schedule C, the net cumulative disposable income amounts to
P6,756,301.00 or US$980,709.77. This is the amount that represents that
portion of the Marcoses income that is free for consumption, savings and
investments. The amount is arrived at by adding back to the net income
after tax the personal and additional exemptions for the years 1965-1984,
as well as the tax-exempt salary of the President for the years 1966 until
1972.
22. Finally, the networth analysis in Schedule D, represents the total
accumulated networth of spouses, Ferdinand and Imelda. Respondent's
Balance Sheet attached to their 1965 ITR, covering the year immediately
preceding their ascendancy to the presidency, indicates an ending
networth of P120,000.00 which FM declared as Library and Miscellaneous
assets. In computing for the networth, the income approach was utilized.
Under this approach, the beginning capital is increased or decreased, as
the case may be, depending upon the income earned or loss incurred.
Computations establish the total networth of spouses Ferdinand and
Imelda, for the years 1965 until 1984 in the total amount of
US$957,487.75, assuming the income from legal practice is real and valid
x x x.
G. THE SECRET MARCOS DEPOSITS IN SWISS BANKS
23. The following presentation very clearly and overwhelmingly show in
detail how both respondents clandestinely stashed away the country's
wealth to Switzerland and hid the same under layers upon layers of
foundations and other corporate entities to prevent its detection. Through
their dummies/nominees, fronts or agents who formed those foundations
or corporate entities, they opened and maintained numerous bank
accounts. But due to the difficulty if not the impossibility of detecting and
documenting all those secret accounts as well as the enormity of the
deposits therein hidden, the following presentation is confined to five
identified accounts groups, with balances amounting to about $356-M with
a reservation for the filing of a supplemental or separate forfeiture
complaint should the need arise.
H. THE AZIO-VERSO-VIBUR FOUNDATION ACCOUNTS
24. On June 11, 1971, Ferdinand Marcos issued a written order to Dr. Theo
Bertheau, legal counsel of Schweizeresche Kreditanstalt or SKA, also
known as Swiss Credit Bank, for him to establish the AZIO Foundation. On
the same date, Marcos executed a power of attorney in favor of Roberto S.
Benedicto empowering him to transact business in behalf of the said
foundation. Pursuant to the said Marcos mandate, AZIO Foundation was
formed on June 21, 1971 in Vaduz. Walter Fessler and Ernst Scheller, also
of SKA Legal Service, and Dr. Helmuth Merling from Schaan were
designated as members of the Board of Trustees of the said foundation.
Ferdinand Marcos was named first beneficiary and the Marcos Foundation,
Inc. was second beneficiary. On November 12, 1971, FM again issued
another written order naming Austrahil PTY Ltd. In Sydney, Australia, as
the foundation's first and sole beneficiary. This was recorded on December
14, 1971.
25. In an undated instrument, Marcos changed the first and sole
beneficiary to CHARIS FOUNDATION. This change was recorded on
December 4, 1972.
26. On August 29, 1978, the AZIO FOUNDATION was renamed to VERSO
FOUNDATION. The Board of Trustees remained the same. On March 11,
1981, Marcos issued a written directive to liquidated VERSO
FOUNDATION and to transfer all its assets to account of FIDES TRUST

COMPANY at Bank Hofman in Zurich under the account "Reference
OSER." The Board of Trustees decided to dissolve the foundation on June
25, 1981.
27. In an apparent maneuver to bury further the secret deposits beneath
the thick layers of corporate entities, FM effected the establishment of
VIBUR FOUNDATION on May 13, 1981 in Vaduz. Atty. Ivo Beck and Limag
Management, a wholly-owned subsidiary of Fides Trust, were designated
as members of the Board of Trustees. The account was officially opened
with SKA on September 10, 1981. The beneficial owner was not made
known to the bank since Fides Trust Company acted as fiduciary. However,
comparison of the listing of the securities in the safe deposit register of the
VERSO FOUNDATION as of February 27, 1981 with that of VIBUR
FOUNDATION as of December 31, 1981 readily reveals that exactly the
same securities were listed.
28. Under the foregoing circumstances, it is certain that the VIBUR
FOUNDATION is the beneficial successor of VERSO FOUNDATION.
29. On March 18, 1986, the Marcos-designated Board of Trustees decided
to liquidate VIBUR FOUNDATION. A notice of such liquidation was sent to
the Office of the Public Register on March 21, 1986. However, the bank
accounts and respective balances of the said VIBUR FOUNDATION
remained with SKA. Apparently, the liquidation was an attempt by the
Marcoses to transfer the foundation's funds to another account or bank but
this was prevented by the timely freeze order issued by the Swiss
authorities. One of the latest documents obtained by the PCGG from the
Swiss authorities is a declaration signed by Dr. Ivo Beck (the trustee)
stating that the beneficial owner of VIBUR FOUNDATION is Ferdinand E.
Marcos. Another document signed by G. Raber of SKA shows that VIBUR
FOUNDATION is owned by the "Marcos Familie"
30. As of December 31, 1989, the balance of the bank accounts of VIBUR
FOUNDATION with SKA, Zurich, under the General Account No. 469857
totaled $3,597,544.00
I. XANDY-WINTROP: CHARIS-SCOLARIVALAMO-SPINUS-AVERTINA FOUNDATION ACCOUNTS
31. This is the most intricate and complicated account group. As the Flow
Chart hereof shows, two (2) groups under the foundation organized by
Marcos dummies/nominees for FM's benefit, eventually joined together
and became one (1) account group under the AVERTINA FOUNDATION
for the benefit of both FM and Imelda. This is the biggest group from where
the $50-M investment fund of the Marcoses was drawn when they bought
the Central Bank's dollar-denominated treasury notes with high-yielding
interests.
32. On March 20, 1968, after his second year in the presidency, Marcos
opened bank accounts with SKA using an alias or pseudonym WILLIAM
SAUNDERS, apparently to hide his true identity. The next day, March 21,
1968, his First Lady, Mrs. Imelda Marcos also opened her own bank
accounts with the same bank using an American-sounding alias, JANE
RYAN. Found among the voluminous documents in Malacaang shortly
after they fled to Hawaii in haste that fateful night of February 25, 1986,
were accomplished forms for "Declaration/Specimen Signatures"
submitted by the Marcos couple. Under the caption "signature(s)"
Ferdinand and Imelda signed their real names as well as their respective
aliases underneath. These accounts were actively operated and
maintained by the Marcoses for about two (2) years until their closure
sometime in February, 1970 and the balances transferred to XANDY
FOUNDATION.
33. The XANDY FOUNDATION was established on March 3, 1970 in
Vaduz. C.W. Fessler, C. Souviron and E. Scheller were named as
members of the Board of Trustees.
34. FM and Imelda issued the written mandate to establish the foundation
to Markus Geel of SKA on March 3, 1970. In the handwritten Regulations
signed by the Marcos couple as well as in the type-written Regulations
signed by Markus Geel both dated February 13, 1970, the Marcos spouses
were named the first beneficiaries, the surviving spouse as the second
beneficiary and the Marcos children Imee, Ferdinand, Jr. (Bongbong)
and Irene as equal third beneficiaries.
35. The XANDY FOUNDATION was renamed WINTROP FOUNDATION
on August 29, 1978. The Board of Trustees remained the same at the
outset. However, on March 27, 1980, Souviron was replaced by Dr. Peter
Ritter. On March 10. 1981, Ferdinand and Imelda Marcos issued a written
order to the Board of Wintrop to liquidate the foundation and transfer all its
assets to Bank Hofmann in Zurich in favor of FIDES TRUST COMPANY.
Later, WINTROP FOUNDATION was dissolved.
36. The AVERTINA FOUNDATION was established on May 13, 1981 in
Vaduz with Atty. Ivo Beck and Limag Management, a wholly-owned
subsidiary of FIDES TRUST CO., as members of the Board of Trustees.

Two (2) account categories, namely: CAR and NES, were opened on
September 10, 1981. The beneficial owner of AVERTINA was not made
known to the bank since the FIDES TRUST CO. acted as fiduciary.
However, the securities listed in the safe deposit register of WINTROP
FOUNDATION Category R as of December 31, 1980 were the same as
those listed in the register of AVERTINA FOUNDATION Category CAR as
of December 31, 1981. Likewise, the securities listed in the safe deposit
register of WINTROP FOUNDATION Category S as of December 31, 1980
were the same as those listed in the register of Avertina Category NES as
of December 31, 1981.Under the circumstances, it is certain that the
beneficial successor of WINTROP FOUNDATION is AVERTINA
FOUNDATION. The balance of Category CAR as of December 31, 1989
amounted to US$231,366,894.00 while that of Category NES as of 12-3183 was US$8,647,190.00. Latest documents received from Swiss
authorities included a declaration signed by IVO Beck stating that the
beneficial owners of AVERTINA FOUNDATION are FM and Imelda.
Another document signed by G. Raber of SKA indicates that Avertina
Foundation is owned by the "Marcos Families."
37. The other groups of foundations that eventually joined AVERTINA were
also established by FM through his dummies, which started with the
CHARIS FOUNDATION.
38. The CHARIS FOUNDATION was established in VADUZ on December
27, 1971. Walter Fessler and Ernst Scheller of SKA and Dr. Peter Ritter
were named as directors. Dr. Theo Bertheau, SKA legal counsel, acted as
founding director in behalf of FM by virtue of the mandate and agreement
dated November 12, 1971. FM himself was named the first beneficiary and
Xandy Foundation as second beneficiary in accordance with the
handwritten instructions of FM on November 12, 1971 and the
Regulations. FM gave a power of attorney to Roberto S. Benedicto on
February 15, 1972 to act in his behalf with regard to Charis Foundation.
39. On December 13, 1974, Charis Foundation was renamed Scolari
Foundation but the directors remained the same. On March 11, 1981 FM
ordered in writing that the Valamo Foundation be liquidated and all its
assets be transferred to Bank Hofmann, AG in favor of Fides Trust
Company under the account "Reference OMAL". The Board of Directors
decided on the immediate dissolution of Valamo Foundation on June 25,
1981.
40 The SPINUS FOUNDATION was established on May 13, 1981 in Vaduz

with Atty. Ivo Beck and Limag Management, a wholly-owned subsidiary of
Fides Trust Co., as members of the Foundation's Board of Directors. The
account was officially opened with SKA on September 10, 1981. The
beneficial owner of the foundation was not made known to the bank since
Fides Trust Co. acted as fiduciary. However, the list of securities in the safe
deposit register of Valamo Foundation as of December 31, 1980 are
practically the same with those listed in the safe deposit register of Spinus
Foundation as of December 31, 1981. Under the circumstances, it is
certain that the Spinus Foundation is the beneficial successor of the
Valamo Foundation.
41. On September 6, 1982, there was a written instruction from Spinus
Foundation to SKA to close its Swiss Franc account and transfer the
balance to Avertina Foundation. In July/August, 1982, several transfers
from the foundation's German marks and US dollar accounts were made to
Avertina Category CAR totaling DM 29.5-M and $58-M, respectively.
Moreover, a comparison of the list of securities of the Spinus Foundation
as of February 3, 1982 with the safe deposit slips of the Avertina
Foundation Category CAR as of August 19, 1982 shows that all the
securities of Spinus were transferred to Avertina.
J. TRINIDAD-RAYBY-PALMY FOUNDATION ACCOUNTS
42. The Trinidad Foundation was organized on August 26, 1970 in Vaduz
with C.W. Fessler and E. Scheller of SKA and Dr. Otto Tondury as the
foundation's directors. Imelda issued a written mandate to establish the
foundation to Markus Geel on August 26, 1970. The regulations as well as
the agreement, both dated August 28, 1970 were likewise signed by
Imelda. Imelda was named the first beneficiary and her children Imelda
(Imee), Ferdinand, Jr. (Bongbong) and, Irene were named as equal second
beneficiaries.
43. Rayby Foundation was established on June 22, 1973 in Vaduz with
Fessler, Scheller and Ritter as members of the board of directors. Imelda
issued a written mandate to Dr. Theo Bertheau to establish the foundation
with a note that the foundation's capitalization as well as the cost of
establishing it be debited against the account of Trinidad Foundation.
Imelda was named the first and only beneficiary of Rayby foundation.
According to written information from SKA dated November 28, 1988,
Imelda apparently had the intention in 1973 to transfer part of the assets of
Trinidad Foundation to another foundation, thus the establishment of
Rayby Foundation. However, transfer of assets never took place. On
March 10, 1981, Imelda issued a written order to transfer all the assets of
Rayby Foundation to Trinidad Foundation and to subsequently liquidate
Rayby. On the same date, she issued a written order to the board of
Trinidad to dissolve the foundation and transfer all its assets to Bank
Hofmann in favor of Fides Trust Co. Under the account "Reference Dido,"
Rayby was dissolved on April 6, 1981 and Trinidad was liquidated on
August 3, 1981.
44. The PALMY FOUNDATION was established on May 13, 1981 in Vaduz
with Dr. Ivo Beck and Limag Management, a wholly-owned subsidiary of
Fides Trust Co, as members of the Foundation's Board of Directors. The
account was officially opened with the SKA on September 10, 1981. The
beneficial owner was not made known to the bank since Fides Trust Co.
acted as fiduciary. However, when one compares the listing of securities in
the safe deposit register of Trinidad Foundation as of December 31,1980
with that of the Palmy Foundation as of December 31, 1980, one can
clearly see that practically the same securities were listed. Under the
circumstances, it is certain that the Palmy Foundation is the beneficial
successor of the Trinidad Foundation.
45. As of December 31, 1989, the ending balance of the bank accounts of
Palmy Foundation under General Account No. 391528 is $17,214,432.00.
46. Latest documents received from Swiss Authorities included a
declaration signed by Dr. Ivo Beck stating that the beneficial owner of
Palmy Foundation is Imelda. Another document signed by Raber shows
that the said Palmy Foundation is owned by "Marcos Familie".
K. ROSALYS-AGUAMINA FOUNDATION ACCOUNTS
47. Rosalys Foundation was established in 1971 with FM as the
beneficiary. Its Articles of Incorporation was executed on September 24,
1971 and its By-Laws on October 3, 1971. This foundation maintained
several accounts with Swiss Bank Corporation (SBC) under the general
account 51960 where most of the bribe monies from Japanese suppliers
were hidden.
48. On December 19, 1985, Rosalys Foundation was liquidated and all its
assets were transferred to Aguamina Corporation's (Panama) Account No.
53300 with SBC. The ownership by Aguamina Corporation of Account No.
53300 is evidenced by an opening account documents from the bank. J.
Christinaz and R.L. Rossier, First Vice-President and Senior Vice
President, respectively, of SBC, Geneva issued a declaration dated
September 3, 1991 stating that the by-laws dated October 3, 1971

governing Rosalys Foundation was the same by-law applied to Aguamina
Corporation Account No. 53300. They further confirmed that no change of
beneficial owner was involved while transferring the assets of Rosalys to
Aguamina. Hence, FM remains the beneficiary of Aguamina Corporation
Account No. 53300.
As of August 30, 1991, the ending balance of Account No. 53300
amounted to $80,566,483.00.
L. MALER FOUNDATION ACCOUNTS
49. Maler was first created as an establishment. A statement of its rules
and regulations was found among Malacaang documents. It stated,
among others, that 50% of the Company's assets will be for sole and full
right disposal of FM and Imelda during their lifetime, which the remaining
50% will be divided in equal parts among their children. Another
Malacaang document dated October 19,1968 and signed by Ferdinand
and Imelda pertains to the appointment of Dr. Andre Barbey and Jean
Louis Sunier as attorneys of the company and as administrator and
manager of all assets held by the company. The Marcos couple, also
mentioned in the said document that they bought the Maler Establishment
from SBC, Geneva. On the same date, FM and Imelda issued a letter
addressed to Maler Establishment, stating that all instructions to be
transmitted with regard to Maler will be signed with the word "JOHN
LEWIS". This word will have the same value as the couple's own personal
signature. The letter was signed by FM and Imelda in their signatures and
as John Lewis.
50. Maler Establishment opened and maintained bank accounts with SBC,
Geneva. The opening bank documents were signed by Dr. Barbey and Mr.
Sunnier as authorized signatories.
51. On November 17, 1981, it became necessary to transform Maler
Establishment into a foundation. Likewise, the attorneys were changed to
Michael Amaudruz, et. al. However, administration of the assets was left to
SBC. The articles of incorporation of Maler Foundation registered on
November 17, 1981 appear to be the same articles applied to Maler
Establishment. On February 28, 1984, Maler Foundation cancelled the
power of attorney for the management of its assets in favor of SBC and
transferred such power to Sustrust Investment Co., S.A.
52. As of June 6, 1991, the ending balance of Maler Foundation's Account

Nos. 254,508 BT and 98,929 NY amount SF 9,083,567 and SG
16,195,258, respectively, for a total of SF 25,278,825.00. GM only until
December 31, 1980. This account was opened by Maler when it was still
an establishment which was subsequently transformed into a foundation.
53. All the five (5) group accounts in the over-all flow chart have a total
balance of about Three Hundred Fifty Six Million Dollars ($356,000,000.00)
as shown by Annex "R-5" hereto attached as integral part hereof.
xxx
x x x.27
Respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M. Araneta and

Ferdinand Marcos, Jr., in their answer, stated the following:
xxx
xxx
xxx
4. Respondents ADMIT paragraphs 3 and 4 of the Petition.

5. Respondents specifically deny paragraph 5 of the Petition in so far as it
states that summons and other court processes may be served on
Respondent Imelda R. Marcos at the stated address the truth of the matter
being that Respondent Imelda R. Marcos may be served with summons
and other processes at No. 10-B Bel Air Condominium 5022 P. Burgos
Street, Makati, Metro Manila, and ADMIT the rest.
xxx
xxx
xxx
10. Respondents ADMIT paragraph 11 of the Petition.

11. Respondents specifically DENY paragraph 12 of the Petition for lack of
knowledge sufficient to form a belief as to the truth of the allegation since
Respondents were not privy to the transactions and that they cannot
remember exactly the truth as to the matters alleged.
knowledge or information sufficient to form a belief as to the truth of the
allegation since Respondents cannot remember with exactitude the
contents of the alleged ITRs and Balance Sheet.
contents of the alleged ITRs.

16. Respondents specifically DENY paragraph 17 of the Petition insofar as
it attributes willful duplicity on the part of the late President Marcos, for
being false, the same being pure conclusions based on pure assumption
and not allegations of fact; and specifically DENY the rest for lack of
contents of the alleged ITRs or the attachments thereto.
contents of the alleged ITRs and that they are not privy to the activities of
the BIR.
22. Respondents specifically DENY paragraph 23 insofar as it alleges that

