PEOPLE OF THE PHILIPPINES v. ANDRE MARTI (G.R. No.
81561, January 18, Job Reyes forthwith prepared a letter reporting the shipment to the NBI
1991)
This is an appeal from a decision * rendered by the Special Criminal Court of
Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of
violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section
2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the
Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his
common-law wife, Shirley Reyes, went to the booth of the "Manila Packing
and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila,
carrying with them four (4) gift wrapped packages. Anita Reyes (the
proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a
friend in Zurich, Switzerland. Appellant filled up the contract necessary for
the transaction, writing therein his name, passport number, the date of
shipment and the name and address of the consignee, namely, "WALTER
FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the
packages. Appellant, however, refused, assuring her that the packages
simply contained books, cigars, and gloves and were gifts to his friend in
Zurich. In view of appellant's representation, Anita Reyes no longer
insisted on inspecting the packages. The four (4) packages were then
placed inside a brown corrugated box one by two feet in size (1' x 2').
Styro-foam was placed at the bottom and on top of the packages before
the box was sealed with masking tape, thus making the box ready for
shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau
of Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes),
following standard operating procedure, opened the boxes for final
inspection. When he opened appellant's box, a peculiar odor emitted
therefrom. His curiousity aroused, he squeezed one of the bundles
allegedly containing gloves and felt dried leaves inside. Opening one of
the bundles, he pulled out a cellophane wrapper protruding from the
opening of one of the gloves. He made an opening on one of the
cellophane wrappers and took several grams of the contents thereof (tsn,
pp. 29-30, October 6, 1987; Emphasis supplied).
and requesting a laboratory examination of the samples he extracted from
the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the
Narcotics Section of the National Bureau of Investigation (NBI), at about
1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI
that the rest of the shipment was still in his office. Therefore, Job Reyes
and three (3) NBI agents, and a photographer, went to the Reyes' office at
Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were placed
and, in the presence of the NBI agents, opened the top flaps, removed the
styro-foam and took out the cellophane wrappers from inside the
gloves. Dried marijuana leaves were found to have been contained inside
the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job
Reyes. He discovered that the package contained bricks or cake-like dried
marijuana leaves. The package which allegedly contained tabacalera
cigars was also opened. It turned out that dried marijuana leaves were
neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the
contents thereof, after signing a "Receipt" acknowledging custody of the
said effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's
stated address in his passport being the Manila Central Post Office, the agents
requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the NBI
to shed light on the attempted shipment of the seized dried leaves. On the same
day the Narcotics Section of the NBI submitted the dried leaves to the Forensic
Chemistry Section for laboratory examination. It turned out that the dried leaves
were marijuana flowering tops as certified by the forensic chemist. (Appellee's
Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425,
otherwise known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE
ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE
FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE
THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE
CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE
NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE
EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS
CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been
obtained in violation of his constitutional rights against unreasonable search and
seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and
therefore argues that the same should be held inadmissible in evidence (Sec. 3
(2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things
to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall
be inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search
and seizure had its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures shall not be violated,
and no warrants shall issue but upon probable cause, to be determined by
the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United
States Constitution. As such, the Court may turn to the pronouncements of the
United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal
Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court,
in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any
evidence obtained by virtue of a defective search and seizure warrant, abandoning
in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1
[1948]) wherein the admissibility of evidence was not affected by the illegality of its
seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling
and is carried over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has
struck down the admissibility of evidence obtained in violation of the constitutional
safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc.,
v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People
v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See
also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so
obtained were invariably procured by the State acting through the medium of its
law enforcers or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the
evidence sought to be excluded was primarily discovered and obtained by a
private person, acting in a private capacity and without the intervention and
participation of State authorities. Under the circumstances, can accused/appellant
validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual,
allegedly in violation of appellant's constitutional rights, be invoked against the
State?
We hold in the negative. In the absence of governmental interference, the liberties
guaranteed by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and
seizure) refers to the immunity of one's person, whether citizen or alien,
from interference by government, included in which is his residence, his
papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access
except under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is outlawed
any unwarranted intrusion by government, which is called upon to refrain
from any invasion of his dwelling and to respect the privacies of his life. . . .
(Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United
States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the
Court there in construing the right against unreasonable searches and seizures
declared that:
(t)he Fourth Amendment gives protection against unlawful searches and
seizures, and as shown in previous cases, its protection applies to
governmental action. Its origin and history clearly show that it was
intended as a restraint upon the activities of sovereign authority, and was
not intended to be a limitation upon other than governmental agencies; as
against such authority it was the purpose of the Fourth Amendment to
secure the citizen in the right of unmolested occupation of his dwelling and
the possession of his property, subject to the right of seizure by process
duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a
parking attendant who searched the automobile to ascertain the owner thereof
found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of
narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that
the search and seizure clauses are restraints upon the government and its agents,
not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap.
Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or.,
317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court
there said:
The search of which appellant complains, however, was made by a private
citizen — the owner of a motel in which appellant stayed overnight and in
which he left behind a travel case containing the evidence***complained
of. The search was made on the motel owner's own initiative. Because of
it, he became suspicious, called the local police, informed them of the
bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require
exclusion of evidence obtained through a search by a private citizen.
Rather, the amendment only proscribes governmental action."
The contraband in the case at bar having come into possession of the Government
without the latter transgressing appellant's rights against unreasonable search and
seizure, the Court sees no cogent reason why the same should not be admitted
against him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal
search and seizure of the evidence later on used in prosecuting the case which
resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In
both instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition
that NBI agents conducted an illegal search and seizure of the prohibited
merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the
proprietor of the forwarding agency, who made search/inspection of the packages.
Said inspection was reasonable and a standard operating procedure on the part of
Mr. Reyes as a precautionary measure before delivery of packages to the Bureau
of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8;
Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he
took samples of the same to the NBI and later summoned the agents to his place
of business. Thereafter, he opened the parcel containing the rest of the shipment
and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI
agents made no search and seizure, much less an illegal one, contrary to the
postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable
search effected by Reyes into a warrantless search and seizure proscribed by the
Constitution. Merely to observe and look at that which is in plain sight is not a
search. Having observed that which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where
the contraband articles are identified without a trespass on the part of the arresting
officer, there is not the search that is prohibited by the constitution (US v. Lee 274
US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d.
726 [1963]; Moore v. State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the
property was taken into custody of the police at the specific request of the
manager and where the search was initially made by the owner there is no
unreasonable search and seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked
against acts of private individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties guaranteed by the fundamental law
of the land must always be subject to protection. But protection against whom?
Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the
essence of constitutional democracy. Protection against whom? Protection
against the state. The Bill of Rights governs the relationship between the
individual and the state. Its concern is not the relation between individuals,
between a private individual and other individuals. What the Bill of Rights
does is to declare some forbidden zones in the private sphere inaccessible
to any power holder. (Sponsorship Speech of Commissioner Bernas ,
Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986;
Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore
applies as a restraint directed only against the government and its agencies tasked
with the enforcement of the law. Thus, it could only be invoked against the State to
whom the restraint against arbitrary and unreasonable exercise of power is
imposed.
If the search is made upon the request of law enforcers, a warrant must generally
be first secured if it is to pass the test of constitutionality. However, if the search is
made at the behest or initiative of the proprietor of a private establishment for its
own and private purposes, as in the case at bar, and without the intervention of
police authorities, the right against unreasonable search and seizure cannot be
invoked for only the act of private individual, not the law enforcers, is involved. In
sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the ambit
of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has
been modified by the present phraseology found in the 1987 Charter, expressly
declaring as inadmissible any evidence obtained in violation of the constitutional
prohibition against illegal search and seizure, it matters not whether the evidence
was procured by police authorities or private individuals (Appellant's Brief, p.
8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not
govern relationships between individuals. Moreover, it must be emphasized that
the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to
the issuance of either a search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30,
1987]. The modifications introduced deviate in no manner as to whom the
restriction or inhibition against unreasonable search and seizure is directed
against. The restraint stayed with the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only
be invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
violation of the Bill of Rights should also be construed as an act of the State would
result in serious legal complications and an absurd interpretation of the
constitution.
Similarly, the admissibility of the evidence procured by an individual effected
through private seizure equally applies, in pari passu, to the alleged violation, non-
governmental as it is, of appellant's constitutional rights to privacy and
communication.
