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.

G.R. No. L-25843 July 25, 1974

MELCHORA CABANAS, plaintiff-appellee,

vs.
FRANCISCO PILAPIL, defendant-appellant.

Seno, Mendoza & Associates for plaintiff-appellee.

Emilio Benitez, Jr. for defendant-appellant.

FERNANDO, J.:p

The disputants in this appeal from a question of law from a lower court decision are the mother and the
uncle of a minor beneficiary of the proceeds of an insurance policy issued on the life of her deceased
father. The dispute centers as to who of them should be entitled to act as trustee thereof. The lower court
applying the appropriate Civil Code provisions decided in favor of the mother, the plaintiff in this case.
Defendant uncle appealed. As noted, the lower court acted the way it did following the specific mandate of
the law. In addition, it must have taken into account the principle that in cases of this nature the welfare of
the child is the paramount consideration. It is not an unreasonable assumption that between a mother and
an uncle, the former is likely to lavish more care on and pay greater attention to her. This is all the more
likely considering that the child is with the mother. There are no circumstances then that did militate
against what conforms to the natural order of things, even if the language of the law were not as clear. It is
not to be lost sight of either that the judiciary pursuant to its role as an agency of the State as parens
patriae, with an even greater stress on family unity under the present Constitution, did weigh in the
balance the opposing claims and did come to the conclusion that the welfare of the child called for the
mother to be entrusted with such responsibility. We have to affirm.

The appealed decision made clear: "There is no controversy as to the facts. " 1 The insured, Florentino Pilapil
had a child, Millian Pilapil, with a married woman, the plaintiff, Melchora Cabanas. She was ten years old at the time the
complaint was filed on October 10, 1964. The defendant, Francisco Pilapil, is the brother of the deceased. The deceased
insured himself and instituted as beneficiary, his child, with his brother to act as trustee during her minority. Upon his
death, the proceeds were paid to him. Hence this complaint by the mother, with whom the child is living, seeking the
delivery of such sum. She filed the bond required by the Civil Code. Defendant would justify his claim to the retention of
the amount in question by invoking the terms of the insurance policy. 2

After trial duly had, the lower court in a decision of May 10, 1965, rendered judgment ordering the
defendant to deliver the proceeds of the policy in question to plaintiff. Its main reliance was on Articles 320
and 321 of the Civil Code. The former provides: "The father, or in his absence the mother, is the legal
administrator of the property pertaining to the child under parental authority. If the property is worth more
than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of
First Instance." 3 The latter states: "The property which the unemancipated child has acquired or may acquire with his
work or industry, or by any lucrative title, belongs to the child in ownership, and in usufruct to the father or mother under
whom he is under parental authority and whose company he lives; ... 4

Conformity to such explicit codal norm is apparent in this portion of the appealed decision: "The insurance
proceeds belong to the beneficiary. The beneficiary is a minor under the custody and parental authority of
the plaintiff, her mother. The said minor lives with plaintiff or lives in the company of the plaintiff. The said
minor acquired this property by lucrative title. Said property, therefore, belongs to the minor child in
ownership, and in usufruct to the plaintiff, her mother. Since under our law the usufructuary is entitled to
possession, the plaintiff is entitled to possession of the insurance proceeds. The trust, insofar as it is in
conflict with the above quoted provision of law, is pro tanto null and void. In order, however, to protect the
rights of the minor, Millian Pilapil, the plaintiff should file an additional bond in the guardianship
proceedings, Sp. Proc. No. 2418-R of this Court to raise her bond therein to the total amount of
P5,000.00." 5

It is very clear, therefore, considering the above, that unless the applicability of the two cited Civil Code
provisions can be disputed, the decision must stand. There is no ambiguity in the language employed.
The words are rather clear. Their meaning is unequivocal. Time and time again, this Court has left no
doubt that where codal or statutory norms are cast in categorical language, the task before it is not one of
interpretation but of application. 6So it must be in this case. So it was in the appealed decision.

1. It would take more than just two paragraphs as found in the brief for the defendant-appellant 7 to blunt the
force of legal commands that speak so plainly and so unqualifiedly. Even if it were a question of policy, the conclusion will
remain unaltered. What is paramount, as mentioned at the outset, is the welfare of the child. It is in consonance with such
primordial end that Articles 320 and 321 have been worded. There is recognition in the law of the deep ties that bind
parent and child. In the event that there is less than full measure of concern for the offspring, the protection is supplied by
the bond required. With the added circumstance that the child stays with the mother, not the uncle, without any evidence
of lack of maternal care, the decision arrived at can stand the test of the strictest scrutiny. It is further fortified by the
assumption, both logical and natural, that infidelity to the trust imposed by the deceased is much less in the case of a
mother than in the case of an uncle. Manresa, commenting on Article 159 of the Civil Code of Spain, the source of Article
320 of the Civil Code, was of that view: Thus "El derecho y la obligacion de administrar el Patrimonio de los hijos es una
consecuencia natural y lgica de la patria potestad y de la presuncin de que nadie cuidar de los bienes de acqullos
con mas cario y solicitude que los padres. En nuestro Derecho antiguo puede decirse que se hallaba reconocida de una
manera indirecta aquelia doctrina, y asi se desprende de la sentencia del Tribunal Supremeo de 30 de diciembre de
1864, que se refiere a la ley 24, tit. XIII de la Partida 5. De la propia suerte aceptan en general dicho principio los Codigos
extranjeros, con las limitaciones y requisitos de que trataremos mis adelante." 8

2. The appealed decision is supported by another cogent consideration. It is buttressed by its adherence
to the concept that the judiciary, as an agency of the State acting as parens patriae, is called upon
whenever a pending suit of litigation affects one who is a minor to accord priority to his best interest. It
may happen, as it did occur here, that family relations may press their respective claims. It would be more
in consonance not only with the natural order of things but the tradition of the country for a parent to be
preferred. it could have been different if the conflict were between father and mother. Such is not the case
at all. It is a mother asserting priority. Certainly the judiciary as the instrumentality of the State in its role
of parens patriae, cannot remain insensible to the validity of her plea. In a recent case, 9 there is this
quotation from an opinion of the United States Supreme Court: "This prerogative of parens patriae is inherent in the
supreme power of every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to
those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and
the destruction of their liberties." What is more, there is this constitutional provision vitalizing this concept. It reads: "The
State shall strengthen the family as a basic social institution." 10 If, as the Constitution so wisely dictates, it is the family as
a unit that has to be strengthened, it does not admit of doubt that even if a stronger case were presented for the uncle, still
deference to a constitutional mandate would have led the lower court to decide as it did.

WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against defendant-appellant.

G.R. No. L-409 January 30, 1947

ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.

Claro M. Recto and Querube C. Makalintal for petitioner.

First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.

RESOLUTION

In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition
for habeas corpus filed by Anastacio Laurel and based on a theory that a Filipino citizen who
adhered to the enemy giving the latter aid and comfort during the Japanese occupation cannot be
prosecuted for the crime of treason defined and penalized by article 114 of the Revised Penal
Code, for the reason (1) that the sovereignty of the legitimate government in the Philippines and,
consequently, the correlative allegiance of Filipino citizens thereto was then suspended; and (2)
that there was a change of sovereignty over these Islands upon the proclamation of the Philippine
Republic:

(1) Considering that a citizen or subject owes, not a qualified and temporary, but an absolute and
permanent allegiance, which consists in the obligation of fidelity and obedience to his government
or sovereign; and that this absolute and permanent allegiance should not be confused with the
qualified and temporary allegiance which a foreigner owes to the government or sovereign of the
territory wherein he resides, so long as he remains there, in return for the protection he receives,
and which consists in the obedience to the laws of the government or sovereign. (Carlisle vs. Unite
States, 21 Law. ed., 429; Secretary of State Webster Report to the President of the United States
in the case of Thraser, 6 Web. Works, 526);

Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied
by the enemy of their legitimate government or sovereign is not abrogated or severed by the
enemy occupation, because the sovereignty of the government or sovereign de jure is not
transferred thereby to the occupier, as we have held in the cases of Co Kim Cham vs. Valdez Tan
Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not
transferred to the occupant it must necessarily remain vested in the legitimate government; that the
sovereignty vested in the titular government (which is the supreme power which governs a body
politic or society which constitute the state) must be distinguished from the exercise of the rights
inherent thereto, and may be destroyed, or severed and transferred to another, but it cannot be
suspended because the existence of sovereignty cannot be suspended without putting it out of
existence or divesting the possessor thereof at least during the so-called period of suspension; that
what may be suspended is the exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy passes temporarily to the occupant; that the
subsistence of the sovereignty of the legitimate government in a territory occupied by the military
forces of the enemy during the war, "although the former is in fact prevented from exercising the
supremacy over them" is one of the "rules of international law of our times"; (II Oppenheim, 6th
Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in articles 23, 44, 45, and 52
of Hague Regulation; and that, as a corollary of the conclusion that the sovereignty itself is not
suspended and subsists during the enemy occupation, the allegiance of the inhabitants to their
legitimate government or sovereign subsists, and therefore there is no such thing as suspended
allegiance, the basic theory on which the whole fabric of the petitioner's contention rests;

Considering that the conclusion that the sovereignty of the United State was suspended in Castine,
set forth in the decision in the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in
1819, and quoted in our decision in the cases of Co Kim Cham vs. Valdez Tan Keh and
Dizon and Peralta vs. Director of Prisons, supra, in connection with the question, not of
sovereignty, but of the existence of a government de facto therein and its power to promulgate
rules and laws in the occupied territory, must have been based, either on the theory adopted
subsequently in the Hague Convention of 1907, that the military occupation of an enemy territory
does not transfer the sovereignty to the occupant; that, in the first case, the word "sovereignty"
used therein should be construed to mean the exercise of the rights of sovereignty, because as
this remains vested in the legitimate government and is not transferred to the occupier, it cannot be
suspended without putting it out of existence or divesting said government thereof; and that in the
second case, that is, if the said conclusion or doctrine refers to the suspension of the sovereignty
itself, it has become obsolete after the adoption of the Hague Regulations in 1907, and therefore it
can not be applied to the present case;

Considering that even adopting the words "temporarily allegiance," repudiated by Oppenheim and
other publicists, as descriptive of the relations borne by the inhabitants of the territory occupied by
the enemy toward the military government established over them, such allegiance may, at most, be
considered similar to the temporary allegiance which a foreigner owes to the government or
sovereign of the territory wherein he resides in return for the protection he receives as above
described, and does not do away with the absolute and permanent allegiance which the citizen
residing in a foreign country owes to his own government or sovereign; that just as a citizen or
subject of a government or sovereign may be prosecuted for and convicted of treason committed in
a foreign country, in the same way an inhabitant of a territory occupied by the military forces of the
enemy may commit treason against his own legitimate government or sovereign if he adheres to
the enemies of the latter by giving them aid and comfort; and that if the allegiance of a citizen or
subject to his government or sovereign is nothing more than obedience to its laws in return for the
protection he receives, it would necessarily follow that a citizen who resides in a foreign country or
state would, on one hand, ipso facto acquire the citizenship thereof since he has enforce public
order and regulate the social and commercial life, in return for the protection he receives, and
would, on the other hand, lose his original citizenship, because he would not be bound to obey
most of the laws of his own government or sovereign, and would not receive, while in a foreign
country, the protection he is entitled to in his own;