Respondents clandestinely stashed the country's wealth in Switzerland
and hid the same under layers and layers of foundation and corporate
entities for being false, the truth being that Respondents aforesaid
properties were lawfully acquired.
23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and
30 of the Petition for lack of knowledge or information sufficient to form a
belief as to the truth of the allegation since Respondents were not privy to
the transactions regarding the alleged Azio-Verso-Vibur Foundation
accounts, except that as to Respondent Imelda R. Marcos she specifically
remembers that the funds involved were lawfully acquired.
24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36,37,
38, 39, 40, and 41 of the Petition for lack of knowledge or information
sufficient to form a belief as to the truth of the allegations since
Respondents are not privy to the transactions and as to such transaction
they were privy to they cannot remember with exactitude the same having
occurred a long time ago, except that as to Respondent Imelda R. Marcos
she specifically remembers that the funds involved were lawfully acquired.
25. Respondents specifically DENY paragraphs 42, 43, 44, 45, and 46, of
the Petition for lack of knowledge or information sufficient to form a belief
as to the truth of the allegations since Respondents were not privy to the
transactions and as to such transaction they were privy to they cannot
remember with exactitude the same having occurred a long time ago,
except that as to Respondent Imelda R. Marcos she specifically
26. Respondents specifically DENY paragraphs 49, 50, 51 and 52, of the
Petition for lack of knowledge or information sufficient to form a belief as to
the truth of the allegations since Respondents were not privy to the
except that as to Respondent Imelda R. Marcos she specifically
Upon careful perusal of the foregoing, the Court finds that respondent Mrs.
Marcos and the Marcos children indubitably failed to tender genuine issues in
their answer to the petition for forfeiture. A genuine issue is an issue of fact which
calls for the presentation of evidence as distinguished from an issue which is
fictitious and contrived, set up in bad faith or patently lacking in substance so as
not to constitute a genuine issue for trial. Respondents' defenses of "lack of
knowledge for lack of privity" or "(inability to) recall because it happened a long
time ago" or, on the part of Mrs. Marcos, that "the funds were lawfully acquired"
are fully insufficient to tender genuine issues. Respondent Marcoses' defenses
were a sham and evidently calibrated to compound and confuse the issues.
The following pleadings filed by respondent Marcoses are replete with indications
of a spurious defense:
(a) Respondents' Answer dated October 18, 1993;
(b) Pre-trial Brief dated October 4, 1999 of Mrs. Marcos, Supplemental
Pre-trial Brief dated October 19, 1999 of Ferdinand, Jr. and Mrs. Imee
Marcos-Manotoc adopting the pre-trial brief of Mrs. Marcos, and
Manifestation dated October 19, 1999 of Irene Marcos-Araneta adopting
the pre-trial briefs of her co- respondents;
(c) Opposition to Motion for Summary Judgment dated March 21, 2000,
filed by Mrs. Marcos which the other respondents (Marcos children)
adopted;
(d) Demurrer to Evidence dated May 2, 2000 filed by Mrs. Marcos and
adopted by the Marcos children;
(e) Motion for Reconsideration dated September 26, 2000 filed by Mrs.
Marcos; Motion for Reconsideration dated October 5, 2000 jointly filed by
Mrs. Manotoc and Ferdinand, Jr., and Supplemental Motion for
Reconsideration dated October 9, 2000 likewise jointly filed by Mrs.
Manotoc and Ferdinand, Jr.;
(f) Memorandum dated December 12, 2000 of Mrs. Marcos and
Memorandum dated December 17, 2000 of the Marcos children;
(g) Manifestation dated May 26, 1998; and
(h) General/Supplemental Agreement dated December 23, 1993.
An examination of the foregoing pleadings is in order.
Respondents' Answer dated October 18, 1993.
In their answer, respondents failed to specifically deny each and every allegation
contained in the petition for forfeiture in the manner required by the rules. All they
gave were stock answers like "they have no sufficient knowledge" or "they could
not recall because it happened a long time ago," and, as to Mrs. Marcos, "the
funds were lawfully acquired," without stating the basis of such assertions.
Section 10, Rule 8 of the 1997 Rules of Civil Procedure, provides:
A defendant must specify each material allegation of fact the truth of which
he does not admit and, whenever practicable, shall set forth the substance
of the matters upon which he relies to support his denial. Where a
defendant desires to deny only a part of an averment, he shall specify so
much of it as is true and material and shall deny the remainder. Where a
defendant is without knowledge or information sufficient to form a belief as
to the truth of a material averment made in the complaint, he shall so state,
and this shall have the effect of a denial.28
The purpose of requiring respondents to make a specific denial is to make them
disclose facts which will disprove the allegations of petitioner at the trial, together
with the matters they rely upon in support of such denial. Our jurisdiction adheres
to this rule to avoid and prevent unnecessary expenses and waste of time by
compelling both parties to lay their cards on the table, thus reducing the
controversy to its true terms. As explained in Alonso vs. Villamor,29
A litigation is not a game of technicalities in which one, more deeply
schooled and skilled in the subtle art of movement and position, entraps
and destroys the other. It is rather a contest in which each contending
party fully and fairly lays before the court the facts in issue and then,
brushing aside as wholly trivial and indecisive all imperfections of form and
technicalities of procedure, asks that justice be done upon the merits.
Lawsuits, unlike duels, are not to be won by a rapier's thrust.
On the part of Mrs. Marcos, she claimed that the funds were lawfully acquired.
However, she failed to particularly state the ultimate facts surrounding the lawful
manner or mode of acquisition of the subject funds. Simply put, she merely
stated in her answer with the other respondents that the funds were "lawfully
acquired" without detailing how exactly these funds were supposedly acquired
legally by them. Even in this case before us, her assertion that the funds were
lawfully acquired remains bare and unaccompanied by any factual support which
can prove, by the presentation of evidence at a hearing, that indeed the funds
were acquired legitimately by the Marcos family.
Respondents' denials in their answer at the Sandiganbayan were based on their
alleged lack of knowledge or information sufficient to form a belief as to the truth
of the allegations of the petition.
It is true that one of the modes of specific denial under the rules is a denial
through a statement that the defendant is without knowledge or information
sufficient to form a belief as to the truth of the material averment in the complaint.
The question, however, is whether the kind of denial in respondents' answer
qualifies as the specific denial called for by the rules. We do not think so. In
Morales vs. Court of Appeals,30 this Court ruled that if an allegation directly and
specifically charges a party with having done, performed or committed a
particular act which the latter did not in fact do, perform or commit, a categorical
and express denial must be made.
Here, despite the serious and specific allegations against them, the Marcoses
responded by simply saying that they had no knowledge or information sufficient
to form a belief as to the truth of such allegations. Such a general, self-serving
claim of ignorance of the facts alleged in the petition for forfeiture was insufficient
to raise an issue. Respondent Marcoses should have positively stated how it was
that they were supposedly ignorant of the facts alleged.31
To elucidate, the allegation of petitioner Republic in paragraph 23 of the petition
for forfeiture stated:
23. The following presentation very clearly and overwhelmingly show in
detail how both respondents clandestinely stashed away the country's
wealth to Switzerland and hid the same under layers upon layers of
foundations and other corporate entities to prevent its detection. Through
their dummies/nominees, fronts or agents who formed those foundations
or corporate entities, they opened and maintained numerous bank
accounts. But due to the difficulty if not the impossibility of detecting and
documenting all those secret accounts as well as the enormity of the
deposits therein hidden, the following presentation is confined to five
identified accounts groups, with balances amounting to about $356-M with
a reservation for the filing of a supplemental or separate forfeiture
complaint should the need arise.32
Respondents' lame denial of the aforesaid allegation was:
22. Respondents specifically DENY paragraph 23 insofar as it alleges that
Respondents clandestinely stashed the country's wealth in Switzerland
and hid the same under layers and layers of foundations and corporate
entities for being false, the truth being that Respondents' aforesaid
properties were lawfully acquired.33
Evidently, this particular denial had the earmark of what is called in the law on
pleadings as a negative pregnant, that is, a denial pregnant with the admission of
the substantial facts in the pleading responded to which are not squarely denied.
It was in effect an admission of the averments it was directed at.34 Stated
otherwise, a negative pregnant is a form of negative expression which carries
with it an affirmation or at least an implication of some kind favorable to the
adverse party. It is a denial pregnant with an admission of the substantial facts
alleged in the pleading. Where a fact is alleged with qualifying or modifying
language and the words of the allegation as so qualified or modified are literally
denied, has been held that the qualifying circumstances alone are denied while
the fact itself is admitted.35
In the instant case, the material allegations in paragraph 23 of the said petition
were not specifically denied by respondents in paragraph 22 of their answer. The
denial contained in paragraph 22 of the answer was focused on the averment in
paragraph 23 of the petition for forfeiture that "Respondents clandestinely
stashed the country's wealth in Switzerland and hid the same under layers and
layers of foundations and corporate entities." Paragraph 22 of the respondents'
answer was thus a denial pregnant with admissions of the following substantial
facts:
(1) the Swiss bank deposits existed and
(2) that the estimated sum thereof was US$356 million as of December,
1990.
Therefore, the allegations in the petition for forfeiture on the existence of the
Swiss bank deposits in the sum of about US$356 million, not having been
specifically denied by respondents in their answer, were deemed admitted by
them pursuant to Section 11, Rule 8 of the 1997 Revised Rules on Civil
Procedure:
Material averment in the complaint, xxx shall be deemed admitted when
not specifically denied. xxx.36
By the same token, the following unsupported denials of respondents in their
answer were pregnant with admissions of the substantial facts alleged in the
Republic's petition for forfeiture:
23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and
30 of the Petition for lack of knowledge or information sufficient to form a
belief as to the truth of the allegation since respondents were not privy to
the transactions regarding the alleged Azio-Verso-Vibur Foundation
accounts, except that, as to respondent Imelda R. Marcos, she specifically
24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36, 37,
38, 39, 40, 41 of the Petition for lack of knowledge or information sufficient
to form a belief as to the truth of the allegations since respondents were
not privy to the transactions and as to such transactions they were privy to,
they cannot remember with exactitude the same having occurred a long
time ago, except as to respondent Imelda R. Marcos, she specifically
25. Respondents specifically DENY paragraphs 42, 43, 45, and 46 of the
petition for lack of knowledge or information sufficient to from a belief as to
the truth of the allegations since respondents were not privy to the
transactions and as to such transaction they were privy to, they cannot
remember with exactitude, the same having occurred a long time ago,
except that as to respondent Imelda R. Marcos, she specifically
26. Respondents specifically DENY paragraphs 49, 50, 51 and 52 of the
petition for lack of knowledge and information sufficient to form a belief as
to the truth of the allegations since respondents were not privy to the
except that as to respondent Imelda R. Marcos, she specifically
The matters referred to in paragraphs 23 to 26 of the respondents' answer
pertained to the creation of five groups of accounts as well as their respective
ending balances and attached documents alleged in paragraphs 24 to 52 of the
Republic's petition for forfeiture. Respondent Imelda R. Marcos never specifically
denied the existence of the Swiss funds. Her claim that "the funds involved were
lawfully acquired" was an acknowledgment on her part of the existence of said
deposits. This only reinforced her earlier admission of the allegation in paragraph
23 of the petition for forfeiture regarding the existence of the US$356 million
Swiss bank deposits.
The allegations in paragraphs 4737 and 4838 of the petition for forfeiture referring
to the creation and amount of the deposits of the Rosalys-Aguamina Foundation
as well as the averment in paragraph 52-a39 of the said petition with respect to
the sum of the Swiss bank deposits estimated to be US$356 million were again
not specifically denied by respondents in their answer. The respondents did not
at all respond to the issues raised in these paragraphs and the existence, nature
and amount of the Swiss funds were therefore deemed admitted by them. As
held in Galofa vs. Nee Bon Sing,40 if a defendant's denial is a negative pregnant,
it is equivalent to an admission.
Moreover, respondents' denial of the allegations in the petition for forfeiture "for
lack of knowledge or information sufficient to form a belief as to the truth of the
allegations since respondents were not privy to the transactions" was just a
pretense. Mrs. Marcos' privity to the transactions was in fact evident from her
signatures on some of the vital documents41 attached to the petition for forfeiture
which Mrs. Marcos failed to specifically deny as required by the rules.42
It is worthy to note that the pertinent documents attached to the petition for
forfeiture were even signed personally by respondent Mrs. Marcos and her late
husband, Ferdinand E. Marcos, indicating that said documents were within their
knowledge. As correctly pointed out by Sandiganbayan Justice Francisco
Villaruz, Jr. in his dissenting opinion:
The pattern of: 1) creating foundations, 2) use of pseudonyms and
dummies, 3) approving regulations of the Foundations for the distribution
of capital and income of the Foundations to the First and Second
beneficiary (who are no other than FM and his family), 4) opening of bank
accounts for the Foundations, 5) changing the names of the Foundations,
6) transferring funds and assets of the Foundations to other Foundations
or Fides Trust, 7) liquidation of the Foundations as substantiated by the
Annexes U to U-168, Petition [for forfeiture] strongly indicate that FM
and/or Imelda were the real owners of the assets deposited in the Swiss
banks, using the Foundations as dummies.43
How could respondents therefore claim lack of sufficient knowledge or
information regarding the existence of the Swiss bank deposits and the creation
of five groups of accounts when Mrs. Marcos and her late husband personally
masterminded and participated in the formation and control of said foundations?
This is a fact respondent Marcoses were never able to explain.
Not only that. Respondents' answer also technically admitted the genuineness
and due execution of the Income Tax Returns (ITRs) and the balance sheets of
the late Ferdinand E. Marcos and Imelda R. Marcos attached to the petition for
forfeiture, as well as the veracity of the contents thereof.
The answer again premised its denials of said ITRs and balance sheets on the
ground of lack of knowledge or information sufficient to form a belief as to the
truth of the contents thereof. Petitioner correctly points out that respondents'
denial was not really grounded on lack of knowledge or information sufficient to
form a belief but was based on lack of recollection. By reviewing their own
records, respondent Marcoses could have easily determined the genuineness
and due execution of the ITRs and the balance sheets. They also had the means
and opportunity of verifying the same from the records of the BIR and the Office
of the President. They did not.
When matters regarding which respondents claim to have no knowledge or
information sufficient to form a belief are plainly and necessarily within their
knowledge, their alleged ignorance or lack of information will not be considered a
specific denial.44 An unexplained denial of information within the control of the
pleader, or is readily accessible to him, is evasive and is insufficient to constitute
an effective denial.45
The form of denial adopted by respondents must be availed of with sincerity and
in good faith, and certainly not for the purpose of confusing the adverse party as
to what allegations of the petition are really being challenged; nor should it be
made for the purpose of delay.46 In the instant case, the Marcoses did not only
present unsubstantiated assertions but in truth attempted to mislead and deceive
this Court by presenting an obviously contrived defense.
Simply put, a profession of ignorance about a fact which is patently and
necessarily within the pleader's knowledge or means of knowing is as ineffective
as no denial at all.47 Respondents' ineffective denial thus failed to properly tender
an issue and the averments contained in the petition for forfeiture were deemed
judicially admitted by them.
As held in J.P. Juan & Sons, Inc. vs. Lianga Industries, Inc.:
Its "specific denial" of the material allegation of the petition without setting
forth the substance of the matters relied upon to support its general denial,
when such matters were plainly within its knowledge and it could not
logically pretend ignorance as to the same, therefore, failed to properly
tender on issue.48
Thus, the general denial of the Marcos children of the allegations in the petition
for forfeiture "for lack of knowledge or information sufficient to form a belief as to
the truth of the allegations since they were not privy to the transactions" cannot
rightfully be accepted as a defense because they are the legal heirs and
successors-in-interest of Ferdinand E. Marcos and are therefore bound by the
acts of their father vis-a-vis the Swiss funds.
PRE-TRIAL BRIEF DATED OCTOBER 18, 1993
The pre-trial brief of Mrs. Marcos was adopted by the three Marcos children. In
said brief, Mrs. Marcos stressed that the funds involved were lawfully acquired.
But, as in their answer, they failed to state and substantiate how these funds
were acquired lawfully. They failed to present and attach even a single document
that would show and prove the truth of their allegations. Section 6, Rule 18 of the
1997 Rules of Civil Procedure provides:
The parties shall file with the court and serve on the adverse party, x x x their
respective pre-trial briefs which shall contain, among others:
xxx
(d) the documents or exhibits to be presented, stating the purpose thereof;
xxx
(f) the number and names of the witnesses, and the substance of their
respective testimonies.49
It is unquestionably within the court's power to require the parties to submit their
pre-trial briefs and to state the number of witnesses intended to be called to the
stand, and a brief summary of the evidence each of them is expected to give as
well as to disclose the number of documents to be submitted with a description of
the nature of each. The tenor and character of the testimony of the witnesses
and of the documents to be deduced at the trial thus made known, in addition to
the particular issues of fact and law, it becomes apparent if genuine issues are
being put forward necessitating the holding of a trial. Likewise, the parties are
obliged not only to make a formal identification and specification of the issues
and their proofs, and to put these matters in writing and submit them to the court
within the specified period for the prompt disposition of the action.50
The pre-trial brief of Mrs. Marcos, as subsequently adopted by respondent
Marcos children, merely stated:
xxx
WITNESSES
4.1 Respondent Imelda will present herself as a witness and reserves the
right to present additional witnesses as may be necessary in the course of
the trial.
xxx
DOCUMENTARY EVIDENCE
5.1 Respondent Imelda reserves the right to present and introduce in

evidence documents as may be necessary in the course of the trial.
Mrs. Marcos did not enumerate and describe the documents constituting her
evidence. Neither the names of witnesses nor the nature of their testimony was
stated. What alone appeared certain was the testimony of Mrs. Marcos only who
in fact had previously claimed ignorance and lack of knowledge. And even then,
the substance of her testimony, as required by the rules, was not made known
either. Such cunning tactics of respondents are totally unacceptable to this Court.
We hold that, since no genuine issue was raised, the case became ripe for
summary judgment.
OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

DATED MARCH 21, 2000
The opposition filed by Mrs. Marcos to the motion for summary judgment dated
March 21, 2000 of petitioner Republic was merely adopted by the Marcos
children as their own opposition to the said motion. However, it was again not
accompanied by affidavits, depositions or admissions as required by Section 3,
Rule 35 of the 1997 Rules on Civil Procedure:
x x x The adverse party may serve opposing affidavits, depositions, or
admissions at least three (3) days before hearing. After hearing, the
judgment sought shall be rendered forthwith if the pleadings, supporting
affidavits, depositions, and admissions on file, show that, except as to the
amount of damages, there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.51
The absence of opposing affidavits, depositions and admissions to contradict the
sworn declarations in the Republic's motion only demonstrated that the
averments of such opposition were not genuine and therefore unworthy of belief.
Demurrer to Evidence dated May 2, 2000;52

Motions for Reconsideration;53 and Memoranda
of Mrs. Marcos and the Marcos children54
All these pleadings again contained no allegations of facts showing their lawful
acquisition of the funds. Once more, respondents merely made general denials
without alleging facts which would have been admissible in evidence at the
hearing, thereby failing to raise genuine issues of fact.
Mrs. Marcos insists in her memorandum dated October 21, 2002 that, during the
pre-trial, her counsel stated that his client was just a beneficiary of the funds,
contrary to petitioner Republic's allegation that Mrs. Marcos disclaimed

ownership of or interest in the funds.
This is yet another indication that respondents presented a fictitious defense
because, during the pre-trial, Mrs. Marcos and the Marcos
children denied ownership of or interest in the Swiss funds:
PJ Garchitorena:
Make of record that as far as Imelda Marcos is concerned through
the statement of Atty. Armando M. Marcelo that the US$360 million
more or less subject matter of the instant lawsuit as allegedly
obtained from the various Swiss Foundations do not belong to the
estate of Marcos or to Imelda Marcos herself. That's your statement
of facts?
Atty. MARCELO:
Yes, Your Honor.
PJ Garchitorena:
That's it. Okay. Counsel for Manotoc and Manotoc, Jr. What is your
point here? Does the estate of Marcos own anything of the $360
million subject of this case.
Atty. TECSON:
We joined the Manifestation of Counsel.
PJ Garchitorena:
You do not own anything?
Atty. TECSON:
Yes, Your Honor.
PJ Garchitorena:
Counsel for Irene Araneta?
Atty. SISON:
I join the position taken by my other compaeros here, Your Honor.

xxx
Atty. SISON:
Irene Araneta as heir do (sic) not own any of the amount, Your
Honor.55
We are convinced that the strategy of respondent Marcoses was to confuse
petitioner Republic as to what facts they would prove or what issues they
intended to pose for the court's resolution. There is no doubt in our mind that they
were leading petitioner Republic, and now this Court, to perplexity, if not trying to
drag this forfeiture case to eternity.
Manifestation dated May 26, 1998 filed by MRS.

Marcos; General/Supplemental Compromise
Agreement dated December 28, 1993
These pleadings of respondent Marcoses presented nothing but feigned

defenses. In their earlier pleadings, respondents alleged either that they had no
knowledge of the existence of the Swiss deposits or that they could no longer
remember anything as it happened a long time ago. As to Mrs. Marcos, she
remembered that it was lawfully acquired.
In her Manifestation dated May 26, 1998, Mrs. Marcos stated that:
COMES NOW undersigned counsel for respondent Imelda R. Marcos, and
before this Honorable Court, most respectfully manifests:
That respondent Imelda R, Marcos owns 90% of the subject matter of the
above-entitled case, being the sole beneficiary of the dollar deposits in the
name of the various foundations alleged in the case;
That in fact only 10% of the subject matter in the above-entitled case
belongs to the estate of the late President Ferdinand E. Marcos.
In the Compromise/Supplemental Agreements, respondent Marcoses sought to
implement the agreed distribution of the Marcos assets, including the Swiss
deposits. This was, to us, an unequivocal admission of ownership by the
Marcoses of the said deposits.
But, as already pointed out, during the pre-trial conference, respondent Marcoses
denied knowledge as well as ownership of the Swiss funds.
Anyway we look at it, respondent Marcoses have put forth no real defense. The
"facts" pleaded by respondents, while ostensibly raising important questions or
issues of fact, in reality comprised mere verbiage that was evidently wanting in
substance and constituted no genuine issues for trial.
We therefore rule that, under the circumstances, summary judgment is proper.
In fact, it is the law itself which determines when summary judgment is called for.
Under the rules, summary judgment is appropriate when there are no genuine
issues of fact requiring the presentation of evidence in a full-blown trial. Even if
on their face the pleadings appear to raise issue, if the affidavits, depositions and
admissions show that such issues are not genuine, then summary judgment as
prescribed by the rules must ensue as a matter of law.56
In sum, mere denials, if unaccompanied by any fact which will be admissible in
evidence at a hearing, are not sufficient to raise genuine issues of fact and will
not defeat a motion for summary judgment.57 A summary judgment is one granted
upon motion of a party for an expeditious settlement of the case, it appearing
from the pleadings, depositions, admissions and affidavits that there are no
important questions or issues of fact posed and, therefore, the movant is entitled
to a judgment as a matter of law. A motion for summary judgment is premised on
the assumption that the issues presented need not be tried either because these
are patently devoid of substance or that there is no genuine issue as to any
pertinent fact. It is a method sanctioned by the Rules of Court for the prompt
disposition of a civil action where there exists no serious controversy.58 Summary
judgment is a procedural device for the prompt disposition of actions in which the
pleadings raise only a legal issue, not a genuine issue as to any material fact.
The theory of summary judgment is that, although an answer may on its face
appear to tender issues requiring trial, if it is established by affidavits, depositions
or admissions that those issues are not genuine but fictitious, the Court is
justified in dispensing with the trial and rendering summary judgment for
petitioner.59
In the various annexes to the petition for forfeiture, petitioner Republic attached
sworn statements of witnesses who had personal knowledge of the Marcoses'
participation in the illegal acquisition of funds deposited in the Swiss accounts
under the names of five groups or foundations. These sworn statements
substantiated the ill-gotten nature of the Swiss bank deposits. In their answer and
other subsequent pleadings, however, the Marcoses merely made general
denials of the allegations against them without stating facts admissible in
evidence at the hearing, thereby failing to raise any genuine issues of fact.
Under these circumstances, a trial would have served no purpose at all and
would have been totally unnecessary, thus justifying a summary judgment on the
petition for forfeiture. There were no opposing affidavits to contradict the sworn
declarations of the witnesses of petitioner Republic, leading to the inescapable
conclusion that the matters raised in the Marcoses' answer were false.
Time and again, this Court has encountered cases like this which are either only
half-heartedly defended or, if the semblance of a defense is interposed at all, it is
only to delay disposition and gain time. It is certainly not in the interest of justice
to allow respondent Marcoses to avail of the appellate remedies accorded by the
Rules of Court to litigants in good faith, to the prejudice of the Republic and
ultimately of the Filipino people. From the beginning, a candid demonstration of
respondents' good faith should have been made to the court below. Without the
deceptive reasoning and argumentation, this protracted litigation could have
ended a long time ago.
Since 1991, when the petition for forfeiture was first filed, up to the present, all
respondents have offered are foxy responses like "lack of sufficient knowledge or
lack of privity" or "they cannot recall because it happened a long time ago" or, as
to Mrs. Marcos, "the funds were lawfully acquired." But, whenever it suits them,
they also claim ownership of 90% of the funds and allege that only 10% belongs
to the Marcos estate. It has been an incredible charade from beginning to end.
In the hope of convincing this Court to rule otherwise, respondents Maria Imelda
Marcos-Manotoc and Ferdinand R. Marcos Jr. contend that "by its positive acts
and express admissions prior to filing the motion for summary judgment on
March 10, 2000, petitioner Republic had bound itself to go to trial on the basis of
existing issues. Thus, it had legally waived whatever right it had to move for
summary judgment."60
We do not think so. The alleged positive acts and express admissions of the
petitioner did not preclude it from filing a motion for summary judgment.
Rule 35 of the 1997 Rules of Civil Procedure provides:
Rule 35
Summary Judgment
Section 1. Summary judgment for claimant. - A party seeking to recover
upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief
may, at any time after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or admissions for a summary