2. In his second assignment of error, appellant contends that the lower court erred
in convicting him despite the undisputed fact that his rights under the constitution
while under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of
the case and found nothing to indicate, as an "undisputed fact", that appellant was
not informed of his constitutional rights or that he gave statements without the
assistance of counsel. The law enforcers testified that accused/appellant was
informed of his constitutional rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their testimonies should be given
full faith and credence, there being no evidence to the contrary. What is clear from
the records, on the other hand, is that appellant refused to give any written
statement while under investigation as testified by Atty. Lastimoso of the NBI,
Thus:
 Fiscal Formoso: Appellant's bare denial is even made more suspect considering that, as per
records of the Interpol, he was previously convicted of possession of hashish by
You said that you investigated Mr. and Mrs. Job Reyes. What about the the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that
accused here, did you investigate the accused together with the girl? the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was
likewise convicted for drug abuse and is just about an hour's drive from appellant's
residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p.
WITNESS:
244; Decision, p. 21; Rollo, p. 93).
Yes, we have interviewed the accused together with the girl but the
Evidence to be believed, must not only proceed from the mouth of a credible
accused availed of his constitutional right not to give any written
witness, but it must be credible in itself such as the common experience and
statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)
observation of mankind can approve as probable under the circumstances (People
v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see
The above testimony of the witness for the prosecution was not contradicted by the also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327
defense on cross-examination. As borne out by the records, neither was there any [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show,
proof by the defense that appellant gave uncounselled confession while being appellant did not even bother to ask Michael's full name, his complete address or
investigated. What is more, we have examined the assailed judgment of the trial passport number. Furthermore, if indeed, the German national was the owner of
court and nowhere is there any reference made to the testimony of appellant while the merchandise, appellant should have so indicated in the contract of shipment
under custodial investigation which was utilized in the finding of conviction. (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract
Appellant's second assignment of error is therefore misplaced. as the owner and shipper thereof giving more weight to the presumption that things
which a person possesses, or exercises acts of ownership over, are owned by him
3. Coming now to appellant's third assignment of error, appellant would like us to (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim
believe that he was not the owner of the packages which contained prohibited otherwise.
drugs but rather a certain Michael, a German national, whom appellant met in a
pub along Ermita, Manila: that in the course of their 30-minute conversation, Premises considered, we see no error committed by the trial court in rendering the
Michael requested him to ship the packages and gave him P2,000.00 for the cost assailed judgment.
of the shipment since the German national was about to leave the country the next
day (October 15, 1987, TSN, pp. 2-10).
WHEREFORE, the judgment of conviction finding appellant guilty beyond
reasonable doubt of the crime charged is hereby AFFIRMED. No costs.
Rather than give the appearance of veracity, we find appellant's disclaimer as
incredulous, self-serving and contrary to human experience. It can easily be
SO ORDERED.
fabricated. An acquaintance with a complete stranger struck in half an hour could
not have pushed a man to entrust the shipment of four (4) parcels and shell out
P2,000.00 for the purpose and for appellant to readily accede to comply with the
undertaking without first ascertaining its contents. As stated by the trial court, "(a)
person would not simply entrust contraband and of considerable value at that as
the marijuana flowering tops, and the cash amount of P2,000.00 to a complete
stranger like the Accused. The Accused, on the other hand, would not simply
accept such undertaking to take custody of the packages and ship the same from
a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why
he readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary
weight than the testimony of credible witnesses who testify on affirmative matters
(People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).
OPOSA v. FACTORAN (G.R. No. 101063, July 30, 1993)
In a broader sense, this petition bears upon the right of Filipinos to a balanced and
healthful ecology which the petitioners dramatically associate with the twin
concepts of "inter-generational responsibility" and "inter-generational justice."
Specifically, it touches on the issue of whether the said petitioners have a cause of
action to "prevent the misappropriation or impairment" of Philippine rainforests and
"arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before
Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National
Capital Judicial Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc.
(PENI), a domestic, non-stock and non-profit corporation organized for the purpose
of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and
Natural Resources (DENR). His substitution in this petition by the new Secretary,
the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by
the petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and
alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural
resource treasure that is the country's virgin tropical forests." The same was filed
for themselves and others who are equally concerned about the preservation of
said resource but are "so numerous that it is impracticable to bring them all before
the Court." The minors further asseverate that they "represent their generation as
well as generations yet unborn." 4 Consequently, it is prayed for that judgment be
rendered:
. . . ordering defendant, his agents, representatives and other
persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5
The complaint starts off with the general averments that the Philippine archipelago
of 7,100 islands has a land area of thirty million (30,000,000) hectares and is
endowed with rich, lush and verdant rainforests in which varied, rare and unique
species of flora and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured and flourished since
time immemorial; scientific evidence reveals that in order to maintain a balanced
and healthful ecology, the country's land area should be utilized on the basis of a
ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying
up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks
and streams, (b) salinization of the water table as a result of the intrusion therein of
salt water, incontrovertible examples of which may be found in the island of Cebu
and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential
loss of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum — approximately
the size of the entire island of Catanduanes, (d) the endangering and extinction of
the country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and consequential
destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by
the entire country, (h) increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and agricultural plains
arising from the absence of the absorbent mechanism of forests, (j) the siltation
and shortening of the lifespan of multi-billion peso dams constructed and operated
for the purpose of supplying water for domestic uses, irrigation and the generation
of electric power, and (k) the reduction of the earth's capacity to process carbon
dioxide gases which has led to perplexing and catastrophic climatic changes such
as the phenomenon of global warming, otherwise known as the "greenhouse
effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable demonstration that
the same may be submitted as a matter of judicial notice. This notwithstanding,
they expressed their intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen
(16) million hectares of rainforests constituting roughly 53% of the
country's land mass.
9. Satellite images taken in 1987 reveal that there remained no
more than 1.2 million hectares of said rainforests or four per cent
(4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of
virgin old-growth rainforests are left, barely 2.8% of the entire land
mass of the Philippine archipelago and about 3.0 million hectares
of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have
granted timber license agreements ('TLA's') to various
corporations to cut the aggregate area of 3.89 million hectares for
commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is
hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per hour — nighttime,
Saturdays, Sundays and holidays included — the Philippines will
be bereft of forest resources after the end of this ensuing decade,
if not earlier.
13. The adverse effects, disastrous consequences, serious injury
and irreparable damage of this continued trend of deforestation to
the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental
damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut
and deforest the remaining forest stands will work great damage
and irreparable injury to plaintiffs — especially plaintiff minors and
their successors — who may never see, use, benefit from and
enjoy this rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust for
the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced
and healthful ecology and are entitled to protection by the State in
its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the
defendant's office. On March 2, 1990, plaintiffs served upon
defendant a final demand to cancel all logging permits in the
country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto
attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing
TLA's to the continuing serious damage and extreme prejudice of
plaintiffs.
18. The continued failure and refusal by defendant to cancel the
TLA's is an act violative of the rights of plaintiffs, especially plaintiff
minors who may be left with a country that is desertified (sic),
bare, barren and devoid of the wonderful flora, fauna and
indigenous cultures which the Philippines had been abundantly
blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is
manifestly contrary to the public policy enunciated in the Philippine
Environmental Policy which, in pertinent part, states that it is the
policy of the State —
(a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable
harmony with each other;
(b) to fulfill the social, economic and other requirements of present
and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is
conductive to a life of dignity and well-being. (P.D. 1151, 6 June
1977)
 20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional policy
of the State to —
a. effect "a more equitable distribution of opportunities, income
and wealth" and "make full and efficient use of natural resources
(sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and
resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of
nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of
humankind — the natural law — and violative of plaintiffs' right to
self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law
other than the instant action to arrest the unabated hemorrhage of
the country's vital life support systems and continued rape of
Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to
Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no
cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the petitioners
maintain that (1) the complaint shows a clear and unmistakable cause of action,
(2) the motion is dilatory and (3) the action presents a justiciable question as it
involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned
motion to dismiss. 7 In the said order, not only was the defendant's claim — that
the complaint states no cause of action against him and that it raises a political
question — sustained, the respondent Judge further ruled that the granting of the
relief prayed for would result in the impairment of contracts which is prohibited by
the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the
Revised Rules of Court and ask this Court to rescind and set aside the dismissal
order on the ground that the respondent Judge gravely abused his discretion in
dismissing the action. Again, the parents of the plaintiffs-minors not only represent
their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the
parties to submit their respective Memoranda after the Office of the Solicitor
General (OSG) filed a Comment in behalf of the respondents and the petitioners
filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of
action as it contains sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations),
Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16,
Article II of the 1987 Constitution recognizing the right of the people to a balanced
and healthful ecology, the concept of generational genocide in Criminal Law and
the concept of man's inalienable right to self-preservation and self-perpetuation
embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave
abuse of discretion in granting Timber License Agreements (TLAs) to cover more
areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment
clause, petitioners maintain that the same does not apply in this case because
TLAs are not contracts. They likewise submit that even if TLAs may be considered
protected by the said clause, it is well settled that they may still be revoked by the
State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any
relief is provided by law. They see nothing in the complaint but vague and
nebulous allegations concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid cause of action.