Considering that, as a corollary of the suspension of the exercise of the rights of sovereignty by the
legitimate government in the territory occupied by the enemy military forces, because the authority
of the legitimate power to govern has passed into the hands of the occupant (Article 43, Hague
Regulations), the political laws which prescribe the reciprocal rights, duties and obligation of
government and citizens, are suspended or in abeyance during military occupation (Co Kim
cham vs. Valdez Tan Keh and dizon, supra), for the only reason that as they exclusively bear
relation to the ousted legitimate government, they are inoperative or not applicable to the
government established by the occupant; that the crimes against national security, such as treason
and espionage; inciting to war, correspondence with hostile country, flight to enemy's country, as
well as those against public order, such as rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear relation to, and are penalized by our
Revised Penal Code as crimes against the legitimate government, are also suspended or become
inapplicable as against the occupant, because they can not be committed against the latter
(Peralta vs. Director of Prisons, supra); and that, while the offenses against public order to be
preserved by the legitimate government were inapplicable as offenses against the invader for the
reason above stated, unless adopted by him, were also inoperative as against the ousted
government for the latter was not responsible for the preservation of the public order in the
occupied territory, yet article 114 of the said Revised Penal Code, was applicable to treason
committed against the national security of the legitimate government, because the inhabitants of
the occupied territory were still bound by their allegiance to the latter during the enemy occupation;

Considering that, although the military occupant is enjoined to respect or continue in force, unless
absolutely prevented by the circumstances, those laws that enforce public order and regulate the
social and commercial life of the country, he has, nevertheless, all the powers of de
facto government and may, at his pleasure, either change the existing laws or make new ones
when the exigencies of the military service demand such action, that is, when it is necessary for
the occupier to do so for the control of the country and the protection of his army, subject to the
restrictions or limitations imposed by the Hague Regulations, the usages established by civilized
nations, the laws of humanity and the requirements of public conscience (Peralta vs. Director of
Prisons, supra; 1940 United States Rules of Land Warfare 76, 77); and that, consequently, all acts
of the military occupant dictated within these limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the legitimate government which have not
been adopted, as well and those which, though continued in force, are in conflict with such laws
and orders of the occupier, shall be considered as suspended or not in force and binding upon said
inhabitants;

Considering that, since the preservation of the allegiance or the obligation of fidelity and obedience
of a citizen or subject to his government or sovereign does not demand from him a positive action,
but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and
comfort, the occupant has no power, as a corollary of the preceding consideration, to repeal or
suspend the operation of the law of treason, essential for the preservation of the allegiance owed
by the inhabitants to their legitimate government, or compel them to adhere and give aid and
comfort to him; because it is evident that such action is not demanded by the exigencies of the
military service or not necessary for the control of the inhabitants and the safety and protection of
his army, and because it is tantamount to practically transfer temporarily to the occupant their
allegiance to the titular government or sovereign; and that, therefore, if an inhabitant of the
occupied territory were compelled illegally by the military occupant, through force, threat or
intimidation, to give him aid and comfort, the former may lawfully resist and die if necessary as a
hero, or submit thereto without becoming a traitor;

Considering that adoption of the petitioner's theory of suspended allegiance would lead to
disastrous consequences for small and weak nations or states, and would be repugnant to the
laws of humanity and requirements of public conscience, for it would allow invaders to legally
recruit or enlist the Quisling inhabitants of the occupied territory to fight against their own
government without the latter incurring the risk of being prosecuted for treason, and even compel
those who are not aid them in their military operation against the resisting enemy forces in order to
completely subdue and conquer the whole nation, and thus deprive them all of their own
independence or sovereignty such theory would sanction the action of invaders in forcing the
people of a free and sovereign country to be a party in the nefarious task of depriving themselves
of their own freedom and independence and repressing the exercise by them of their own
sovereignty; in other words, to commit a political suicide;
 (2) Considering that the crime of treason against the government of the Philippines defined and
penalized in article 114 of the Penal Code, though originally intended to be a crime against said
government as then organized by authority of the sovereign people of the United States, exercised
through their authorized representative, the Congress and the President of the United States, was
made, upon the establishment of the Commonwealth Government in 1935, a crime against the
Government of the Philippines established by authority of the people of the Philippines, in whom
the sovereignty resides according to section 1, Article II, of the Constitution of the Philippines, by
virtue of the provision of section 2, Article XVI thereof, which provides that "All laws of the
Philippine Islands . . . shall remain operative, unless inconsistent with this Constitution . . . and all
references in such laws to the Government or officials of the Philippine Islands, shall be construed,
in so far as applicable, to refer to the Government and corresponding officials under this
constitution;

Considering that the Commonwealth of the Philippines was a sovereign government, though not
absolute but subject to certain limitations imposed in the Independence Act and incorporated as
Ordinance appended to our Constitution, was recognized not only by the Legislative Department or
Congress of the United States in approving the Independence Law above quoted and the
Constitution of the Philippines, which contains the declaration that "Sovereignty resides in the
people and all government authority emanates from them" (section 1, Article II), but also by the
Executive Department of the United States; that the late President Roosevelt in one of his
messages to Congress said, among others, "As I stated on August 12, 1943, the United States in
practice regards the Philippines as having now the status as a government of other independent
nations in fact all the attributes of complete and respected nationhood" (Congressional Record,
Vol. 29, part 6, page 8173); and that it is a principle upheld by the Supreme Court of the United
States in many cases, among them in the case of Jones vs. United States (137 U.S., 202; 34 Law.
ed., 691, 696) that the question of sovereignty is "a purely political question, the determination of
which by the legislative and executive departments of any government conclusively binds the
judges, as well as all other officers, citizens and subjects of the country.

Considering that section I (1) of the Ordinance appended to the Constitution which provides that
pending the final and complete withdrawal of the sovereignty of the United States "All citizens of
the Philippines shall owe allegiance to the United States", was one of the few limitations of the
sovereignty of the Filipino people retained by the United States, but these limitations do not away
or are not inconsistent with said sovereignty, in the same way that the people of each State of the
Union preserves its own sovereignty although limited by that of the United States conferred upon
the latter by the States; that just as to reason may be committed against the Federal as well as
against the State Government, in the same way treason may have been committed during the
Japanese occupation against the sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth; and that the change of our form of government from
Commonwealth to Republic does not affect the prosecution of those charged with the crime of
treason committed during the Commonwealth, because it is an offense against the same
government and the same sovereign people, for Article XVIII of our Constitution provides that "The
government established by this constitution shall be known as the Commonwealth of the
Philippines. Upon the final and complete withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, the Commonwealth of the Philippines shall thenceforth
be known as the Republic of the Philippines";

This Court resolves, without prejudice to write later on a more extended opinion, to deny the
petitioner's petition, as it is hereby denied, for the reasons above set forth and for others to be
stated in the said opinion, without prejudice to concurring opinion therein, if any. Messrs. Justices
Paras and Hontiveros dissent in a separate opinion. Mr. justice Perfecto concurs in a separate
opinion.

Separate Opinions

PERFECTO, J., concurring:

Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While there is
peace, there are no traitors. Treason may be incubated when peace reigns. Treasonable acts may
actually be perpetrated during peace, but there are no traitors until war has started.
As treason is basically a war crime, it is punished by the state as a measure of self-defense and self-
preservation. The law of treason is an emergency measure. It remains dormant until the emergency
arises. But as soon as war starts, it is relentlessly put into effect. Any lukewarm attitude in its enforcement
will only be consistent with national harakiri. All war efforts would be of no avail if they should be allowed
to be sabotaged by fifth columnists, by citizens who have sold their country out to the enemy, or any other
kind of traitors, and this would certainly be the case if he law cannot be enforced under the theory of
suspension.

Petitioner's thesis that allegiance to our government was suspended during enemy occupation is
advanced in support of the proposition that, since allegiance is identical with obedience to law, during the
enemy occupation, the laws of the Commonwealth were suspended. Article 114 of the Revised Penal
Code, the law punishing treason, under the theory, was one of the laws obedience to which was also
suspended.

Allegiance has been defined as the obligation for fidelity and obedience which the individual owes to his
government or his sovereign in return for the protection which he receives.

"Allegiance", as the return is generally used, means fealty or fidelity to the government of which the
person is either a citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2
Law. ed., 208.

"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty of obedience of
a subject to the sovereign, under whose protection he is." United States vs. Wong Kim Ark, 18 S.
Ct., 461; 169 U.S., 649; 42 Law. ed., 890.

Allegiance is that duty which is due from every citizen to the state, a political duty binding on him
who enjoys the protection of the Commonwealth, to render service and fealty to the federal
government. It is that duty which is reciprocal to the right of protection, arising from the political
relations between the government and the citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492,
501.

By "allegiance" is meant the obligation to fidelity and obedience which the individual owes to the
government under which he lives, or to his sovereign, in return for the protection which he
receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary
one. A citizen or subject owes an absolute and permanent allegiance to his government or
sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen
or subject of another government or sovereign, and an alien while domiciled in a country owes it a
temporary allegiance, which is continuous during his residence. Carlisle vs. United States, 83 U.S.
(16 Wall.), 147, 154; 21 Law ed., 426.

"Allegiance," as defined by Blackstone, "is the tie or ligament which binds the subject to the King,
in return for that protection which the King affords the subject. Allegiance, both expressed and
implied, is of two sorts, the one natural, the other local, the former being perpetual, the latter
temporary. Natural allegiance is such as is due from all men born within the King's dominions
immediately upon their birth, for immediately upon their birth they are under the King's protection.
Natural allegiance is perpetual, and for this reason, evidently founded on the nature of government.
Allegiance is a debt due from the subject upon an implied contract with the prince that so long as
the one affords protection the other will demean himself faithfully. Natural-born subjects have a
great variety of rights which they acquire by being born within the King's liegance, which can never
be forfeited but by their own misbehaviour; but the rights of aliens are much more circumscribed,
being acquired only by residence, and lost whenever they remove. If an alien could acquire a
permanent property in lands, he must owe an allegiance equally permanent to the King, which
would probably be inconsistent with that which he owes his natural liege lord; besides, that thereby
the nation might, in time, be subject to foreign influence and feel many other inconveniences."
Indians within the state are not aliens, but citizens owing allegiance to the government of a state,
for they receive protection from the government and are subject to its laws. They are born in
allegiance to the government of the state. Jackson vs. Goodell, 20 Johns., 188, 911. (3 Words and
Phrases, Permanent ed., 226-227.)

Allegiance. Fealty or fidelity to the government of which the person is either a citizen or subject;
the duty which is due from every citizen to the state; a political duty, binding on him who enjoys the
protection of the commonwealth, to render service and fealty to the federal government; the
obligation of fidelity and obedience which the individual owes to the government or to the sovereign
under which he lives in return for the protection he receives; that duty is reciprocal to the right of
 protection he receives; that duty which is reciprocal to the right of protection, arising from the
political relations between the government and the citizen.

Classification. Allegiance is of four kinds, namely: (1) Natural allegiance that which arises by
nature and birth; (2) acquired allegiance that arising through some circumstance or act other
than birth, namely, by denization or naturalization; (3) local allegiance-- that arising from residence
simply within the country, for however short a time; and (4) legal allegiance that arising from
oath, taken usually at the town or leet, for, by the common law, the oath of allegiance might be
tendered to every one upon attaining the age of twelve years. (3 C.J.S., p.885.)

Allegiance. the obligation of fidelity and obedience which the individual owes to the government
under which he lives, or to his sovereign in return for the protection he receives. 15 R.C.L., 140.
(Ballentine Law Dictionary, p. 68.).

"Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to his state
the obligation of obedience and support which he owes to it. The state is the political person to
whom this liege fealty is due. Its substance is the aggregate of persons owing this allegiance. The
machinery through which it operates is its government. The persons who operate this machinery
constitute its magistracy. The rules of conduct which the state utters or enforces are its law, and
manifest its will. This will, viewed as legally supreme, is its sovereignty. (W.W. Willoughby,
Citizenship and Allegiance in Constitutional and International Law, 1 American Journal of
International Law, p. 915.).