judgment in his favor upon all or any part thereof.
Section 2. Summary judgment for defending party. - A party against whom
a claim, counterclaim, or cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all or any part
thereof. (Emphasis ours)61
Under the rule, the plaintiff can move for summary judgment "at any time after
the pleading in answer thereto (i.e., in answer to the claim, counterclaim or crossclaim) has been served." No fixed reglementary period is provided by the Rules.
How else does one construe the phrase "any time after the answer has been
served?"
This issue is actually one of first impression. No local jurisprudence or
authoritative work has touched upon this matter. This being so, an examination of
foreign laws and jurisprudence, particularly those of the United States where
many of our laws and rules were copied, is in order.
Rule 56 of the Federal Rules of Civil Procedure provides that a party seeking to
recover upon a claim, counterclaim or cross-claim may move for summary
judgment at any time after the expiration of 20 days from the commencement of
the action or after service of a motion for summary judgment by the adverse
party, and that a party against whom a claim, counterclaim or cross-claim is
asserted may move for summary judgment at any time.
However, some rules, particularly Rule 113 of the Rules of Civil Practice of New
York, specifically provide that a motion for summary judgment may not be made
until issues have been joined, that is, only after an answer has been
served.62 Under said rule, after issues have been joined, the motion for summary
judgment may be madeat any stage of the litigation.63 No fixed prescriptive period
is provided.
Like Rule 113 of the Rules of Civil Practice of New York, our rules also provide
that a motion for summary judgment may not be made until issues have been
joined, meaning, the plaintiff has to wait for the answer before he can move for
summary judgment.64 And like the New York rules, ours do not provide for a fixed
reglementary period within which to move for summary judgment.
This being so, the New York Supreme Court's interpretation of Rule 113 of the
Rules of Civil Practice can be applied by analogy to the interpretation of Section
1, Rule 35, of our 1997 Rules of Civil Procedure.
Under the New York rule, after the issues have been joined, the motion for
summary judgment may be made at any stage of the litigation. And what exactly
does the phrase "at any stage of the litigation" mean? In Ecker vs. Muzysh,65 the
New York Supreme Court ruled:
"PER CURIAM.
Plaintiff introduced her evidence and the defendants rested on the case
made by the plaintiff. The case was submitted. Owing to the serious illness
of the trial justice, a decision was not rendered within sixty days after the
final adjournment of the term at which the case was tried. With the
approval of the trial justice, the plaintiff moved for a new trial under Section
442 of the Civil Practice Act. The plaintiff also moved for summary
judgment under Rule 113 of the Rules of Civil Practice. The motion was
opposed mainly on the ground that, by proceeding to trial, the
plaintiff had waived her right to summary judgment and that the
answer and the opposing affidavits raised triable issues. The amount due
and unpaid under the contract is not in dispute. The Special Term granted
both motions and the defendants have appealed.
The Special Term properly held that the answer and the opposing affidavits
raised no triable issue. Rule 113 of the Rules of Civil Practice and the
Civil Practice Act prescribe no limitation as to the time when a motion
for summary judgment must be made. The object of Rule 113 is to
empower the court to summarily determine whether or not a bona
fide issue exists between the parties, and there is no limitation on the
power of the court to make such a determination at any stage of the
litigation." (emphasis ours)
On the basis of the aforequoted disquisition, "any stage of the litigation" means
that "even if the plaintiff has proceeded to trial, this does not preclude him from
thereafter moving for summary judgment."66
In the case at bar, petitioner moved for summary judgment after pre-trial and
before its scheduled date for presentation of evidence. Respondent Marcoses
argue that, by agreeing to proceed to trial during the pre-trial conference,
petitioner "waived" its right to summary judgment.
This argument must fail in the light of the New York Supreme Court ruling which
we apply by analogy to this case. In Ecker,67 the defendant opposed the motion
for summary judgment on a ground similar to that raised by the Marcoses, that is,
"that plaintiff had waived her right to summary judgment" by her act of proceeding
to trial. If, as correctly ruled by the New York court, plaintiff was allowed to move
for summary judgment even after trial and submission of the case for resolution,
more so should we permit it in the present case where petitioner moved for
summary judgment before trial.
Therefore, the phrase "anytime after the pleading in answer thereto has been
served" in Section 1, Rule 35 of our Rules of Civil Procedure means "at any
stage of the litigation." Whenever it becomes evident at any stage of the litigation
that no triable issue exists, or that the defenses raised by the defendant(s) are
sham or frivolous, plaintiff may move for summary judgment. A contrary
interpretation would go against the very objective of the Rule on Summary
Judgment which is to "weed out sham claims or defenses thereby avoiding the
expense and loss of time involved in a trial."68
In cases with political undertones like the one at bar, adverse parties will often do
almost anything to delay the proceedings in the hope that a future administration
sympathetic to them might be able to influence the outcome of the case in their
favor. This is rank injustice we cannot tolerate.
The law looks with disfavor on long, protracted and expensive litigation and
encourages the speedy and prompt disposition of cases. That is why the law and
the rules provide for a number of devices to ensure the speedy disposition of
cases. Summary judgment is one of them.
Faithful therefore to the spirit of the law on summary judgment which seeks to
avoid unnecessary expense and loss of time in a trial, we hereby rule that
petitioner Republic could validly move for summary judgment any time after the
respondents' answer was filed or, for that matter, at any subsequent stage of the
litigation. The fact that petitioner agreed to proceed to trial did not in any way
prevent it from moving for summary judgment, as indeed no genuine issue of fact
was ever validly raised by respondent Marcoses.
This interpretation conforms with the guiding principle enshrined in Section 6,
Rule 1 of the 1997 Rules of Civil Procedure that the "[r]ules should be liberally
construed in order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding."69
Respondents further allege that the motion for summary judgment was based on
respondents' answer and other documents that had long been in the records of
the case. Thus, by the time the motion was filed on March 10, 2000, estoppel by
laches had already set in against petitioner.
We disagree. Estoppel by laches is the failure or neglect for an unreasonable or
unexplained length of time to do that which, by exercising due diligence, could or
should have been done earlier, warranting a presumption that the person has
abandoned his right or declined to assert it.70 In effect, therefore, the principle of
laches is one of estoppel because "it prevents people who have slept on their
rights from prejudicing the rights of third parties who have placed reliance on the
inaction of the original parties and their successors-in-interest".71
A careful examination of the records, however, reveals that petitioner was in fact
never remiss in pursuing its case against respondent Marcoses through every
remedy available to it, including the motion for summary judgment.
Petitioner Republic initially filed its motion for summary judgment on October 18,
1996. The motion was denied because of the pending compromise agreement
between the Marcoses and petitioner. But during the pre-trial conference, the
Marcoses denied ownership of the Swiss funds, prompting petitioner to file
another motion for summary judgment now under consideration by this Court. It
was the subsequent events that transpired after the answer was filed, therefore,
which prevented petitioner from filing the questioned motion. It was definitely not
because of neglect or inaction that petitioner filed the (second) motion for
summary judgment years after respondents' answer to the petition for forfeiture.
In invoking the doctrine of estoppel by laches, respondents must show not only
unjustified inaction but also that some unfair injury to them might result unless
the action is barred.72
This, respondents failed to bear out. In fact, during the pre-trial conference, the
Marcoses disclaimed ownership of the Swiss deposits. Not being the owners, as
they claimed, respondents did not have any vested right or interest which could
be adversely affected by petitioner's alleged inaction.
But even assuming for the sake of argument that laches had already set in, the
doctrine of estoppel or laches does not apply when the government sues as a
sovereign or asserts governmental rights.73 Nor can estoppel validate an act that
contravenes law or public policy.74
As a final point, it must be emphasized that laches is not a mere question of time
but is principally a question of the inequity or unfairness of permitting a right or
claim to be enforced or asserted.75 Equity demands that petitioner Republic
should not be barred from pursuing the people's case against the Marcoses.
(2) The Propriety of Forfeiture
The matter of summary judgment having been thus settled, the issue of whether
or not petitioner Republic was able to prove its case for forfeiture in accordance
with the requisites of Sections 2 and 3 of RA 1379 now takes center stage.
The law raises the prima facie presumption that a property is unlawfully acquired,
hence subject to forfeiture, if its amount or value is manifestly disproportionate to
the official salary and other lawful income of the public officer who owns it.
Hence, Sections 2 and 6 of RA 137976 provide:
xxx
xxx
Section 2. Filing of petition. Whenever any public officer or employee has

acquired during his incumbency an amount or property which is manifestly
out of proportion to his salary as such public officer or employee and to his
other lawful income and the income from legitimately acquired property,
said property shall be presumed prima facie to have been unlawfully
acquired.
xxx
xxx
Sec. 6. Judgment If the respondent is unable to show to the satisfaction

of the court that he has lawfully acquired the property in question, then the
court shall declare such property in question, forfeited in favor of the State,
and by virtue of such judgment the property aforesaid shall become the
property of the State.Provided, That no judgment shall be rendered within
six months before any general election or within three months before any
special election. The Court may, in addition, refer this case to the
corresponding Executive Department for administrative or criminal action,
or both.
From the above-quoted provisions of the law, the following facts must be
established in order that forfeiture or seizure of the Swiss deposits may be
effected:
(1) ownership by the public officer of money or property acquired during his
incumbency, whether it be in his name or otherwise, and
(2) the extent to which the amount of that money or property exceeds, i. e.,
is grossly disproportionate to, the legitimate income of the public officer.
That spouses Ferdinand and Imelda Marcos were public officials during the time
material to the instant case was never in dispute. Paragraph 4 of respondent
Marcoses' answer categorically admitted the allegations in paragraph 4 of the
petition for forfeiture as to the personal circumstances of Ferdinand E. Marcos as

a public official who served without interruption as Congressman, Senator,
Senate President and President of the Republic of the Philippines from
December 1, 1965 to February 25, 1986.77 Likewise, respondents admitted in
their answer the contents of paragraph 5 of the petition as to the personal
circumstances of Imelda R. Marcos who once served as a member of the Interim
Batasang Pambansa from 1978 to 1984 and as Metro Manila Governor,
concurrently Minister of Human Settlements, from June 1976 to February 1986.78
Respondent Mrs. Marcos also admitted in paragraph 10 of her answer the
allegations of paragraph 11 of the petition for forfeiture which referred to the
accumulated salaries of respondents Ferdinand E. Marcos and Imelda R.
Marcos.79 The combined accumulated salaries of the Marcos couple were
reflected in the Certification dated May 27, 1986 issued by then Minister of
Budget and Management Alberto Romulo.80 The Certification showed that, from
1966 to 1985, Ferdinand E. Marcos and Imelda R. Marcos had accumulated
salaries in the amount of P1,570,000 and P718,750, respectively, or a total of
P2,288,750:
Ferdinand E. Marcos, as President
1966-1976 at
P660,000
P60,000/year
1977-1984 at
800,000
P100,000/year
1985
at
110,000
P110,000/year
P1,570,00
Imelda R. Marcos, as Minister
June 19761985
at
P718,000
P75,000/year
In addition to their accumulated salaries from 1966 to 1985 are the Marcos
couple's combined salaries from January to February 1986 in the amount of
P30,833.33. Hence, their total accumulated salaries amounted to P2,319,583.33.
Converted to U.S. dollars on the basis of the corresponding peso-dollar
exchange rates prevailing during the applicable period when said salaries were
received, the total amount had an equivalent value of $304,372.43.
The dollar equivalent was arrived at by using the official annual rates of
exchange of the Philippine peso and the US dollar from 1965 to 1985 as well as
the official monthly rates of exchange in January and February 1986 issued by
the Center for Statistical Information of the Bangko Sentral ng Pilipinas.
Prescinding from the aforesaid admissions, Section 4, Rule 129 of the Rules of
Court provides that:
Section 4. Judicial admissions An admission, verbal or written, made
by a party in the course of the proceedings in the same case does not
require proof. The admission may be contradicted only by showing that it
was made through palpable mistake or that no such admission was
made.81
It is settled that judicial admissions may be made: (a) in the pleadings filed by the
parties; (b) in the course of the trial either by verbal or written manifestations or
stipulations; or (c) in other stages of judicial proceedings, as in the pre-trial of the
case.82 Thus, facts pleaded in the petition and answer, as in the case at bar, are
deemed admissions of petitioner and respondents, respectively, who are not
permitted to contradict them or subsequently take a position contrary to or
inconsistent with such admissions.83
The sum of $304,372.43 should be held as the only known lawful income of
respondents since they did not file any Statement of Assets and Liabilities (SAL),
as required by law, from which their net worth could be determined. Besides,
under the 1935 Constitution, Ferdinand E. Marcos as President could not receive
"any other emolument from the Government or any of its subdivisions and
instrumentalities".84 Likewise, under the 1973 Constitution, Ferdinand E. Marcos
as President could "not receive during his tenure any other emolument from the
Government or any other source."85 In fact, his management of businesses, like
the administration of foundations to accumulate funds, was expressly prohibited
under the 1973 Constitution:
Article VII, Sec. 4(2) The President and the Vice-President shall not,
during their tenure, hold any other office except when otherwise provided
in this Constitution, nor may they practice any profession, participate
directly or indirectly in the management of any business, or be financially
interested directly or indirectly in any contract with, or in any franchise or
special privilege granted by the Government or any other subdivision,
agency, or instrumentality thereof, including any government owned or
controlled corporation.
Article VII, Sec. 11 No Member of the National Assembly shall appear as

counsel before any court inferior to a court with appellate jurisdiction, x x x.
Neither shall he, directly or indirectly, be interested financially in any
contract with, or in any franchise or special privilege granted by the
Government, or any subdivision, agency, or instrumentality thereof
including any government owned or controlled corporation during his term
of office. He shall not intervene in any matter before any office of the
government for his pecuniary benefit.
Article IX, Sec. 7 The Prime Minister and Members of the Cabinet shall
be subject to the provision of Section 11, Article VIII hereof and may not
appear as counsel before any court or administrative body, or manage any
business, or practice any profession, and shall also be subject to such
other disqualification as may be provided by law.
Their only known lawful income of $304,372.43 can therefore legally and fairly
serve as basis for determining the existence of a prima facie case of forfeiture of
the Swiss funds.
Respondents argue that petitioner was not able to establish a prima facie case
for the forfeiture of the Swiss funds since it failed to prove the essential elements
under Section 3, paragraphs (c), (d) and (e) of RA 1379. As the Act is a penal
statute, its provisions are mandatory and should thus be construed strictly
against the petitioner and liberally in favor of respondent Marcoses.
We hold that it was not for petitioner to establish the Marcoses' other lawful
income or income from legitimately acquired property for the presumption to
apply because, as between petitioner and respondents, the latter were in a better
position to know if there were such other sources of lawful income. And if indeed
there was such other lawful income, respondents should have specifically stated
the same in their answer. Insofar as petitioner Republic was concerned, it was
enough to specify the known lawful income of respondents.
Section 9 of the PCGG Rules and Regulations provides that, in determining
prima facie evidence of ill-gotten wealth, the value of the accumulated assets,
properties and other material possessions of those covered by Executive Order
Nos. 1 and 2 must be out of proportion to the known lawful income of such
persons. The respondent Marcos couple did not file any Statement of Assets and
Liabilities (SAL) from which their net worth could be determined. Their failure to
file their SAL was in itself a violation of law and to allow them to successfully
assail the Republic for not presenting their SAL would reward them for their
violation of the law.
Further, contrary to the claim of respondents, the admissions made by them in

their various pleadings and documents were valid. It is of record that respondents
judicially admitted that the money deposited with the Swiss banks belonged to
them.
We agree with petitioner that respondent Marcoses made judicial admissions of
their ownership of the subject Swiss bank deposits in their answer, the
General/Supplemental Agreements, Mrs. Marcos' Manifestation and Constancia
dated May 5, 1999, and the Undertaking dated February 10, 1999. We take note
of the fact that the Associate Justices of the Sandiganbayan were unanimous in
holding that respondents had made judicial admissions of their ownership of the
Swiss funds.
In their answer, aside from admitting the existence of the subject funds,
respondents likewise admitted ownershipthereof. Paragraph 22 of respondents'
answer stated:
22. Respondents specifically DENY PARAGRAPH 23 insofar as it alleges
that respondents clandestinely stashed the country's wealth in Switzerland
and hid the same under layers and layers of foundations and corporate
entities for being false, the truth being that respondents' aforesaid
properties were lawfully acquired. (emphasis supplied)
By qualifying their acquisition of the Swiss bank deposits as lawful, respondents
unwittingly admitted their ownership thereof.
Respondent Mrs. Marcos also admitted ownership of the Swiss bank deposits by
failing to deny under oath the genuineness and due execution of certain
actionable documents bearing her signature attached to the petition. As
discussed earlier, Section 11, Rule 886 of the 1997 Rules of Civil Procedure
provides that material averments in the complaint shall be deemed admitted
when not specifically denied.
The General87 and Supplemental88 Agreements executed by petitioner and
respondents on December 28, 1993 further bolstered the claim of petitioner
Republic that its case for forfeiture was proven in accordance with the requisites
of Sections 2 and 3 of RA 1379. The whereas clause in the General Agreement
declared that:
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss
Federal Tribunal on December 21, 1990, that the $356 million belongs in
principle to the Republic of the Philippines provided certain conditionalities
are met, but even after 7 years, the FIRST PARTY has not been able to
procure a final judgment of conviction against the PRIVATE PARTY.
While the Supplemental Agreement warranted, inter alia, that:
In consideration of the foregoing, the parties hereby agree that the
PRIVATE PARTY shall be entitled to the equivalent of 25% of the amount
that may be eventually withdrawn from said $356 million Swiss deposits.
The stipulations set forth in the General and Supplemental Agreements
undeniably indicated the manifest intent of respondents to enter into a
compromise with petitioner. Corollarily, respondents' willingness to agree to an
amicable settlement with the Republic only affirmed their ownership of the Swiss
deposits for the simple reason that no person would acquiesce to any concession
over such huge dollar deposits if he did not in fact own them.
Respondents make much capital of the pronouncement by this Court that the
General and Supplemental Agreements were null and void.89 They insist that
nothing in those agreements could thus be admitted in evidence against them
because they stood on the same ground as an accepted offer which, under
Section 27, Rule 13090 of the 1997 Rules of Civil Procedure, provides that "in civil
cases, an offer of compromise is not an admission of any liability and is not
admissible in evidence against the offeror."
We find no merit in this contention. The declaration of nullity of said agreements
was premised on the following constitutional and statutory infirmities: (1) the
grant of criminal immunity to the Marcos heirs was against the law; (2) the
PCGG's commitment to exempt from all forms of taxes the properties to be
retained by the Marcos heirs was against the Constitution; and (3) the
government's undertaking to cause the dismissal of all cases filed against the
Marcoses pending before the Sandiganbayan and other courts encroached on
the powers of the judiciary. The reasons relied upon by the Court never in the
least bit even touched on the veracity and truthfulness of respondents' admission
with respect to their ownership of the Swiss funds. Besides, having made certain
admissions in those agreements, respondents cannot now deny that they
voluntarily admitted owning the subject Swiss funds, notwithstanding the fact that
the agreements themselves were later declared null and void.
The following observation of Sandiganbayan Justice Catalino Castaeda, Jr. in
the decision dated September 19, 2000 could not have been better said:
x x x The declaration of nullity of the two agreements rendered the same
without legal effects but it did not detract from the admissions of the
respondents contained therein. Otherwise stated, the admissions made in

said agreements, as quoted above, remain binding on the respondents.91
A written statement is nonetheless competent as an admission even if it is
contained in a document which is not itself effective for the purpose for which it is
made, either by reason of illegality, or incompetency of a party thereto, or by
reason of not being signed, executed or delivered. Accordingly, contracts have
been held as competent evidence of admissions, although they may be
unenforceable.92
The testimony of respondent Ferdinand Marcos, Jr. during the hearing on the
motion for the approval of the Compromise Agreement on April 29, 1998 also lent
credence to the allegations of petitioner Republic that respondents admitted
ownership of the Swiss bank accounts. We quote the salient portions of
Ferdinand Jr.'s formal declarations in open court:
ATTY. FERNANDO:
Mr. Marcos, did you ever have any meetings with PCGG Chairman
Magtanggol C. Gunigundo?
F. MARCOS, JR.:
Yes. I have had very many meetings in fact with Chairman.
ATTY. FERNANDO:
Would you recall when the first meeting occurred?
PJ GARCHITORENA:
In connection with what?
ATTY. FERNANDO:
In connection with the ongoing talks to compromise the various
cases initiated by PCGG against your family?
F. MARCOS, JR.:
The nature of our meetings was solely concerned with negotiations
towards achieving some kind of agreement between the Philippine
government and the Marcos family. The discussions that led up to
the compromise agreement were initiated by our then counsel Atty.

Simeon Mesina x x x.93
xxx
xxx
xxx
ATTY. FERNANDO:
What was your reaction when Atty. Mesina informed you of this
possibility?
F. MARCOS, JR.:
My reaction to all of these approaches is that I am always open, we
are always open, we are very much always in search of resolution to
the problem of the family and any approach that has been made us,
we have entertained. And so my reaction was the same as what I
have always why not? Maybe this is the one that will finally put an
end to this problem.94
xxx
xxx
xxx
ATTY. FERNANDO:
Basically, what were the true amounts of the assets in the bank?
PJ GARCHITORENA:
So, we are talking about liquid assets here? Just Cash?
F. MARCOS, JR.:
Well, basically, any assets. Anything that was under the Marcos
name in any of the banks in Switzerland which may necessarily be
not cash.95
xxx
xxx
xxx
PJ GARCHITORENA:
x x x What did you do in other words, after being apprised of this
contract in connection herewith?
F. MARCOS, JR.:
I assumed that we are beginning to implement the agreement

because this was forwarded through the Philippine government
lawyers through our lawyers and then, subsequently, to me. I was a
little surprised because we hadn't really discussed the details of the
transfer of the funds, what the bank accounts, what the mechanism
would be. But nevertheless, I was happy to see that as far as the
PCGG is concerned, that the agreement was perfected and that we
were beginning to implement it and that was a source of satisfaction
to me because I thought that finally it will be the end.96
Ferdinand Jr.'s pronouncements, taken in context and in their entirety, were a
confirmation of respondents' recognition of their ownership of the Swiss bank
deposits. Admissions of a party in his testimony are receivable against him. If a
party, as a witness, deliberately concedes a fact, such concession has the force
of a judicial admission.97 It is apparent from Ferdinand Jr.'s testimony that the
Marcos family agreed to negotiate with the Philippine government in the hope of
finally putting an end to the problems besetting the Marcos family regarding the
Swiss accounts. This was doubtlessly an acknowledgment of ownership on their
part. The rule is that the testimony on the witness stand partakes of the nature of
a formal judicial admission when a party testifies clearly and unequivocally to a
fact which is peculiarly within his own knowledge.98
In her Manifestation99 dated May 26, 1998, respondent Imelda Marcos
furthermore revealed the following:
That respondent Imelda R. Marcos owns 90% of the subject matter of the
above-entitled case, being the sole beneficiary of the dollar deposits in the
name of the various foundations alleged in the case;
That in fact only 10% of the subject matter in the above-entitled case
belongs to the estate of the late President Ferdinand E. Marcos;
xxx
xxx
xxx
Respondents' ownership of the Swiss bank accounts as borne out by Mrs.

