Petitioner Vs Vs Respondents Marcelino Lontok, P. A. Revilla, Respondent Judge Dizon

EN BANC
[G.R. No. L-5. September 17, 1945.]

CO CHAM (alias CO CHAM) , petitioner, vs . EUSEBIO VALDEZ TAN
KEH and ARSENIO P. DIZON, Judge of First Instance of Manila ,
respondents.
Marcelino Lontok, for petitioner.
P. A. Revilla, for respondent Valdez Tan Keh.
Respondent Judge Dizon, in his own behalf.
SYLLABUS
1. POLITICAL AND INTERNATIONAL LAW; VALIDITY OF ACTS OF "DE FACTO"

GOVERNMENT. — It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a de facto
government are good and valid.
2. ID.; KINDS OF "FACTO" GOVERNMENTS. — There are several kinds of de
facto governments. The rst, or government de facto in a proper legal sense, is that
government that gets possession and control of, or usurps, by force or by the voice of
the majority, the rightful legal government and maintains itself against the will of the
latter, such as the government of England under the Commonwealth, rst the
Parliament and later by Cromwell as Protector. The second is that which is established
and maintained by military forces who invade and occupy a territory of the enemy in the
course of war, and which is denominated a government of paramount force, as the
cases of Castine, in Maine, which was reduced to British possession in the in the war of
1812, and of Tampico, Mexico, occupied during the war with Mexico, by the troops of
the United States. And the third is that established as an independent government by
the inhabitants of a country who rise in insurrection against the parent state, such as
the government of the Southern Confederacy in revolt against the Union during the war
of secession.
3. ID.; DISTINGUISHING CHARACTERISTICS OF SECOND KIND OF "DE
FACTO" GOVERNMENT. — The distinguishing characteristics of the second kind of de
facto government, more aptly denominated a government of paramount force, are (1),
that its existence is maintained by active military power within the territories and
against the rightful authority of an established and lawful government; and (2), that
while it exist it must necessarily be obeyed in civil matters by private citizens who, by
acts of obedience rendered in submission to such force, do not become responsible,
as wrongdoers, for those acts, though not warranted by the laws of the rightful
government. Actual governments of this sort are established over districts differing
greatly in extent and conditions. They are usually administered by military authority, but
they may be administered, also, by civil authority, supported more or less directly by
military force.
4. ID.; ID.; POWERS AND DUTIES OF GOVERNMENT OF PARAMOUNT FORCE.
— The powers and duties of de facto governments of this description are regulated in
Section III of the Hague Convention of 1907, which is a revision of the provisions of the
Hague Conventions of 1899 on the same subject of Military Authority over Hostile
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Territory. Article 43 of said Section III provides that "the authority of the legitimate
power having actually passed into the hands of the occupants, the latter shall take all
steps in his power to reestablish and issue, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force in the country."
5. ID.; ID.; ID.; PHILIPPINE EXECUTIVE COMMISSION, A "DE FACTO"
GOVERNMENT OF THE SECOND KIND. — It is evident that the Philippine Executive
Commission, which was organized by Order No. 1, issued on January 23, 1942 by the
Commander of the Japanese forces, was a civil government established by the military
forces, was a civil government established by the military forces of occupation and
therefore a de facto government of the second Kind. It was not different from the
government established by the British in Castine, Maine, or by the United States in
Tampico, Mexico. As Halleck says, "the government established over an enemy's
territory during the military occupation may exercise all the powers given by the laws of
war to the conqueror over the conquered, and is subject to all restrictions which that
code imposes. It is of little consequence whether such government be called a military
or civil government. Its character is the same and the source of its authority the same.
In either case it is a government imposed by the laws of war, and so far as it concerns
the inhabitants of such territory or the rest of the world, those laws alone determine the
legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run by Filipinos and not
by Japanese nationals, is of no consequence.