The obligations flowing from the relation of a state and its nationals are reciprocal in character.
This principle had been aptly stated by the Supreme Court of the United States in its opinion in the
case of Luria vs. United States:

Citizenship is membership in a political society and implies a duty of allegiance on the part of the
member and a duty protection on the part of the society. These are reciprocal obligations, one
being a compensation for the other. (3 Hackworth, Digest of International Law, 1942 ed., p.6.)

Allegiance. The tie which binds the citizen to the government, in return for the protection which
the government affords him. The duty which the subject owes to the sovereign, correlative with the
protection received.

It is a comparatively modern corruption of ligeance (ligeantia), which is derived from liege (ligius),
meaning absolute or unqualified. It signified originally liege fealty, i. e., absolute and qualified
fealty. 18 L. Q. Rev., 47.

xxx xxx xxx

Allegiance may be an absolute and permanent obligation, or it may be a qualified and temporary
one; the citizen or subject owes the former to his government or sovereign, until by some act he
distinctly renounces it, whilst the alien domiciled in the country owes a temporary and local
allegiance continuing during such residence. (Carlisle vs. United States, 16 Wall. [U.S.], 154; 21
Law. ed., 426. (1 Bouvier's Law Dictionary, p. 179.).

The above quotations express ideas that do not fit exactly into the Philippine pattern in view of the
revolutionary insertion in our Constitution of the fundamental principle that "sovereignty resides in the
people and all government authority emanates from them." (Section 1, Article II.) The authorities above
quoted, judges and juridical publicists define allegiance with the idea that sovereignty resides somewhere
else, on symbols or subjects other than the people themselves. Although it is possible that they had
already discovered that the people and only the people are the true sovereign, their minds were not yet
free from the shackles of the tradition that the powers of sovereignty have been exercised by princes and
monarchs, by sultans and emperors, by absolute and tyrannical rules whose ideology was best expressed
in the famous words of one of the kings of France: "L'etat c'est moi," or such other persons or group of
persons posing as the government, as an entity different and in opposition to the people themselves.
Although democracy has been known ever since old Greece, and modern democracies in the people,
nowhere is such principle more imperative than in the pronouncement embodied in the fundamental law of
our people.

To those who think that sovereignty is an attribute of government, and not of the people, there may be
some plausibility in the proposition that sovereignty was suspended during the enemy occupation, with the
consequence that allegiance must also have been suspended, because our government stopped to
function in the country. But the idea cannot have any place under our Constitution. If sovereignty is an
essential attribute of our people, according to the basic philosophy of Philippine democracy, it could not
have been suspended during the enemy occupation. Sovereignty is the very life of our people, and there
is no such thing as "suspended life." There is no possible middle situation between life and death.
Sovereignty is the very essence of the personality and existence of our people. Can anyone imagine the
possibility of "suspended personality" or "suspended existence" of a people? In no time during enemy
occupation have the Filipino people ceased to be what they are.

The idea of suspended sovereignty or suspended allegiance is incompatible with our Constitution.

There is similarity in characteristics between allegiance to the sovereign and a wife's loyalty to her
husband. Because some external and insurmountable force precludes the husband from exercising his
marital powers, functions, and duties and the wife is thereby deprived of the benefits of his protection,
may the wife invoke the theory of suspended loyalty and may she freely share her bed with the assailant
of their home? After giving aid and comfort to the assailant and allowing him to enjoy her charms during
the former's stay in the invaded home, may the wife allege as defense for her adultery the principle of
suspended conjugal fidelity?

Petitioner's thesis on change of sovereignty at the advent of independence on July 4, 1946, is

unacceptable. We have already decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante) that
the Constitution of the Republic is the same as that of the Commonwealth. The advent of independence
had the effect of changing the name of our Government and the withdrawal by the United States of her
power to exercise functions of sovereignty in the Philippines. Such facts did not change the sovereignty of
the Filipino people. That sovereignty, following our constitutional philosophy, has existed ever since our
people began to exist. It has been recognized by the United States of America, at least since 1935, when
President Roosevelt approved our Constitution. By such act, President Roosevelt, as spokesman of the
American people, accepted and recognized the principle that sovereignty resides in the people that is, that
Philippine sovereignty resides in the Filipino people.

The same sovereignty had been internationally recognized long before the proclamation of independence
on July 4, 1946. Since the early part of the Pacific war, President Quezon had been sitting as
representative of a sovereign people in the Allied War Council, and in June, 1945, the same Filipino
people took part outstanding and brilliant, it may be added in the drafting and adoption of the charter
of the United Nations, the unmistakable forerunner of the future democratic federal constitution of the
world government envisioned by all those who adhere to the principle of unity of all mankind, the early
realization of which is anxiously desired by all who want to be spared the sufferings, misery and disaster
of another war.

Under our Constitution, the power to suspend laws is of legislative nature and is lodged in Congress.
Sometimes it is delegated to the Chief Executive, such as the power granted by the Election Code to the
President to suspend the election in certain districts and areas for strong reasons, such as when there is
rebellion, or a public calamity, but it has never been exercised by tribunals. The Supreme Court has the
power to declare null and void all laws violative of the Constitution, but it has no power, authority, or
jurisdiction to suspend or declare suspended any valid law, such as the one on treason which petitioner
wants to be included among the laws of the Commonwealth which, by his theory of suspended allegiance
and suspended sovereignty, he claims have been suspended during the Japanese occupation.

Suppose President Quezon and his government, instead of going from Corregidor to Australia, and later
to Washington, had fled to the mountains of Luzon, and a group of Filipino renegades should have killed
them to serve the interests of the Japanese imperial forces. By petitioner's theory, those renegades
cannot be prosecuted for treason or for rebellion or sedition, as the laws punishing them were suspended.
Such absurd result betrays the untenability of the theory.

"The defense of the State is a prime duty of Government, and in the fulfillment of that duty all citizens may
be required by law to render personal, military or civil service." Thus, section 2 of Article II of the
Constitution provides: That duty of defense becomes more imperative in time of war and when the country
is invaded by an aggressor nation. How can it be fulfilled if the allegiance of the citizens to the sovereign
people is suspended during enemy occupation? The framers of the Constitution surely did not entertain
even for the moment the absurdity that when the allegiance of the citizens to the sovereign people is more
needed in the defense of the survival of the state, the same should be suspended, and that upon such
suspension those who may be required to render personal, military or civil service may claim exemption
from the indispensable duty of serving their country in distress.
Petitioner advances the theory that protection in the consideration of allegiance. He argues that the
Commonwealth Government having been incapacitated during enemy occupation to protect the citizens,
the latter were relieved of their allegiance to said government. The proposition is untenable. Allegiance to
the sovereign is an indispensable bond for the existence of society. If that bond is dissolved, society has
to disintegrate. Whether or not the existence of the latter is the result of the social compact mentioned by
Roseau, there can be no question that organized society would be dissolved if it is not united by the
cohesive power of the citizen's allegiance. Of course, the citizens are entitled to the protection of their
government, but whether or not that government fulfills that duty, is immaterial to the need of maintaning
the loyalty and fidelity of allegiance, in the same way that the physical forces of attraction should be kept
unhampered if the life of an individual should continue, irrespective of the ability or inability of his mind to
choose the most effective measures of personal protection.

After declaring that all legislative, executive, and judicial processes had during and under the Japanese
regime, whether executed by the Japanese themselves or by Filipino officers of the puppet government
they had set up, are null and void, as we have done in our opinions in Co Kim Cham vs. Valdez Tan Keh
and Dizon (75 Phil., 113), in Peralta vs. Director of Prison (75, Phil., 285), and in several other cases
where the same question has been mentioned, we cannot consistently accept petitioner's theory.

If all laws or legislative acts of the enemy during the occupation were null and void, and as we cannot
imagine the existence of organized society, such as the one constituted by the Filipino people, without
laws of the Commonwealth were the ones in effect during the occupation and the only ones that could
claim obedience from our citizens.

Petitioner would want us to accept the thesis that during the occupation we owed allegiance to the enemy.
To give way to that paradoxical and disconcerting allegiance, it is suggested that we accept that our
allegiance to our legitimate government was suspended. Petitioner's proposition has to fall by its own
weight, because of its glaring absurdities. Allegiance, like its synonyms, loyalty and fidelity, is based on
feelings of attraction, love, sympathy, admiration, respect, veneration, gratitude, amity, understanding,
friendliness. These are the feelings or some of the feelings that bind us to our own people, and are the
natural roots of the duty of allegiance we owe them. The enemy only provokes repelling and repulsive
feelings hate, anger, vexation, chagrin, mortification, resentment, contempt, spitefulness. The natural
incompatibility of political, social and ethical ideologies between our people and the Japanese, making
impossible the existence of any feeling of attraction between them, aside from the initial fact that the
Japanese invaded our country as our enemy, was aggravated by the morbid complexities of haughtiness,
braggadocio and beastly brutality of the Nippon soldiers and officers in their dealings with even the most
inoffensive of our citizens.

Giving bread to our enemy, and, after slapping one side of our face, offer him the other to be further
slapped, may appear to be divinely charitable, but to make them a reality, it is necessary to change
human nature. Political actions, legal rules and judicial decisions deal with human relations, taking man as
he is, not as he should be. To love the enemy is not natural. As long as human pyschology remains as it
is, the enemy shall always be hated. Is it possible to conceive an allegiance based on hatred?

The Japanese, having waged against us an illegal war condemned by prevailing principles of international
law, could not have established in our country any government that can be legally recognized as de facto.
They came as bandits and ruffians, and it is inconceivable that banditry and ruffianism can claim any duty
of allegiance even a temporary one from a decent people.

One of the implications of petitioner's theory, as intimated somewhere, is that the citizens, in case of
invasion, are free to do anything not forbidden by the Hague Conventions. Anybody will notice
immediately that the result will be the doom of small nations and peoples, by whetting the covetousness of
strong powers prone on imperialistic practices. In the imminence of invasion, weak-hearted soldiers of the
smaller nations will readily throw away their arms to rally behind the paladium of the invaders.

Two of the three great departments of our Government have already rejected petitioner's theory since
September 25, 1945, the day when Commonwealth Act No. 682 took effect. By said act, creating the
People's Court to try and decide all cases of crime against national security "committed between
December 8, 1941 and September 2, 1945," (section 2), the legislative and executive departments have
jointly declared that during the period above mentioned, including the time of Japanese occupation, all
laws punishing crimes against national security, including article 114 of the Revised Penal Code,
punishing treason, had remained in full effect and should be enforced.

That no one raised a voice in protest against the enactment of said act and that no one, at the time the act
was being considered by the Senate and the House of Representatives, ever dared to expose the
uselessness of creating a People's Court to try crime which, as claimed by petitioner, could not have been
committed as the laws punishing them have been suspended, is a historical fact of which the Supreme
Court may take judicial notice. This fact shows universal and unanimous agreement of our people that the
laws of the Commonwealth were not suspended and that the theory of suspended allegiance is just an
afterthought provoked by a desperate effort to help quash the pending treason cases at any cost.

Among the arguments adduced in favor of petitioner's theory is that it is based on generally accepted
principles of international law, although this argument becomes futile by petitioner's admission that the
theory is advantageous to strong powers but harmful to small and weak nations, thus hinting that the latter
cannot accept it by heart. Suppose we accept at face value the premise that the theories, urged by
petitioner, of suspended allegiance and suspended sovereignty are based on generally accepted
principles of international law. As the latter forms part of our laws by virtue of the provisions of section 3 of
Article II of the Constitution, it seems that there is no alternative but to accept the theory. But the theory
has the effect of suspending the laws, especially those political in nature. There is no law more political in
nature than the Constitution of the Philippines. The result is an inverted reproduction of the Greek myth of
Saturn devouring his own children. Here, under petitioner's theory, the offspring devours its parent.