They then reiterate the theory that the question of whether logging should be
permitted in the country is a political question which should be properly addressed
to the executive or legislative branches of Government. They therefore assert that
the petitioners' resources is not to file an action to court, but to lobby before
Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same
cannot be done by the State without due process of law. Once issued, a TLA
remains effective for a certain period of time — usually for twenty-five (25) years.
During its effectivity, the same can neither be revised nor cancelled unless the
holder has been found, after due notice and hearing, to have violated the terms of
the agreement or other forestry laws and regulations. Petitioners' proposition to
have all the TLAs indiscriminately cancelled without the requisite hearing would be
violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant
and the present respondents did not take issue with this matter. Nevertheless, We
hereby rule that the said civil case is indeed a class suit. The subject matter of the
complaint is of common and general interest not just to several, but to all citizens
of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative enough
to ensure the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of
Court are present both in the said civil case and in the instant petition, the latter
being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert
that they represent their generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others of their generation and
for the succeeding generations, file a class suit. Their personality to sue in behalf
of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization be
equitably accessible to the present as well as future generations. 10 Needless to
say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes,
at the same time, the performance of their obligation to ensure the protection of
that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now
proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration
and evaluation of the issues raised and arguments adduced by the parties, We do
not hesitate to find for the petitioners and rule against the respondent Judge's
challenged order for having been issued with grave abuse of discretion amounting
to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the
Court cannot help but agree with the defendant. For although we
believe that plaintiffs have but the noblest of all intentions, it (sic)
fell short of alleging, with sufficient definiteness, a specific legal
right they are seeking to enforce and protect, or a specific legal
wrong they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is replete
with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of action in its
Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it,
being impressed with political color and involving a matter of
public policy, may not be taken cognizance of by this Court without
doing violence to the sacred principle of "Separation of Powers" of
the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter
how we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in
the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of
contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege
with sufficient definiteness a specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the complaint itself belies these
conclusions.
The complaint focuses on one specific fundamental legal right — the right to a
balanced and healthful ecology which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law. Section 16, Article II of
the 1987 Constitution explicitly provides:
 Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.
This right unites with the right to health which is provided for in the
preceding section of the same article:
Sec. 15. The State shall protect and promote the right to health of
the people and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation
— aptly and fittingly stressed by the petitioners — the advancement of which may
even be said to predate all governments and constitutions. As a matter of fact,
these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its
framers that unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too
far when all else would be lost not only for the present generation, but also for
those to come — generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. During the debates on this right in one of
the plenary sessions of the 1986 Constitutional Commission, the following
exchange transpired between Commissioner Wilfrido Villacorta and Commissioner
Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide
sanctions against all forms of pollution — air,
water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the
correlative duty of not impairing the same and,
therefore, sanctions may be provided for
impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests.
Without such forests, the ecological or environmental balance would be
irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the
right to health, as well as the other related provisions of the Constitution
concerning the conservation, development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987
E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary government agency
responsible for the conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and grazing lands,
mineral, resources, including those in reservation and watershed areas, and lands
of the public domain, as well as the licensing and regulation of all natural
resources as may be provided for by law in order to ensure equitable sharing of
the benefits derived therefrom for the welfare of the present and future generations
of Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of
the State to ensure the sustainable use, development,
management, renewal, and conservation of the country's forest,
mineral, land, off-shore areas and other natural resources,
including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of
the population to the development and the use of the country's
natural resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize
and apply a true value system including social and environmental
cost implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the
benefit of the Filipino people, the full exploration and development
 as well as the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment and the objective of making the exploration,
development and utilization of such natural resources equitably
accessible to the different segments of the present as well as
future generations.
(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost
implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment." Section 2 of
the same Title, on the other hand, specifically speaks of the mandate of the DENR;
however, it makes particular reference to the fact of the agency's being subject to
law and higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and
Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of
carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives
which will serve as the bases for policy formulation, and have defined the powers
and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the "environmental
right" of the present and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to
create, develop, maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other, (b) to fulfill the social,
economic and other requirements of present and future generations of Filipinos,
and (c) to insure the attainment of an environmental quality that is conducive to a
life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of
each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty — under its mandate and by
virtue of its powers and functions under E.O. No. 192 and the Administrative Code
of 1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action. Petitioners
maintain that the granting of the TLAs, which they claim was done with grave
abuse of discretion, violated their right to a balanced and healthful ecology; hence,
the full protection thereof requires that no further TLAs should be renewed or
granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or
rights of the other; and its essential elements are legal right of the
plaintiff, correlative obligation of the defendant, and act or
omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that
the complaint fails to state a cause of action, 19 the question submitted to the court
for resolution involves the sufficiency of the facts alleged in the complaint itself. No
other matter should be considered; furthermore, the truth of falsity of the said
allegations is beside the point for the truth thereof is deemed hypothetically
admitted. The only issue to be resolved in such a case is: admitting such alleged
facts to be true, may the court render a valid judgment in accordance with the
prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the
rule that the judiciary should "exercise the utmost care and circumspection in
passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and
deemed hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We find the statements
under the introductory affirmative allegations, as well as the specific averments
under the sub-heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing,
however, that insofar as the cancellation of the TLAs is concerned, there is the
need to implead, as party defendants, the grantees thereof for they are
indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally involved is
the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine
is no longer, the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the
Constitution states that:
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice
Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of
judicial power, involving the settlement of conflicting rights as
conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to
review what was before forbidden territory, to wit, the discretion of
the political departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even the
wisdom of the decisions of the executive and the legislature and to
declare their acts invalid for lack or excess of jurisdiction because
tainted with grave abuse of discretion. The catch, of course, is the
meaning of "grave abuse of discretion," which is a very elastic
phrase that can expand or contract according to the disposition of
the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
were to assume that the issue presented before us was political in
nature, we would still not be precluded from revolving it under the
expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of
the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-
impairment of contracts clause found in the Constitution. The court a quo declared
that:
The Court is likewise of the impression that it cannot, no matter
how we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in
the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of
contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by
such a sweeping pronouncement. In the first place, the respondent Secretary did
not, for obvious reasons, even invoke in his motion to dismiss the non-impairment
clause. If he had done so, he would have acted with utmost infidelity to the
Government by providing undue and unwarranted benefits and advantages to the
timber license holders because he would have forever bound the Government to
strictly respect the said licenses according to their terms and conditions regardless
of changes in policy and the demands of public interest and welfare. He was aware
that as correctly pointed out by the petitioners, into every timber license must be
read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the
President may amend, modify, replace or rescind any contract,
concession, permit, licenses or any other form of privilege granted
herein . . .
Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right protested
by the due process clause of the Constitution. In Tan vs. Director of
Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates
the utilization and disposition of forest resources to the end that
public welfare is promoted. A timber license is not a contract within
the purview of the due process clause; it is only a license or
 privilege, which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise
would be unlawful, and is not a contract between the authority,
federal, state, or municipal, granting it and the person to whom it is
granted; neither is it property or a property right, nor does it create
a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held
that the granting of license does not create irrevocable rights,
neither is it property or property rights (People vs. Ong Tin, 54
O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy
Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the utilization
and disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified entities, and do not
vest in the latter a permanent or irrevocable right to the particular
concession area and the forest products therein. They may be
validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not
deemed contracts within the purview of the due process of law
clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be
passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the
instant case does not involve a law or even an executive issuance declaring the
cancellation or modification of existing timber licenses. Hence, the non-impairment
clause cannot as yet be invoked. Nevertheless, granting further that a law has
actually been passed mandating cancellations or modifications, the same cannot
still be stigmatized as a violation of the non-impairment clause. This is because by
its very nature and purpose, such as law could have only been passed in the
exercise of the police power of the state for the purpose of advancing the right of
the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not
meant to be absolute. The same is understood to be subject to
reasonable legislative regulation aimed at the promotion of public
health, moral, safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by
the exercise of the police power of the State, in the interest of
public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making
of contracts are normally matters of private and not of public
concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor contract
rights are absolute; for government cannot exist if the citizen may
at will use his property to the detriment of his fellows, or exercise
his freedom of contract to work them harm. Equally fundamental
with the private right is that of the public to regulate it in the
common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent Secretary
from receiving, accepting, processing, renewing or approving new timber licenses
for, save in cases of renewal, no contract would have as of yet existed in the other
instances. Moreover, with respect to renewal, the holder is not entitled to it as a
matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or grantees
of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and
Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J.,
in this case which, to my mind, is one of the most important cases decided by this
Court in the last few years. The seminal principles laid down in this decision are
likely to influence profoundly the direction and course of the protection and
management of the environment, which of course embraces the utilization
of all the natural resources in the territorial base of our polity. I have therefore
sought to clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to
sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus
standi is not a function of petitioners' claim that their suit is properly regarded as
a class suit. I understand locus standi to refer to the legal interest which a plaintiff
must have in the subject matter of the suit. Because of the very broadness of the
concept of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the
course of action petitioners seek to require public respondents to take, is vested
with the necessary locus standi. The Court may be seen therefore to be
recognizing a beneficiaries' right of action in the field of environmental protection,
as against both the public administrative agency directly concerned and the private
persons or entities operating in the field or sector of activity involved. Whether
such beneficiaries' right of action may be found under any and all circumstances,
or whether some failure to act, in the first instance, on the part of the governmental
agency concerned must be shown ("prior exhaustion of administrative remedies"),
is not discussed in the decision and presumably is left for future determination in
an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one
specific fundamental legal right — the right to a balanced and healthful ecology"
(Decision, p. 14). There is no question that "the right to a balanced and healthful
ecology" is "fundamental" and that, accordingly, it has been "constitutionalized."