6. ID.; ID.; ID.; SO-CALLED REPUBLIC OF THE PHILIPPINES, OF SAME
CHARACTER AS PHILIPPINE EXECUTIVE COMMISSION. — The so-called Republic of
the Philippines, apparently established and organized as a sovereign state independent
from any other government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupants or the Japanese forces of
occupation. It was of the same character as the Philippine Executive Commission, and
the ultimate source of its authority was the same — the Japanese military authority and
government. Japan had no legal power to grant independence to the Philippines or
transfer the sovereignty of the United States to, or recognize the latest sovereignty of,
the Filipino people, before its military occupation and possession of the islands had
matured into an absolute and permanent dominion or sovereignty by a treaty of peace
or other means recognized in the law of nations. For it is a well-established doctrine in
international law, recognized in Article 45 of the Hague Convention of 1907 (which
prohibits compulsion of the population of the occupied territory to swear allegiance to
the hostile power), that belligerent occupation, being essentially provisional, does not
serve to transfer sovereignty over the territory controlled although the de jure
government is during the period of occupancy deprived of the power to exercise its
rights as such. Even if the Republic of the Philippines had been established by the free
will of the Filipino people who, taking advantage of the withdrawal of the American
forces from the Islands, had organized an independent government under that name
with the support and backing of Japan, such government would have been considered
as one established by the Filipinos in insurrection or rebellion against the parent state
of the United States. And, as such, it would have been a de facto government similar to
that organized by the confederate states during the war of secession and recognized
by the as such by the Supreme Court of the United States in numerous cases; and
similar to the short-lived government established by the Filipino insurgents in the
Islands of Cebu during the Spanish-American war, recognized as a de facto government
by same court in the case of McCleod vs. United States (229 U. S., 416).
7. ID.; ID.; ID.; VALIDITY OF JUDICIAL ACTS AND PROCEEDINGS OF
PHILIPPINE EXECUTIVE COMMISSION AND REPUBLIC OF THE PHILIPPINES AFTER
REOCCUPATION OF THE PHILIPPINES. — The governments of the Philippine Executive
Commission and the Republic of the Philippines during Japanese military occupation
b e i n g de facto governments, it necessarily follows that the judicial acts and
proceedings of the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of
postliminy (postliminium) in international law, remained good and valid after the
liberation or reoccupation of the Philippines by the American and Filipino forces under
the leadership of General Douglas MacArthur.
8. ID.; ID.; ID.; SCOPE OF PROCLAMATION OF GENERAL DOUGLAS
MACARTHUR ANNULLING ALL "PROCESSES OF ANY OTHER GOVERNMENT IN THE
PHILIPPINE." — The phrase "processes of any other government" is broad and may
refer not only to judicial processes, but also to administrative or legislative, as well as
constitutional, processes of the Republic of the Philippines of other governmental
agencies established in the Islands during the Japanese occupation. Taking into
consideration the fact that, according to the well-known principles of international law
all judgments and judicial proceedings, which are not of a political complexion, of the
de facto governments during the Japanese military occupation were good and valid
before and remained so after the occupied territory had come again into the power of
the titular sovereign, it should be presumed that it was not, and could not have been, the
intention of General Douglas MacArthur, in using the phrase "processes of any other
government" in said proclamation, to refer to judicial processes, in violation of said
principles of international law. The only reasonable construction of the said phrase is
that it refers to governmental processes other than judicial processes or court
proceedings, for according to a well-known rule of statutory construction, set forth in
25 R. C. L., p. 1028, "a statute ought never to be construed to violate the law of nations
if any other possible construction remains."
9. ID.; ID.; ID.; JURISDICTION OF COURTS OF COMMONWEALTH TO
CONTINUE PROCEEDINGS IN ACTIONS PENDING IN COURTS DURING JAPANESE
MILITARY OCCUPATION. — Although in theory the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military occupation
takes place, in practice the invader does not usually take the administration of justice
into his own hands, but continues the ordinary courts or tribunals to administer the laws
of the country which he is enjoined, unless absolutely prevented, to respect. Following
this practice and the precepts of the law of nations, the Commander in Chief of the
Japanese forces proclaimed on January 3, 1943, when Manila was occupied, the
military administration under martial law over the territory occupied by the army, and
ordered that "all the laws now in force in the Commonwealth, as well as executive and
judicial institutions, shall continue to be effective for the time being as in the past," and
"all public o cials shall remain in their present post and carry on faithfully their duties
as before." When the Philippine Executive Commission was organized by Order No. 1 of
the Japanese Commander in Chief, on January 23, 1943, the Chairman of the Executive
Commission, by Executive Orders Nos. 1 and 4 of January 30 and February 5,
respectively, continued the Supreme Court, Court of Appeals, Court of First Instance,
and justices of the peace courts, with the same jurisdiction, in conformity with the
instructions given by the Commander in Chief of the Imperial Japanese army in Order
No.3 of February 20, 1942. And on October 14, 1943 when the so-called Republic of the
Philippines was inaugurated, the same courts were continued with no substantial
change in the organization and jurisdiction thereof. If the proceedings pending in the
different courts of the Islands prior to the Japanese military occupation had been
continued during the Japanese military administration, the Philippine Executive
Commission, and the so-called Republic of the Philippines, it stands to reason the same
courts, which become reestablished and conceived of as having been in continued
existence upon the reoccupation and liberation of the Philippines by virtue of the
principle of postliminy (Hall, International Law, 7th ed., p. 526), may continue the
proceedings in cases then pending in said courts, without necessity of enacting a law
conferring jurisdiction upon them to continue said proceedings.