Marcos' manifestation is as bright as sunlight. And her claim that she is merely a
beneficiary of the Swiss deposits is belied by her own signatures on the
appended copies of the documents substantiating her ownership of the funds in
the name of the foundations. As already mentioned, she failed to specifically
deny under oath the authenticity of such documents, especially those involving
"William Saunders" and "Jane Ryan" which actually referred to Ferdinand Marcos
and Imelda Marcos, respectively. That failure of Imelda Marcos to specifically
deny the existence, much less the genuineness and due execution, of the
instruments bearing her signature, was tantamount to a judicial admission of the

genuineness and due execution of said instruments, in accordance with Section
8, Rule 8100 of the 1997 Rules of Civil Procedure.
Likewise, in her Constancia101 dated May 6, 1999, Imelda Marcos prayed for the
approval of the Compromise Agreement and the subsequent release and transfer
of the $150 million to the rightful owner. She further made the following
manifestations:
xxx
xxx
xxx
2. The Republic's cause of action over the full amount is its forfeiture in
favor of the government if found to be ill-gotten. On the other hand, the
Marcoses defend that it is a legitimate asset. Therefore, both parties have
an inchoate right of ownership over the account. If it turns out that the
account is of lawful origin, the Republic may yield to the Marcoses.
Conversely, the Marcoses must yield to the Republic. (underscoring
supplied)
xxx
xxx
xxx
3. Consistent with the foregoing, and the Marcoses having committed

themselves to helping the less fortunate, in the interest of peace,
reconciliation and unity, defendant MADAM IMELDA ROMUALDEZ
MARCOS, in firm abidance thereby, hereby affirms her agreement with the
Republic for the release and transfer of the US Dollar 150 million for proper
disposition, without prejudice to the final outcome of the litigation
respecting the ownership of the remainder.
Again, the above statements were indicative of Imelda's admission of the
Marcoses' ownership of the Swiss deposits as in fact "the Marcoses defend that
it (Swiss deposits) is a legitimate (Marcos) asset."
On the other hand, respondents Maria Imelda Marcos-Manotoc, Ferdinand
Marcos, Jr. and Maria Irene Marcos-Araneta filed a motion102 on May 4, 1998
asking the Sandiganbayan to place the res (Swiss deposits) in custodia legis:
7. Indeed, the prevailing situation is fraught with danger! Unless the
aforesaid Swiss deposits are placed in custodia legis or within the Court's
protective mantle, its dissipation or misappropriation by the petitioner
looms as a distinct possibility.
Such display of deep, personal interest can only come from someone who
believes that he has a marked and intimate right over the considerable dollar
deposits. Truly, by filing said motion, the Marcos children revealed their
ownership of the said deposits.
Lastly, the Undertaking103 entered into by the PCGG, the PNB and the Marcos
foundations on February 10, 1999, confirmed the Marcoses' ownership of the
Swiss bank deposits. The subject Undertaking brought to light their readiness to
pay the human rights victims out of the funds held in escrow in the PNB. It stated:
WHEREAS, the Republic of the Philippines sympathizes with the plight of
the human rights victims-plaintiffs in the aforementioned litigation through
the Second Party, desires to assist in the satisfaction of the judgment
awards of said human rights victims-plaintiffs, by releasing, assigning and
or waiving US$150 million of the funds held in escrow under the Escrow
Agreements dated August 14, 1995, although the Republic is not obligated
to do so under final judgments of the Swiss courts dated December 10 and
19, 1997, and January 8, 1998;
WHEREAS, the Third Party is likewise willing to release, assign and/or
waive all its rights and interests over said US$150 million to the
aforementioned human rights victims-plaintiffs.
All told, the foregoing disquisition negates the claim of respondents that
"petitioner failed to prove that they acquired or own the Swiss funds" and that "it
was only by arbitrarily isolating and taking certain statements made by private
respondents out of context that petitioner was able to treat these as judicial
admissions." The Court is fully aware of the relevance, materiality and
implications of every pleading and document submitted in this case. This Court
carefully scrutinized the proofs presented by the parties. We analyzed, assessed
and weighed them to ascertain if each piece of evidence rightfully qualified as an
admission. Owing to the far-reaching historical and political implications of this
case, we considered and examined, individually and totally, the evidence of the
parties, even if it might have bordered on factual adjudication which, by authority
of the rules and jurisprudence, is not usually done by this Court. There is no
doubt in our mind that respondent Marcoses admitted ownership of the Swiss
bank deposits.
We have always adhered to the familiar doctrine that an admission made in the
pleadings cannot be controverted by the party making such admission and
becomes conclusive on him, and that all proofs submitted by him contrary thereto
or inconsistent therewith should be ignored, whether an objection is interposed
by the adverse party or not.104 This doctrine is embodied in Section 4, Rule 129 of
the Rules of Court:
SEC. 4. Judicial admissions. An admission, verbal or written, made by a
party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing that it was
made through palpable mistake or that no such admission was made.105
In the absence of a compelling reason to the contrary, respondents' judicial
admission of ownership of the Swiss deposits is definitely binding on them.
The individual and separate admissions of each respondent bind all of them
pursuant to Sections 29 and 31, Rule 130 of the Rules of Court:
SEC. 29. Admission by co-partner or agent. The act or declaration of a
partner or agent of the party within the scope of his authority and during
the existence of the partnership or agency, may be given in evidence
against such party after the partnership or agency is shown by evidence
other than such act or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other person jointly interested
with the party.106
SEC. 31. Admission by privies. Where one derives title to property from
another, the act, declaration, or omission of the latter, while holding the
title, in relation to the property, is evidence against the former.107
The declarations of a person are admissible against a party whenever a "privity
of estate" exists between the declarant and the party, the term "privity of estate"
generally denoting a succession in rights.108 Consequently, an admission of one in
privity with a party to the record is competent.109 Without doubt, privity exists
among the respondents in this case. And where several co-parties to the record
are jointly interested in the subject matter of the controversy, the admission of
one is competent against all.110
Respondents insist that the Sandiganbayan is correct in ruling that petitioner
Republic has failed to establish aprima facie case for the forfeiture of the Swiss
deposits.
We disagree. The sudden turn-around of the Sandiganbayan was really strange,
to say the least, as its findings and conclusions were not borne out by the
voluminous records of this case.
Section 2 of RA 1379 explicitly states that "whenever any public officer or

employee has acquired during his incumbency an amount of property which is
manifestly out of proportion to his salary as such public officer or employee and
to his other lawful income and the income from legitimately acquired property,
said property shall be presumed prima facie to have been unlawfully acquired. x
x x"
The elements which must concur for this prima facie presumption to apply are:
(1) the offender is a public officer or employee;
(2) he must have acquired a considerable amount of money or property
during his incumbency; and
(3) said amount is manifestly out of proportion to his salary as such public
officer or employee and to his other lawful income and the income from
legitimately acquired property.
It is undisputed that spouses Ferdinand and Imelda Marcos were former public
officers. Hence, the first element is clearly extant.
The second element deals with the amount of money or property acquired by the
public officer during his incumbency. The Marcos couple indubitably acquired and
owned properties during their term of office. In fact, the five groups of Swiss
accounts were admittedly owned by them. There is proof of the existence and
ownership of these assets and properties and it suffices to comply with the
second element.
The third requirement is met if it can be shown that such assets, money or
property is manifestly out of proportion to the public officer's salary and his other
lawful income. It is the proof of this third element that is crucial in determining
whether a prima facie presumption has been established in this case.
Petitioner Republic presented not only a schedule indicating the lawful income of
the Marcos spouses during their incumbency but also evidence that they had
huge deposits beyond such lawful income in Swiss banks under the names of
five different foundations. We believe petitioner was able to establish the prima
facie presumption that the assets and properties acquired by the Marcoses
were manifestly and patently disproportionate to their aggregate salaries as
public officials. Otherwise stated, petitioner presented enough evidence to
convince us that the Marcoses had dollar deposits amounting to US $356 million
representing the balance of the Swiss accounts of the five foundations, an
amount way, way beyond their aggregate legitimate income of only

US$304,372.43 during their incumbency as government officials.
Considering, therefore, that the total amount of the Swiss deposits was
considerably out of proportion to the known lawful income of the Marcoses, the
presumption that said dollar deposits were unlawfully acquired was duly
established. It was sufficient for the petition for forfeiture to state the approximate
amount of money and property acquired by the respondents, and their total
government salaries. Section 9 of the PCGG Rules and Regulations states:
Prima Facie Evidence. Any accumulation of assets, properties, and other
material possessions of those persons covered by Executive Orders No. 1
and No. 2, whose value is out of proportion to their known lawful income is
prima facie deemed ill-gotten wealth.
Indeed, the burden of proof was on the respondents to dispute this presumption
and show by clear and convincing evidence that the Swiss deposits were lawfully
acquired and that they had other legitimate sources of income. A presumption
is prima facie proof of the fact presumed and, unless the fact thus prima
facie established by legal presumption is disproved, it must stand as proved.111
Respondent Mrs. Marcos argues that the foreign foundations should have been
impleaded as they were indispensable parties without whom no complete
determination of the issues could be made. She asserts that the failure of
petitioner Republic to implead the foundations rendered the judgment void as the
joinder of indispensable parties was a sine qua non exercise of judicial power.
Furthermore, the non-inclusion of the foreign foundations violated the conditions
prescribed by the Swiss government regarding the deposit of the funds in
escrow, deprived them of their day in court and denied them their rights under the
Swiss constitution and international law.112
The Court finds that petitioner Republic did not err in not impleading the foreign
foundations. Section 7, Rule 3 of the 1997 Rules of Civil Procedure,113 taken from
Rule 19b of the American Federal Rules of Civil Procedure, provides for the
compulsory joinder of indispensable parties. Generally, an indispensable party
must be impleaded for the complete determination of the suit. However, failure to
join an indispensable party does not divest the court of jurisdiction since the rule
regarding indispensable parties is founded on equitable considerations and is not
jurisdictional. Thus, the court is not divested of its power to render a decision
even in the absence of indispensable parties, though such judgment is not
binding on the non-joined party.114
An indispensable party115 has been defined as one:
[who] must have a direct interest in the litigation; and if this interest is such
that it cannot be separated from that of the parties to the suit, if the court
cannot render justice between the parties in his absence, if the decree will
have an injurious effect upon his interest, or if the final determination of the
controversy in his absence will be inconsistent with equity and good
conscience.
There are two essential tests of an indispensable party: (1) can relief be afforded
the plaintiff without the presence of the other party? and (2) can the case be
decided on its merits without prejudicing the rights of the other party?116 There is,
however, no fixed formula for determining who is an indispensable party; this can
only be determined in the context and by the facts of the particular suit or
litigation.
In the present case, there was an admission by respondent Imelda Marcos in her
May 26, 1998 Manifestation before the Sandiganbayan that she was the sole
beneficiary of 90% of the subject matter in controversy with the remaining 10%
belonging to the estate of Ferdinand Marcos.117 Viewed against this admission,
the foreign foundations were not indispensable parties. Their non-participation in
the proceedings did not prevent the court from deciding the case on its merits
and according full relief to petitioner Republic. The judgment ordering the return
of the $356 million was neither inimical to the foundations' interests nor
inconsistent with equity and good conscience. The admission of respondent
Imelda Marcos only confirmed what was already generally known: that the
foundations were established precisely to hide the money stolen by the Marcos
spouses from petitioner Republic. It negated whatever illusion there was, if any,
that the foreign foundations owned even a nominal part of the assets in question.
The rulings of the Swiss court that the foundations, as formal owners, must be
given an opportunity to participate in the proceedings hinged on the assumption
that they owned a nominal share of the assets.118 But this was already refuted by
no less than Mrs. Marcos herself. Thus, she cannot now argue that the ruling of
the Sandiganbayan violated the conditions set by the Swiss court. The directive
given by the Swiss court for the foundations to participate in the proceedings was
for the purpose of protecting whatever nominal interest they might have had in
the assets as formal owners. But inasmuch as their ownership was subsequently
repudiated by Imelda Marcos, they could no longer be considered as
indispensable parties and their participation in the proceedings became
unnecessary.
In Republic vs. Sandiganbayan,119 this Court ruled that impleading the firms which
are the res of the action was unnecessary:
"And as to corporations organized with ill-gotten wealth, but are not

themselves guilty of misappropriation, fraud or other illicit conduct in
other words, the companies themselves are not the object or thing involved
in the action, the res thereof there is no need to implead them either.
Indeed, their impleading is not proper on the strength alone of their having
been formed with ill-gotten funds, absent any other particular wrongdoing
on their part
Such showing of having been formed with, or having received ill-gotten
funds, however strong or convincing, does not, without more, warrant
identifying the corporations in question with the person who formed or
made use of them to give the color or appearance of lawful, innocent
acquisition to illegally amassed wealth at the least, not so as place on
the Government the onus of impleading the former with the latter in actions
to recover such wealth. Distinguished in terms of juridical personality and
legal culpability from their erring members or stockholders, said
corporations are not themselves guilty of the sins of the latter, of the
embezzlement, asportation, etc., that gave rise to the Government's cause
of action for recovery; their creation or organization was merely the result
of their members' (or stockholders') manipulations and maneuvers to
conceal the illegal origins of the assets or monies invested therein. In this
light, they are simply the res in the actions for the recovery of illegally
acquired wealth, and there is, in principle, no cause of action against them
and no ground to implead them as defendants in said actions."
Just like the corporations in the aforementioned case, the foreign foundations
here were set up to conceal the illegally acquired funds of the Marcos spouses.
Thus, they were simply the res in the action for recovery of ill-gotten wealth and
did not have to be impleaded for lack of cause of action or ground to implead
them.
Assuming arguendo, however, that the foundations were indispensable parties,
the failure of petitioner to implead them was a curable error, as held in the
previously cited case of Republic vs. Sandiganbayan:120
"Even in those cases where it might reasonably be argued that the failure
of the Government to implead the sequestered corporations as defendants
is indeed a procedural abberation, as where said firms were allegedly
used, and actively cooperated with the defendants, as instruments or
conduits for conversion of public funds and property or illicit or fraudulent
obtention of favored government contracts, etc., slight reflection would
nevertheless lead to the conclusion that the defect is not fatal, but one
correctible under applicable adjective rules e.g., Section 10, Rule 5 of the
Rules of Court [specifying the remedy of amendment during trial to

authorize or to conform to the evidence]; Section 1, Rule 20 [governing
amendments before trial], in relation to the rule respecting omission of socalled necessary or indispensable parties, set out in Section 11, Rule 3 of
the Rules of Court. It is relevant in this context to advert to the old familiar
doctrines that the omission to implead such parties "is a mere technical
defect which can be cured at any stage of the proceedings even after
judgment"; and that, particularly in the case of indispensable parties, since
their presence and participation is essential to the very life of the action, for
without them no judgment may be rendered, amendments of the complaint
in order to implead them should be freely allowed, even on appeal, in fact
even after rendition of judgment by this Court, where it appears that the
complaint otherwise indicates their identity and character as such
indispensable parties."121
Although there are decided cases wherein the non-joinder of indispensable
parties in fact led to the dismissal of the suit or the annulment of judgment, such
cases do not jibe with the matter at hand. The better view is that non-joinder is
not a ground to dismiss the suit or annul the judgment. The rule on joinder of
indispensable parties is founded on equity. And the spirit of the law is reflected in
Section 11, Rule 3122 of the 1997 Rules of Civil Procedure. It prohibits the
dismissal of a suit on the ground of non-joinder or misjoinder of parties and
allows the amendment of the complaint at any stage of the proceedings, through
motion or on order of the court on its own initiative.123
Likewise, jurisprudence on the Federal Rules of Procedure, from which our
Section 7, Rule 3124 on indispensable parties was copied, allows the joinder of
indispensable parties even after judgment has been entered if such is needed to
afford the moving party full relief.125 Mere delay in filing the joinder motion does
not necessarily result in the waiver of the right as long as the delay is
excusable.126 Thus, respondent Mrs. Marcos cannot correctly argue that the
judgment rendered by the Sandiganbayan was void due to the non-joinder of the
foreign foundations. The court had jurisdiction to render judgment which, even in
the absence of indispensable parties, was binding on all the parties before it
though not on the absent party.127 If she really felt that she could not be granted
full relief due to the absence of the foreign foundations, she should have moved
for their inclusion, which was allowable at any stage of the proceedings. She
never did. Instead she assailed the judgment rendered.
In the face of undeniable circumstances and the avalanche of documentary
evidence against them, respondent Marcoses failed to justify the lawful nature of
their acquisition of the said assets. Hence, the Swiss deposits should be
considered ill-gotten wealth and forfeited in favor of the State in accordance with
Section 6 of RA 1379:
SEC. 6. Judgment. If the respondent is unable to show to the satisfaction
of the court that he has lawfully acquired the property in question, then the
court shall declare such property forfeited in favor of the State, and by
virtue of such judgment the property aforesaid shall become property of
the State x x x.
THE FAILURE TO PRESENT AUTHENTICATED TRANSLATIONS OF THE
SWISS DECISIONS
Finally, petitioner Republic contends that the Honorable Sandiganbayan
Presiding Justice Francis Garchitorena committed grave abuse of discretion in
reversing himself on the ground that the original copies of the authenticated
Swiss decisions and their authenticated translations were not submitted to the
court a quo. Earlier PJ Garchitorena had quoted extensively from the unofficial
translation of one of these Swiss decisions in hisponencia dated July 29, 1999
when he denied the motion to release US$150 Million to the human rights
victims.
While we are in reality perplexed by such an incomprehensible change of heart,
there might nevertheless not be any real need to belabor the issue. The
presentation of the authenticated translations of the original copies of the Swiss
decision was not de rigueur for the public respondent to make findings of fact and
reach its conclusions. In short, the Sandiganbayan's decision was not dependent
on the determination of the Swiss courts. For that matter, neither is this Court's.
The release of the Swiss funds held in escrow in the PNB is dependent solely on
the decision of this jurisdiction that said funds belong to the petitioner Republic.
What is important is our own assessment of the sufficiency of the evidence to
rule in favor of either petitioner Republic or respondent Marcoses. In this
instance, despite the absence of the authenticated translations of the Swiss
decisions, the evidence on hand tilts convincingly in favor of petitioner Republic.
WHEREFORE, the petition is hereby GRANTED. The assailed Resolution of the
Sandiganbayan dated January 31, 2002 is SET ASIDE. The Swiss deposits
which were transferred to and are now deposited in escrow at the Philippine
National Bank in the estimated aggregate amount of US$658,175,373.60 as of
January 31, 2002, plus interest, are hereby forfeited in favor of petitioner
Republic of the Philippines.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago, Austria-Martinez,

Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Puno, and Vitug, JJ., in the result
Quisumbing, Sandoval-Gutierrez, J., on official leave.
Carpio, J., no part.

Supreme Court
Manila
EN BANC
ISABELITA C. VINUYA, VICTORIA
C. DELA PEA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO,
ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A.
SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEA,
EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA
ALONZO, RUFINA P. MALLARI,
ROSARIO M. ALARCON, RUFINA C.
GULAPA, ZOILA B. MANALUS,
CORAZON C. CALMA, MARTA A.
GULAPA, TEODORA M. HERNANDEZ,
FERMIN B. DELA PEA, MARIA DELA
PAZ B. CULALA, ESPERANZA
MANAPOL, JUANITA M. BRIONES,
VERGINIA M. GUEVARRA, MAXIMA
ANGULO, EMILIA SANGIL, TEOFILA
R. PUNZALAN, JANUARIA G. GARCIA,
G.R. No. 162230
Present:
PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
PERLA B. BALINGIT, BELEN A.

CULALA, PILAR Q. GALANG,
ROSARIO C. BUCO, GAUDENCIA C.
DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C.
GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON
M. SUBA, EMERINCIANA A. VINUYA,
LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA
LIWAG, ESTER C. BALINGIT, JOVITA
A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA
S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA
C. GULAPA, SEFERINA S. TURLA,
MAXIMA B. TURLA, LEONICIA G.
GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the
Malaya Lolas Organization,
Petitioners,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
Promulgated:
April 28, 2010
- versus THE HONORABLE EXECUTIVE

SECRETARY ALBERTO G.
ROMULO, THE HONORABLE
SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGOALBERT, THE HONORABLE
SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ,
and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO,
Respondents.
x--------------------------------------------------------x
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred future claims such as those
asserted by plaintiffs in these actions, exchanged full compensation of
plaintiffs for a future peace. History has vindicated the wisdom of that bargain.
And while full compensation for plaintiffs' hardships, in the purely economic
sense, has been denied these former prisoners and countless other survivors of
the war, the immeasurable bounty of life for themselves and their posterity in a
free society and in a more peaceful world services the debt.[1]
There is a broad range of vitally important areas that must be regularly decided
by the Executive Department without either challenge or interference by the Judiciary.
One such area involves the delicate arena of foreign relations. It would be strange indeed
if the courts and the executive spoke with different voices in the realm of foreign policy.
Precisely because of the nature of the questions presented, and the lapse of more than 60
years since the conduct complained of, we make no attempt to lay down general
guidelines covering other situations not involved here, and confine the opinion only to the
very questions necessary to reach a decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with
an application for the issuance of a writ of preliminary mandatory injunction against the
Office of the Executive Secretary, the Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor
General (OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock, nonprofit organization registered with the Securities and Exchange Commission,
established for the purpose of providing aid to the victims of rape by Japanese
military forces in the Philippines during the Second World War.
Petitioners narrate that during the Second World War, the Japanese army attacked
villages and systematically raped the women as part of the destruction of the village.
Their communities were bombed, houses were looted and burned, and civilians were
publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the
women and held them in houses or cells, where they were repeatedly raped, beaten, and
abused by Japanese soldiers. As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured physical injuries, pain and
disability, and mental and emotional suffering.[2]
Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the comfort
women stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by Japans compliance
with the Peace Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and war
crimes committed against them; and (b) compel the respondents to espouse their claims
for official apology and other forms of reparations against Japan before the International
Court of Justice (ICJ) and other international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the comfort
women system established by Japan, and the brutal rape and enslavement of petitioners
constituted a crime against humanity,[3] sexual slavery,[4] and torture.[5] They allege that
the prohibition against these international crimes is jus cogens norms from which no
derogation is possible; as such, in waiving the claims of Filipina comfort women and
failing to espouse their complaints against Japan, the Philippine government is in breach
of its legal obligation not to afford impunity for crimes against humanity. Finally,
petitioners assert that the Philippine governments acceptance of the apologies made by
Japan as well as funds from the Asian Womens Fund (AWF) were contrary to
international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and its nationals relative
to the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.[6]
Article 14 of the Treaty of Peace[7] provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied
Powers for the damage and suffering caused by it during the war.
Nevertheless it is also recognized that the resources of Japan are not
presently sufficient, if it is to maintain a viable economy, to make

complete reparation for all such damage and suffering and at the
present time meet its other obligations.
b)
Except as otherwise provided in the present Treaty, the Allied