But although it is fundamental in character, I suggest, with very great respect, that
it cannot be characterized as "specific," without doing excessive violence to
language. It is in fact very difficult to fashion language more comprehensive in
scope and generalized in character than a right to "a balanced and healthful
ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic
fumes and smoke from factories and motor vehicles; of discharge of oil, chemical
effluents, garbage and raw sewage into rivers, inland and coastal waters by
vessels, oil rigs, factories, mines and whole communities; of dumping of organic
and inorganic wastes on open land, streets and thoroughfares; failure to
rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn
farming; destruction of fisheries, coral reefs and other living sea resources through
the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other
statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10
June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and
P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as
general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to
health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment
Code," is, upon the other hand, a compendious collection of more "specific
environment management policies" and "environment quality standards" (fourth
"Whereas" clause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
 (iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor
the Court has identified the particular provision or provisions (if any) of the
Philippine Environment Code which give rise to a specific legal right which
petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of
the headings and sub-headings mentioned above. The Philippine Environment
Code does not, in other words, appear to contemplate action on the part of private
persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal
right comprised in the constitutional statements above noted, the Court is in effect
saying that Section 15 (and Section 16) of Article II of the Constitution are self-
executing and judicially enforceable even in their present form. The implications of
this doctrine will have to be explored in future cases; those implications are too
large and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right — a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution — that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that
the trial court can validly render judgment granting all or part of the relief prayed
for. To my mind, the Court should be understood as simply saying that such a
more specific legal right or rights may well exist in our corpus of law, considering
the general policy principles found in the Constitution and the existence of the
Philippine Environment Code, and that the trial court should have given petitioners
an effective opportunity so to demonstrate, instead of aborting the proceedings on
a motion to dismiss.
It seems to me important that the legal right which is an essential component of a
cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless the legal right
claimed to have been violated or disregarded is given specification in operational
terms, defendants may well be unable to defend themselves intelligently and
effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law
or applicable regulation is not alleged or proved, petitioners can be expected to fall
back on the expanded conception of judicial power in the second paragraph of
Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and
healthy ecology" and "the right to health" are combined with remedial
standards as broad ranging as "a grave abuse of discretion amounting to
lack or excess of jurisdiction," the result will be, it is respectfully submitted,
to propel courts into the uncharted ocean of social and economic policy
making. At least in respect of the vast area of environmental protection
and management, our courts have no claim to special technical
competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy
making departments — the legislative and executive departments — must
be given a real and effective opportunity to fashion and promulgate those
norms and standards, and to implement them before the courts should
intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should
cancel, must be impleaded in the proceedings below. It might be asked that, if
petitioners' entitlement to the relief demanded is not dependent upon proof of
breach by the timber companies of one or more of the specific terms and
conditions of their concession agreements (and this, petitioners implicitly assume),
what will those companies litigate about? The answer I suggest is that they may
seek to dispute the existence of the specific legal right petitioners should allege, as
well as the reality of the claimed factual nexus between petitioners' specific legal
rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the
remedy or remedies demanded by petitioners, under all the circumstances which
exist.
I vote to grant the Petition for Certiorari because the protection of the environment,
including the forest cover of our territory, is of extreme importance for the country.
The doctrines set out in the Court's decision issued today should, however, be
subjected to closer examination.
# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J.,
in this case which, to my mind, is one of the most important cases decided by this
Court in the last few years. The seminal principles laid down in this decision are
likely to influence profoundly the direction and course of the protection and
management of the environment, which of course embraces the utilization
of all the natural resources in the territorial base of our polity. I have therefore
sought to clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to
sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus
standi is not a function of petitioners' claim that their suit is properly regarded as
a class suit. I understand locus standi to refer to the legal interest which a plaintiff
must have in the subject matter of the suit. Because of the very broadness of the
concept of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the
course of action petitioners seek to require public respondents to take, is vested
with the necessary locus standi. The Court may be seen therefore to be
recognizing a beneficiaries' right of action in the field of environmental protection,
as against both the public administrative agency directly concerned and the private
persons or entities operating in the field or sector of activity involved. Whether
such beneficiaries' right of action may be found under any and all circumstances,
or whether some failure to act, in the first instance, on the part of the governmental
agency concerned must be shown ("prior exhaustion of administrative remedies"),
is not discussed in the decision and presumably is left for future determination in
an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one
specific fundamental legal right — the right to a balanced and healthful ecology"
(Decision, p. 14). There is no question that "the right to a balanced and healthful
ecology" is "fundamental" and that, accordingly, it has been "constitutionalized."
But although it is fundamental in character, I suggest, with very great respect, that
it cannot be characterized as "specific," without doing excessive violence to
language. It is in fact very difficult to fashion language more comprehensive in
scope and generalized in character than a right to "a balanced and healthful
ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic
fumes and smoke from factories and motor vehicles; of discharge of oil, chemical
effluents, garbage and raw sewage into rivers, inland and coastal waters by
vessels, oil rigs, factories, mines and whole communities; of dumping of organic
and inorganic wastes on open land, streets and thoroughfares; failure to
rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn
farming; destruction of fisheries, coral reefs and other living sea resources through
the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other
statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10
June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and
P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as
general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to
health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment
Code," is, upon the other hand, a compendious collection of more "specific
environment management policies" and "environment quality standards" (fourth
"Whereas" clause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor
the Court has identified the particular provision or provisions (if any) of the
Philippine Environment Code which give rise to a specific legal right which
petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the
formulation and implementation of guidelines and programs dealing with each of
the headings and sub-headings mentioned above. The Philippine Environment
Code does not, in other words, appear to contemplate action on the part of private
persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal
right comprised in the constitutional statements above noted, the Court is in effect
saying that Section 15 (and Section 16) of Article II of the Constitution are self-
executing and judicially enforceable even in their present form. The implications of
this doctrine will have to be explored in future cases; those implications are too
large and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right — a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution — that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that
the trial court can validly render judgment granting all or part of the relief prayed
for. To my mind, the Court should be understood as simply saying that such a
more specific legal right or rights may well exist in our corpus of law, considering
the general policy principles found in the Constitution and the existence of the
Philippine Environment Code, and that the trial court should have given petitioners
an effective opportunity so to demonstrate, instead of aborting the proceedings on
a motion to dismiss.
It seems to me important that the legal right which is an essential component of a
cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless the legal right
claimed to have been violated or disregarded is given specification in operational
terms, defendants may well be unable to defend themselves intelligently and
effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law
or applicable regulation is not alleged or proved, petitioners can be expected to fall
back on the expanded conception of judicial power in the second paragraph of
Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and
healthy ecology" and "the right to health" are combined with remedial
standards as broad ranging as "a grave abuse of discretion amounting to
lack or excess of jurisdiction," the result will be, it is respectfully submitted,
to propel courts into the uncharted ocean of social and economic policy
making. At least in respect of the vast area of environmental protection
and management, our courts have no claim to special technical
competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy
making departments — the legislative and executive departments — must
be given a real and effective opportunity to fashion and promulgate those
norms and standards, and to implement them before the courts should
intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should
cancel, must be impleaded in the proceedings below. It might be asked that, if
petitioners' entitlement to the relief demanded is not dependent upon proof of
breach by the timber companies of one or more of the specific terms and
conditions of their concession agreements (and this, petitioners implicitly assume),
what will those companies litigate about? The answer I suggest is that they may
seek to dispute the existence of the specific legal right petitioners should allege, as
well as the reality of the claimed factual nexus between petitioners' specific legal
rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the
remedy or remedies demanded by petitioners, under all the circumstances which
exist.