10. ID.; ID.; ID.; CONTINUITY OF LAW. — It is a legal maxim that, excepting
that of a political nature, "Law once established continues until changed by some
competent legislative power. It is not changed merely by chance of sovereignty."
(Joseph H. Beale, Cases on Con ict of Laws, III, Summary section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on
the Con ict of Laws (Cambridge, 1916, section 131): "There can be no break or
interregnum in law. From the time the law comes into existence with the rst-felt
corporateness of a primitive people it must last until the nal disappearance of human
society. Once created, it persist until a change takes place, and when changed it
continues in such changed condition until the next change, and so forever. Conquest or
colonization is impotent to bring law to amend; in spite of change of constitution, the
law continues unchanged until the new sovereign by legislative act creates a change."
As courts are creatures of statutes and their existence depends upon that of the laws
which create and confer upon them their jurisdiction, it is evident that such laws, not
being of a political nature, are not abrogated by a change of sovereignty, and continues
in force "ex proprio vigore" unless and until repealed by legislative acts. A proclamation
that said laws and courts are expressly continued is not necessary in order that they
may continue in force. Such proclamation, if made, is but a declaration of the intention
of respecting and not repealing those laws. As a consequence, enabling laws or acts
providing that proceedings pending in one court be continued by or transferred to
another court, are not required by the mere change of government or sovereignty. They
are necessary only in case the former courts are abolished or their jurisdiction so
changed that they can no longer continue taking cognizance of the cases and
proceedings commenced therein, in order that the new courts or the courts having
jurisdiction over said cases may continue the proceedings.
DECISION
FERIA , J : p
This is a petition for mandamus in which petitioner prays that the respondent
judge of the lower court be ordered to continue the proceedings in civil case No. 3012
of said court, which were initialed under the regime of the so-called Republic of the
Philippines established during the Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the
proceedings in said case on the ground that the proclamation issued on October 23,
1944, by General Douglas MacArthur had the effect of invalidating and nullifying all
judicial proceedings and judgments of the court of the Philippines under the Philippine
Executive Commission and the Republic of the Philippines established during the
Japanese military occupation, and that, furthermore, the lower court courts have no
jurisdiction to take cognizance of and continue judicial proceedings pending in the
courts of the defunct Republic of the Philippines in the absence of an enabling law
granting such authority. And the same respondent, in his answer and memorandum
led in this Court, contends that the governments established in the Philippines during
Japanese occupation were not de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila,
and on the next day their Commander in Chief proclaimed "Military Administration,
under martial law over the districts occupied by the Army." In said proclamation, it was
also provided that "so far as the Military Administration permits, all the laws now in
force in the Commonwealth, as well as executive and judicial institutions, shall continue
to be effective for the time being as in the past," and "all public o cials shall remain in
their present posts and carry on faithfully their duties as before."
A civil government or central administrative organization under the name of
"Philippine Executive Commission" was organized by Order No. 1 issued on January 23,
1942, by the Commander in Chief of the Japanese Forces in the Philippines, and Jorge
B. Vargas, who was appointed Chairman thereof, was instructed to proceed to the
immediate coordination of the existing central administrative organs and of judicial
courts, based upon what had existed theretofore, with the approval of the said
Commander in Chief, who was to exercise jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative
organization, issued Executive Orders Nos. 1 and 4, dated January 30 and February 5,
1942, respectively, in which the Supreme Court, Court of Appeals, Courts of First
Instance, and the justices of the peace and municipal courts under the Commonwealth
were continued with the same jurisdiction, in conformity with the instructions given to
the said Chairman of the Executive Commission by the Commander in Chief of
Japanese Forces in the Philippines in the latter's Order No. 3 of February 20, 1942,
concerning basic principles to be observed by the Philippine Executive Commission in
exercising legislative, executive and judicial powers. Section 1 of said Order provided
that "activities of the administrative organs and judicial courts in the Philippines shall be
based upon the existing statutes, orders, ordinances and customs . . . "
On October 14, 1943, the so-called Republic of the Philippines was inaugurated,
but no substantial change was effected thereby in the organization and jurisdiction of
the different courts that functioned during the Philippine Executive Commission, and in
the laws they administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General
Douglas MacArthur issued a proclamation to the People of the Philippines which
declared:
"1. That the Government of the Commonwealth of the Philippines is,
subject to the supreme authority of the Government of the United States, the sole
and only government having legal and valid jurisdiction over the people in areas
of the Philippines free of enemy occupation and control;
"2. That the laws now existing on the statute books of the
Commonwealth of the Philippines and the regulations promulgated pursuant
thereto are in full force and effect and legally binding upon the people in areas of
the Philippines free of enemy occupation and control; and.