Can we conceive of an instance in which the Constitution was suspended even for a moment?

There is conclusive evidence that the legislature, as policy-determining agency of government, even since
the Pacific war started on December 7, 1941, intimated that it would not accept the idea that our laws
should be suspended during enemy occupation. It must be remembered that in the middle of December,
1941, when Manila and other parts of the archipelago were under constant bombing by Japanese aircraft
and enemy forces had already set foot somewhere in the Philippines, the Second National Assembly
passed Commonwealth Act No. 671, which came into effect on December 16, 1941. When we approved
said act, we started from the premise that all our laws shall continue in effect during the emergency, and
in said act we even went to the extent of authorizing the President "to continue in force laws and
appropriations which would lapse or otherwise become inoperative," (section 2, [d]), and also to
"promulgate such rules and regulations as he may deem necessary to carry out the national policy,"
(section 2), that "the existence of war between the United States 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." (Section 1.) To give emphasis to the intimation, we provided that
the rules and regulations provided "shall be in force and effect until the Congress of the Philippines shall
otherwise provide," foreseeing the possibility that Congress may not meet as scheduled as a result of the
emergency, including invasion and occupation by the enemy. Everybody was then convinced that we did
not have available the necessary means of repelling effectivity the enemy invasion.

Maybe it is not out of place to consider that the acceptance of petitioner's theory of suspended allegiance
will cause a great injustice to those who, although innocent, are now under indictment for treason and
other crimes involving disloyalty to their country, because their cases will be dismissed without the
opportunity for them to revindicate themselves. Having been acquitted upon a mere legal technicality
which appears to us to be wrong, history will indiscriminality classify them with the other accused who
were really traitors to their country. Our conscience revolts against the idea of allowing the innocent ones
to go down in the memory of future generations with the infamous stigma of having betrayed their own
people. They should not be deprived of the opportunity to show through the due process of law that they
are free from all blame and that, if they were really patriots, they acted as such during the critical period of
test.

HILADO, J., concurring:

I concur in the result reached in the majority opinion to the effect that during the so-called Japanese
occupation of the Philippines (which was nothing more than the occupation of Manila and certain other
specific regions of the Islands which constituted the minor area of the Archipelago) the allegiance of the
citizens of this country to their legitimate government and to the United States was not suspended, as well
as the ruling that during the same period there was no change of sovereignty here; but my reasons are
different and I proceed to set them forth:

I. SUSPENDED ALLEGIANCE.

(a) Before the horror and atrocities of World War I, which were multiplied more than a hundred-fold in
World War II, the nations had evolved certain rules and principles which came to be known as
International Law, governing their conduct with each other and toward their respective citizens and
inhabitants, in the armed forces or civilian life, in time of peace or in time of war. During the ages which
preceded that first world conflict the civilized governments had no realization of the potential excesses of
which "men's inhumanity to man" could be capable. Up to that time war was, at least under certain
conditions, considered as sufficiently justified, and the nations had not on that account, proscribed nor
renounced it as an instrument of national policy, or as a means of settling international disputes. It is not
for us now to dwell upon the reasons accounting for this historical fact. Suffice it to recognize its existence
in history.

But when in World War I civilized humanity saw that war could be, as it actually was, employed for entirely
different reasons and from entirely different motives, compared to previous wars, and the instruments and
methods of warfare had been so materially changed as not only to involve the contending armed forces
on well defined battlefields or areas, on land, in the sea, and in the air, but to spread death and
destruction to the innocent civilian populations and to their properties, not only in the countries engaged in
the conflict but also in neutral ones, no less than 61 civilized nations and governments, among them
Japan, had to formulate and solemnly subscribe to the now famous Briand-Kellogg Pact in the year 1928.
As said by Justice Jackson of the United States Supreme Court, as chief counsel for the United States in
the prosecution of "Axis war criminals," in his report to President Truman of June 7, 1945:

International law is not capable of development by legislation, for there is no continuously sitting
international legislature. Innovations and revisions in international law are brought about by the
action of governments designed to meet a change circumstances. It grows, as did the common
law, through decisions reached from time to time in adopting settled principles to new situations.

xxx xxx xxx

After the shock to civilization of the war of 1914-1918, however, a marked reversion to the earlier
and sounder doctrines of international law took place. By the time the Nazis came to power it was
thoroughly established that launching an aggressive war or the institution of war by treachery was
illegal and that the defense of legitimate warfare was no longer available to those who engaged in
such an enterprise. It is high time that we act on the juridical principle that aggressive war-making
is illegal and criminal.

The re-establishment of the principle of justifiable war is traceable in many steps. One of the most
significant is the Briand-Kellogg Pact of 1928 by which Germany, Italy, and Japan, in common with
the United States and practically all the nations of the world, renounced war as an instrument of
national policy, bound themselves to seek the settlement of disputes only by pacific means, and
condemned recourse to war for the solution of international controversies.

Unless this Pact altered the legal status of wars of aggression, it has no meaning at all and comes
close to being an act of deception. In 1932 Mr. Henry L. Stimson, as United States Secretary of
State, gave voice to the American concept of its effect. He said, "war between nations was
renounced by the signatories of the Briand-Kellogg Treaty. This means that it has
become illegal throughout practically the entire world. It is no longer to be the source and subject of
rights. It is no longer to be the principle around which the duties, the conduct, and the rights of
nations revolve. It is an illegal thing. . . . By that very act we have made obsolete many legal
precedents and have given the legal profession the task of re-examining many of its Codes and
treaties.

This Pact constitutes only one reversal of the viewpoint that all war is legal and has brought
international law into harmony with the common sense of mankind that unjustifiable war is a
crime.

Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of 1924 for the
Pacific Settlement of International Disputes, signed by the representatives of forty-eight
governments, which declared that "a war of aggression constitutes .. an International crime. . . .

The Eight Assembly of the League of Nations in 1927, on unanimous resolution of the
representatives of forty-eight member-nations, including Germany, declared that a war of
aggression constitutes an international crime. At the Sixth Pan-American Conference of 1928, the
twenty-one American Republics unanimously adopted a resolution stating that "war of aggression
constitutes an international crime against the human species."

xxx xxx xxx

 We therefore propose to change that a war of aggression is a crime, and that modern
international law has abolished the defense that those who incite or wage it are engaged in
legitimate business. Thus may the forces of the law be mobilized on the side of peace. ("U.S.A.
An American Review," published by the United States Office of War Information, Vol. 2, No. 10;
emphasis supplied.).

When Justice Jackson speaks of "a marked reversion to the earlier and sounder doctrines of international
law" and "the re-establishment of the principle of justifiable war," he has in mind no other than "the
doctrine taught by Grotius, the father of international law, that there is a distinction between the just and
the unjust war the war of defense and the war of aggression" to which he alludes in an earlier
paragraph of the same report.

In the paragraph of said report immediately preceding the one last above mentioned Justice Jackson says
that "international law as taught in the 19th and the early part of the 20th century generally declared that
war-making was not illegal and no crime at law." But, as he says in one of the paragraphs hereinabove
quoted from that report, the Briand-Kellogg Pact constitutes a reversal of the view-point that all war is
legal and has brought international law into harmony with the common sense of mankind that
unjustifiable war is a crime. Then he mentions as other reversals of the same viewpoint, the Geneva
Protocol of 1924 for the Pacific Settlement of International Disputes, declaring that a war of aggression
constitutes an international crime; the 8th assembly of the League of Nations in 1927, declaring that a war
of aggression constitutes an international crime; and the 6th Pan-American conference of 1928, which
unanimously adopted a resolution stating that war of aggression constitutes an international crime against
the human species: which enumeration, he says, is not an attempt at an exhaustive catalogue.

It is not disputed that the war started by Japan in the Pacific, first, against the United States, and later, in
rapid succession, against other allied nations, was a war of aggression and utterly unjustifiable. More
aggressive still, and more unjustifiable, as admitted on all sides, was its attack against the Philippines and
its consequent invasion and occupation of certain areas thereof.

Some of the rules and principles of international law which have been cited for petitioner herein in support
of his theory of suspended allegiance, have been evolved and accepted during those periods of the
history of nations when all war was considered legal, as stated by Justice Jackson, and the others have
reference to military occupation in the course of really justifiable war.

Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the aggressive war which
threw the entire Pacific area into a seething cauldron from the last month of 1941 of the first week of
September, 1945, expressly agreed to outlaw, proscribe and renounce war as an instrument of national
policy, and bound herself to seek the settlement of her disputes with other nations only by pacific means.
Thus she expressly gave her consent to that modification of the then existing rules and principles of
international law governing the matter. With the modification, all the signatories to the pact necessarily
accepted and bound themselves to abide by all its implications, among them the outlawing, prescription
and renunciation of military occupation of another nation's territory in the course of a war thus outlawed,
proscribed and renounced. This is only one way of saving that the rules and principles of international law
therefore existing on the subject of military occupation were automatically abrogated and rendered
ineffective in all future cases of war coming under the ban and condemnation of the pact.

If an unjustifiable war is a crime; if a war of aggression constitutes an international crime; if such a war is
an international crime against the human species: a nation which occupies a foreign territory in the course
of such a war cannot possibly, under any principle of natural or positive law, acquire or posses any
legitimate power or right growing out or incident to such occupation. Concretely, Japan in criminally
invading the Philippines and occupying certain portions of its territory during the Pacific war, could not
have nor exercise, in the legal sense and only this sense should we speak here with respect to this
country and its citizens, any more than could a burglar breaking through a man's house pretends to have
or to exercise any legal power or right within that house with respect either to the person of the owner or
to his property. To recognize in the first instance any legal power or right on the part of the invader, and in
the second any legal power or right on the part of the burglar, the same as in case of a military occupant
in the course of a justifiable war, would be nothing short of legalizing the crime itself. It would be the most
monstrous and unpardonable contradiction to prosecute, condemn and hang the appropriately called war
criminals of Germany, Italy, and Japan, and at the same time recognize any lawfulness in their occupation
invaded. And let it not be forgotten that the Philippines is a member of the United Nations who have
instituted and conducted the so-called war crimes trials. Neither should we lose sight of the further fact
that this government has a representative in the international commission currently trying the Japanese
war criminals in Tokyo. These facts leave no room for doubt that this government is in entire accord with
the other United Nations in considering the Pacific war started by Japan as a crime. Not only this, but this
country had six years before the outbreak of the Pacific war already renounced war as an instrument of
national policy (Constitution, Article II, section 2), thus in consequence adopting the doctrine of the Briand-
Kellogg Pact.

Consequently, it is submitted that it would be absolutely wrong and improper for this Court to apply to the
occupation by Japan of certain areas of the Philippines during that war the rules and principles of
international law which might be applicable to a military occupation occurring in the course of a justifiable
war. How can this Court recognize any lawfulness or validity in that occupation when our own government
has sent a representative to said international commission in Tokyo trying the Japanese "war criminals"
precisely for the "crimes against humanity and peace" committed by them during World War II of which
said occupation was but part and parcel? In such circumstances how could such occupation produce
no less an effect than the suspension of the allegiance of our people to their country and government?

(b) But even in the hypothesis and not more than a mere hypothesis that when Japan occupied the
City of Manila and certain other areas of the Philippines she was engaged in a justifiable war, still the
theory of suspended allegiance would not hold good. The continuance of the allegiance owed to a notion
by its citizens is one of those high privileges of citizenship which the law of nations denies to the occupant
the power to interfere with.

. . . His (of occupant) rights are not, however, commensurate with his power. He is thus forbidden
to take certain measures which he may be able to apply, and that irrespective of their efficacy. The
restrictions imposed upon him are in theory designed to protect the individual in the enjoyment of
some highly important privileges. These concern his allegiance to the de jure sovereign, his family
honor and domestic relations, religious convictions, personal service, and connection with or
residence in the occupied territory.