I vote to grant the Petition for Certiorari because the protection of the environment,
including the forest cover of our territory, is of extreme importance for the country.
The doctrines set out in the Court's decision issued today should, however, be
subjected to closer examination.
In re: Yamashita 327 US 1 (1946)
Syllabus
Prior to September 3, 1945, petitioner was the Commanding General of the
Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands.
On that day, he surrendered to the United States Army and became a prisoner of
war. Respondent was the Commanding General of the United States Army Forces,
Western Pacific, whose command embraced the Philippine Islands. Respondent
appointed a military commission to try the petitioner on a charge of violation of the
law of war. The gist of the charge was that petitioner had failed in his duty as an
army commander to control the operations of his troops, "permitting them to
commit" specified atrocities against the civilian population and prisoners of war.
Petitioner was found guilty, and sentenced to death.
Held:
1. The military commission appointed to try the petitioner was lawfully created.
P. 327 U. S. 9.
(a) Nature of the authority to create military commissions for the trial of enemy
combatants for offenses against the law of war, and principles governing the
exercise of jurisdiction by such commissions, considered. Citing Ex parte
Quirin, 317 U. S. 1, and other cases. Pp. 327 U. S. 7-9.
(b) A military commission may be appointed by any field commander, or by any
commander competent to appoint a general court-martial, as was respondent by
order of the President. P. 327 U. S. 10.
(c) The order creating the military commission was in conformity with the Act of
Congress (10 U.S.C. §§ 1471-1593) sanctioning
Page 327 U. S. 2
the creation of such tribunals for the trial of offenses against the law of war
committed by enemy combatants. P. 327 U. S. 11.
2. Trial of the petitioner by the military commission was lawful, although hostilities
had ceased. P. 327 U. S. 12.
(a) A violation of the law of war, committed before the cessation of hostilities, may
lawfully be tried by a military commission after hostilities have ceased -- at least
until peace has been officially recognized by treaty or proclamation by the political
branch of the Government. P. 327 U. S. 12.
(b) Trial of the petitioner by the military commission was authorized by the political
branch of the Government, by military command, by international law and usage,
and by the terms of the surrender of the Japanese government. P. 327 U. S. 13.
3. The charge preferred against the petitioner was of a violation of the law of war.
P. 327 U. S. 13.
(a) The law of war imposes on an army commander a duty to take such
appropriate measures as are within his power to control the troops under his
command for the prevention of acts which are violations of the law of war and
which are likely to attend the occupation of hostile territory by an uncontrolled
soldiery, and he may be charged with personal responsibility for his failure to take
such measures when violations result. Pp. 327 U. S. 14, 327 U. S. 16.
(b) What measures, if any, petitioner took to prevent the alleged violations of the
law of war, and whether such measures as he may have taken were appropriate
and sufficient to discharge the duty imposed upon him, were questions within the
peculiar competence of the military officers composing the commission, and were
for it to decide. P. 327 U. S. 16.
(c) Charges of violations of the law of war triable before a military tribunal need not
be stated with the precision of a common law indictment. P. 327 U. S. 17.
(d) The allegations of the charge here, tested by any reasonable standard,
sufficiently set forth a violation of the law of war, and the military commission had
authority to try and to decide the issue which it raised. P. 327 U. S. 17.
4. In admitting on behalf of the prosecution a deposition and hearsay and opinion
evidence, the military commission did not violate any Act of Congress, treaty, or
military command defining the commission's authority. Pp. 327 U. S. 18, 327 U. S.
23.
(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial
of an enemy combatant by a military commission
Page 327 U. S. 3
for violations of the law of war, and imposed no restrictions upon the procedure to
be followed in such trial. Pp. 327 U. S. 19-20.
(b) Article 63 of the Geneva Convention of 1929, which provides that
"Sentence may be pronounced against a prisoner of war only by the same courts
and according to the same procedure as in the case of persons belonging to the
armed forces of the detaining Power,"
does not require that Articles 25 and 38 of the Articles of War be applied in the trial
of the petitioner. Article 63 refers to sentence "pronounced against a prisoner of
war" for an offense committed while a prisoner of war, and not for a violation of the
law of war committed while a combatant. P. 327 U. S. 20.
(c) The Court expresses no opinion on the question of the wisdom of considering
such evidence as was received in this proceeding, nor on the question whether the
action of a military tribunal in admitting evidence which Congress or controlling
military command has directed to be excluded may be drawn in question by
petition for habeas corpus or prohibition. P. 327 U. S. 23.
5. On an application for habeas corpus, the Court is not concerned with the guilt or
innocence of the petitioner. P. 327 U. S. 8.
6. By sanctioning trials of enemy aliens by military commission for offenses against
the law of war, Congress recognized the right of the accused to make a defense,
and did not foreclose their right to contend that the Constitution or laws of the
United States withhold authority to proceed with the trial. P. 327 U. S. 9.
7. The Court does not appraise the evidence on which the petitioner here was
convicted. P. 327 U. S. 17.
8. The military commission's rulings on evidence and on the mode of conducting
the proceedings against the petitioner are not reviewable by the courts, but only by
the reviewing military authorities. From this viewpoint, it is unnecessary to consider
what, in other situations, the Fifth Amendment might require. Pp. 327 U. S. 8, 327
U. S. 23.
9. Article 60 of the Geneva Convention of 1929, which provides that,
"At the opening of a judicial proceeding directed against a prisoner of war, the
detaining Power shall advise the representative of the protecting Power thereof as
soon as possible, and always before the date set for the opening of the trial,"
applies only to persons who are subjected to judicial proceedings for offenses
committed while prisoners of war. P. 327 U. S. 23.
10. The detention of the petitioner for trial, and his detention upon his conviction,
subject to the prescribed review by the military authorities, were lawful. P. 327 U.
S. 25.
Leave and petition denied.
Page 328 U. S. 4
No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and
prohibition in this Court challenging the jurisdiction and legal authority of a military
commission which convicted applicant of a violation of the law of war and
sentenced him to be hanged. Denied.
No. 672. Petition for certiorari to review an order of the Supreme Court of the
Commonwealth of the Philippines, 42 Off.Gaz. 664, denying an application for
writs of habeas corpus and prohibition likewise challenging the jurisdiction and
legal authority of the military commission which tried and convicted
petitioner. Denied.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
No. 61 Miscellaneous is an application for leave to file a petition for writs of habeas
corpus and prohibition in this Court. No. 672 is a petition for certiorari to review an
order of the Supreme Court of the the Philippines (28 U.S.C. § 349) denying
petitioner's application to that court for writs of habeas corpus and prohibition. As
both applications raise substantially like questions, and because of the importance
and novelty of some of those presented, we set the two applications down for oral
argument as one case.
Page 327 U. S. 5
From the petitions and supporting papers, it appears that, prior to September 3,
1945, petitioner was the Commanding General of the Fourteenth Army Group of
the Imperial Japanese Army in the Philippine Islands. On that date, he surrendered
to and became a prisoner of war of the United States Army Forces in Baguio,
Philippine Islands. On September 25th, by order of respondent, Lieutenant
General Wilhelm D. Styer, Commanding General of the United States Army
Forces, Western Pacific, which command embraces the Philippine Islands,
petitioner was served with a charge prepared by the Judge Advocate General's
Department of the Army, purporting to charge petitioner with a violation of the law
of war. On October 8, 1945, petitioner, after pleading not guilty to the charge, was
held for trial before a military commission of five Army officers appointed by order
of General Styer. The order appointed six Army officers, all lawyers, as defense
counsel. Throughout the proceedings which followed, including those before this
Court, defense counsel have demonstrated their professional skill and
resourcefulness and their proper zeal for the defense with which they were
charged.
On the same date, a bill of particulars was filed by the prosecution, and the
commission heard a motion made in petitioner's behalf to dismiss the charge on
the ground that it failed to state a violation of the law of war. On October 29th, the
commission was reconvened, a supplemental bill of particulars was filed, and the
motion to dismiss was denied. The trial then proceeded until its conclusion on
December 7, 1945, the commission hearing two hundred and eighty-six witnesses,
who gave over three thousand pages of testimony. On that date, petitioner was
found guilty of the offense as charged, and sentenced to death by hanging.