Powers waive all reparations claims of the Allied Powers, other
claims of the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the
prosecution of the war, and claims of the Allied Powers for direct
military costs of occupation.
In addition, respondents argue that the apologies made by Japan[8] have been
satisfactory, and that Japan had addressed the individual claims of the women through
the atonement money paid by the Asian Womens Fund.
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In
December 1937, Japanese military forces captured the city of Nanking in China and
began a barbaric campaign of terror known as the Rape of Nanking, which included
the rapes and murders of an estimated 20,000 to 80,000 Chinese women, including
young girls, pregnant mothers, and elderly women.[9]
In reaction to international outcry over the incident, the Japanese government
sought ways to end international condemnation[10] by establishing the comfort women
system. Under this system, the military could simultaneously appease soldiers' sexual
appetites and contain soldiers' activities within a regulated environment. [11] Comfort
stations would also prevent the spread of venereal disease among soldiers and discourage
soldiers from raping inhabitants of occupied territories.[12]
Daily life as a comfort woman was unmitigated misery.[13] The military forced
victims into barracks-style stations divided into tiny cubicles where they were forced to
live, sleep, and have sex with as many 30 soldiers per day.[14] The 30 minutes allotted for
sexual relations with each soldier were 30-minute increments of unimaginable horror for
the women.[15] Disease was rampant.[16] Military doctors regularly examined the women,
but these checks were carried out to prevent the spread of venereal diseases; little notice
was taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones
inflicted on the women by soldiers.
Fewer than 30% of the women survived the war.[17] Their agony continued in
having to suffer with the residual physical, psychological, and emotional scars from their
former lives. Some returned home and were ostracized by their families. Some
committed suicide. Others, out of shame, never returned home.[18]
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations (UN), resolutions by
various nations, and the Womens International Criminal Tribunal. The Japanese
government, in turn, responded through a series of public apologies and the creation of
the AWF.[19]
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit
in Japan by former comfort women against the Japanese government. The Tokyo District
Court however dismissed their case.[20] Other suits followed,[21] but the Japanese
government has, thus far, successfully caused the dismissal of every case.[22]
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims
of the comfort women system brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action lawsuit in the US District
Court for the District of Columbia[23] "seeking money damages for [allegedly] having
been subjected to sexual slavery and torture before and during World War II," in violation
of "both positive and customary international law." The case was filed pursuant to the
Alien Tort Claims Act (ATCA),[24] which allowed the plaintiffs to sue the Japanese
government in aUS federal district court.[25] On October 4, 2001, the district court
dismissed the lawsuit due to lack of jurisdiction over Japan, stating that [t]here is no
question that this court is not the appropriate forum in which plaintiffs may seek to
reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not enjoy
sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed.
The District of Columbia Court of Appeals affirmed the lower court's dismissal of
the case.[26] On appeal, the US Supreme Court granted the womens petition for writ of
certiorari, vacated the judgment of the District of Columbia Court of Appeals, and
remanded the case.[27] On remand, the Court of Appeals affirmed its prior decision,
noting that much as we may feel for the plight of the appellants, the courts of
the US simply are not authorized to hear their case.[28] The women again brought their
case to the US Supreme Court which denied their petition for writ of certiorari
on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery
by Japan (KCWS), submitted a petition to the UN Human Rights Commission
(UNHRC), asking for assistance in investigating crimes committed by Japan against
Korean women and seeking reparations for former comfort women. [29] The UNHRC
placed the issue on its agenda and appointed Radhika Coomaraswamy as the issue's
special investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's
responsibility in forcing Korean women to act as sex slaves for the imperial army, and
made the followingrecommendations:
A.
At the national level
137.
The Government of Japan should:
(a)
Acknowledge that the system of comfort stations set up by the

Japanese Imperial Army during the Second World War was a violation
of its obligations under international law and accept legal responsibility
for that violation;
(b)
Pay compensation to individual victims of Japanese military sexual

slavery according to principles outlined by the Special Rapporteur of
the Sub-Commission on Prevention of Discrimination and Protection
of Minorities on the right to restitution, compensation and rehabilitation
for victims of grave violations of human rights and fundamental
freedoms. A special administrative tribunal for this purpose should be
set up with a limited time-frame since many of the victims are of a very
advanced age;
(c)
Make a full disclosure of documents and materials in its possession

with regard to comfort stations and other related activities of the
Japanese Imperial Army during the Second World War;
(d)
Make a public apology in writing to individual women who have

come forward and can be substantiated as women victims of Japanese
military sexual slavery;
(e)
Raise awareness of these issues by amending educational curricula

to reflect historical realities;
(f)
Identify and punish, as far as possible, perpetrators involved in the

recruitment and institutionalization of comfort stations during the
Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on

Prevention of Discrimination and Protection of Minorities, also presented a report to the
Sub-Committee on June 22, 1998 entitledContemporary Forms of Slavery: Systematic
Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict. The report
included an appendix entitled An Analysis of the Legal Liability of the Government
of Japan for 'Comfort Women Stations' established during the Second World War,
[30]
which contained the following findings:

68.
The present report concludes that the Japanese Government remains
liable for grave violations of human rights and humanitarian law, violations
that amount in their totality to crimes against humanity. The Japanese
Governments arguments to the contrary, including arguments that seek to
attack the underlying humanitarian law prohibition of enslavement and rape,
remain as unpersuasive today as they were when they were first raised before
theNuremberg war crimes tribunal more than 50 years ago. In addition, the
Japanese Governments argument that Japan has already settled all claims
from the Second World War through peace treaties and reparations agreements
following the war remains equally unpersuasive. This is due, in large part, to
the failure until very recently of the Japanese Government to admit the extent
of the Japanese militarys direct involvement in the establishment and
maintenance of these rape centres. The Japanese Governments silence on this
point during the period in which peace and reparations agreements
between Japan and other Asian Governments were being negotiated following
the end of the war must, as a matter of law and justice, preclude Japan from
relying today on these peace treaties to extinguish liability in these cases.
69.
The failure to settle these claims more than half a century after the
cessation of hostilities is a testament to the degree to which the lives of women
continue to be undervalued. Sadly, this failure to address crimes of a sexual
nature committed on a massive scale during the Second World War has added
to the level of impunity with which similar crimes are committed today. The
Government of Japan has taken some steps to apologize and atone for the rape
and enslavement of over 200,000 women and girls who were brutalized in
comfort stations during the Second World War. However, anything less
than full and unqualified acceptance by the Government of Japan of legal
liability and the consequences that flow from such liability is wholly
inadequate. It must now fall to the Government of Japan to take the necessary
final steps to provide adequate redress.
The UN, since then, has not taken any official action directing Japan to provide
the reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a people's
tribunal established by a number of Asian women and human rights organizations,
supported by an international coalition of non-governmental organizations. [31] First
proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to
adjudicate Japan's military sexual violence, in particular the enslavement of comfort
women, to bring those responsible for it to justice, and to end the ongoing cycle of
impunity for wartime sexual violence against women.
After examining the evidence for more than a year, the tribunal issued its verdict
on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty
of crimes against humanity for the rape and sexual slavery of women. [32] It bears
stressing, however, that although the tribunal included prosecutors, witnesses, and judges,
its judgment was not legally binding since the tribunal itself was organized by private
citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along

with six co-sponsor representatives, introduced House Resolution 121 which called for
Japanese action in light of the ongoing struggle for closure by former comfort
women. The Resolution was formally passed on July 30, 2007,[33] and made four distinct
demands:
[I]t is the sense of the House of Representatives that the Government of Japan
(1) should formally acknowledge, apologize, and accept historical
responsibility in a clear and unequivocal manner for its Imperial Armed
Forces' coercion of young women into sexual slavery, known to the world as
comfort women, during its colonial and wartime occupation of Asia and the
Pacific Islands from the 1930s through the duration of World War II; (2) would
help to resolve recurring questions about the sincerity and status of prior
statements if the Prime Minister of Japan were to make such an apology as a
public statement in his official capacity; (3) should clearly and publicly refute
any claims that the sexual enslavement and trafficking of the comfort
women for the Japanese Imperial Army never occurred; and (4) should
educate current and future generations about this horrible crime while
following the recommendations of the international community with respect to
the comfort women.[34]
In December 2007, the European Parliament, the governing body of the European
Union, drafted a resolution similar to House Resolution 121. [35] Entitled, Justice for
Comfort Women, the resolution demanded: (1) a formal acknowledgment of
responsibility by the Japanese government; (2) a removal of the legal obstacles
preventing compensation; and (3) unabridged education of the past. The resolution also
stressed the urgency with which Japan should act on these issues, stating: the right of
individuals to claim reparations against the government should be expressly recognized
in national law, and cases for reparations for the survivors of sexual slavery, as a crime
under international law, should be prioritized, taking into account the age of the
survivors.
The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against Japan. Canada's resolution demands the Japanese government to issue
a formal apology, to admit that its Imperial Military coerced or forced hundreds of
thousands of women into sexual slavery, and to restore references in Japanese textbooks
to its war crimes.[36] The Dutch parliament's resolution calls for the Japanese government
to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei
Kono.
The Foreign Affairs Committee of the United Kingdoms Parliament also
produced a report in November, 2008 entitled, "Global Security: Japan and Korea"
which concluded that Japan should acknowledge the pain caused by the issue of comfort
women in order to ensure cooperation between Japan and Korea.
Statements
of
Remorse
made
by
representatives of the Japanese government
Various officials of the Government of Japan have issued the following public
statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue
of wartime "comfort women" since December 1991. I wish to announce the
findings as a result of that study.
As a result of the study which indicates that comfort stations were
operated in extensive areas for long periods, it is apparent that there existed a
great number of comfort women. Comfort stations were operated in response
to the request of the military authorities of the day. The then Japanese military
was, directly or indirectly, involved in the establishment and management of
the comfort stations and the transfer of comfort women. The recruitment of the
comfort women was conducted mainly by private recruiters who acted in
response to the request of the military. The Government study has revealed
that in many cases they were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military personnel directly
took part in the recruitments. They lived in misery at comfort stations under a
coercive atmosphere.
As to the origin of those comfort women who were transferred to
the
war
areas,
excluding
those
from Japan,
those
from
the Korean Peninsula accounted for a large part. The Korean Peninsula was
under Japanese rule in those days, and their recruitment, transfer, control, etc.,
were conducted generally against their will, through coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the military
authorities of the day, that severely injured the honor and dignity of many
women. The Government of Japan would like to take this opportunity once
again to extend its sincere apologies and remorse to all those, irrespective of
place of origin, who suffered immeasurable pain and incurable physical and
psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to
consider seriously, while listening to the views of learned circles, how best we
can express this sentiment.
We shall face squarely the historical facts as described above
instead of evading them, and take them to heart as lessons of history. We
hereby reiterated our firm determination never to repeat the same mistake by
forever engraving such issues in our memories through the study and teaching
of history.
As actions have been brought to court in Japan and interests have
been shown in this issue outside Japan, the Government of Japan shall
continue to pay full attention to this matter, including private researched
related thereto.
b)
Prime Minister Tomiichi Murayamas Statement in 1994
On the issue of wartime comfort women, which seriously stained

the honor and dignity of many women, I would like to take this opportunity
once again to express my profound and sincere remorse and apologies
c) Letters from the Prime Minister of Japan to Individual Comfort Women

The issue of comfort women, with the involvement of the Japanese
military authorities at that time, was a grave affront to the honor and dignity of
a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere
apologies and remorse to all the women who endured immeasurable and
painful experiences and suffered incurable physical and psychological wounds
as comfort women.
I believe that our country, painfully aware of its moral
responsibilities, with feelings of apology and remorse, should face up squarely
to its past history and accurately convey it to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

Solemnly reflecting upon the many instances of colonial rule and
acts of aggression that occurred in modern world history, and recognizing
that Japan carried out such acts in the past and inflicted suffering on the people
of other countries, especially in Asia, the Members of this House hereby
express deep remorse. (Resolution of the House of Representatives adopted on
June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe

I have talked about this matter in the Diet sessions last year, and
recently as well, and to the press. I have been consistent. I will stand by the
Kono Statement. This is our consistent position. Further, we have been
apologizing sincerely to those who suffered immeasurable pain and incurable
psychological wounds as comfort women. Former Prime Ministers, including
Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort
women. I would like to be clear that I carry the same feeling. This has not
changed even slightly. (Excerpt from Remarks by Prime Minister Abe at an

Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime
Minister and it is as stated in the statement by the Chief Cabinet Secretary
Kono. (Excerpt from Remarks by Prime Minister Abe at the Budget
Committee, the House of Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who
suffered hardships, and I have expressed my apologies for the extremely
agonizing circumstances into which they were placed. (Excerpt from
Telephone Conference by Prime Minister Abe to President George W.
Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those
people who were taken as wartime comfort women. As a human being, I
would like to express my sympathies, and also as prime minister of Japan I
need to apologize to them. My administration has been saying all along that
we continue to stand by the Kono Statement. We feel responsible for having
forced these women to go through that hardship and pain as comfort women
under the circumstances at the time. (Excerpt from an interview article "A
Conversation with Shinzo Abe" by the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my heart
goes out in sympathy to all those who suffered extreme hardships as comfort
women; and I expressed my apologies for the fact that they were forced to
endure such extreme and harsh conditions. Human rights are violated in many
parts of the world during the 20th Century; therefore we must work to make
the 21st Century a wonderful century in which no human rights are violated.
And the Government of Japan and I wish to make significant contributions to
that end. (Excerpt from Prime Minister Abe's remarks at the Joint Press
Availability after the summit meeting at Camp David between Prime Minister
Abe and President Bush, April 27, 2007).
The Asian Women's Fund

Established by the Japanese government in 1995, the AWF represented the
government's concrete attempt to address its moral responsibility by offering monetary
compensation to victims of the comfort women system.[37] The purpose of the AWF was
to show atonement of the Japanese people through expressions of apology and remorse
to the former wartime comfort women, to restore their honor, and to demonstrate Japans
strong respect for women.[38]
The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying 2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying 2.5-3 million ($25,000$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister
to each woman. Funding for the program came from the Japanese government and
private donations from the Japanese people. As of March 2006, the AWF provided 700
million (approximately $7 million) for these programs in South Korea, Taiwan, and
the Philippines; 380 million (approximately $3.8 million) in Indonesia; and 242
million (approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs for former
comfort women. Over the next five years, these were implemented by the Department of
Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners claims for
official apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the

Executive Department has the exclusive
prerogative to determine whether to espouse
petitioners claims against Japan.
Baker v. Carr[39] remains the starting point for analysis under the political question
doctrine. There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment
of the issue to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it, or the impossibility of
deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on question.
In Taada v. Cuenco,[40] we held that political questions refer "to those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity,
or in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political questions.
[41]
One such category involves questions of foreign relations. It is well-established that
"[t]he conduct of the foreign relations of our government is committed by the

Constitution to the executive and legislative--'the political'--departments of the
government, and the propriety of what may be done in the exercise of this political power
is not subject to judicial inquiry or decision." [42] The US Supreme Court has further
cautioned that decisions relating to foreign policy
are delicate, complex, and involve large elements of prophecy. They are and
should be undertaken only by those directly responsible to the people whose
welfare they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility.[43]
To be sure, not all cases implicating foreign relations present political questions,
and courts certainly possess the authority to construe or invalidate treaties and executive
agreements.[44] However, the question whether the Philippine government should
espouse claims of its nationals against a foreign government is a foreign relations matter,
the authority for which is demonstrably committed by our Constitution not to the courts
but to the political branches. In this case, the Executive Department has already decided
that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision
is not for the courts to question. Neither could petitioners herein assail the said
determination by the Executive Department via the instant petition forcertiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme
Court held that [t]he President is the sole organ of the nation in its external relations, and
its sole representative with foreign relations.
It is quite apparent that if, in the maintenance of our international
relations, embarrassment -- perhaps serious embarrassment -- is to be avoided
and success for our aims achieved, congressional legislation which is to be
made effective through negotiation and inquiry within the international field
must often accord to the President a degree of discretion and freedom from
statutory restriction which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the better opportunity of
knowing the conditions which prevail in foreign countries, and especially is
this true in time of war. He has his confidential sources of information. He has
his agents in the form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v.

Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching principle
was, perhaps, best articulated in (now Chief) Justice Punos dissent in Secretary of
Justice v. Lantion:[48]
x x x The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and
can decide with decisiveness. x x x It is also the President who possesses the
most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited access to ultrasensitive military intelligence data. In fine, the presidential role in foreign
affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity of
his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.
The Executive Department has determined that taking up petitioners cause

would be inimical to our countrys foreign policy interests, and could disrupt our relations
with Japan, thereby creating serious implications for stability in this region. For us to
overturn the Executive Departments determination would mean an assessment of the
foreign policy judgments by a coordinate political branch to which authority to make that
judgment has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government
was without authority to negotiate the Treaty of Peace with Japan. And it is equally true
that, since time immemorial, when negotiating peace accords and settling international
claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating

them as national assets, and as counters, `chips', in international bargaining.
Settlement agreements have lumped, or linked, claims deriving from private
debts with others that were intergovernmental in origin, and concessions in
regard to one category of claims might be set off against concessions in the
other, or against larger political considerations unrelated to debts.[49]
Indeed, except as an agreement might otherwise provide, international

settlements generally wipe out the underlying private claims, thereby terminating any
recourse under domestic law. In Ware v. Hylton,[50] a case brought by a British subject to
recover a debt confiscated by the Commonwealth of Virginia during the war, Justice
Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war,
and that after peace is concluded, neither the matter in dispute, nor the conduct
of either party, during the war, can ever be revived, or brought into contest
again. All violences, injuries, or damages sustained by the government, or
people of either, during the war, are buried in oblivion; and all those things are
implied by the very treaty of peace; and therefore not necessary to be
expressed. Hence it follows, that the restitution of, or compensation for, British
property confiscated, or extinguished, during the war, by any of the United
States, could only be provided for by the treaty of peace; and if there had been
no provision, respecting these subjects, in the treaty, they could not be agitated
after the treaty, by the British government, much less by her subjects in courts
of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly

nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by
nationals of one country against the government of another country are
sources of friction between the two sovereigns. United States v. Pink, 315
U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these
difficulties, nations have often entered into agreements settling the claims of
their respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the government of

another are established international practice reflecting traditional
international theory. L. Henkin, Foreign Affairs and the Constitution 262
(1972). Consistent with that principle, theUnited States has repeatedly
exercised its sovereign authority to settle the claims of its nationals against
foreign countries. x x x Under such agreements, the President has agreed to
renounce or extinguish claims of United States nationals against foreign
governments in return for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these settlements were encouraged
by the United States claimants themselves, since a claimant's only hope of
obtaining any payment at all might lie in having his Government negotiate a
diplomatic settlement on his behalf. But it is also undisputed that the United
States has sometimes disposed of the claims of its citizens without their
consent, or even without consultation with them, usually without exclusive
regard for their interests, as distinguished from those of the nation as a whole.
Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign
Relations Law of the United States 213 (1965) (President may waive or
settle a claim against a foreign state x x x [even] without the consent of the
[injured] national). It is clear that the practice of settling claims continues
today.
Respondents explain that the Allied Powers concluded the Peace Treaty
with Japan not necessarily for the complete atonement of the suffering caused by
Japanese aggression during the war, not for the payment of adequate reparations, but for
security purposes. The treaty sought to prevent the spread of communism in Japan,
which occupied a strategic position in the Far East. Thus, the Peace Treaty compromised
individual claims in the collective interest of the free world.
This was also the finding in a similar case involving American victims of
Japanese slave labor during the war.[52] In a consolidated case in the Northern District of
California,[53] the court dismissed the lawsuits filed, relying on the 1951 peace treaty
with Japan,[54] because of the following policy considerations:
The official record of treaty negotiations establishes that a
fundamental goal of the agreement was to settle the reparations issue once and
for all. As the statement of the chief United States negotiator, John Foster
Dulles, makes clear, it was well understood that leaving open the possibility
of future claims would be an unacceptable impediment to a lasting peace:
Reparation is usually the most controversial aspect of
peacemaking. The present peace is no exception.
On the one hand, there are claims both vast and
just. Japan's aggression caused tremendous cost, losses and
suffering.
On the other hand, to meet these claims, there stands
a Japan presently reduced to four home islands which are
unable to produce the food its people need to live, or the raw
materials they need to work. x x x
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the experience of six
years of United States-led occupation of Japan. During the occupation the
Supreme Commander of the Allied Powers (SCAP) for the region, General
Douglas MacArthur, confiscated Japanese assets in conjunction with the task
of managing the economic affairs of the vanquished nation and with a view to
reparations payments. It soon became clear that Japan's financial
condition would render any aggressive reparations plan an exercise in
futility. Meanwhile, the importance of a stable, democratic Japan as a
bulwark to communism in the region increased. At the end of 1948,
MacArthur expressed the view that [t]he use of reparations as a weapon to
retard the reconstruction of a viable economy in Japan should be combated
with all possible means and recommended that the reparations issue be
settled finally and without delay.
That this policy was embodied in the treaty is clear not only from
the negotiations history but also from the Senate Foreign Relations Committee
report recommending approval of the treaty by the Senate. The committee
noted, for example:
Obviously insistence upon the payment of
reparations in any proportion commensurate with the claims of
the injured countries and their nationals would wreck Japan's
economy, dissipate any credit that it may possess at present,
destroy the initiative of its people, and create misery and chaos
in which the seeds of discontent and communism would

flourish. In short, [it] would be contrary to the basic purposes
and policy of x x x the United States x x x.
We thus hold that, from a municipal law perspective, that certiorari will not lie.
As a general principle and particularly here, where such an extraordinary length of time
has lapsed between the treatys conclusion and our consideration the Executive must be
given ample discretion to assess the foreign policy considerations of espousing a claim
against Japan, from the standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and whether further steps
are appropriate or necessary.
The Philippines is
not
under
any
international obligation to espouse petitioners
claims.
In the international sphere, traditionally, the only means available for individuals
to bring a claim within the international legal system has been when the individual is able
to persuade a government to bring a claim on the individuals behalf. [55] Even then, it is
not the individuals rights that are being asserted, but rather, the states own
rights. Nowhere is this position more clearly reflected than in the dictum of the
Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine
Concessions Case:
By taking up the case of one of its subjects and by resorting to
diplomatic action or international judicial proceedings on his behalf, a State is
in reality asserting its own right to ensure, in the person of its subjects, respect
for the rules of international law. The question, therefore, whether the present
dispute originates in an injury to a private interest, which in point of fact is the
case in many international disputes, is irrelevant from this standpoint. Once a
State has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is sole claimant.[56]
Since the exercise of diplomatic protection is the right of the State, reliance on the
right is within the absolute discretion of states, and the decision whether to exercise the
discretion may invariably be influenced by political considerations other than the legal
merits of the particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection by whatever
means and to whatever extent it thinks fit, for it is its own right that the
State is asserting. Should the natural or legal person on whose behalf it is
acting consider that their rights are not adequately protected, they have
no remedy in international law. All they can do is resort to national law, if
means are available, with a view to furthering their cause or obtaining redress.
The municipal legislator may lay upon the State an obligation to protect its
citizens abroad, and may also confer upon the national a right to demand the
performance of that obligation, and clothe the right with corresponding
sanctions. However, all these questions remain within the province of
municipal law and do not affect the position internationally.[58] (Emphasis
supplied)
The State, therefore, is the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when will it cease. It retains, in this respect, a
discretionary power the exercise of which may be determined by considerations of a
political or other nature, unrelated to the particular case.
The International Law Commissions (ILCs) Draft Articles on Diplomatic
Protection fully support this traditional view. They (i) state that "the right of diplomatic
protection belongs to or vests in the State, [59] (ii) affirm its discretionary nature by
clarifying that diplomatic protection is a "sovereign prerogative" of the State;[60] and (iii)
stress that the state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."[61]
It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured.[62] However, at present, there
is no sufficient evidence to establish a general international obligation for States to
exercise diplomatic protection of their own nationals abroad.[63] Though, perhaps
desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a
duty internationally, it is only a moral and not a legal duty, and there is no means of
enforcing its fulfillment.[64]
We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law.
[65]
However, petitioners take quite a theoretical leap in claiming that these proscriptions
automatically imply that that the Philippines is under a non-derogable obligation to