The Hague Regulations declare that the occupant is forbidden to compel the inhabitants to swear
allegiance to the hostile power. . . . (III Hyde, International Law, 2d revised ed., pp. 1898-1899.)

. . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance. Since the
authority of the occupant is not sovereignty, the inhabitants owe no temporary allegiance to him. . .
. (II Oppenheim, International Law, pp. 341-344.)

The occupant's lack of the authority to exact an oath of allegiance from the inhabitants of the occupied
territory is but a corollary of the continuance of their allegiance to their own lawful sovereign. This
allegiance does not consist merely in obedience to the laws of the lawful sovereign, but more essentially
consists in loyalty or fealty to him. In the same volume and pages of Oppenheim's work above cited, after
the passage to the effect that the inhabitants of the occupied territory owe no temporary allegiance to the
occupant it is said that "On the other hand, he may compel them to take an oath sometimes called an
'oath of neutrality' . . . willingly to submit to his 'legitimate commands.' Since, naturally, such "legitimate
commands" include the occupant's laws, it follows that said occupant, where the rule is applicable, has
the right to compel the inhabitants to take an oath of obedience to his laws; and since according to the
same rule, he cannot exact from the inhabitants an oath of obedience to his laws; and since, according to
the same rule, he cannot exact from the inhabitants an oath of allegiance, it follows that obedience to his
laws, which he can exact from them, does not constitute allegiance.

(c) The theory of suspended allegiance is unpatriotic to the last degree. To say that when the one's
country is unable to afford him in its protection, he ceases to be bound to it by the sacred ties of
allegiance, is to advocate the doctrine that precisely when his country is in such distress, and therefore
most needs his loyalty, he is absolved from the loyalty. Love of country should be something permanent
and lasting, ending only in death; loyalty should be its worth offspring. The outward manifestation of one
or the other may for a time be prevented or thwarted by the irresistible action of the occupant; but this
should not in the least extinguish nor obliterate the invisible feelings, and promptings of the spirit. And
beyond the unavoidable consequences of the enemy's irresistible pressure, those invisible feelings and
promptings of the spirit of the people should never allow them to act, to speak, nor even to think a whit
contrary to their love and loyalty to the Fatherland. For them, indicted, to face their country and say to it
that, because when it was overrun and vanquished by the barbarous invader and, in consequence was
disabled from affording them protection, they were released from their sacred obligation of allegiance and
loyalty, and could therefore freely adhere to its enemy, giving him aid and comfort, incurring no criminal
responsibility therefor, would only tend to aggravate their crime.

II. CHANGE OF SOVEREIGNTY

Article II, section 1, of the Constitution provides that "Sovereignty resides in the people and all
government authority emanates from them." The Filipino people are the self-same people before and after
Philippine Independence, proclaimed on July 4, 1946. During the life of the Commonwealth sovereignty
resided in them under the Constitution; after the proclamation of independence that sovereignty remained
with them under the very same fundamental law. Article XVIII of the said Constitution stipulates that the
government established thereby shall be known as the Commonwealth of the Philippines; and that upon
the final and complete withdrawal of the sovereignty of the United States and the proclamation of
Philippine independence, "The Commonwealth of the Philippines shall thenceforth be known as the
Republic of the Philippines." Under this provision the Government of the Philippines immediately prior to
independence was essentially to be the identical government thereafter only the name of that
government was to be changed.

Both before and after the adoption of the Philippine Constitution the people of the Philippines were and
are always the plaintiff in all criminal prosecutions, the case being entitled: "The People of the
Philippines vs. (the defendant or defendants)." This was already true in prosecutions under the Revised
Penal Code containing the law of treason. "The Government of the Philippines" spoken of in article 114 of
said Code merely represents the people of the Philippines. Said code was continued, along with the other
laws, by Article XVI, section 2, of the Constitution which constitutional provision further directs that "all
references in such laws to the Government or officials of the Philippine Islands shall be construed, in so
far as applicable, to refer to the Government and corresponding officials under this Constitution" of
course, meaning the Commonwealth of the Philippines before, and the Republic of the Philippines after,
independence (Article XVIII). Under both governments sovereignty resided and resides in the people
(Article II, section 1). Said sovereignty was never transferred from that people they are the same
people who preserve it to this day. There has never been any change in its respect.

If one committed treason againsts the People of the Philippines before July 4, 1946, he continues to be
criminally liable for the crime to the same people now. And if, following the literal wording of the Revised
Penal Code, as continued by the Constitution, that accused owed allegiance upon the commission of the
crime to the "Government of the Philippines," in the textual words of the Constitution (Article XVI, section
2, and XVIII) that was the same government which after independence became known as the "Republic of
the Philippines." The most that can be said is that the sovereignty of the people became complete and
absolute after independence that they became, politically, fully of age, to use a metaphor. But if the
responsibility for a crime against a minor is not extinguished by the mere fact of his becoming of age, why
should the responsibility for the crime of treason committed against the Filipino people when they were
not fully politically independent be extinguished after they acquire this status? The offended party
continues to be the same only his status has changed.

PARAS, J., dissenting:

During the long period of Japanese occupation, all the political laws of the Philippines were suspended.
This is full harmony with the generally accepted principles of the international law adopted by our
Constitution(Article II, section 3) as a part of the law of the Nation. Accordingly, we have on more than one
occasion already stated that "laws of a political nature or affecting political relations, . . . are considered as
suspended or in abeyance during the military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon,
75 Phil., 113, 124), and that the rule "that laws of political nature or affecting political relations are
considered suspended or in abeyance during the military occupation, is intended for the governing of the
civil inhabitants of the occupied territory." (Ruffy vs. Chief of Staff, Philippine Army, 75, Phil., 875, 881.)

The principle is recognized by the United States of America, which admits that the occupant will naturally
suspends all laws of a political nature and all laws which affect the welfare and safety of his command,
such action to be made known to the inhabitants.(United States Rules of Land Welfare, 1940, Article 287.)
As allegiance to the United States is an essential element in the crime of treason under article 114 of the
Revised Penal Code, and in view of its position in our political structure prior to the independence of the
Philippines, the rule as interpreted and practiced in the United States necessarily has a binding force and
effect in the Philippines, to the exclusion of any other construction followed elsewhere, such as may be
inferred, rightly or wrongly, from the isolated cases 1 brought to our attention, which, moreover, have
entirely different factual bases.

Corresponding notice was given by the Japanese occupying army, first, in the proclamation of its
Commander in chief of January 2, 1942, to the effect that as a "result of the Japanese Military operations,
the sovereignty of the United States of America over the Philippines has completely disappeared and the
Army hereby proclaims the Military Administration under martial law over the district occupied by the
Army;" secondly, in Order No. 3 of the said Commander in Chief of February 20, 1942, providing that
"activities of the administrative organs and judicial courts in the Philippines shall be based upon the
existing statutes, orders, ordinances and customs until further orders provided that they are not
inconsistent with the present circumstances under the Japanese Military Administration;" and, thirdly, in
the explanation to Order No. 3 reminding that "all laws and regulations of the Philippines has been
suspended since Japanese occupation," and excepting the application of "laws and regulations which are
not proper act under the present situation of the Japanese Military Administration," especially those
"provided with some political purposes."

The suspension of the political law during enemy occupation is logical, wise and humane. The latter
phase outweighs all other aspects of the principle aimed more or less at promoting the necessarily selfish
motives and purposes of a military occupant. It thus consoling to note that the powers instrumental in the
crystallization of the Hague Conventions of 1907 did not forget to declare that they were "animated by the
desire to serve . . . the interest of the humanity and the over progressive needs of civilization," and that "in
case not included in the Regulations adopted by them, the inhabitants and the belligerents remain under
the protection and the rule of the principles of international law, as they result from the usages established
among civilized peoples, from the laws of humanity, and the dictates of the public conscience." These
saving statements come to the aid of the inhabitants in the occupied territory in a situation wherein, even
before the belligerent occupant "takes a further step and by appropriate affirmative action undertakes to
acquire the right of sovereignty for himself, . . . the occupant is likely to regard to himself as clothed with
freedom to endeavor to impregnate the people who inhabit the area concerned with his own political
ideology, and to make that endeavor successful by various forms of pressure exerted upon enemy
officials who are permitted to retain the exercise of normal governmental functions." (Hyde, International
Law, Vol. III, Second Revised Edition, 1945, p. 1879.)

The inhabitants of the occupied territory should necessarily be bound to the sole authority of the invading
power, whose interest and requirements are naturally in conflict with those of the displaced government, if
it is legitimate for the military occupant to demand and enforce from the inhabitants such obedience as
may be necessary for the security of his forces, for the maintenance of law and order, and for the proper
administration of the country (United States Rules of Land Warfare, 1940, article 297), and to demand all
kinds of services "of such a nature as not to involve the population in the obligation of taking part in
military operations against their own country" (Hague Regulations, article 52);and if, as we have in effect
said, by the surrender the inhabitants pass under a temporary allegiance to the government of the
occupant and are bound by such laws, and such only, as it chooses to recognize and impose, and 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."
(Peralta vs. Director of Prisons, 75 Phil., 285, 295), citing United States vs. Rice, 4 Wheaton, 246, and
quoting Oppenheim, International Law, Vol. II. Sixth Edition, Revised, 1944,p. 432.)

He would be a bigot who cannot or would refuse to see the cruel result if the people in an occupied
territory were required to obey two antagonistic and opposite powers. To emphasize our point, we would
adopt the argument, in a reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons (75 Phil.,
285, 358), contained in the following passage:

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.

The only sensible purpose of the treason law which is of political complexion and taken out of the
territorial law and penalized as a new offense committed against the belligerent occupant, incident to a
state of war and necessary for the control of the occupant (Alcantara vs. Director of Prisons, 75 Phil.,
494), must be the preservation of the nation, certainly not its destruction or extermination. And yet the
latter is unwittingly wished by those who are fond of the theory that what is suspended is merely the
exercise of sovereignty by the de jure government or the latter's authority to impose penal sanctions or
that, otherwise stated, the suspension refers only to the military occupant. If this were to be the only
effect, the rule would be a meaningless and superfluous optical illusion, since it is obvious that the fleeing
or displaced government cannot, even if it should want, physically assert its authority in a territory actually
beyond its reach, and that the occupant, on the other hand, will not take the absurd step of prosecuting
and punishing the inhabitants for adhering to and aiding it. If we were to believe the opponents of the rule
in question, we have to accept the absurd proposition that the guerrillas can all be prosecuted with illegal
possession of firearms. It should be borne in the mind that "the possession by the belligerent occupant of
the right to control, maintain or modify the laws that are to obtain within the occupied area is an exclusive
one. The territorial sovereign driven therefrom, can not compete with it on an even plane. Thus, if the
latter attempt interference, its action is a mere manifestation of belligerent effort to weaken the enemy. It
has no bearing upon the legal quality of what the occupant exacts, while it retains control. Thus, if the
absent territorial sovereign, through some quasi-legislative decree, forbids its nationals to comply with
what the occupant has ordained obedience to such command within the occupied territory would not
safeguard the individual from the prosecution by the occupant." (Hyde, International Law, Vol. III, Second
Revised Edition, 1945, p. 1886.)

As long as we have not outlawed the right of the belligerent occupant to prosecute and punish the
inhabitants for "war treason" or "war crimes," as an incident of the state of war and necessity for the
control of the occupied territory and the protection of the army of the occupant, against which prosecution
and punishment such inhabitants cannot obviously be protected by their native sovereign, it is hard to
understand how we can justly rule that they may at the same time be prosecuted and punished for an act
penalized by the Revised Penal Code, but already taken out of the territorial law and penalized as a new
offense committed against the belligerent occupant.