"3. That all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and void and
without legal effect in areas of the Philippines free of enemy occupation and
control."
On February 3, 1945, the City of Manila was partially liberated and on February 27,
1945, General Douglas MacArthur, on behalf of the Government of United States,
solemnly declared "the full powers and responsibilities under the Constitution restored
to the Commonwealth whose seat is here reestablished as provided by law."
In the light of these facts and events of contemporary history, the principal
questions to be resolved in the present case may be reduced to the following: (1)
Whether the judicial acts and proceedings of the courts existing in the Philippines under
the Philippine Executive Commission and the Republic of the Philippines were good and
valid and remained so even after the liberation or reoccupation of the Philippines by the
United States and Filipino forces; (2) Whether the proclamation issued on October 23,
1944, by General Douglas MacArthur, Commander in Chief of United States Army, in
which he declared "that all laws, regulations and processes of any other government in
the Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control," has invalidated
all judgments and judicial acts and proceedings of the said courts; and (3) If the said
judicial acts and proceedings have not been invalidated by said proclamation, whether
the present courts of the Commonwealth, which were the same courts existing prior to,
and continued during, the Japanese military occupation of the Philippines, may continue
those proceedings pending in said courts at the time the Philippines were reoccupied
and liberated by the United States and Filipino forces, and the Commonwealth of the
Philippines was reestablished in the Islands.
We shall now proceed to consider the rst question, that is, whether or not under
the rules of international law the judicial acts and proceedings of the courts established
in the Philippines under the Philippine Executive Commission and the Republic of the
Philippines were good and valid and remained good and valid even after the liberation
or reoccupation of the Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial department of a de facto
government are good and valid. The question to be determined is whether or not the
governments established in these islands under the names of Philippine Executive
Commission and Republic of the Philippines during the Japanese occupation or regime
were de facto governments. If they were, the judicial acts and proceedings of those
governments remain good and valid even after the liberation or reoccupation of the
Philippines by the American and Filipino Forces.
There are several kinds of de facto governments. The rst, or government de
facto in a proper legal sense, is that government that gets possession and control of, or
usurps, by force or by the voice of the majority, the rightful legal government and
maintains itself against the will of the latter, such government of England under the
Commonwealth, rst by Parliament and later by Cromwell as Protector. The second is
that which is established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war, and which is denominated a government of
paramount force, as the cases of Castine, in Maine, which was reduced to British
possession in the war of 1812, and of Tampico, Mexico, occupied during the war with
Mexico, by the troops of the United States. And the third is that established as an
independent government of the Southern Confederacy in revolt against the Union during
the war of secession. We are not concerned in the present case with the rst kind, but
only with the second and third kinds of de facto governments.
Speaking of government "de facto" of the second kind, the Supreme Court of the
United States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another
description of government, called also by publicists a government de facto, but which
might, perhaps, be more aptly denominated a government of paramount force. Its
distinguishing characteristics are: (1), that its existence is maintained by active military
power within the territories, and against the rightful authority of an established and
lawful government; and (2), that while it exist it must necessarily be obeyed in civil
matters by private citizens who, by acts of obedience rendered in submission to such
force, do not become responsible, as wrongdoers, for those acts, though not warranted
by the laws of the rightful government. Actual governments of this sort are established
over districts differing greatly in extent and conditions. They are usually administered
directly by military force . . .. One example of this sort of government is found in the
case of Castine, in Maine, reduced to British possession in the war of 1812 . . .. U. S. vs.