The petitions for habeas corpus set up that the detention of petitioner for the
purpose of the trial was unlawful for
Page 327 U. S. 6
reasons which are now urged as showing that the military commission was without
lawful authority or jurisdiction to place petitioner on trial, as follows:
(a) That the military commission which tried and convicted petitioner was not
lawfully created, and that no military commission to try petitioner for violations of
the law of war could lawfully be convened after the cessation of hostilities between
the armed forces of the United States and Japan;
(b) that the charge preferred against petitioner fails to charge him with a violation
of the law of war;
(c) that the commission was without authority and jurisdiction to try and convict
petitioner, because the order governing the procedure of the commission permitted
the admission in evidence of depositions, affidavits, and hearsay and opinion
evidence, and because the commission's rulings admitting such evidence were in
violation of the 25th and 38th Articles of War (10 U.S.C. §§ 1496, 1509) and the
Geneva Convention (47 Stat. 2021), and deprived petitioner of a fair trial in
violation of the due process clause of the Fifth Amendment;
(d) that the commission was without authority and jurisdiction in the premises
because of the failure to give advance notice of petitioner's trial to the neutral
power representing the interests of Japan as a belligerent as required by Article 60
of the Geneva Convention, 47 Stat. 2021, 2051.
On the same grounds, the petitions for writs of prohibition set up that the
commission is without authority to proceed with the trial.
The Supreme Court of the Philippine Islands, after hearing argument, denied the
petition for habeas corpus presented to it on the ground, among others, that its
jurisdiction was limited to an inquiry as to the jurisdiction of the commission to
place petitioner on trial for the offense charged, and that the commission, being
validly constituted
Page 327 U. S. 7
by the order of General Styer, had jurisdiction over the person of petitioner and
over the trial for the offense charged.
In Ex parte Quirin, 317 U. S. 1, we had occasion to consider at length the sources
and nature of the authority to create military commissions for the trial of enemy
combatants for offenses against the law of war. We there pointed out that
Congress, in the exercise of the power conferred upon it by Article I, § 8, Cl. 10, of
the Constitution to "define and punish . . . Offenses against the Law of Nations . . .
" of which the law of war is a part, had, by the Articles of War (10 U.S.C. §§ 1471-
1593), recognized the "military commission" appointed by military command, as it
had previously existed in United States Army practice, as an appropriate tribunal
for the trial and punishment of offenses against the law of war. Article 15 declares
that
"the provisions of these articles conferring jurisdiction upon courts-martial shall not
be construed as depriving military commissions . . . or other military tribunals of
concurrent jurisdiction in respect of offenders of offenses that, by statute or by the
law of war, may be triable by such military commissions . . . or other military
tribunals."
See a similar provision of the Espionage Act of 1917, 50 U.S.C. § 38. Article 2
includes among those persons subject to the Articles of War the personnel of our
own military establishment. But this, as Article 12 indicates, does not exclude from
the class of persons subject to trial by military commissions "any other person
who, by the law of war, is subject to trial by military tribunals" and who, under
Article 12, may be tried by court martial, or, under Article 15, by military
commission.
We further pointed out that Congress, by sanctioning trial of enemy combatants for
violations of the law of war by military commission, had not attempted to codify the
law of war or to mark its precise boundaries. Instead, by Article 15, it had
incorporated, by reference, as within the
Page 327 U. S. 8
preexisting jurisdiction of military commissions created by appropriate military
command, all offenses which are defined as such by the law of war and which may
constitutionally be included within that jurisdiction. It thus adopted the system of
military common law applied by military tribunals so far as it should be recognized
and deemed applicable by the courts, and as further defined and supplemented by
the Hague Convention, to which the United States and the Axis powers were
parties.
We also emphasized in Ex parte Quirin, as we do here, that, on application for
habeas corpus, we are not concerned with the guilt or innocence of the petitioners.
We consider here only the lawful power of the commission to try the petitioner for
the offense charged. In the present cases, it must be recognized throughout that
the military tribunals which Congress has sanctioned by the Articles of War are not
courts whose rulings and judgments are made subject to review by this
Court. See Ex parte Vallandingham, 1 Wall. 243; In re Vidal, 179 U. S. 126; cf. Ex
parte Quirin, supra, 317 U. S. 39. They are tribunals whose determinations are
reviewable by the military authorities either as provided in the military orders
constituting such tribunals or as provided by the Articles of War. Congress
conferred on the courts no power to review their determinations save only as it has
granted judicial power "to grant writs of habeas corpus for the purpose of an
inquiry into the cause of the restraint of liberty." 28 U.S.C. §§ 451, 452. The courts
may inquire whether the detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have lawful authority to hear,
decide, and condemn, their action is not subject to judicial review merely because
they have made a wrong decision on disputed facts. Correction of their errors of
decision is not for the courts, but for the military authorities, which are alone
authorized to review their decisions. See Dynes v. Hoover, 20 How. 5, 61 U. S.
81; Runkle v. United States, 122
Page 327 U. S. 9
U.S. 543, 122 U. S. 555-556; Carter v. McClaughry, 183 U. S. 365; Collins v.
McDonald, 258 U. S. 416. Cf. Matter of Moran, 203 U. S. 96, 203 U. S. 105.
Finally, we held in Ex parte Quirin, supra, 317 U. S. 24-25, as we hold now, that
Congress, by sanctioning trials of enemy aliens by military commission for
offenses against the law of war, had recognized the right of the accused to make a
defense. Cf. Ex parte Kawato, 317 U. S. 69. It has not foreclosed their right to
contend that the Constitution or laws of the United States withhold authority to
proceed with the trial. It has not withdrawn, and the Executive branch of the
government could not, unless there was suspension of the writ, withdraw from the
courts the duty and power to make such inquiry into the authority of the
commission as may be made by habeas corpus.
With these governing principles in mind, we turn to the consideration of the several
contentions urged to establish want of authority in the commission. We are not
here concerned with the power of military commissions to try civilians. See Ex
parte Milligan, 4 Wall. 2, 71 U. S. 132; Sterling v. Constantin, 287 U. S. 378; Ex
parte Quirin, supra, 317 U. S. 45. The Government's contention is that General
Styer's order creating the commission conferred authority on it only to try the
purported charge of violation of the law of war committed by petitioner, an enemy
belligerent, while in command of a hostile army occupying United States territory
during time of war. Our first inquiry must therefore be whether the present
commission was created by lawful military command, and, if so, whether authority
could thus be conferred on the commission to place petitioner on trial after the
cessation of hostilities between the armed forces of the United States and Japan.
The authority to create the Commission. General Styer's order for the appointment
of the commission was made by him as Commander of the United States Armed
Forces, Western Pacific. His command includes, as part
Page 327 U. S. 10
of a vastly greater area, the Philippine Islands, where the alleged offenses were
committed, where petitioner surrender as a prisoner of war, and where, at the time
of the order convening the commission, he was detained as a prisoner in custody
of the United States Army. The Congressional recognition of military commissions
and its sanction of their use in trying offenses against the law of war to which we
have referred sanctioned their creation by military command in conformity to long
established American precedents. Such a commission may be appointed by any
field commander, or by any commander competent to appoint a general court
martial, as was General Styer, who had been vested with that power by order of
the President. 2 Winthrop, Military Law and Precedents,2d Ed., *1302; cf. Article of
War 8.
Here, the commission was not only created by a commander competent to appoint
it, but his order conformed to the established policy of the Government and to
higher military commands authorizing his action. In a proclamation of July 2, 1942
(56 Stat. 1964), the President proclaimed that enemy belligerents who, during time
of war, enter the United States, or any territory possession thereof, and who violate
the law of war, should be subject to the law of war and to the jurisdiction of military
tribunals. Paragraph 10 of the Declaration of Potsdam of July 6, 1945, declared
that " . . . stern justice shall be meted out to all war criminals, including those who
have visited cruelties upon prisoners." U.S. Dept. of State Bull., Vol. XIII, No. 318,
pp. 137, 138. This Declaration was accepted by the Japanese government by its
note of August 10, 1945. U.S. Dept. of State Bull., Vol. XIII, No. 320, p. 205.
By direction of the President, the Joint Chiefs of Staff of the American Military
Forces, on September 12, 1945, instructed General MacArthur, Commander in
Chief, United States Army Forces, Pacific, to proceed with the trial, before
Page 327 U. S. 11
appropriate military tribunals, of such Japanese war criminals "as have been or
may be apprehended." By order of General MacArthur of September 24, 1945,
General Styer was specifically directed to proceed with the trial of petitioner upon
the charge here involved. This order was accompanied by detailed rules and
regulations which General MacArthur prescribed for the trial of war criminals.
These regulations directed, among other things, that review of the sentence
imposed by the commission should be by the officer convening it, with "authority to
approve, mitigate, remit, commute, suspend, reduce, or otherwise alter the
sentence imposed," and directed that no sentence of death should be carried into
effect until confirmed by the Commander in Chief, United States Army Forces,
Pacific.