prosecute international crimes, particularly since petitioners do not demand the
imputation of individual criminal liability, but seek to recover monetary reparations from
the state of Japan. Absent the consent of states, an applicable treaty regime, or a directive
by the Security Council, there is no non-derogable duty to institute proceedings
against Japan. Indeed, precisely because of states reluctance to directly prosecute
claims against another state, recent developments support the modern trend to
empower individuals to directly participate in suits against perpetrators of
international crimes.[66] Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against humanity and the strong policy
arguments warranting such a rule, the practice of states does not yet support the present
existence of an obligation to prosecute international crimes.[67]Of course a customary duty
of prosecution is ideal, but we cannot find enough evidence to reasonably assert its
existence. To the extent that any state practice in this area is widespread, it is in the
practice of granting amnesties, immunity, selective prosecution, or de facto impunity to
those who commit crimes against humanity.[68]
Even the invocation of jus cogens norms and erga omnes obligations will not
alter this analysis. Even if we sidestep the question of whether jus cogens norms existed
in 1951, petitioners have not deigned to show that the crimes committed by the Japanese
army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that
the duty to prosecute perpetrators of international crimes is an erga omnesobligation or
has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has
been used as a legal term describing obligations owed by States towards the community
of
states
as
whole.
The
concept
was
recognized
by
the
ICJ
in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a
State towards the international community as a whole, and those arising vis-vis another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they
are obligations erga omnes.
Such obligations derive, for example, in contemporary international
law, from the outlawing of acts of aggression, and of genocide, as also from
the principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general
international law others are conferred by international instruments of a
universal or quasi-universal character.
The Latin phrase, erga omnes, has since become one of the rallying cries of
those sharing a belief in the emergence of a value-based international public order.
However, as is so often the case, the reality is neither so clear nor so bright. Whatever the
relevance of obligations erga omnes as a legal concept, its full potential remains to be
realized in practice.[69]
The term is closely connected with the international law concept of jus
cogens. In international law, the term jus cogens (literally, compelling law) refers to
norms that command peremptory authority, superseding conflicting treaties and
custom. Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general international
norms of equivalent authority.[70]
Early strains of the jus cogens doctrine have existed since the 1700s, [71] but
peremptory norms began to attract greater scholarly attention with the publication of
Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.
[72]
The recognition of jus cogens gained even more force in the 1950s and 1960s with
the ILCs preparation of the Vienna Convention on the Law of Treaties (VCLT).
[73]
Though there was a consensus that certain international norms had attained the status
of jus cogens,[74] the ILC was unable to reach a consensus on the proper criteria for
identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that there is not as yet any generally accepted criterion by
which to identify a general rule of international law as having the character of jus
cogens.[75] In a commentary accompanying the draft convention, the ILC indicated that
the prudent course seems to be to x x x leave the full content of this rule to be worked
out in State practice and in the jurisprudence of international tribunals. [76] Thus,
while the existence of jus cogens in international law is undisputed, no consensus exists
on
its
substance,[77] beyond
tiny
core
of
principles
and
rules. [78]
Of course, we greatly sympathize with the cause of petitioners, and we cannot

begin to comprehend the unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply concerned that, in apparent contravention of

fundamental principles of law, the petitioners appear to be without a remedy to challenge
those that have offended them before appropriate fora. Needless to say, our government
should take the lead in protecting its citizens against violation of their fundamental
human rights. Regrettably, it is not within our power to order the Executive Department
to take up the petitioners cause. Ours is only the power to urge and exhort the
Executive Department to take up petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.

Supreme Court
Manila
EN BANC
EDGARDO NAVIA,[1] RUBEN
DIO,[2] and ANDREW BUISING,
Petitioners,
G.R. No. 184467

Present:
- versus -
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
VIRGINIA PARDICO, for and in

PERLAS-BERNABE, JJ.
behalf and in representation of
BENHUR V. PARDICO
Promulgated:
Respondent.
June 19, 2012
x--------------------------------------------------------x
DECISION
DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced disappearance cases,
allegation and proof that the persons subject thereof are missing are not enough. It must
also be shown by the required quantum of proof that their disappearance was carried out
by, or with the authorization, support or acquiescence of, [the government] or a political
organization, followed by a refusal to acknowledge [the same or] give information on the
fate or whereabouts of [said missing] persons.[3]
This petition for review on certiorari[4] filed in relation to Section 19 of A.M.
No. 07-9-12-SC[5] challenges the July 24, 2008 Decision[6] of the Regional Trial Court
(RTC), Branch 20, Malolos City which granted the Petition for Writ of Amparo[7] filed
by herein respondent against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies
Corporation[8] (Asian Land) arrived at the house of Lolita M. Lapore (Lolita) located at
7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam, Malolos City. The
arrival of the vehicle awakened Lolitas son, Enrique Lapore (Bong), and Benhur Pardico
(Ben), who were then both staying in her house. When Lolita went out to investigate,
she saw two uniformed guards disembarking from the vehicle. One of them
immediately asked Lolita where they could find her son Bong. Before Lolita could
answer, the guard saw Bong and told him that he and Ben should go with them to the
security office of Asian Land because a complaint was lodged against them for theft of
electric wires and lamps in the subdivision.[9]
Shortly thereafter, Bong, Lolita and Ben were in the office of the security
department of Asian Land also located in Grand Royale Subdivision.[10] The supervisor
of the security guards, petitioner Edgardo Navia (Navia), also arrived thereat.
As to what transpired next, the parties respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office because they
received a report from a certain Mrs. Emphasis, a resident of Grand Royale Subdivision,
that she saw Bong and Ben removing a lamp from a post in said subdivision. [11] The
reported unauthorized taking of the lamp was relayed thru radio to petitioners Ruben Dio
(Dio) and Andrew Buising (Buising), who both work as security guards at
the Asian Land security department. Following their departments standard operating
procedure, Dio and Buising entered the report in their logbook and proceeded to the
house of Mrs. Emphasis. It was there where Dio and Buising were able to confirm who
the suspects were. They thus repaired to the house of Lolita where Bong and Ben were
staying to invite the two suspects to their office. Bong and Ben voluntarily went with
them.
At the security office, Dio and Buising interviewed Bong and Ben. The suspects
admitted that they took the lamp but clarified that they were only transferring it to a post
nearer to the house of Lolita.[12] Soon, Navia arrived and Buising informed him that the
complainant was not keen in participating in the investigation. Since there was no
complainant, Navia ordered the release of Bong and Ben. Bong then signed a statement
to the effect that the guards released him without inflicting any harm or injury to him.
[13]
His mother Lolita also signed the logbook below an entry which states that she will
never again harbor or entertain Ben in her house. Thereafter, Lolita and Bong left the
security office.
Ben was left behind as Navia was still talking to him about those who might be
involved in the reported loss of electric wires and lamps within the subdivision. After a
brief discussion though, Navia allowed Ben to leave. Ben also affixed his signature on
the logbook to affirm the statements entered by the guards that he was released unharmed
and without any injury.[14]
Upon Navias instructions, Dio and Buising went back to the house of Lolita to
make her sign the logbook as witness that they indeed released Ben from their
custody. Lolita asked Buising to read aloud that entry in the logbook where she was
being asked to sign, to which Buising obliged. Not contented, Lolita put on her reading
glasses and read the entry in the logbook herself before affixing her signature
therein. After which, the guards left.
Subsequently, petitioners received an invitation[15] from the Malolos City Police
Station requesting them to appear thereat on April 17, 2008 relative to the complaint of
Virginia Pardico (Virginia) about her missing husband Ben. In compliance with the
invitation, all three petitioners appeared at the Malolos City Police Station. However,
since Virginia was not present despite having received the same invitation, the meeting
was reset to April 22, 2008.[16]
On April 22, 2008, Virginia attended the investigation. Petitioners informed her
that they released Ben and that they have no information as to his present whereabouts.
[17]
They assured Virginia though that they will cooperate and help in the investigation of
her missing husband.[18]
Version of the Respondent
According to respondent, Bong and Ben were not merely invited. They were
unlawfully arrested, shoved into the Asian Land vehicle and brought to the security
office for investigation. Upon seeing Ben at the security office, Navia lividly grumbled
Ikaw na naman?[19] and slapped him while he was still seated. Ben begged for mercy,
but his pleas were met with a flurry of punches coming from Navia hitting him on
different parts of his body.[20] Navia then took hold of his gun, looked at Bong, and said,
Wala kang nakita at wala kang narinig, papatayin ko na si Ben.[21]
Bong admitted that he and Ben attempted to take the lamp. He explained that the
area where their house is located is very dark and his father had long been asking the
administrator of Grand Royale Subdivision to install a lamp to illumine their area. But
since nothing happened, he took it upon himself to take a lamp from one of the posts in
the subdivision and transfer it to a post near their house. However, the lamp Bong got
was no longer working. Thus, he reinstalled it on the post from which he took it and no
longer pursued his plan. [22]
Later on, Lolita was instructed to sign an entry in the guards logbook where she
undertook not to allow Ben to stay in her house anymore. [23] Thereafter, Navia again
asked Lolita to sign the logbook. Upon Lolitas inquiry as to why she had to sign again,
Navia explained that they needed proof that they released her son Bong unharmed but
that Ben had to stay as the latters case will be forwarded to thebarangay. Since she has
poor eyesight, Lolita obligingly signed the logbook without reading it and then left with
Bong.[24] At that juncture, Ben grabbed Bong and pleaded not to be left alone. However,
since they were afraid of Navia, Lolita and Bong left the security office at once leaving
Ben behind.[25]
Moments after Lolita and Bong reached their house, Buising arrived and asked
Lolita to sign the logbook again. Lolita asked Buising why she had to sign again when
she already twice signed the logbook at the headquarters. Buising assured her that what
she was about to sign only pertains to Bongs release. Since it was dark and she has poor
eyesight, Lolita took Buisings word and signed the logbook without, again, reading what
was written in it. [26]
The following morning, Virginia went to the Asian Land security office to visit
her husband Ben, but only to be told that petitioners had already released him together
with Bong the night before. She then looked for Ben, asked around, and went to
the barangay. Since she could not still find her husband, Virginia reported the matter to
the police.
In the course of the investigation on Bens disappearance, it dawned upon Lolita
that petitioners took advantage of her poor eyesight and naivete. They made her sign the
logbook as a witness that they already released Ben when in truth and in fact she never
witnessed his actual release. The last time she saw Ben was when she left him in
petitioners custody at the security office.[27]
Exasperated with the mysterious disappearance of her husband, Virginia filed a
Petition for Writ of Amparo[28] before the RTC of Malolos City. Finding the petition
sufficient in form and substance, theamparo court issued an Order[29] dated June 26, 2008
directing, among others, the issuance of a writ of amparo and the production of the body
of Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution
[in] A.M. No. 07-[9]-12-SC, also known as The Rule On The Writ Of Amparo, let a
writ of amparo be issued, as follows:
(1)
ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew

Buising of the Asian Land Security Agency to produce before the Court the
body of aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30
a.m.;
(2)
ORDERING the holding of a summary hearing of the petition on the

aforementioned date and time, and DIRECTING the [petitioners] to
personally appear thereat;
(3)
COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew

Buising to file, within a non-extendible period of seventy-two (72) hours
from service of the writ, a verified written return with supporting affidavits
which shall, among other things, contain the following:
a)
The lawful defenses to show that the [petitioners] did not violate or
threaten with violation the right to life, liberty and security of the aggrieved
party, through any act or omission;
b)
The steps or actions taken by the [petitioners] to determine the fate

or whereabouts of the aggrieved party and the person or persons
responsible for the threat, act or omission; and
c)
(4)
All relevant information in the possession of the [petitioners] pertaining

to the threat, act or omission against the aggrieved party.
GRANTING, motu proprio, a Temporary Protection Order prohibiting the

[petitioners], or any persons acting for and in their behalf, under pain of
contempt, from threatening, harassing or inflicting any harm to [respondent],
his immediate family and any [member] of his household.
The Branch Sheriff is directed to immediately serve personally on the

[petitioners], at their address indicated in the petition, copies of the writ as well as this
order, together with copies of the petition and its annexes.[30]
A Writ of Amparo[31] was accordingly issued and served on the petitioners on June
27, 2008.[32] On June 30, 2008, petitioners filed their Compliance[33] praying for the
denial of the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the testimony
of Buising, while Virginia submitted the sworn statements[34] of Lolita and Enrique
which the two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision [35] granting the
petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and
deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to
immediately conduct a deep and thorough investigation of the [petitioners] Edgardo
Navia, Ruben Dio and Andrew Buising in connection with the circumstances
surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as part of the
investigation, the documents forming part of the records of this case;
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and
the witnesses who testified in this case protection as it may deem necessary to secure
their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to

investigate the circumstances concerning the legality of the arrest of [Benhur] Pardico by
the [petitioners] in this case, utilizing in the process, as part of said investigation, the
pertinent documents and admissions forming part of the record of this case, and take
whatever course/s of action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the Office of
Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan.
SO ORDERED.[36]
Petitioners filed a Motion for Reconsideration[37] which was denied by the trial
court in an Order[38] dated August 29, 2008.
Hence, this petition raising the following issues for our consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY
ERRED IN RULING THAT RESPONDENT IS ENTITLED TO THE PRIVILEGE OF
THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT PETITIONERS HAVE COMMITTED OR ARE
COMMITTING ACTS IN VIOLATION OF HER HUSBANDS RIGHT TO
LIFE,LIBERTY, OR SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY
ESTABLISHED THE FACT OF THE DISAPPEARANCE OF BENHUR
PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT THE ALLEGED DISAPPEARANCE OF BENHUR
PARDICO WAS AT THE INSTANCE OF HEREIN PETITIONERS.[39]
Petitioners Arguments
Petitioners essentially assail the sufficiency of the amparo petition. They contend
that the writ of amparo is available only in cases where the factual and legal bases of the
violation or threatened violation of the aggrieved partys right to life, liberty and security
are clear. Petitioners assert that in the case at bench, Virginia miserably failed to
establish all these. First, the petition is wanting on its face as it failed to state with some
degree of specificity the alleged unlawful act or omission of the petitioners constituting a
violation of or a threat to Bens right to life, liberty and security. And second, it cannot
be deduced from the evidence Virginia adduced that Ben is missing; or that petitioners
had a hand in his alleged disappearance. On the other hand, the entries in the logbook
which bear the signatures of Ben and Lolita are eloquent proof that petitioners released
Ben on March 31, 2008 at around 10:30 p.m. Petitioners thus posit that the trial court
erred in issuing the writ and in holding them responsible for Bens disappearance.
Our Ruling
Virginias Petition for Writ of Amparo is fatally defective and must perforce be
dismissed, but not for the reasons adverted to by the petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to
arrest the rampant extralegal killings and enforced disappearances in the country. Its
purpose is to provide an expeditious and effective relief to any person whose right to
life, liberty and security is violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or entity. [40]
Here, Bens right to life, liberty and security is firmly settled as the parties do not
dispute his identity as the same person summoned and questioned at petitioners security
office on the night of March 31, 2008. Such uncontroverted fact ipso facto established
Bens inherent and constitutionally enshrined right to life, liberty and security. Article
6[41] of the International Covenant on Civil and Political Rights[42]recognizes every human
beings inherent right to life, while Article 9[43] thereof ordains that everyone has the right
to liberty and security. The right to life must be protected by law while the right to liberty
and security cannot be impaired except on grounds provided by and in accordance with
law. This overarching command against deprivation of life, liberty and security without
due process of law is also embodied in our fundamental law.[44]
The pivotal question now that confronts us is whether Bens disappearance as

alleged in Virginias petition and proved during the summary proceedings conducted
before the court a quo, falls within the ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy available
to any person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SCs coverage, said Rules does not,
however, define extralegal killings and enforced disappearances. This omission was
intentional as the Committee on Revision of the Rules of Court which drafted A.M. No.
07-9-12-SC chose to allow it to evolve through time and jurisprudence and through
substantive laws as may be promulgated by Congress.[45] Then, the budding
jurisprudence on amparo blossomed in Razon, Jr. v. Tagitis[46] when this Court defined
enforced disappearances. The Court in that case applied the generally accepted
principles of international law and adopted the International Convention for the
Protection of All Persons from Enforced Disappearances definition of enforced
disappearances, as the arrest, detention, abduction or any other form of deprivation of
liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of
the disappeared person, which place such a person outside the protection of the law. [47]
Not long thereafter, another significant development affecting A.M. No. 07-9-12SC came about after Congress enacted Republic Act (RA) No. 9851 [48] on December 11,
2009. Section 3(g) thereof defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest,
detention, or abduction of persons by, or with the authorization,
support or acquiescence of, a State or a political organization
followed by a refusal to acknowledge that deprivation of freedom or
to give information on the fate or whereabouts of those persons, with
the intention of removing from the protection of the law for a
prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo D. Brion wrote

in his Separate Opinion that with the enactment of RA No. 9851, the Rule on the Writ
of Amparo is now a procedural law anchored, not only on the constitutional rights to the
rights to life, liberty and security, but on a concrete statutory definition as well of what an
enforced or involuntary disappearance is.[50] Therefore, A.M. No. 07-9-12-SCs
reference to enforced disappearances should be construed to mean the enforced or
involuntary disappearance of persons contemplated in Section 3(g) of RA No.
9851. Meaning, in probing enforced disappearance cases, courts should read A.M. No.
07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we can derive the
following elements that constitute it:
(a)
that there be an arrest, detention, abduction or any form of deprivation of liberty;
(b)
that it be carried out by, or with the authorization, support or acquiescence of, the
State or a political organization;
(c)
that it be followed by the State or political organizations refusal to acknowledge

or give information on the fate or whereabouts of the person subject of
the amparo petition; and,
(d)
that the intention for such refusal is to remove subject person from the protection
of the law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ of amparo to issue,
allegation and proof that the persons subject thereof are missing are not enough. It must
also be shown and proved by substantial evidence that the disappearance was carried out
by, or with the authorization, support or acquiescence of, the State or a political
organization, followed by a refusal to acknowledge the same or give information on the
fate or whereabouts of said missing persons, with the intention of removing them from
the protection of the law for a prolonged period of time. Simply put, the petitioner in
an amparo case has the burden of proving by substantial evidence the indispensable
element of government participation.
In the present case, we do not doubt Bongs testimony that Navia had a menacing
attitude towards Ben and that he slapped and inflicted fistic blows upon him. Given the
circumstances and the pugnacious character of Navia at that time, his threatening
statement, Wala kang nakita at wala kang narinig, papatayin ko na si Ben, cannot be
taken lightly. It unambiguously showed his predisposition at that time. In addition, there
is nothing on record which would support petitioners assertion that they released Ben on
the night of March 31, 2008 unscathed from their wrath. Lolita sufficiently explained
how she was prodded into affixing her signatures in the logbook without reading the
entries therein. And so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never identified or presented in
court and whose complaint was never reduced in writing.
But lest it be overlooked, in an amparo petition, proof of disappearance alone is
not enough. It is likewise essential to establish that such disappearance was carried out
with the direct or indirect authorization, support or acquiescence of the government. This
indispensable element of State participation is not present in this case. The petition does
not contain any allegation of State complicity, and none of the evidence presented tend to
show that the government or any of its agents orchestrated Bens disappearance. In fact,
none of its agents, officials, or employees were impleaded or implicated
in Virginias amparopetition whether as responsible or accountable persons. [51] Thus, in

the absence of an allegation or proof that the government or its agents had a hand in
Bens disappearance or that they failed to exercise extraordinary diligence in
investigating
his
case,
the
Court
will definitely not hold the government or its agents either as responsible or
accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may
lie against a private individual or entity. But even if the person sought to be held
accountable or responsible in an amparopetition is a private individual or entity, still,
government involvement in the disappearance remains an indispensable element. Here,
petitioners are mere security guards at Grand Royale Subdivision in Brgy.
Lugam, Malolos City and their principal, the Asian Land, is a private entity. They do
not work for the government and nothing has been presented that would link or connect
them to some covert police, military or governmental operation. As discussed above, to
fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the
disappearance must be attended by some governmental involvement. This hallmark of
State participation differentiates an enforced disappearance case from an ordinary case of
a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch
20, Malolos City, is REVERSED and SET ASIDE. The Petition for Writ
of Amparo filed by Virginia Pardico is herebyDISMISSED.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. Nos. 184461-62 May 31, 2011
LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO AND LT. FRANCIS MIRABELLE
SAMSON, Petitioners,
vs.
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 184495
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEO, Petitioners,
vs.
GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.) GEN. ROMEO
TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT. COL. FELIPE
ANOTADO, ET AL., Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 187109
ERLINDA T. CADAPAN AND CONCEPCION E. EMPEO, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO
RAZON, (RET.) GEN. ROMEO TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL.
ROGELIO BOAC, LT. COL. FELIPE ANOTADO, DONALD CAIGAS, A.K.A. ALAN OR ALVIN, ARNEL
ENRIQUEZ AND LT. FRANCIS MIRABELLE SAMSON, Respondents.
DECISION
CARPIO MORALES, J.:
At 2:00 a.m. of June 26, 2006, armed men abducted Sherlyn Cadapan (Sherlyn), Karen Empeo
(Karen) and Manuel Merino (Merino) from a house in San Miguel, Hagonoy, Bulacan. The three were
herded onto a jeep bearing license plate RTF 597 that sped towards an undisclosed location.
Having thereafter heard nothing from Sherlyn, Karen and Merino, their respective families scoured
nearby police precincts and military camps in the hope of finding them but the same yielded nothing.
On July 17, 2006, spouses Asher and Erlinda Cadapan and Concepcion Empeo filed a petition for
habeas corpus1 before the Court, docketed as G.R. No. 173228, impleading then Generals Romeo
Tolentino and Jovito Palparan (Gen. Palparan), Lt. Col. Rogelio Boac (Lt. Col. Boac), Arnel Enriquez
and Lt. Francis Mirabelle Samson (Lt. Mirabelle) as respondents. By Resolution of July 19,
2006,2 the Court issued a writ of habeas corpus, returnable to the Presiding Justice of the Court of
Appeals.
The habeas corpus petition was docketed at the appellate court as CA-G.R. SP No. 95303.
By Return of the Writ dated July 21, 2006,3 the respondents in the habeas corpus petition denied
that Sherlyn, Karen and Merino are in the custody of the military. To the Return were attached
affidavits from the respondents, except Enriquez, who all attested that they do not know Sherlyn,
Karen and Merino; that they had inquired from their subordinates about the reported abduction and
disappearance of the three but their inquiry yielded nothing; and that the military does not own nor
possess a stainless steel jeep with plate number RTF 597. Also appended to the Return was a
certification from the Land Transportation Office (LTO) that plate number RTF 597 had not yet been
manufactured as of July 26, 2006.
Trial thereupon ensued at the appellate court.