Rice (4 Wheaton, 253). A like example is found in the case of Tampico, occupied during
the war with Mexico, by the troops of the United States . . ..Fleming vs. Page ( Howard,
614). These were cases of temporary possession of territory by lawful and regular
governments at war with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated
in Section III of the Hague Conventions of 1907, which is a revision of the provisions of
the Hague Conventions of 1899 on the same subject of Military Authority over Hostile
Territory. Article 43 of said Section III provides that "the authority of the legitimate
power having actually passed into the hands of the occupant, the latter shall take all
steps in his power to reestablish and insure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force in the country."
According to these precepts of the Hague Conventions, as the belligerent
occupant has the right and is burdened with the duty to insure public order and safety
during his military occupation, he possesses all the powers of a de facto government,
and he can suspend the old laws and promulgate new ones and make changes in the
old as he may see t, but he is enjoined to respect, unless absolutely prevented by the
circumstances prevailing in the occupied territory, the municipal laws in force which
enforce public order and regulate the social and commercial life of the country. On the
other hand, laws of a political nature or affecting political relations, such as, among
others, the right of assembly, the right to bear arms, the freedom of the press, and the
right to travel freely in the territory occupied are considered as suspended or in
abeyance during the military occupation. Although the local and civil administration of
justice is suspended as a matter of course as soon as a country is militarily occupied, it
is not usual for the invader to take the whole administration into his own hands. In
practice, the local ordinary tribunals are authorized to continue administering justice;
and the judges and other judicial o cers are kept in their post if they accept the
authority of the belligerent occupant or are required to continue in their positions under
the supervision of the military or civil authorities appointed by the Commander in Chief
of the occupant. These principles and practice have the sanction of all publicists who
have considered the subject, and have been asserted by the Supreme Court and applied
by the Presidents of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on
International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and govern the
territory of the enemy while in its military possession, is one of the incidents of war, and
ows directly from the right to conquer. We, therefore, do not no look to the
Constitution or political institutions of the conqueror, for authority to establish a
government for the territory of the enemy in his possession, during its military
occupation, nor for the rules by which the powers of such government are regulated
and limited. Such authority and such rules are derived directly from the laws of war, as
established by the usage of the world, and con rmed by the writings of publicists and
decisions of courts — in ne, from the law of nations . . .. The municipal laws of a
conquered territory, or the laws which regulate private rights, continue in force during
military occupation, except so far as they are suspended or changed by the acts of the
conqueror . . .. He, nevertheless, has all the powers of a de facto government, and can at
his pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied
territory, which were later embodied in the said Hague Conventions, President McKinley,
in his executive order to the Secretary of War of May 19, 1898, relating to the
occupation of the Philippines by the United States forces, said in part: "Though the
powers of the military occupant are absolutely and supreme, and immediately operate
upon the political condition of the inhabitants, the municipal laws of the conquered
territory, such as affect private rights of person and property and provide for the
punishment of crime, are considered as continuing in force, so far as they are
compatible with the new order of things, until they are suspended or superseded by the
occupying belligerent; and in practice they are not usually abrogated, but are allowed to
remain in force and to be administered by the ordinary tribunals, substantially as they
were before the occupation. This enlightened practice is, so far as possible, to be
adhered to on the present occasion. The judges and the other o cials connected with
the administration of justice may, if they accept the authority of the United States,
continue to administer the ordinary law of the land as between man and man under the
supervision of the American Commander in Chief." (Richardson's Messages and Papers
of President, X, p. 209.)
As to de facto government of the third kind, the Supreme Court of the United
States, in the same case of Thorington vs. Smith, supra, recognized the government set
up by the Confederate States as a de facto government. In that case, it was held that
"the central government established for the insurgent States differed from the
temporary governments at Castine and Tampico in the circumstance that its authority
did not originate in lawful acts of regular war; but it was not, on the account, less actual
or less supreme. And we think that it must be classed among the governments of
which these are examples . . .."