In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution of the Commonwealth
Government was suspended during the occupation of the Philippines by the Japanese forces or the
belligerent occupant at regular war with the United States," and the meaning of the term "suspended" is
very plainly expressed in the following passage (page 298):

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 the 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 the virtue of the priciple 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 a
case quoted and cited in the foot-note), especially as regards laws of procedure applied to cases
already terminated completely.

In much the same way, we should hold that no treason could have been committed during the Japanese
military occupation against the United States or the Commonwealth Government, because article 114 of
the Revised Penal Code was not then in force. Nor may this penal provision be applied upon its revival at
the time of the reoccupation of the Philippines by virtue of the principle of postliminium, because of the
constitutional inhibition against any ex post facto law and because, under article 22 of the Revised Penal
Code, criminal laws shall have a retroactive effect only in so far as they favor the accused. Why did we
refuse to enforce the Constitution, more essential to sovereignty than article 114 of the Revised Penal
Code in the aforesaid of Peralta vs. Director of Prisons if, as alleged by the majority, the suspension was
good only as to the military occupant?

The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports our position. As
analyzed and described in United States vs. Reiter (27 Fed. Cas., 773), that case "was decided by the
Supreme Court of the United States the court of highest human authority on that subject and as the
decision was against the United States, and in favor of the authority of Great Britain, its enemy in the war,
and was made shortly after the occurrence of the war out of which it grew; and while no department of this
Government was inclined to magnify the rights of Great Britain or disparage those of its own government,
there can be no suspicion of bias in the mind of the court in favor of the conclusion at which it arrived, and
no doubt that the law seemed to the court to warrant and demand such a decision. That case grew out of
the war of 1812, between the United States and Great Britain. It appeared that in September, 1814, the
British forces had taken the port of Castine, in the State of Maine, and held it in military occupation; and
that while it was so held, foreign goods, by the laws of the United States subject to duty, had been
introduced into that port without paying duties to the United States. At the close of the war the place by
treaty restored to the United States, and after that was done Government of the United States sought to
recover from the persons so introducing the goods there while in possession of the British, the duties to
which by the laws of the United States, they would have been liable. The claim of the United States was
that its laws were properly in force there, although the place was at the time held by the British forces in
hostility to the United States, and the laws, therefore, could not at the time be enforced there; and that a
court of the United States (the power of that government there having since been restored) was bound so
to decide. But this illusion of the prosecuting officer there was dispelled by the court in the most summary
manner. Mr. Justice Story, that great luminary of the American bench, being the organ of the court in
delivering its opinion, said: 'The single question is whether goods imported into Castine during its
occupation by the enemy are liable to the duties imposed by the revenue laws upon goods imported into
the United States.. We are all of opinion that the claim for duties cannot be sustained. . . . 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 who remained and submitted
to the conquerors. By the surrender the inhabitants passed under a temporary allegiance of the British
Government, and were bound by such laws, and such only, as it chose to recognize and impose. From
the nature of the case no other laws could be obligatory upon them. . . . Castine was therefore, during this
period, as far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by
the inhabitants were subjects to such duties only as the British Government chose to require. Such goods
were in no correct sense imported into the Unites States.' The court then proceeded to say, that the case
is the same as if the port of Castine had been foreign territory, ceded by treaty to the United States, and
the goods had been imported there previous to its cession. In this case they say there would be no
pretense to say that American duties could be demanded; and upon principles of public or municipal law,
the cases are not distinguishable. They add at the conclusion of the opinion: 'The authorities cited at the
bar would, if there were any doubt, be decisive of the question. But we think it too clear to require any aid
from authority.' Does this case leave room for a doubt whether a country held as this was in armed
belligerents occupation, is to be governed by him who holds it, and by him alone? Does it not so decide in
terms as plain as can be stated? It is asserted by the Supreme Court of the United States with entire
unanimity, the great and venerated Marshall presiding, and the erudite and accomplished Story delivering
the opinion of the court, that such is the law, and it is so adjudged in this case. Nay, more: it is even
adjudged that no other laws could be obligatory; that such country, so held, is for the purpose of the
application of the law off its former government to be deemed foreign territory, and that goods imported
there (and by parity of reasoning other acts done there) are in no correct sense done within the territory of
its former sovereign, the United States."

But it is alleged by the majority that the sovereignty spoken of in the decision of the United States vs. Rice
should be construed to refer to the exercise of sovereignty, and that, if sovereignty itself was meant, the
doctrine has become obsolete after the adoption of the Hague Regulations in 1907. In answer, we may
state that sovereignty can have any important significance only when it may be exercised; and, to our way
of thinking, it is immaterial whether the thing held in abeyance is the sovereignty itself or its exercise,
because the point cannot nullify, vary, or otherwise vitiate the plain meaning of the doctrinal words "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 conquerors." We cannot accept the theory of the majority,
without in effect violating the rule of international law, hereinabove adverted to, that the possession by the
belligerent occupant of the right to control, maintain or modify the laws that are to obtain within the
occupied area is an exclusive one, and that the territorial sovereign driven therefrom cannot compete with
it on an even plane. Neither may the doctrine in the United States vs. Rice be said to have become
obsolete, without repudiating the actual rule prescribed and followed by the United States, allowing the
military occupant to suspend all laws of a political nature and even require public officials and inhabitants
to take an oath of fidelity (United States Rules of Land Warfare, 1940, article 309). In fact, it is a
recognized doctrine of American Constitutional Law that mere conquest or military occupation of a
territory of another State does not operate to annex such territory to occupying State, but that the
inhabitants of the occupied district, no longer receiving the protection of their native State, for the time
being owe no allegiance to it, and, being under the control and protection of the victorious power, owe to
that power fealty and obedience. (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)

The majority have resorted to distinctions, more apparent than real, if not immaterial, in trying to argue
that the law of treason was obligatory on the Filipinos during the Japanese occupation. Thus it is insisted
that a citizen or subject owes not a qualified and temporary, but an absolute and permanent allegiance,
and that "temporary allegiance" to the military occupant may be likened to the temporary allegiance which
a foreigner owes to the government or sovereign to the territory wherein he resides in return for the
protection he receives therefrom. The comparison is most unfortunate. Said foreigner is in the territory of
a power not hostile to or in actual war with his own government; he is in the territory of a power which has
not suspended, under the rules of international law, the laws of political nature of his own government;
and the protections received by him from that friendly or neutral power is real, not the kind of protection
which the inhabitants of an occupied territory can expect from a belligerent army. "It is but reasonable that
States, when they concede to other States the right to exercise jurisdiction over such of their own
nationals as are within the territorial limits of such other States, should insist that States should provide
system of law and of courts, and in actual practice, so administer them, as to furnish substantial legal
justice to alien residents. This does not mean that a State must or should extend to aliens within its
borders all the civil, or much less, all the political rights or privileges which it grants to its own citizens; but
it does mean that aliens must or should be given adequate opportunity to have such legal rights as are
granted to them by the local law impartially and judicially determined, and, when thus determined,
protected." (Willoughby, The Fundamental Concepts of Public Law [1931], p. 360.)
When it is therefore said that a citizen of a sovereign may be prosecuted for and convicted of treason
committed in a foreign country or, in the language of article 114 of the Revised Penal Code, "elsewhere,"
a territory other than one under belligerent occupation must have been contemplated. This would make
sense, because treason is a crime "the direct or indirect purpose of which is the delivery, in whole or in
part, of the country to a foreign power, or to pave the way for the enemy to obtain dominion over the
national territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and, very evidently, a territory
already under occupation can no longer be "delivered."

The majority likewise argue that the theory of suspended sovereignty or allegiance will enable the military
occupant to legally recruit the inhabitants to fight against their own government, without said inhabitants
being liable for treason. This argument is not correct, because the suspension does not exempt the
occupant from complying with the Hague Regulations (article 52) that allows it to demand all kinds of
services provided that they do not involve the population "in the obligation of taking part military
operations against their own country." Neither does the suspension prevent the inhabitants from assuming
a passive attitude, much less from dying and becoming heroes if compelled by the occupant to fight
against their own country. Any imperfection in the present state of international law should be corrected by
such world agency as the United Nations organizations.

It is of common knowledge that even with the alleged cooperation imputed to the collaborators, an
alarming number of Filipinos were killed or otherwise tortured by the ruthless, or we may say savage,
Japanese Army. Which leads to the conclusion that if the Filipinos did not obey the Japanese commands
and feign cooperation, there would not be any Filipino nation that could have been liberated. Assuming
that the entire population could go to and live in the mountains, or otherwise fight as guerrillas after the
formal surrender of our and the American regular fighting forces, they would have faced certain
annihilation by the Japanese, considering that the latter's military strength at the time and the long period
during which they were left military unmolested by America. In this connection, we hate to make reference
to the atomic bomb as a possible means of destruction.

If a substantial number of guerrillas were able to survive and ultimately help in the liberation of the
Philippines, it was because the feigned cooperation of their countrymen enabled them to get food and
other aid necessary in the resistance movement. If they were able to survive, it was because they could
camouflage themselves in the midst of the civilian population in cities and towns. It is easy to argue now
that the people could have merely followed their ordinary pursuits of life or otherwise be indifferent to the
occupant. The fundamental defect of this line of thought is that the Japanese assumed to be so stupid and
dumb as not to notice any such attitude. During belligerent occupation, "the outstanding fact to be
reckoned with is the sharp opposition between the inhabitants of the occupied areas and the hostile
military force exercising control over them. At heart they remain at war with each other. Fear for their own
safety may not serve to deter the inhabitants from taking advantage of opportunities to interfere with the
safety and success of the occupant, and in so doing they may arouse its passions and cause to take
vengeance in cruel fashion. Again, even when it is untainted by such conduct, the occupant as a means of
attaining ultimate success in its major conflict may, under plea of military necessity, and regardless of
conventional or customary prohibitions, proceed to utilize the inhabitants within its grip as a convenient
means of military achievement." (Hyde, International Law, Vol. III, Second Revised Edition [1945], p.
1912.) It should be stressed that the Japanese occupation was not a matter of a few months; it extended
over a little more than three years. Said occupation was a fact, in spite of the "presence of guerrilla bands
in barrios and mountains, and even in towns of the Philippines whenever these towns were left by
Japanese garrisons or by the detachments of troops sent on patrol to those places." (Co Kim
Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.) The law of nations accepts belligerent
occupation as a fact to be reckoned with, regardless of the merits of the occupant's cause. (Hyde,
International Law, Second Revised Edition [1945], Vol. III, p. 1879.)

Those who contend or fear that the doctrine herein adhere to will lead to an over-production of traitors,
have a wrong and low conception of the psychology and patriotism of their countrymen. Patriots are such
after their birth in the first place, and no amount of laws or judicial decisions can make or unmake them.
On the other hand, the Filipinos are not so base as to be insensitive to the thought that the real traitor is
cursed everywhere and in all ages. Our patriots who fought and died during the last war, and the brave
guerrillas who have survived, were undoubtedly motivated by their inborn love of country, and not by such
a thing as the treason law. The Filipino people as a whole, passively opposed the Japanese regime, not
out of fear of a treason statute but because they preferred and will prefer the democratic and civilized way
of life and American altruism to Japanese barbaric and totalitarian designs. Of course, there are those
who might at heart have been pro-Japanese; but they met and will unavoidably meet the necessary
consequences. The regular soldiers faced the risks of warfare; the spies and informers subjected
themselves to the perils of military operations, likely received summary liquidation or punishments from
the guerrillas and the parties injured by their acts, and may be prosecuted as war spies by the military
authorities of the returning sovereign; those who committed other common crimes, directly or through the
Japanese army, may be prosecuted under the municipal law, and under this group even the spies and
informers, Makapili or otherwise, are included, for they can be made answerable for any act offensive to
person or property; the buy-and-sell opportunists have the war profits tax to reckon with. We cannot close
our eyes to the conspicuous fact that, in the majority of cases, those responsible for the death of, or injury
to, any Filipino or American at the hands of the Japanese, were prompted more by personal motives than
by a desire to levy war against the United States or to adhere to the occupant. The alleged spies and
informers found in the Japanese occupation the royal road to vengeance against personal or political
enemies. The recent amnesty granted to the guerrillas for acts, otherwise criminal, committed in the
furtherance of their resistance movement has in a way legalized the penal sanctions imposed by them
upon the real traitors.