Witness Wilfredo Ramos, owner of the house where the three were abducted, recounted that on
June 26, 2006, while he was inside his house in Hagonoy, he witnessed armed men wearing
bonnets abduct Sherlyn and Karen from his house and also abduct Merino on their way out; and that
tied and blindfolded, the three were boarded on a jeep and taken towards Iba in Hagonoy. 4
Witness Alberto Ramirez (Ramirez) recalled that on June 28, 2006, while he was sleeping in his
house, he was awakened by Merino who, in the company of a group of unidentified armed men,
repaired to his house; that onboard a stainless jeep bearing plate number RTF 597, he (Ramirez)
was taken to a place in Mercado, Hagonoy and was asked by one Enriquez if he knew "Sierra,"
"Tanya," "Vincent" and "Lisa"; and that Enriquez described the appearance of two ladies which
matched those of Sherlyn and Karen, whom he was familiar with as the two had previously slept in
his house.5
Another witness, Oscar Leuterio, who was himself previously abducted by armed men and detained
for five months, testified that when he was detained in Fort Magsaysay in Nueva Ecija, he saw two
women fitting the descriptions of Sherlyn and Karen, and also saw Merino, his kumpare. 6
Lt. Col. Boac, the then commander of Task Force Malolos, a special operations team tasked to
neutralize the intelligence network of communists and other armed groups, declared that he
conducted an inquiry on the abduction of Sherlyn, Karen and Merino but his subordinates denied
knowledge thereof.7
While he denied having received any order from Gen. Palparan to investigate the disappearance of
Sherlyn, Karen and Merino, his assistance in locating the missing persons was sought by the mayor
of Hagonoy.
Major Dominador Dingle, the then division adjutant of the Philippine Armys 7th Infantry Division in
Fort Magsaysay, denied that a certain Arnel Enriquez is a member of his infantry as in fact his name
did not appear in the roster of troops.8
Roberto Se, a supervisor of the Equipment, Plate Number and Supply Units of the LTO, denied that
his office manufactured and issued a plate number bearing number RTF 597. 9
On rebuttal, Lt. Mirabelle, Lt. Col. Boac and Gen. Palparan took the witness stand as hostile
witnesses.
Lt. Mirabelle testified that she did not receive any report on the abduction of Sherlyn, Karen and
Merino nor any order to investigate the matter. And she denied knowing anything about the
abduction of Ramirez nor who were Ka Tanya or Ka Lisa. 10
Gen. Palparan testified that during a debate in a televised program, he mentioned the names of Ka
Lisa and Ka Tanya as the ones involved in revolutionary tax activities; and that he ordered Lt. Col.
Boac to conduct an investigation on the disappearance of Sherlyn, Karen and Merino. 11 When
pressed to elaborate, he stated: "I said that I got the report that it stated that it was Ka Tanya and Ka
Lisa that, I mean, that incident happened in Hagonoy, Bulacan was the abduction of Ka Lisa and Ka
Tanya, Your Honor, and another one. That was the report coming from the people in the area." 12
By Decision of March 29, 2007, 13 the Court of Appeals dismissed the habeas corpus petition in this
wise:
As Sherlyn Cadapan, Karen Empeo and Manuel Merino are indeed missing, the present petition for
habeas corpus is not the appropriate remedy since the main office or function of the habeas corpus
is to inquire into the legality of ones detention which presupposes that respondents have actual
custody of the persons subject of the petition. The reason therefor is that the courts have limited
powers, means and resources to conduct an investigation. x x x.
It being the situation, the proper remedy is not a habeas corpus proceeding but criminal proceedings
by initiating criminal suit for abduction or kidnapping as a crime punishable by law. In the case of
Martinez v. Mendoza, supra, the Supreme Court restated the doctrine that habeas corpus may not
be used as a means of obtaining evidence on the whereabouts of a person, or as a means of finding
out who has specifically abducted or caused the disappearance of a certain person. (emphasis and
Thus the appellate court disposed:
WHEREFORE, the petition for habeas corpus is hereby DISMISSED, there being no strong
evidence that the missing persons are in the custody of the respondents.
The Court, however, further resolves to refer the case to the Commission on Human Rights, the
National Bureau of Investigation and the Philippine National Police for separate investigations and
appropriate actions as may be warranted by their findings and to furnish the Court with their
separate reports on the outcome of their investigations and the actions taken thereon.
Let copies of this decision be furnished the Commission on Human Rights, the National Bureau of
Investigation and the Philippine National Police for their appropriate actions.
SO ORDERED. (emphasis and underscoring supplied)
Petitioners in CA-G.R. SP No. 95303 moved for a reconsideration of the appellate courts decision.
They also moved to present newly discovered evidence consisting of the testimonies of Adoracion
Paulino, Sherlyns mother-in-law who was allegedly threatened by soldiers; and Raymond Manalo
who allegedly met Sherlyn, Karen and Merino in the course of his detention at a military camp.
During the pendency of the motion for reconsideration in CA-G.R. SP No. 95303, Erlinda Cadapan
and Concepcion Empeo filed before this Court a Petition for Writ of Amparo 14 With Prayers for
Inspection of Place and Production of Documents dated October 24, 2007, docketed as G.R. No.
179994. The petition impleaded the same respondents in the habeas corpus petition, with the
addition of then President Gloria Macapagal-Arroyo, then Armed Forces of the Phil. (AFP) Chief of
Staff Hermogenes Esperon Jr., then Phil. National Police (PNP) Chief Gen. Avelino Razon (Gen.
Razon), Lt. Col. Felipe Anotado (Lt. Col. Anotado) and Donald Caigas.
Then President Arroyo was eventually dropped as respondent in light of her immunity from suit while
in office.
Petitioners in G.R. No. 179994 also prayed that they be allowed to inspect the detention areas of the
following places:
1. 7th Infantry Division at Fort Magsaysay, Laur, Nueva Ecija
2. 24th Infantry Batallion at Limay, Bataan
3. Army Detachment inside Valmocina Farm, Pinaod, San Ildefonso, Bulacan
4. Camp Tecson, San Miguel, Bulacan
5. The Resthouse of Donald Caigas alias Allan or Alvin of the 24th Infantry Batallion
at Barangay Banog, Bolinao, Pangasinan
6. 56th Infantry Batallion Headquarters at Iba, Hagonoy, Bulacan
7. Army Detachment at Barangay Mercado, Hagonoy, Bulacan

8. Beach House [at] Iba, Zambales used as a safehouse with a retired military
personnel as a caretaker;
By Resolution of October 25, 2007, the Court issued in G.R. No. 179994 a writ of amparo returnable
to the Special Former Eleventh Division of the appellate court, and ordered the consolidation of the
amparo petition with the pending habeas corpus petition.
Docketed as CA-G.R. SP No. 002, respondents in the amparo case, through the Solicitor General,
filed their Return of the Writ on November 6, 2007. 15 In the Return, Gen. Palparan, Lt. Col. Boac and
Lt. Mirabelle reiterated their earlier narrations in the habeas corpus case.
Gen. Hermogenes Esperon Jr. stated in the Return that he immediately caused to investigate and
verify the identities of the missing persons and was aware of the earlier decision of the appellate
court ordering the police, the Commission on Human Rights and the National Bureau of Investigation
to take further action on the matter.16
Lt. Col. Felipe Anotado, the then battalion commander of the 24th Infantry Battalion based in
Balanga City, Bataan, denied any involvement in the abduction. While the 24th Infantry Battalion
detachment was reported to be a detention site of the missing persons, Lt. Col. Anotado claimed that
he found no untoward incident when he visited said detachment. He also claimed that there was no
report of the death of Merino per his inquiry with the local police. 17
Police Director General Avelino Razon narrated that he ordered the compilation of pertinent records,
papers and other documents of the PNP on the abduction of the three, and that the police exhausted
all possible actions available under the circumstances. 18
In addition to the witnesses already presented in the habeas corpus case, petitioners called on
Adoracion Paulino and Raymond Manalo to testify during the trial.
Adoracion Paulino recalled that her daughter-in-law Sherlyn showed up at home on April 11, 2007,
accompanied by two men and three women whom she believed were soldiers. She averred that she
did not report the incident to the police nor inform Sherlyns mother about the visit. 19
Raymond Manalo (Manalo) claimed that he met the three abducted persons when he was illegally
detained by military men in Camp Tecson in San Miguel, Bulacan. His group was later taken to a
camp in Limay, Bataan. He recalled that Lt. Col. Anotado was the one who interrogated him while in
detention.20
In his Sinumpaang Salaysay,21 Manalo recounted:
xxxx
59. Saan ka dinala mula sa Sapang?
Pagkalipas ng humigit kumulang 3 buwan sa Sapang, dinala ako sa Camp Tecson sa ilalim ng 24th
IB.
xxxx
Sa loob ng barracks ko nakilala si Sherlyn Cadapan, isang estudyante ng UP.
Ipinapalinis din sa akin ang loob ng barracks. Sa isang kwarto sa loob ng barracks, may nakita
akong babae na nakakadena[.] Noong una, pinagbawalan akong makipag-usap sa kanya. Sa ikatlo
o ikaapat na araw, nakausap ko yung babaeng nagngangalang Sherlyn. Binigyan ko siya ng
pagkain. Sinabi niya sa akin na dinukot si[ya] sa Hagonoy, Bulacan at matindi ang tortyur na
dinaranas niya. Sabi niya gusto niyang umuwi at makasama ang kanyang magulang. Umiiyak siya.
Sabi niya sa akin ang buong pangalan niya ay Sherlyn Cadapan, mula sa Laguna. Sa araw
tinatanggal ang kanyang kadena at inuutusan si Sherlyn na maglaba.
x x x x.
61. Sino ang mga nakilala mo sa Camp Tecson?
Dito sa Camp Tecson naming nakilala si Allan Alvin (maya-maya nalaman naming na siya pala si
Donald Caigas), ng 24th IB, na tinatawag na master o commander ng kanyang mga tauhan.
Pagkalipas ng 2 araw matapos dalhin si Reynaldo sa Camp Tecson dumating sina Karen
Empeo at Manuel Merino na mga bihag din. Inilagay si Karen at Manuel sa kwarto ni Allan[.] Kami
naman ni Reynaldo ay nasa katabing kwarto, kasama si Sherlyn.
xxxx
62. x x x x
Kaming mga lalake (ako, si Reynaldo at si Manuel) ay ginawang utusan, habang sina Sherlyn at
Karen ay ginawang labandera.
Si Sherlyn ang pinahirapan nina Mickey, Donald at Billy. Sabi ni Sherlyn sa akin na siyay ginahasa.
xxxx
63. x x x x
xxxx
Kaming lima (ako, si Reynaldo, si Sherlyn, si Karen at si [Merino]) ang dinala sa Limay. Sinakay ako,
si Reynaldo, si Sherlyn at si [Merino] sa isang stainless na jeep. Si Karen ay isinakay sa itim na
sasakyan ni Donald Caigas. x x x x
xxxx
66. Saan pa kayo dinala mula sa Limay, Bataan?
Mula sa Limay, kaming 5 (ako, si Reynaldo, si Sherlyn, Si Karen at si Manuel) ay dinala sa isang
safehouse sa Zambales, tabi ng dagat. x x x x (underscoring supplied; italics and emphasis in the
original)
On rebuttal, Lt. Col. Anotado and Col. Eduardo Boyles Davalan were called to the witness stand.
Lt. Col. Anotado denied seeing or meeting Manalo. He posited that Manalo recognized him because
he was very active in conducting lectures in Bataan and even appeared on television regarding an
incident involving the 24th Infantry Batallion. He contended that it was impossible for Manalo,
Sherlyn, Karen and Merino to be detained in the Limay detachment which had no detention area.
Col. Eduardo Boyles Davalan, the then chief of staff of the First Scout Ranger Regiment in Camp
Tecson, testified that the camp is not a detention facility, nor does it conduct military operations as it
only serves as a training facility for scout rangers. He averred that his regiment does not have any
command relation with either the 7th Infantry Division or the 24th Infantry Battalion. 22
By Decision of September 17, 2008,23 the appellate court granted the Motion for Reconsideration in
CA-G.R. SP No. 95303 (the habeas corpus case) and ordered the immediate release of Sherlyn,
Karen and Merino in CA-G.R. SP No. 00002 (the amparo case). Thus it disposed:
WHEREFORE, in CA-G.R. SP NO. 95303 (Habeas Corpus case), the Motion for Reconsideration is
GRANTED.
Accordingly, in both CA-G.R. SP NO. 95303 (Habeas Corpus case) and in CA-G.R. SP NO. 00002
(Amparo case), the respondents are thereby ordered to immediately RELEASE, or cause the
release, from detention the persons of Sher[lyn] Cadapan, Karen Empeo and Manuel Merino.
Respondent Director General Avelino Razon is hereby ordered to resume [the] PNPs unfinished
investigation so that the truth will be fully ascertained and appropriate charges filed against those
truly responsible.
SO ORDERED.
In reconsidering its earlier Decision in the habeas corpus case, the appellate court relied heavily on
the testimony of Manalo in this wise:
With the additional testimony of Raymond Manalo, the petitioners have been able to convincingly
prove the fact of their detention by some elements in the military. His testimony is a first hand
account that military and civilian personnel under the 7th Infantry Division were responsible for the
abduction of Sherlyn Cadapan, Karen Empeo and Manuel Merino. He also confirmed the claim of
Oscar Leuterio that the latter was detained in Fort Magsaysay. It was there where he (Leuterio) saw
Manuel Merino.
His testimony that Leuterio saw Manuel Merino in Fort Magsaysay may be hearsay but not with
respect to his meeting with, and talking to, the three desaparecidos. His testimony on those points
was no hearsay. Raymond Manalo saw the three with his very own eyes as they were detained and
tortured together. In fact, he claimed to be a witness to the burning of Manuel Merino. In the absence
of confirmatory proof, however, the Court will presume that he is still alive.
The testimony of Raymond Manalo can no longer be ignored and brushed aside. His narration and
those of the earlier witnesses, taken together, constitute more than substantial evidence warranting
an order that the three be released from detention if they are not being held for a lawful cause. They
may be moved from place to place but still they are considered under detention and custody of the
respondents.
His testimony was clear, consistent and convincing. x x x.
xxxx
The additional testimonies of Lt. Col. Felipe Anotado and Col. Eduardo Boyles Davalan were of no
help either. Again, their averments were the same negative ones which cannot prevail over those of
Raymond Manalo. Indeed, Camp Tecson has been utilized as a training camp for army scout
rangers. Even Raymond Manalo noticed it but the camps use for purposes other than training
cannot be discounted.
xxxx
In view of the foregoing, there is now a clear and credible evidence that the three missing persons,
[Sherlyn, Karen and Merino], are being detained in military camps and bases under the 7th Infantry
Division. Being not held for a lawful cause, they should be immediately released from detention.
(italic in the original; emphasis and underscoring supplied)
Meanwhile, in the amparo case, the appellate court deemed it a superfluity to issue any inspection
order or production order in light of the release order. As it earlier ruled in the habeas corpus case, it
found that the three detainees right to life, liberty and security was being violated, hence, the need
to immediately release them, or cause their release. The appellate court went on to direct the PNP to
proceed further with its investigation since there were enough leads as indicated in the records to
ascertain the truth and file the appropriate charges against those responsible for the abduction and
detention of the three.
Lt. Col. Rogelio Boac, et al. challenged before this Court, via petition for review, the September 17,
2008 Decision of the appellate court. This was docketed as G.R. Nos. 184461-62, the first abovecaptioned case- subject of the present Decision.
Erlinda Cadapan and Concepcion Empeo, on the other hand, filed their own petition for review also
challenging the same September 17, 2008 Decision of the appellate court only insofar as the
amparo aspect is concerned. Their petition, docketed as G.R. No. 179994, was redocketed as G.R.
No. 184495, the second above-captioned case.
By Resolution of June 15, 2010, the Court ordered the consolidation of G.R. No. 184495 with G.R.
Nos. 1844461-62.24
Meanwhile, Erlinda Cadapan and Concepcion Empeo filed before the appellate court a Motion to
Cite Respondents in Contempt of Court for failure of the respondents in the amparo and habeas
corpus cases to comply with the directive of the appellate court to immediately release the three
missing persons. By Resolution of March 5, 2009, 25 the appellate court denied the motion,
ratiocinating thus:
While the Court, in the dispositive portion, ordered the respondents "to immediately RELEASE, or
cause the release, from detention the persons of Sherlyn Cadapan, Karen Empeo and Manuel
Merino," the decision is not ipso facto executory. The use of the term "immediately" does not mean
that that it is automatically executory. There is nothing in the Rule on the Writ of Amparo which states
that a decision rendered is immediately executory. x x x.
Neither did the decision become final and executory considering that both parties questioned the
Decision/Resolution before the Supreme Court. x x x.
Besides, the Court has no basis. The petitioners did not file a motion for execution pending
appeal under Section 2 of Rule 39. There being no motion, the Court could not have issued, and did
not issue, a writ of execution. x x x. (underscoring supplied)
Via a petition for certiorari filed on March 30, 2009 before this Court, Erlinda Cadapan and
Concepcion Empeo challenged the appellate courts March 5, 2009 Resolution denying their
motion to cite respondents in contempt. The petition was docketed as G.R. No. 187109, the last
above-captioned case subject of the present Decision.
Only Lt. Col. Anotado and Lt. Mirabelle remained of the original respondents in the amparo and
habeas corpus cases as the other respondents had retired from government service. 26 The AFP has
denied that Arnel Enriquez was a member of the Philippine Army.27 The whereabouts of Donald
Caigas remain unknown.28
In G.R. Nos. 184461-62, petitioners posit as follows:
I
THE COURT OF APPEALS GROSSLY MISAPPRECIATED THE VALUE OF THE
TESTIMONY OF RAYMOND MANALO.
II
THE PETITION[S] FOR HABEAS CORPUS AND WRIT OF AMPARO SHOULD BE
DISMISSED BECAUSE RESPONDENTS FAILED TO PROVE BY THE REQUIRED
QUANTUM OF EVIDENCE THAT PETITIONERS HAVE SHERLYN CADAPAN,
KAREN EMPEO AND MANUEL MERINO ARE IN THEIR CUSTODY.
III
PETITIONERS DENIALS PER SE SHOULD NOT HAVE BEEN TAKEN AGAINST
THEM BECAUSE THEY DID NOT REALLY HAVE ANY INVOLVEMENT IN THE
ALLEGED ABDUCTION; MOREOVER, THE SUPPOSED INCONSISTENCIES IN
THEIR TESTIMONIES ARE ON POINTS IRRELEVANT TO THE PETITION.
IV
THE DISPOSITIVE PORTION OF THE ASSAILED DECISION IS VAGUE AND
INCONGRUENT WITH THE FINDINGS OF THE COURT OF APPEALS.
V
THE COURT OF APPEALS IGNORED AND FAILED TO RULE UPON THE FATAL
PROCEDURAL INFIRMITIES IN THE PETITION FOR WRIT OF AMPARO.29
In G.R. No. 184495, petitioners posit as follows:
5. The Court of Appeals erred in not granting the Interim Relief for Inspection of
Places;
6. The Court of Appeals erred in not granting the Interim Relief for Production of
Documents;
7. The Court of Appeals erred in not finding that the Police Director Gen. Avelino
Razon did not make extraordinary diligence in investigating the enforced
disappearance of the aggrieved parties
8. The Court of Appeals erred in not finding that this was not the command coming
from the highest echelon of powers of the Armed Forces of the Philippines, Philippine
Army and the Seventh Infantry Division of the Philippine Army to enforcibly disappear
[sic] the aggrieved parties
9. The Court of Appeals erred in dropping President Gloria Macapagal Arroyo as
party respondent in this case;
10. The Court of Appeals erred in not finding that President Gloria Macapagal Arroyo
had command responsibility in the enforced disappearance and continued detention
of the three aggrieved parties
11. The Court of Appeals erred in not finding that the Armed Forces Chief of Staff
then Hermogenes Esperon and the Present Chief of Staff as having command
responsibility in the enforced disappearance and continued detention of the three
aggrieved parties30
In G.R. No. 187109, petitioners raise the following issues:
[1] Whether the decision in the Court of Appeals has become final and executory[.]
[2] Whetherthere is a need to file a motion for execution in a Habeas Corpus