It thus appears that the order creating the commission for the trial of petitioner was
authorized by military command, and was in complete conformity to the Act of
Congress sanctioning the creation of such tribunals for the trial of offenses against
the law of war committed by enemy combatants. And we turn to the question
whether the authority to create the commission and direct the trial by military order
continued after the cessation of hostilities.
An important incident to the conduct of war is the adoption of measures by the
military commander not only to repel and defeat the enemy, but to seize and
subject to disciplinary measures those enemies who, in their attempt to thwart or
impede our military effort, have violated the law of war. Ex parte Quirin, supra, 317
U. S. 28. The trial and punishment of enemy combatants who have committed
violations of the law of war is thus not only a part of the conduct of war operating
as a preventive measure against such violations, but is an exercise of the authority
sanctioned by Congress to administer the system of military justice recognized by
the law of war. That sanction is without qualification as to the exercise of this
authority so
Page 327 U. S. 12
long as a state of war exists -- from its declaration until peace is
proclaimed. See United States v. Anderson, 9 Wall. 56, 76 U. S. 70; The
Protector, 12 Wall. 700, 79 U. S. 702; McElrath v. United States, 102 U. S.
426, 102 U. S. 438; Kahn v. Anderson, 255 U. S. 1, 255 U. S. 9-10. The war
power, from which the commission derives its existence, is not limited to victories
in the field, but carries with it the inherent power to guard against the immediate
renewal of the conflict, and to remedy, at least in ways Congress has recognized,
the evils which the military operations have produced. See Stewart v. Kahn, 11
Wall. 493,78 U. S. 507.
We cannot say that there is no authority to convene a commission after hostilities
have ended to try violations of the law of war committed before their cessation, at
least until peace has been officially recognized by treaty or proclamation of the
political branch of the Government. In fact, in most instances, the practical
administration of the system of military justice under the law of war would fail if
such authority were thought to end with the cessation of hostilities. For only after
their cessation could the greater number of offenders and the principal ones be
apprehended and subjected to trial.
No writer on international law appears to have regarded the power of military
tribunals, otherwise competent to try violations of the law of war, as terminating
before the formal state of war has ended. [Footnote 1] In our own military history,
Page 327 U. S. 13
there have been numerous instances in which offenders were tried by military
commission after the cessation of hostilities and before the proclamation of peace,
for offenses against the law of war committed before the cessation of hostilities.
[Footnote 2]
The extent to which the power to prosecute violations of the law of war shall be
exercised before peace is declared rests not with the courts, but with the political
branch of the Government, and may itself be governed by the terms of an
armistice or the treaty of peace. Here, peace has not been agreed upon or
proclaimed. Japan, by her acceptance of the Potsdam Declaration and her
surrender, has acquiesced in the trials of those guilty of violations of the law of
war. The conduct of the trial by the military commission has been authorized by the
political branch of the Government, by military command, by international law and
usage, and by the terms of the surrender of the Japanese government.
The Charge. Neither Congressional action nor the military orders constituting the
commission authorized it to place petitioner on trial unless the charge preferred
against him is of a violation of the law of war. The charge, so far as now relevant,
is that petitioner, between October 9, 1944, and September 2, 1945, in the
Philippine Islands,
"while commander of armed forces of Japan at war with the United States of
America and its allies, unlawfully disregarded and failed to discharge his duty as
commander to
Page 327 U. S. 14
control the operations of the members of his command, permitting them to commit
brutal atrocities and other high crimes against people of the United States and of
its allies and dependencies, particularly the Philippines, and he . . . thereby
violated the laws of war."
Bills of particulars, filed by the prosecution by order of the commission, allege a a
series of acts, one hundred and twenty-three in number, committed by members of
the forces under petitioner's command during the period mentioned. The first item
specifies the execution of a
"a deliberate plan and purpose to massacre and exterminate a large part of the
civilian population of Batangas Province, and to devastate and destroy public,
private, and religious property therein, as a result of which more than 25,000 men,
women and children, all unarmed noncombatant civilians, were brutally mistreated
and killed, without cause or trial, and entire settlements were devastated and
destroyed wantonly and without military necessity."
Other items specify acts of violence, cruelty, and homicide inflicted upon the
civilian population and prisoners of war, acts of wholesale pillage, and the wanton
destruction of religious monuments.
It is not denied that such acts directed against the civilian population of an
occupied country and against prisoners of war are recognized in international law
as violations of the law of war. Articles 4, 28, 46, and 47, Annex to Fourth Hague
Convention, 1907, 36 Stat. 2277, 2296, 2303, 2306, 2307. But it is urged that the
charge does not allege that petitioner has either committed or directed the
commission of such acts, and consequently that no violation is charged as against
him. But this overlooks the fact that the gist of the charge is an unlawful breach of
duty by petitioner as an army commander to control the operations of the members
of his command by "permitting them to commit" the extensive and widespread
atrocities specified. The question, then, is whether the law of war imposes
Page 327 U. S. 15
on an army commander a duty to take such appropriate measures as are within his
power to control the troops under his command for the prevention of the specified
acts which are violations of the law of war and which are likely to attend the
occupation of hostile territory by an uncontrolled soldiery, and whether he may be
charged with personal responsibility for his failure to take such measures when
violations result. That this was the precise issue to be tried was made clear by the
statement of the prosecution at the opening of the trial.
It is evident that the conduct of military operations by troops whose excesses are
unrestrained by the orders or efforts of their commander would almost certainly
result in violations which it is the purpose of the law of war to prevent. Its purpose
to protect civilian populations and prisoners of war from brutality would largely be
defeated if the commander of an invading army could, with impunity, neglect to
take reasonable measures for their protection. Hence, the law of war presupposes
that its violation is to be avoided through the control of the operations of war by
commanders who are to some extent responsible for their subordinates.
This is recognized by the Annex to Fourth Hague Convention of 1907, respecting
the laws and customs of war on land. Article I lays down, as a condition which an
armed force must fulfill in order to be accorded the rights of lawful belligerents, that
it must be "commanded by a person responsible for his subordinates." 36 Stat.
2295. Similarly, Article 19 of the Tenth Hague Convention, relating to
bombardment by naval vessels, provides that commanders in chief of the
belligerent vessels "must see that the above Articles are properly carried out." 36
Stat. 2389. And Article 26 of the Geneva Red Cross Convention of 1929, 47 Stat.
2074, 2092, for the amelioration of the condition of the wounded and sick in armies
in the field, makes it
"the duty of the commanders in chief of the belligerent
Page 327 U. S. 16
armies to provide for the details of execution of the foregoing articles [of the
convention], as well as for unforeseen cases."
And, finally, Article 43 of the Annex of the Fourth Hague Convention, 36 Stat.
2306, requires that the commander of a force occupying enemy territory, as was
petitioner,
"shall take all the measures in his power to restore and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country."
These provisions plainly imposed on petitioner, who at the time specified was
military governor of the Philippines as well as commander of the Japanese forces,
an affirmative duty to take such measures as were within his power and
appropriate in the circumstances to protect prisoners of war and the civilian
population. This duty of a commanding officer has heretofore been recognized,
and its breach penalized by our own military tribunals. [Footnote 3] A like principle
has been applied so as to impose liability on the United States in international
arbitrations. Case of Jenaud, 3 Moore, International Arbitrations 3000; Case of
"The Zafiro," 5 Hackworth, Digest of International Law 707.
We do not make the laws of war, but we respect them so far as they do not conflict
with the commands of Congress or the Constitution. There is no contention that
the present charge, thus read, is without the support of evidence, or that the
commission held petitioner responsible for failing to take measures which were
beyond his control or inappropriate for a commanding officer to take in the
circumstances. [Footnote 4]
Page 327 U. S. 17
We do not here appraise the evidence on which petitioner was convicted. We do
not consider what measures, if any, petitioner took to prevent the commission, by
the troops under his command, of the plain violations of the law of war detailed in
the bill of particulars, or whether such measures as he may have taken were
appropriate and sufficient to discharge the duty imposed upon him. These are
questions within the peculiar competence of the military officers composing the
commission, and were for it to decide. See Smith v. Whitney, 116 U. S. 167, 116
U. S. 178. It is plain that the charge on which petitioner was tried charged him with
a breach of his duty to control the operations of the members of his command, by
permitting them to commit the specified atrocities. This was enough to require the
commission to hear evidence tending to establish the culpable failure of petitioner
to perform the duty imposed on him by the law of war, and to pass upon its
sufficiency to establish guilt.
Obviously, charges of violations of the law of war triable before a military tribunal
need not be stated with the precision of a common law indictment. Cf. Collins v.
McDonald, supra, 258 U. S. 420. But we conclude that the allegations of the
charge, tested by any reasonable standard, adequately allege a violation of the law
of war, and that the
Page 327 U. S. 18
commission had authority to try and decide the issue which it raised. Cf. Dealy v.