It is only from a realistic, practical and common-sense point of view, and by remembering that the
obedience and cooperation of the Filipinos were effected while the Japanese were in complete control
and occupation of the Philippines, when their mere physical presence implied force and pressure and
not after the American forces of liberation had restored the Philippine Government that we will come to
realize that, apart from any rule of international law, it was necessary to release the Filipinos temporarily
from the old political tie in the sense indicated herein. Otherwise, one is prone to dismiss the reason for
such cooperation and obedience. If there were those who did not in any wise cooperate or obey, they can
be counted by the fingers, and let their names adorn the pages of Philippine history. Essentially, however,
everybody who took advantage, to any extent and degree, of the peace and order prevailing during the
occupation, for the safety and survival of himself and his family, gave aid and comfort to the enemy.

Our great liberator himself, General Douglas MacArthur, had considered the laws of the Philippines
ineffective during the occupation, and restored to their full vigor and force only after the liberation. Thus, in
his proclamation of October 23, 1944, he ordained that "the laws now existing on the statute books of the
Commonwealth of the Philippines . . . are in full force and effect and legally binding upon the people in
areas of the Philippines free of enemy occupation and control," and that "all laws . . . 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." Repeating what we have said
in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "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 President of the United States, and later embodied in the
Hague Conventions of 1907."

The prohibition in the Hague Conventions (Article 45) against "any pressure on the population to take oath
to the hostile power," was inserted for the moral protection and benefit of the inhabitants, and does not
necessarily carry the implication that the latter continue to be bound to the political laws of the displaced
government. The United States, a signatory to the Hague Conventions, has made the point clear, by
admitting that the military occupant can suspend all the laws of a political nature and even require public
officials and the inhabitants to take an oath of fidelity (United States Rules of Land Warfare, 1940, article
309), and as already stated, it is a doctrine of American Constitutional Law that the inhabitants, no longer
receiving the protection of their native state, for the time being owe no allegiance to it, and, being under
the control and protection of the victorious power, owe to that power fealty and obedience. Indeed, what is
prohibited is the application of force by the occupant, from which it is fair to deduce that the Conventions
do not altogether outlaw voluntary submission by the population. The only strong reason for this is
undoubtedly the desire of the authors of the Conventions to give as much freedom and allowance to the
inhabitants as are necessary for their survival. This is wise and humane, because the people should be in
a better position to know what will save them during the military occupation than any exile government.

"Before he was appointed prosecutor, Justice Jackson made a speech in which he warned against the
use of judicial process for non judicial ends, and attacked cynics who "see no reason why courts, just like
other agencies, should not be policy weapons. If we want to shoot Germans as a matter of policy, let it be
done as such, said he, but don't hide the deed behind a court. If you are determined to execute a man in
any case there is no occasion for a trial; the word yields no respect for courts that are merely organized to
convict." Mussoloni may have got his just desserts, but nobody supposes he got a fair trial. . . . Let us
bear that in mind as we go about punishing criminals. There are enough laws on the books to convict
guilty Nazis without risking the prestige of our legal system. It is far, far better that some guilty men
escape than that the idea of law be endangered. In the long run the idea of law is our best defense
against Nazism in all its forms." These passages were taken from the editorial appearing in the Life, May
28, 1945, page 34, and convey ideas worthy of some reflection.

If the Filipinos in fact committed any errors in feigning cooperation and obedience during the Japanese
military occupation, they were at most borrowing the famous and significant words of President Roxas
 errors of the mind and not of the heart. We advisedly said "feigning" not as an admission of the fallacy
of the theory of suspended allegiance or sovereignty, but as an affirmation that the Filipinos, contrary to
their outward attitude, had always remained loyal by feeling and conscience to their country.

Assuming that article 114 of the Revised Penal Code was in force during the Japanese military
occupation, the present Republic of the Philippines has no right to prosecute treason committed against
the former sovereignty existing during the Commonwealth Government which was none other than the
sovereignty of the United States. This court has already held that, upon a change of sovereignty, the
provisions of the Penal Code having to do with such subjects as treason, rebellion and sedition are no
longer in force (People vs. Perfecto, 43 Phil., 887). It is true that, as contended by the majority, section 1
of Article II of the Constitution of the Philippines provides that "sovereignty resides in the people," but this
did not make the Commonwealth Government or the Filipino people sovereign, because said declaration
of principle, prior to the independence of the Philippines, was subervient to and controlled by the
Ordinance appended to the Constitution under which, in addition to its many provisions essentially
destructive of the concept of sovereignty, it is expressly made clear that the sovereignty of the United
States over the Philippines had not then been withdrawn. The framers of the Constitution had to make
said declaration of principle because the document was ultimately intended for the independent
Philippines. Otherwise, the Preamble should not have announced that one of the purposes of the
Constitution is to secure to the Filipino people and their posterity the "blessings of independence." No
one, we suppose, will dare allege that the Philippines was an independent country under the
Commonwealth Government.

The Commonwealth Government might have been more autonomous than that existing under the Jones
Law, but its non-sovereign status nevertheless remained unaltered; and what was enjoyed was the
exercise of sovereignty over the Philippines continued to be complete.

The exercise of Sovereignty May be Delegated. It has already been seen that the exercise of
sovereignty is conceived of as delegated by a State to the various organs which, collectively,
constitute the Government. For practical political reasons which can be easily appreciated, it is
desirable that the public policies of a State should be formulated and executed by governmental
agencies of its own creation and which are not subject to the control of other States. There is,
however, nothing in a nature of sovereignty or of State life which prevents one State from
entrusting the exercise of certain powers to the governmental agencies of another State.
Theoretically, indeed, a sovereign State may go to any extent in the delegation of the exercise of
its power to the governmental agencies of other States, those governmental agencies thus
becoming quoad hoc parts of the governmental machinery of the State whose sovereignty is
exercised. At the same time these agencies do not cease to be Instrumentalities for the expression
of the will of the State by which they were originally created.

By this allegation the agent State is authorized to express the will of the delegating State, and the
legal hypothesis is that this State possesses the legal competence again to draw to itself the
exercise, through organs of its own creation, of the powers it has granted. Thus, States may
concede to colonies almost complete autonomy of government and reserve to themselves a right
of control of so slight and so negative a character as to make its exercise a rare and improbable
occurence; yet, so long as such right of control is recognized to exist, and the autonomy of the
colonies is conceded to be founded upon a grant and the continuing consent of the mother
countries the sovereignty of those mother countries over them is complete and they are to be
considered as possessing only administrative autonomy and not political independence. Again, as
will be more fully discussed in a later chapter, in the so-called Confederate or Composite State, the
cooperating States may yield to the central Government the exercise of almost all of their powers
of Government and yet retain their several sovereignties. Or, on the other hand, a State may,
without parting with its sovereignty of lessening its territorial application, yield to the governing
organs of particular areas such an amplitude of powers as to create of them bodies-politic
endowed with almost all of the characteristics of independent States. In all States, indeed, when of
any considerable size, efficiency of administration demands that certain autonomous powers of
local self-government be granted to particular districts. (Willoughby, The Fundamental Concepts of
Public Law [1931], pp. 74, 75.).

The majority have drawn an analogy between the Commonwealth Government and the States of the
American Union which, it is alleged, preserve their own sovereignty although limited by the United States.
This is not true for it has been authoritatively stated that the Constituent States have no sovereignty of
their own, that such autonomous powers as they now possess are had and exercised by the express will
or by the constitutional forbearance of the national sovereignty, and that the sovereignty of the United
States and the non-sovereign status of the individual States is no longer contested.
 It is therefore plain that the constituent States have no sovereignty of their own, and that such
autonomous powers as they now possess are had and exercised by the express will or by the
constitutional forbearance of the national sovereignty. The Supreme Court of the United States has
held that, even when selecting members for the national legislature, or electing the President, or
ratifying proposed amendments to the federal constitution, the States act, ad hoc, as agents of the
National Government. (Willoughby, the Fundamental Concepts of Public Law [1931], p.250.)

This is the situation at the present time. The sovereignty of the United States and the non-
sovereign status of the individual States is no longer contested. (Willoughby, The Fundamental
Concepts of Public Law [1931], pp. 251, 252.)

Article XVIII of the Constitution provides that "The government established by this Constitution shall be
known as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine independence, the Commonwealth of
the Philippines shall thenceforth be known as the Republic of the Philippines." From this, the deduction is
made that the Government under the Republic of the Philippines and under the Commonwealth is the
same. We cannot agree. While the Commonwealth Government possessed administrative autonomy and
exercised the sovereignty delegated by the United States and did not cease to be an instrumentality of the
latter (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75), the Republic of the
Philippines is an independent State not receiving its power or sovereignty from the United States. Treason
committed against the United States or against its instrumentality, the Commonwealth Government, which
exercised, but did not possess, sovereignty (id., p. 49), is therefore not treason against the sovereign and
independent Republic of the Philippines. Article XVIII was inserted in order, merely, to make the
Constitution applicable to the Republic.

Reliance is also placed on section 2 of the Constitution which provides that all laws of the Philippines
Islands shall remain operative, unless inconsistent therewith, until amended, altered, modified or repealed
by the Congress of the Philippines, and on section 3 which is to the effect that all cases pending in courts
shall be heard, tried, and determined under the laws then in force, thereby insinuating that these
constitutional provisions authorize the Republic of the Philippines to enforce article 114 of the Revised
Penal Code. The error is obvious. The latter article can remain operative under the present regime if it is
not inconsistent with the Constitution. The fact remains, however, that said penal provision is
fundamentally incompatible with the Constitution, in that those liable for treason thereunder should owe
allegiance to the United States or the government of the Philippines, the latter being, as we have already
pointed out, a mere instrumentality of the former, whereas under the Constitution of the present Republic,
the citizens of the Philippines do not and are not required to owe allegiance to the United States. To
contend that article 114 must be deemed to have been modified in the sense that allegiance to the United
States is deleted, and, as thus modified, should be applied to prior acts, would be to sanction the
enactment and application of an ex post facto law.

In reply to the contention of the respondent that the Supreme Court of the United States has held in the
case of Bradford vs. Chase National Bank (24 Fed. Supp., 38), that the Philippines had a sovereign
status, though with restrictions, it is sufficient to state that said case must be taken in the light of a
subsequent decision of the same court in Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered
in May, 1937, wherein it was affirmed that the sovereignty of the United States over the Philippines had
not been withdrawn, with the result that the earlier case only be interpreted to refer to the exercise of
sovereignty by the Philippines as delegated by the mother country, the United States.

No conclusiveness may be conceded to the statement of President Roosevelt on August 12, 1943, that
"the United States in practice regards the Philippines as having now the status as a government of other
independent nations--in fact all the attributes of complete and respected nationhood," since said
statement was not meant as having accelerated the date, much less as a formal proclamation of, the
Philippine Independence as contemplated in the Tydings-McDuffie Law, it appearing that (1) no less also
than the President of the United States had to issue the proclamation of July 4, 1946, withdrawing the
sovereignty of the United States and recognizing Philippine Independence; (2) it was General MacArthur,
and not President Osmea who was with him, that proclaimed on October 23, 1944, the restoration of the
Commonwealth Government; (3) the Philippines was not given official participation in the signing of the
Japanese surrender; (4) the United States Congress, and not the Commonwealth Government, extended
the tenure of office of the President and Vice-President of the Philippines.