decision or in an Amparo decision[.]
[3] Whetheran appeal can stay the decision of a Habeas Corpus [case] [or] an
Amparo case[.]31
Essentially, the consolidated petitions present three primary issues, viz: a) whether the testimony of
Raymond Manalo is credible; b) whether the chief of the AFP, the commanding general of the
Philippine Army, as well as the heads of the concerned units had command responsibility over the
abduction and detention of Sherlyn, Karen and Merino; and c) whether there is a need to file a
motion for execution to cause the release of the aggrieved parties.
G.R. Nos. 184461-62
Petitioners Lt. Col. Boac, et al. contend that the appellate court erred in giving full credence to the
testimony of Manalo who could not even accurately describe the structures of Camp Tecson where
he claimed to have been detained along with Sherlyn, Karen and Merino. They underscore that
Camp Tecson is not under the jurisdiction of the 24th Infantry Batallion and that Manalos testimony
is incredible and full of inconsistencies.32
In Secretary of National Defense v. Manalo, 33 an original petition for Prohibition, Injunction and
Temporary Restraining Order which was treated as a petition under the Amparo Rule, said Rule
having taken effect during the pendency of the petition, the Court ruled on the truthfulness and
veracity of the personal account of Manalo which included his encounter with Sherlyn, Kara and
Merino while on detention. Thus it held:
We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalos
affidavit and testimony, viz:
x x x x.
We reject the claim of petitioners that respondent Raymond Manalos statements were not
corroborated by other independent and credible pieces of evidence. Raymonds affidavit and
testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and
medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the
physical injuries inflicted on respondents, also corroborate respondents accounts of the torture they
endured while in detention. Respondent Raymond Manalos familiarity with the facilities in Fort
Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be
the "Division Training Unit," firms up respondents story that they were detained for some time in said
military facility. (citations omitted; emphasis and underscoring supplied)
On Manalos having allegedly encountered Sherlyn, Karen and Merino while on detention, the Court
in the immediately cited case synthesized his tale as follows:
The next day, Raymonds chains were removed and he was ordered to clean outside the barracks. It
was then he learned that he was in a detachment of the Rangers. There were many soldiers,
hundreds of them were training. He was also ordered to clean inside the barracks. In one of the
rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the
University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home and be with her
parents. During the day, her chains were removed and she was made to do the laundry.
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other
captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel were put in the room with
"Allan" whose name they later came to know as Donald Caigas, called "master" or "commander" by
his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At
times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their
chains were removed, but were put back on at night. They were threatened that if they escaped,
their families would all be killed.
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should
be thankful they were still alive and should continue along their "renewed life." Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were brought back to
Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond
was instructed to continue using the name "Oscar" and holding himself out as a military trainee. He
got acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he stated
in his affidavit.
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a
camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They
stayed in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there,
battalion soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach
with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made
to clean, cook, and help in raising livestock.
Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers
brought him and Manuel with them to take and kill all sympathizers of the NPA. They were brought to
Barangay Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin. The
soldiers said he was killed because he had a son who was a member of the NPA and he coddled
NPA members in his house. Another time, in another "Operation Lubog," Raymond was brought to
Barangay Orion in a house where NPA men stayed. When they arrived, only the old man of the
house who was sick was there. They spared him and killed only his son right before Raymonds
eyes.
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was in
charge of the house. Like in Limay, the five detainees were made to do errands and chores. They
stayed in Zambales from May 8 or 9, 2007 until June 2007.
In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel
were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed
and experienced in the camp, viz:
x x x x.34 (emphasis and underscoring supplied)
The Court takes judicial notice of its Decision in the just cited Secretary of National Defense v.
Manalo35 which assessed the account of Manalo to be a candid and forthright narrative of his and his
brother Reynaldos abduction by the military in 2006; and of the corroborative testimonies, in the
same case, of Manalos brother Reynaldo and a forensic specialist, as well as Manalos graphic
description of the detention area. There is thus no compelling reason for the Court, in the present
case, to disturb its appreciation in Manalos testimony. The outright denial of petitioners Lt. Col.
Boac, et al. thus crumbles.
Petitioners go on to point out that the assailed Decision of the appellate court is "vague and
incongruent with [its] findings" for, so they contend, while the appellate court referred to the
perpetrators as "misguided and self-righteous civilian and military elements of the 7th Infantry
Division," it failed to identify who these perpetrators are. Moreover, petitioners assert that Donald
Caigas and Arnel Enriquez are not members of the AFP. They furthermore point out that their co-
petitioners Generals Esperon, Tolentino and Palparan have already retired from the service and thus
have no more control of any military camp or base in the country.36
There is nothing vague and/or incongruent about the categorical order of the appellate court for
petitioners to release Sherlyn, Karen and Merino. In its discourse, the appellate court merely referred
to "a few misguided self-righteous people who resort to the extrajudicial process of neutralizing those
who disagree with the countrys democratic system of government." Nowhere did it specifically refer
to the members of the 7th Infantry Division as the "misguided self-righteous" ones.
Petitioners finally point out that the parents of Sherlyn and Karen do not have the requisite standing
to file the amparo petition on behalf of Merino. They call attention to the fact that in the amparo
petition, the parents of Sherlyn and Karen merely indicated that they were "concerned with Manuel
Merino" as basis for filing the petition on his behalf. 37
Section 2 of the Rule on the Writ of Amparo 38 provides:
The petition may be filed by the aggrieved party or by any qualified person or entity in the following
order:
(a) Any member of the immediate family, namely: the spouse, children and parents of
the aggrieved party;
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the
fourth civil degree of consanguinity or affinity, in default of those mentioned in the
preceding paragraph; or
(c) Any concerned citizen, organization, association or institution, if there is no known
member of the immediate family or relative of the aggrieved party.
Indeed, the parents of Sherlyn and Karen failed to allege that there were no known members of the
immediate family or relatives of Merino. The exclusive and successive order mandated by the
above-quoted provision must be followed. The order of priority is not without reason"to prevent the
indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life,
liberty or security of the aggrieved party." 39
The Court notes that the parents of Sherlyn and Karen also filed the petition for habeas corpus on
Merinos behalf. No objection was raised therein for, in a habeas corpus proceeding, any person
may apply for the writ on behalf of the aggrieved party.40
It is thus only with respect to the amparo petition that the parents of Sherlyn and Karen are
precluded from filing the application on Merinos behalf as they are not authorized parties under the
Rule.
G.R. No. 184495
Preliminarily, the Court finds the appellate courts dismissal of the petitions against then President
Arroyo well-taken, owing to her immunity from suit at the time the habeas corpus and amparo
petitions were filed.41
Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not
be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law.
It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that he be freed from any
form of harassment, hindrance or distraction to enable him to fully attend to the performance of his
official duties and functions. Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution necessarily impairs the operation of the
Government. x x x 42
Parenthetically, the petitions are bereft of any allegation that then President Arroyo permitted,
condoned or performed any wrongdoing against the three missing persons.
On the issue of whether a military commander may be held liable for the acts of his subordinates in
an amparo proceeding, a brief discussion of the concept of command responsibility and its
application insofar as amparo cases already decided by the Court is in order.
Rubrico v. Macapagal Arroyo43 expounded on the concept of command responsibility as follows:
The evolution of the command responsibility doctrine finds its context in the development of laws of
war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms,
means the "responsibility of commanders for crimes committed by subordinate members of the
armed forces or other persons subject to their control in international wars or domestic conflict." In
this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions
of 1907 adopted the doctrine of command responsibility, foreshadowing the present-day precept of
holding a superior accountable for the atrocities committed by his subordinates should he be remiss
in his duty of control over them. As then formulated, command responsibility is "an omission mode
of individual criminal liability," whereby the superior is made responsible for crimes
committed by his subordinates for failing to prevent or punish the perpetrators (as opposed to
crimes he ordered). (citations omitted; emphasis in the original; underscoring supplied) 44
It bears stressing that command responsibility is properly a form of criminal complicity,45 and thus a
substantive rule that points to criminal or administrative liability.
An amparo proceeding is not criminal in nature nor does it ascertain the criminal liability of
individuals or entities involved. Neither does it partake of a civil or administrative suit. 46 Rather, it is a
remedial measure designed to direct specified courses of action to government agencies to
safeguard the constitutional right to life, liberty and security of aggrieved individuals. 47
Thus Razon Jr. v. Tagitis 48 enlightens:
[An amparo proceeding] does nor determine guilt nor pinpoint criminal culpability for the
disappearance [threats thereof or extrajudicial killings]; it determines responsibility, or at least
accountability, for the enforced disappearancefor purposes of imposing the appropriate remedies
to address the disappearance49 (emphasis and underscoring supplied)
Further, Tagitis defines what constitutes "responsibility" and "accountability," viz:
x x x. Responsibility refers to the extent the actors have been established by substantial evidence
to have participated in whatever way, by action or omission, in an enforced disappearance, as a
measure of the remedies this Court shall craft, among them, the directive to file the appropriate
criminal and civil cases against the responsible parties in the proper courts. Accountability, on the
other hand, refers to the measure of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level of their complicity to the level
of responsibility defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but have failed to
discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.
In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing
the disappearance, so that the life of the victim is preserved and his liberty and security are
restored.50 (emphasis in the original; underscoring supplied)
Rubrico categorically denies the application of command responsibility in amparo cases to determine
criminal liability.51 The Court maintains its adherence to this pronouncement as far as amparo cases
are concerned.
Rubrico, however, recognizes a preliminary yet limited application of command responsibility in
amparo cases to instances of determining the responsible or accountable individuals or entities that
are duty-bound to abate any transgression on the life, liberty or security of the aggrieved party.
If command responsibility were to be invoked and applied to these proceedings, it should, at most,
be only to determine the author who, at the first instance, is accountable for, and has the duty to
address, the disappearance and harassments complained of, so as to enable the Court to devise
remedial measures that may be appropriate under the premises to protect rights covered by the writ
of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a prelude to administrative
disciplinary proceedings under existing administrative issuances, if there be any.52 (emphasis and
In other words, command responsibility may be loosely applied in amparo cases in order to identify
those accountable individuals that have the power to effectively implement whatever processes an
amparo court would issue.53 In such application, the amparo court does not impute criminal
responsibility but merely pinpoint the superiors it considers to be in the best position to protect the
rights of the aggrieved party.
Such identification of the responsible and accountable superiors may well be a preliminary
determination of criminal liability which, of course, is still subject to further investigation by the
appropriate government agency.
Relatedly, the legislature came up with Republic Act No. 9851 54 (RA 9851) to include command
responsibility as a form of criminal complicity in crimes against international humanitarian law,
genocide and other crimes.55 RA 9851 is thus the substantive law that definitively imputes criminal
liability to those superiors who, despite their position, still fail to take all necessary and reasonable
measures within their power to prevent or repress the commission of illegal acts or to submit these
matters to the competent authorities for investigation and prosecution.
The Court finds that the appellate court erred when it did not specifically name the respondents that
it found to be responsible for the abduction and continued detention of Sherlyn, Karen and Merino.
For, from the records, it appears that the responsible and accountable individuals are Lt. Col.
Anotado, Lt. Mirabelle, Gen. Palparan, Lt. Col. Boac, Arnel Enriquez and Donald Caigas. They
should thus be made to comply with the September 17, 2008 Decision of the appellate court to
IMMEDIATELY RELEASE Sherlyn, Karen and Merino.
The petitions against Generals Esperon, Razon and Tolentino should be dismissed for lack of merit
as there is no showing that they were even remotely accountable and responsible for the abduction
and continued detention of Sherlyn, Karen and Merino.
G.R. No. 187109.
Contrary to the ruling of the appellate court, there is no need to file a motion for execution for an
amparo or habeas corpus decision. Since the right to life, liberty and security of a person is at stake,
the proceedings should not be delayed and execution of any decision thereon must be expedited as
soon as possible since any form of delay, even for a day, may jeopardize the very rights that these
writs seek to immediately protect.
The Solicitor Generals argument that the Rules of Court supplement the Rule on the Writ of Amparo
is misplaced. The Rules of Court only find suppletory application in an amparo proceeding if the
Rules strengthen, rather than weaken, the procedural efficacy of the writ. As it is, the Rule dispenses
with dilatory motions in view of the urgency in securing the life, liberty or security of the aggrieved
party. Suffice it to state that a motion for execution is inconsistent with the extraordinary and
expeditious remedy being offered by an amparo proceeding.
In fine, the appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and
Merino was not automatically executory. For that would defeat the very purpose of having summary
proceedings56 in amparo petitions. Summary proceedings, it bears emphasis, are immediately
executory without prejudice to further appeals that may be taken therefrom. 57
WHEREFORE, in light of the foregoing discussions, the Court renders the following judgment:
1. The Petitions in G.R. Nos. 184461-62 and G.R. No. 184495 are DISMISSED. The
Decision of the Court of Appeals dated September 17, 2008 is AFFIRMED with
modification in that respondents in G.R. No. 184495, namely Lt. Col. Felipe Anotado,
Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col. Rogelio Boac, Arnel
Enriquez and Donald Caigas are ordered to immediately release Sherlyn Cadapan,
Karen Empeo and Manuel Merino from detention.
The petitions against Generals Esperon, Razon and Tolentino are DISMISSED.
2. The petition in G.R. No. 187109 is GRANTED. The named respondents are
directed to forthwith comply with the September 17, 2008 Decision of the appellate
court. Owing to the retirement and/or reassignment to other places of assignment of
some of the respondents herein and in G.R. No. 184495, the incumbent commanding
general of the 7th Infantry Division and the incumbent battalion commander of the
24th Infantry Battalion, both of the Philippine Army, are enjoined to fully ensure the
release of Sherlyn Cadapan, Karen Empeo and Manuel Merino from detention.
1awphi1
Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito
Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas shall remain
personally impleaded in the petitions to answer for any responsibilities and/or
accountabilities they may have incurred during their incumbencies.
Let copies of this Decision and the records of these cases be furnished the Department of Justice
(DOJ), the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) for
further investigation to determine the respective criminal and administrative liabilities of respondents.
All the present petitions are REMANDED to the Court of Appeals for appropriate action, directed at
monitoring of the DOJ, PNP and AFP investigations and the validation of their results.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice
ANTONIO EDUARDO B. NACHURA

Associate Justice
PRESBITERO J. VELASCO, JR.

Associate Justice
TERESITA J. LEONARDO-DE CASTRO

Associate Justice
ARTURO D. BRION
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
MARIANO C. DEL CASTILLO*

Associate Justice
(NO PART)
ROBERTO A. ABAD **
Associate Justice
JOSE PORTUGAL PEREZ

Associate Justice
MARTIN S. VILLARAMA, JR.

Associate Justice
(NO PART)
JOSE CATRAL MENDOZA***
Associate Justice
MA. LOURDES P.A. SERENO

Associate Justice
C E R TI F I C ATI O N
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.
RENATO C. CORONA
Chief Justice
Footnotes
*
On Official Leave.
No part
**
***
No part.
Entitled IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF

SHERLYN T. CADAPAN, KAREN E. EMPEO AND MANUEL MERINO, represented
by SPS. ERLINDA T. AND ASHER P. CADAPAN, and CONCEPCION E. EMPEO.
1
Per Memorandum dated January 5, 2011 by Atty. Enriqueta Vidal; Vide: rollo (G.R.
No. 184461-62) p. 685.
2
Rollo (G.R. Nos. 184461-62), pp. 130-137.
Per findings of facts of the Court of Appeals; Vide: rollo (G.R. Nos. 184461-62), p.
79.
4
Id. at 80.
Id. at 84.
Rollo (G.R. No. 184495), p. 231-234; Return of the Writ, p. 15.
Per findings of fact of the CA; Vide: rollo (G.R. Nos. 184461-62), p. 81 citing
Transcript of Stenographic Notes (TSN), August 15, 2006, pp. 22-23.
8
10
Rollo (G.R. No. 184495), p. 40.

Per findings of the CA; rollo (G.R. Nos. 184461-62) pp. 81-82).
As earlier stated, Lt. Col. Boac denied having received any order from Gen.
Palparan to this effect.
11
12
Id. at 83.
Rollo (G.R. No. 184495), pp. 188-209. Penned by Associate Justice Jose Catral
Mendoza (now a member of the Court) with Associate Justices Monina Arevalo
Zenarosa and Sesinando E. Villon concurring.
13
14
Rollo (G.R. No. 184461-62), pp. 163-171.
15
Rollo (G.R. No. 184461-62), pp. 172-206.
16
Ibid.
17
Ibid.
18
Ibid.
Per findings of the CA; Vide: rollo (G.R. Nos. 184461-62) p. 90 citing TSN,
November 21, 2007, p. 33.
19
20
Id. at 89-90.
21
Id. at 99-102.
22
Rollo (G.R. No. 184461-62), pp. 251-252.
Rollo (G.R. No. 184461-62), pp. 77-109. Penned by Associate Justice Jose Catral
Mendoza (now a member of the Court) with Associate Justices Monina Arevalo
Zenarosa and Sesinando E. Villon concurring.
23
24
Rollo (G.R. No. 184461-62), p. 533.
25
Rollo (G.R. No. 187109), pp. 12-15.
Per Certification from the Philippine Army dated August 13, 2009, respondents
Generals Hermogenes Esperon Jr., Romeo Tolentino, Jovito Palparan and Lt. Col.
Rogelio Boac have retired from the service. Likewise, the Court takes judicial notice
of the fact that PNP Director General Avelino Razon has retired from the service as
well. Vide: Rollo (G.R. No. 184461-62), p. 417.
26
Per Certification dated August 13, 2009 issued by Col. Eduardo Andes, Adjutant
General of the Philippine Army. See also rollo (G.R. Nos. 184461-62), p. 683.
27
Notices sent by the Court to the stated address of Donald Caigas have been
returned. No other address has been furnished to the Court.
28
29
Rollo (G.R. Nos. 184461-62), pp. 25-26.
30
Rollo (G.R. No. 184495), pp. 7-8.
31
Rollo (G.R. No. 187109), p.6.
32
Rollo (G.R. No. 184461-62), pp. 27-37.
33
G.R. No. 180906, October 7, 2008, 568 SCRA 1.
34
Id. at 21-23.
In Baguio v. Teofila L. Vda. De Jalagat, et al., [149 Phil. 436, 440 (1971)], the Court
ruled that "courts have also taken judicial notice of previous cases to determine
whether or not a previous ruling is applicable to the case under consideration."
35
36
Rollo (G.R. No. 184461-62), pp. 60-64.
37
Rollo (G.R. No. 184461-62), p. 164.
38
A.M. No. 07-9-12-SC which took effect on October 24, 2007.
Annotation to the Writ of Amparo, p. 51. Visit

also http://sc.judiciary.gov.ph/Annotation_amparo.pdf .
39
Section 3 of Rule 102 of the Rules of Court provides that "Application for the writ [of
habeas corpus] shall be by petition signed and verified either by the party for whose
relief it is intended, or by some person on his behalf, and shall set forth x x x."
40
41
David v. Macapagal-Arroyo, G.R. No. 171396, 489 SCRA 160 (2006).
42
Id. at 224-225.
43
G.R. No. 183871, 613 SCRA 233 (2010).
44
Id. at 251.
Rubrico v. Macapagal Arroyo, supra at 251, citing Bernas, Command

Responsibility, February 5, 2007
<http://sc.judiciary.gov.oh/publications/summit/Summit%20Papers/Bernas%2020Responsibility.pdf>
45
46
Annotation to the Writ of Amparo, p. 65.
47
Section 1 of the Rule on the Writ of Amparo.
48
G.R. No. 182498, 606 SCRA 598 (2009).
49
Id. at 253.
50
Supra note 48 at 620-621.
In Rubrico, the Court ruled that "x x x. Still, it would be inappropriate to apply to
these [amparo] proceedings the doctrine of command responsibilityas a form of
criminal complicity through omission, for individual respondents criminal liability, if
there be any, is beyond the reach of amparo. x x x." Vide also Roxas v. Macapagal
Arroyo, G.R. No. 189155, September 7, 2010.
51
52
Id. at 254.
In Rubrico, J. Morales, in her Separate Opinion, initially expounded on this limited

application of command responsibility in amparo cases, to wit: That proceedings
under the Rule on the Writ ofAmparo do not determine criminal, civil or administrative
liability should not abate the applicability of the doctrine of command responsibility.
Taking Secretary of National Defense v. Manalo andRazon v. Tagitis in proper
context, they do not preclude the application of the doctrine of command
responsibility to Amparo cases.
53
Manalo was actually emphatic on the importance of the right to security of

person and its contemporary signification as a guarantee of protection of
one's rights by the government. It further stated that protection includes
conducting effective investigations, organization of the government apparatus
to extend protection to victims of extralegal killings or enforced
disappearances, or threats thereof, and/or their families, and bringing
offenders to the bar of justice.
Tagitis, on the other hand, cannot be more categorical on the application, at
least in principle, of the doctrine of command responsibility:
Given their mandates, the PNP and PNP-CIDG officials and members were
the ones who were remiss in their duties when the government completely
failed to exercise the extraordinary diligence that the Amparo Rule
requires. We hold these organizations accountable through their
incumbent Chiefs who, under this Decision, shall carry the personal
responsibility of seeing to it that extraordinary diligence, in the manner
the Amparo Rule requires, is applied in addressing the enforced
disappearance of Tagitis. (emphasis and underscoring in the original)
An Act Defining and Penalizing Crimes Against International Humanitarian Law,
Genocide and Other Crimes Against Humanity, Organizing Jurisdiction, Designating
Special Courts, and for Related Purposes. Approved on July 27, 2009.
54
Section 10 of RA 9851 states that: Responsibility of Superiors. - In addition to other

grounds of criminal responsibility for crimes defined and penalized under this Act, a
superior shall be criminally responsible as a principal for such crimes committed by
subordinates under his/her effective command and control, or effective authority and
control as the case may be, as a result of his/her failure to properly exercise control
over such subordinates, where:
55
(a) That superior either knew or, owing to the circumstances at the time,
should have known that the subordinates were committing or about to
commit such crimes;
(b) That superior failed to take all necessary and reasonable measures within
his/her power to prevent or repress their commission or to submit the matter
to the competent authorities for investigation and prosecution.
Section 13 of the Rule on the Writ of Amparo provides that: "[t]he hearing on the
petition shall be summary. x x x."
56
In Section 21 of the Revised Rule on Summary Procedure, it is provided that: "x x

x. The decision of the Regional Trial Court in civil cases governed by this Rule,
including forcible entry and unlawful detainer, shall be immediately executory, without
57
prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 shall
be deemed repealed."

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Republic of the Philippines

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE

appropriate party to assert the rights of its members, because it and

SECTION 2. The Philippines renounces war as an instrument of national

Custom or customary international law means "a general and

recommendations to members with respect to any matter within the competence

Article 23. The Health Assembly shall have authority to make

and promotions of breastmilk substitutes, have not been adopted as a

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987

to breastmilk or breastfeeding in the

claims for products within the scope of

information that powdered infant

(e) Manufacturers and distributors of

Code may assist in the research,

principles from which the revised rules

7. The Milk Code regulates the giving of donations; RIRR absolutely

Scope of This Code - Donations of

(P60,000.00) to One Hundred Fifty

For purposes of determining whether

section conspicuously lacks reference to any particular age-group of

restricted to scientific and factual matters, and such information shall

b) Section 3 which specifically states that the Code applies to the

(b) Information provided by manufacturers and distributors to health

Minister of Trade and Industry

Minister of Social Services and

The members may designate their duly authorized representative to every

infants and young children up to twenty-four (24) months, shall be allowed,

substitutes may assist in researches, scholarships and the continuing education,

whenever necessary to promote the general welfare." There can be no

Republic of the Philippines

G.R. No. 110120 March 16, 1994

The facts, as disclosed in the records, are undisputed.

On November 15, 1991, the LLDA conducted an on-site investigation, monitoring

The dumping operation was forthwith stopped by the City Government of

Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr.

continue implementation of any project, plan or program within the Laguna de

As a general rule, the adjudication of pollution cases generally pertains to the

In this connection, it must be noted that in Pollution Adjudication Board v. Court

Ex parte cease and desist orders are permitted by law and

GUERRERO'S TRANSPORT SERVICES, INC., petitioner,

Petitioner appealed to Secretary of Labor Blas F. Ople who, in turn, rendered a

In the meantime, the Provincial Director of the Labor Office in Zambales

On January 18, 1975, Acting Executive Secretary Roberto V. Reyes, pursuant to

On September 1, 1975, the Provincial Director of the Zambales Labor Office,

Pursuant to Section 6 of Article I of the Philippine-U S. Labor Agreement of May

Considering that the afore-mentioned Compromise-Agreement of the parties, as

ACCORDINGLY, judgment is hereby rendered ordering petitioner to employ

FERNANDO, J., concurring:

It is to be admitted that what complicated matters is that the service to be

FERNANDO, J., concurring:

It is to be admitted that what complicated matters is that the service to be

Republic of the Philippines

March 26, 1949

SHIGENORI KURODA, petitioner,

accomplishing the speedy trial of all Japanese accused of war crimes

treatment of prisoners of war or internees or person on the seas or

(d) Any diary, letter to other document, including sworn statements,

COMMONWEALTH ACT NO. 600.

compensation, or any department, bureau, office, or instrumentality of the

COMMONWEALTH ACT NO. 671

SEC. 2. Pursuant to the provision of Article VI, section 16, of the

The rules of evidence adopted in Executive Order No. 68 are a reproduction of

May 31, 1957

d. The due process clause.