United States, 152 U. S. 539; Williamson v. United States, 207 U. S. 425, 207 U.
S. 447; Glasser v. United States, 315 U. S. 60, 315 U. S. 66, and cases cited.
The Proceedings before the Commission. The regulations prescribed by General
MacArthur governing the procedure for the trial of petitioner by the commission
directed that the commission should admit such evidence
"as, in its opinion, would be of assistance in proving or disproving the charge, or
such as, in the commission's opinion, would have probative value in the mind of a
reasonable man,"
and that, in particular, it might admit affidavits, depositions, or other statements
taken by officers detailed for that purpose by military authority. The petitions in this
case charged that, in the course of the trial, the commission received, over
objection by petitioner's counsel, the deposition of a witness taken pursuant to
military authority by a United States Army captain. It also, over like objection,
admitted hearsay and opinion evidence tendered by the prosecution. Petitioner
argues, as ground for the writ of habeas corpus, that Article 25 [Footnote 5] of the
Articles of War prohibited the reception in evidence by the commission of
depositions on behalf of the prosecution in a capital case, and that Article 38
[Footnote 6] prohibited the reception of hearsay and of opinion evidence.
Page 327 U. S. 19
We think that neither Article 25 nor Article 38 is applicable to the trial of an enemy
combatant by a military commission for violations of the law of war. Article 2 of the
Articles of War enumerates "the persons . . . subject to these articles," who are
denominated, for purposes of the Articles, as "persons subject to military law." In
general, the persons so enumerated are members of our own Army and of the
personnel accompanying the Army. Enemy combatants are not included among
them. Articles 12, 13, and 14, before the adoption of Article 15 in 1916, 39 Stat.
653, made all "persons subject to military law" amenable to trial by courts-martial
for any offense made punishable by the Articles of War. Article 12 makes triable by
general court martial "any other person who, by the law of war, is [triable] by
military tribunals." Since Article 2, in its 1916 form, 39 Stat. 651, includes some
persons who, by the law of war, were, prior to 1916, triable by military commission,
it was feared by the proponents of the 1916 legislation that, in the absence of a
saving provision, the authority given by Articles 12, 13, and 14 to try such persons
before courts-martial might be construed to deprive the nonstatutory military
commission of a portion of what was considered to be its traditional jurisdiction. To
avoid this, and to preserve that jurisdiction intact, Article 15 was added to the
Articles. [Footnote 7] It declared that
"The provisions of these articles
Page 327 U. S. 20
conferring jurisdiction upon courts-martial shall not be construed as depriving
military commissions . . . of concurrent jurisdiction in respect of offenders or
offenses that, by the law of war, may be lawfully triable by such military
commissions."
By thus recognizing military commissions in order to preserve their traditional
jurisdiction over enemy combatants unimpaired by the Articles, Congress gave
sanction, as we held in Ex parte Quirin, to any use of the military commission
contemplated by the common law of war. But it did not thereby make subject to the
Articles of War persons other than those defined by Article 2 as being subject to
the Articles, nor did it confer the benefits of the Articles upon such persons. The
Articles recognized but one kind of military commission, not two. But they
sanctioned the use of that one for the trial of two classes of persons, to one of
which the Articles do, and to the other of which they do not, apply in such trials.
Being of this latter class, petitioner cannot claim the benefits of the Articles, which
are applicable only to the members of the other class. Petitioner, an enemy
combatant, is therefore not a person made subject to the Articles of War by Article
2, and the military commission before which he was tried, though sanctioned, and
its jurisdiction saved, by Article 15, was not convened by virtue of the Articles of
War, but pursuant to the common law of war. It follows that the Articles of War,
including Articles 25 and 38, were not applicable to petitioner's trial, and imposed
no restrictions upon the procedure to be followed. The Articles left the control over
the procedure in such a case where it had previously been -- with the military
command.
Petitioner further urges that, by virtue of Article 63 of the Geneva Convention of
1929, 47 Stat. 2052, he is entitled to the benefits afforded by the 25th and 38th
Articles of War to members of our own forces. Article 63 provides:
"Sentence may be pronounced against a prisoner of war
Page 327 U. S. 21
only by the same courts and according to the same procedure as in the case of
persons belonging to the armed forces of the detaining Power."
Since petitioner is a prisoner of war, and as the 25th and 38th Articles of War apply
to the trial of any person in our own armed forces, it is said that Article 63 requires
them to be applied in the trial of petitioner. But we think examination of Article 63 in
its setting in the Convention plainly shows that it refers to sentence "pronounced
against a prisoner of war" for an offense committed while a prisoner of war, and
not for a violation of the law of war committed while a combatant.
Article 63 of the Convention appears in part 3, entitled "Judicial Suits," of Chapter
3, "Penalties Applicable to Prisoners of War," of § V, "Prisoners' Relations with the
Authorities," one of the sections of Title III, "Captivity." All taken together relate
only to the conduct and control of prisoners of war while in captivity as such.
Chapter 1 of Section V, Article 42, deals with complaints of prisoners of war
because of the conditions of captivity. Chapter 2, Articles 43 and 44, relates to
those of their number chosen by prisoners of war to represent them.
Chapter 3 of Section V, Articles 45 through 67, is entitled "Penalties Applicable to
Prisoners of War." Part 1 of that chapter, Articles 45 through 53, indicates what
acts of prisoners of war committed while prisoners shall be considered offenses,
and defines to some extent the punishment which the detaining power may impose
on account of such offenses. [Footnote 8] Punishment is of two kinds --
"disciplinary" and
Page 327 U. S. 22
"judicial," the latter being the more severe. Article 52 requires that leniency be
exercised in deciding whether an offense requires disciplinary or judicial
punishment. Part 2 of Chapter 3 is entitled "Disciplinary Punishments," and further
defines the extent of such punishment and the mode in which it may be imposed.
Part 3, entitled "Judicial Suits," in which Article 63 is found, describes the
procedure by which "judicial" punishment may be imposed. The three parts of
Chapter 3, taken together, are thus a comprehensive description of the substantive
offenses which prisoners of war may commit during their imprisonment, of the
penalties which may be imposed on account of such offenses, and of the
procedure by which guilt may be adjudged and sentence pronounced.
We think it clear, from the context of these recited provisions, that part 3, and
Article 63 which it contains, apply only to judicial proceedings directed against a
prisoner of war for offenses committed while a prisoner of war. Section
Page 327 U. S. 23
V gives no indication that this part was designed to deal with offenses other than
those referred to in parts 1 and 2 of chapter 3.
We cannot say that the commission, in admitting evidence to which objection is
now made, violated any act of Congress, treaty, or military command defining the
commission's authority. For reasons already stated, we hold that the commission's
rulings on evidence and on the mode of conducting these proceedings against
petitioner are not reviewable by the courts, but only by the reviewing military
authorities. From this viewpoint, it is unnecessary to consider what, in other
situations, the Fifth Amendment might require, and as to that, no intimation one
way or the other is to be implied. Nothing we have said is to be taken as indicating
any opinion on the question of the wisdom of considering such evidence, or
whether the action of a military tribunal in admitting evidence which Congress or
controlling military command has directed to be excluded may be drawn in
question by petition for habeas corpus or prohibition.

Effect of failure to give notice of the trial to the protecting power. Article 60 of the
Geneva Convention of July 27, 1929, 47 Stat. 2051, to which the United States
and Japan were signatories, provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the
detaining Power shall advise the representative of the protecting Power thereof as
soon as possible, and always before the date set for the opening of the trial."

Petitioner relies on the failure to give the prescribed notice to the protecting power
[Footnote 9] to establish want of authority in the commission to proceed with the
trial.

Page 327 U. S. 24

For reasons already stated, we conclude that Article 60 of the Geneva Convention,
which appears in part 3, Chapter 3, Section V, Title III of the Geneva Convention,
applies only to persons who are subjected to judicial proceedings for offenses
committed while prisoners of war. [Footnote 10]

Page 327 U. S. 25

It thus appears that the order convening the commission was a lawful order, that
the commission was lawfully constituted, that petitioner was charged with violation
of the law of war, and that the commission had authority to proceed with the trial,
and, in doing so, did not violate any military, statutory, or constitutional command.
We have considered, but find it unnecessary to discuss, other contentions which
we find to be without merit. We therefore conclude that the detention of petitioner
for trial and his detention upon his conviction, subject to the prescribed review by
the military authorities, were lawful, and that the petition for certiorari, and leave to
file in this Court

Page 327 U. S. 26

petitions for writs of habeas corpus and prohibition should be, and they are

Denied.