The suggestion that as treason may be committed against the Federal as well as against the State
Government, in the same way treason may have been committed against the sovereignty of the United
States as well as against the sovereignty of the Philippine Commonwealth, is immaterial because, as we
have already explained, treason against either is not and cannot be treason against the new and different
sovereignty of the Republic of the Philippines.

G.R. No. 183591 - THE PROVINCE OF NORTH COTABATO, ET AL. v. THE GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), ET AL.

G.R. No. 183752 - CITY GOVERNMENT OF ZAMBOANGA, ET AL. v. THE GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), ET AL.

G.R. No. 183893 - THE CITY OF ILIGAN, duly represented by CITY MAYOR LAURENCE LLUCH
CRUZ v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), ET AL.

G.R. No. 183951 - THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented
by HON. ROLANDO E. YEBES, ET AL. v. THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), ET AL.

x----------------------------------x

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.

x----------------------------------x

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioner-
in-intervention.

x----------------------------------x

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-

AKBAR, petitioner-in-intervention.

x----------------------------------x

THE PROVINCE OF SULTAN KUDARAT, represented by HON. SUHARTO T. MANGUDDATU, in his

capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in-
intervention.

x----------------------------------x

RUY ELIAS LOPEZ, petitioner-in-intervention.

x----------------------------------x

CARLO B. GOMEZ, ET AL., petitioner-in-intervention.

x--------------------------------------------------x

SEPARATE OPINION

CHICO-NAZARIO, J.:

The piece of writing being assailed in these consolidated Petitions is a peace negotiation document,
namely the Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement of Peace of 2001 (MOA). The Solicitor General explained that this document, prepared by
the joint efforts of the Government of the Republic of the Philippines (GRP) Peace Panel and the Moro
Islamic Liberation Front (MILF) Peace Panel, was merely a codification of consensus points reached
between both parties and the aspirations of the MILF to have a Bangsamoro homeland.1 Subsequently,
the Solicitor General moved for the dismissal of the consolidated cases at bar based on changed
circumstances as well as developments which have rendered them moot, particularly the Executive
Department's statement that it would no longer sign the questioned peace negotiation
document.2 Nonetheless, several parties to the case, as well as other sectors, continue to push for what
they call a "complete determination" of the constitutional issues raised in the present Petitions.

I believe that in light of the pronouncement of the Executive Department to already abandon the MOA, the
issue of its constitutionality has obviously become moot.

The rule is settled that no question involving the constitutionality or validity of a law or governmental act
may be heard and decided by the court unless there is compliance with the legal requisites for judicial
inquiry, namely: that the question must be raised by the proper party; that there must be an actual case or
controversy; that the question must be raised at the earliest possible opportunity; and, that the decision on
the constitutional or legal question must be necessary to the determination of the case itself. But the most
important are the first two requisites.3

For a court to exercise its power of adjudication, there must be an actual case or controversy one
which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. A case becomes moot and academic when its
purpose has become stale.4 An action is considered "moot" when it no longer presents a justiciable
controversy because the issues involved have become academic or dead or when the matter in
dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is
likely to be raised again between the parties. Simply stated, there is nothing for the court to resolve as the
determination thereof has been overtaken by subsequent events. 5

Such is the case here.

The MOA has not even been signed, and will never be. Its provisions will not at all come into effect. The
MOA will forever remain a draft that has never been finalized. It is now nothing more than a piece of
paper, with no legal force or binding effect. It cannot be the source of, nor be capable of violating, any
right. The instant Petitions, therefore, and all other oppositions to the MOA, have no more leg to stand on.
They no longer present an actual case or a justiciable controversy for resolution by this Court.

An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite
legal claims, which can be resolved on the basis of existing law and jurisprudence. A justiciable
controversy is distinguished from a hypothetical or abstract difference or dispute, in that the former
involves a definite and concrete dispute touching on the legal relations of parties having adverse legal
interests. A justiciable controversy admits of specific relief through a decree that is conclusive in
character, whereas an opinion only advises what the law would be upon a hypothetical state of facts. 6

For the Court to still rule upon the supposed unconstitutionality of the MOA will merely be an academic
exercise. It would, in effect, only be delivering an opinion or advice on what are now hypothetical or
abstract violations of constitutional rights.

In Abbas v. Commission on Elections,7 the 1976 Tripoli Agreement and Republic Act No. 6734 (the
Organic Act for the Autonomous Region in Muslim Mindanao) were challenged for purported violations of
the provisions of the Constitution on freedom of religion. The Court held therein that it should not inquire
into the constitutionality of a peace agreement which was already consummated (the 1976 Tripoli
Agreement) and an Organic Act which was already passed into law (R.A. No. 6734) just because of
potential conflicts with the Constitution. Then, with more reason should this Court desist from ruling on the
constitutionality of the MOA which is unsigned, and now entirely abandoned, and as such, cannot even
have any potential conflict with the Constitution.

The Court should not feel constrained to rule on the Petitions at bar just because of the great public
interest these cases have generated. We are, after all, a court of law, and not of public opinion. The power
of judicial review of this Court is for settling real and existent dispute, it is not for allaying fears or
addressing public clamor. In acting on supposed abuses by other branches of government, the Court
must be careful that it is not committing abuse itself by ignoring the fundamental principles of
constitutional law.

The Executive Department has already manifested to this Court, through the Solicitor General, that it will
not sign the MOA in its present form or in any other form. It has declared the same intent to the
public. For this Court to insist that the issues raised in the instant Petitions cannot be moot for they are still
capable of repetition is to totally ignore the assurance given by the Executive Department that it will not
enter into any other form of the MOA in the future. The Court cannot doubt the sincerity of the Executive
Department on this matter. The Court must accord a co-equal branch of the government nothing less than
trust and the presumption of good faith.

Moreover, I deem it beyond the power of this Court to enjoin the Executive Department from entering into
agreements similar to the MOA in the future, as what petitioners and other opponents of the MOA pray
for. Such prayer once again requires this Court to make a definitive ruling on what are mere hypothetical
facts. A decree granting the same, without the Court having seen or considered the actual agreement and
its terms, would not only be premature, but also too general to make at this point. It will perilously tie the
hands of the Executive Department and limit its options in negotiating peace for Mindanao.

Upon the Executive Department falls the indisputably difficult responsibility of diffusing the highly volatile
situation in Mindanao resulting from the continued clashes between the Philippine military and Muslim
rebel groups. In negotiating for peace, the Executive Department should be given enough leeway and
should not be prevented from offering solutions which may be beyond what the present Constitution
allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by
completely legal means.

Peace negotiations are never simple. If neither party in such negotiations thinks outside the box, all they
would arrive at is a constant impasse. Thus, a counsel for one of the intervenors who assert the
unconstitutionality of the MOA8 had no choice but to agree as follows:

ASSOCIATE JUSTICE QUISUMBING: Well, we realize the constitutional constraints of

sovereignty, integrity and the like, but isn't there a time that surely will come and the life of our
people when they have to transcend even these limitations?

DEAN AGABIN: Yes, we have seen it happen in several instances, Your Honor.

xxx

ASSOCIATE JUSTICE QUISUMBING: And in pursuit of that purpose, the Supreme Court cannot
look beyond the horizon and look for more satisfying result?

DEAN AGABIN: Well, if you mean by looking beyond the horizon, it would mean a violation of the
provisions of the Constitution, then it should not be, Your Honor.

ASSOCIATE JUSTICE QUISUMBING: In some part, we have gone to Malaysia. We have gone to
the OIC, and we have even gone to Libya.

DEAN AGABIN: Yes, Your Honor. But in all these, we have always insisted on preserving the
territorial integrity of the country.

ASSOCIATE JUSTICE QUISUMBING: And this dicta or [dogma] is unassailable forever. There
cannot be an exception.

DEAN AGABIN: It is unassailable under the present Constitution, Your Honor.

ASSOCIATE JUSTICE QUISUMBING: But, at least, you can also agree that the Constitution ought
to be changed in order for a country to fulfill its internal obligation as a matter of necessity.

DEAN AGABIN: Yes, if the people so will it, your Honor.

ASSOCIATE JUSTICE QUISUMBING: You remember how the emperor of Japan lost his divinity?
They just changed their Constitution, isn't it?

DEAN AGABIN: Yes, it was enforced upon him by Mr. McArthur, and they have no choice.

ASSOCIATE JUSTICE QUISUMBING: Isn't that a very good example of thinking outside the box?
That one day even those who are underground may have to think. But frankly now Dean, before I
end, may I ask, is it possible to meld or modify our Constitutional Order in order to have some
room for the newly developing international notions on Associative Governance Regulation
Movement and Human Rights?

DEAN AGABIN: Yes. It is possible, Your Honor, with the consent of the people.
 ASSOCIATE JUSTICE QUISUMBING: And, therefore, we vote it to a referendum or any
consultation beforehand?

DEAN AGABIN: If there is such a proposal for or amendment or revision of the Constitution, yes,
Your Honor.

ASSOCIATE JUSTICE QUISUMBING: So, either initiative or CHA-CHA or CON-AS?

DEAN AGABIN: Yes, Your Honor.9

It must be noted that the Constitution has been in force for three decades now, yet, peace in Mindanao
still remained to be elusive under its present terms. There is the possibility that the solution to the peace
problem in the Southern Philippines lies beyond the present Constitution. Exploring this possibility and
considering the necessary amendment of the Constitution are not per se unconstitutional. The
Constitution itself implicitly allows for its own amendment by describing, under Article XVII, the means and
requirements therefor. In Tan v. Macapagal,10 where petitioners claim that the Constitutional Convention
was without power to consider, discuss, or adopt proposals which seek to revise the Constitution through
the adoption of a form of government other than the form outlined in the then governing Constitution, the
Court ruled that:

[A]s long as any proposed amendment is still unacted on by [the Convention], there is no room for
the interposition of judicial oversight. Only after it has made concrete what it intends to submit for
ratification may the appropriate case be instituted. Until then, the Courts are devoid of jurisdiction.
x x x.

At this point, there is far from a concrete proposed amendment to the Constitution which the Court can
take cognizance of, much less render a pronouncement upon.

At most, the Court can only exhort the Executive Department to keep in mind that it must negotiate and
secure peace in Mindanao under terms which are most beneficial for the country as a whole, and not just
one group of Muslim insurgents. Transparency and consultation with all major players, which necessarily
include affected local government units and their constituents, are essential to arrive at a more viable and
acceptable peace plan. The nature and extent of any future written agreements should be clearly
established from the very beginning, and the terms thereof carefully drafted and clearly worded, to avoid
misunderstandings or misconstructions by the parties and the public. If a document is meant to be a list of
consensus points still subject to further negotiations, then it should just simply state so.

As a final note, I find it necessary to stress that the Court must not allow itself to be mired in controversies
affecting each step of the peace process in Mindanao. It is not within the province or even the
competence of the Judiciary to tell the Executive Department exactly what and what not, how and how
not, to negotiate for peace with insurgents. Given this kind of situation where war and peace hang in the
balance, where people's lives are at stake, and the Executive Department, under its residual powers, is
tasked to make political decisions in order to find solutions to the insurgency problem, the Court should
respect the political nature of the issues at bar and exercise judicial restraint until an actual controversy is
brought before it.

In view of the foregoing, I vote for the GRANT of the Motion to Dismiss filed by the Solicitor General and,
accordingly, for the DISMISSAL of the Petitions at bar for being MOOT and ACADEMIC.