In the case of Williams vs. Bruffy (96 U. S. 176., 192), the Supreme Court of the
United States, discussing the validity of the acts of the Confederate States, said: "The
same general form of government, the same general laws for the administration of
justice and the protection of private rights, which had existed in the States prior to the
rebellion, remained during its continuance and afterwards. As far as the Acts of the
States do not impair or tend to impair the supremacy of the national authority, or the
just rights of citizens under the Constitution, they are, in general, to be treated as valid
and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The
existence of a state of insurrection and war did not loosen the bonds of society, or do
away with civil government or the regular administration of the laws. Order was to be
preserved, police regulations maintained, crime prosecuted, property protected,
contracts enforced, marriages celebrated, estates settled, and the transfer and descent
of property regulated, precisely as in the time of peace. No one, that we are aware of,
seriously questions the validity of judicial or legislative Acts in the insurrectionary
States touching these and kindred subjects, where they were not hostile in their
purpose or mode of enforcement to the authority of National Government, and did not
impair the rights of citizens under the Constitution'. The same doctrine has been
asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held:
"That what occurred or was done in respect of such matters under the authority of the
laws of these local de facto governments should not be disregarded or held to be
invalid merely because those governments were organized in hostility to the Union
established by the national Constitution; this, because the existence of war between the
United States and the Confederate States did not relieve those who were within the
insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of
society nor do away with civil government or the regular administration of the laws, and
because transactions in the ordinary course of civil society as organized within the
enemy's territory although they may have indirectly or remotely promoted the ends of
t he de facto or unlawful government organized to effect a dissolution of the Union,
were without blame 'except when proved to have been entered into with actual intent to
further invasion or insurrection;' and "That judicial and legislative acts in the respective
states composing the so-called Confederate States should be respected by the courts
if they were not hostile in their purpose or mode of enforcement to the authority of the
National Government, and did not impair the rights of citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission,
which was organized by Order No. 1, issued on January 23, 1942, by the Commander of
the Japanese Forces, was a civil government established by the military forces of
occupation and therefore a de facto government of the second kind. It was not
different from the government established by the British in Castine, Maine, or by the
United States in Tampico, Mexico. As Halleck says, "The government established over
an enemy's territory during the military occupation may exercise all the powers given by
the laws of war to the conqueror over the conquered, and is subject to all restrictions
which that code imposes. It is of little consequence whether such government be called
a military or civil government. Its character is the same and the source of its authority
the same. In either case it is a government imposed by the appellants of such territory
or the rest of the world, those laws alone determine the legality or illegality of its acts."
(Vol. 2, p. 466.) The fact that the Philippines Executive Commission was a civil and not a
military government and was run by Filipinos and not by Japanese nationals, is of no
consequence. In 1806, when Napoleon occupied the greater part of Prussia, he retained
the existing administration under the general direction of a French o cial (Langfrey
History of Napoleon, I IV, 25); and in the same way, the Duke of Wellington, on invading
France, authorized the local authorities to continue the exercise of their functions,
apparently without appointing an English superior. (Wellington Despatches, XI, 307.)
The Germans, on the other hand, when they invaded France in 1870, appointed their own
o cials, at least in Alsace and Lorraine, in every department of administration and of
every rank. (Calvo, pars, 2186-93; Hall, International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized
as a sovereign state independent from any other government by the Filipino people,
was in truth and reality, a government established by the belligerent occupant or the
Japanese forces of occupation. It was of the same character as the Philippine
Executive Commission, and the ultimate source of its authority was the same — the
Japanese military authority and government. As General MacArthur stated in his
proclamation of October 23, 1944, a portion of which has been already quoted, under
enemy duress, a so-called government styled as the 'Republic of the Philippines' was
established on October 14, 1943, based upon neither the free expression of the
people's will nor the sanction of the Government of the United States." Japan had no
legal power to grant independence to the Philippines or transfer the sovereignty of, the
Filipino people, before its military occupation and possession of the Islands had
matured into an absolute and permanent dominion or sovereignty by a treaty of peace
or other means recognized in the law of nations. For it is a well-established doctrine in
international law, recognized in Article 45 of the Hague Conventions of 1907 (which
prohibits compulsion of the population of the occupied territory to swear allegiance to
the hostile power), that belligerent occupation, being essentially provisional, does not
serve to transfer sovereignty over the territory controlled although the de jure
government is during the period of occupancy deprived of the power to exercise its
rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs.
Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S.,
345.) The formation of the Republic of the Philippines was a scheme contrived by
Japan to delude the Filipino people into believing in the apparent magnanimity of the
Japanese gesture of transferring or turning over the rights of government into the
hands of Filipinos. It was established under the mistaken belief or at least the neutrality
of the Filipino people in her war against the United States and other allied nations.
Indeed, even if the Republic of the Philippines had been established by the free
will of the Filipino people who, taking advantage of the withdrawal of the American
forces from the Islands, and the occupation thereof by the Japanese forces of invasion,
had organized and independent government under the name with the support and
backing of Japan, such government would had been considered as one established by
the Filipinos in insurrection or rebellion against the parent state or the United States.
And, as such, it would had been a de facto government similar to that organized by the
confederate states during the war of secession and recognized as such by the
Supreme Court of the United States in numerous cases, notably those of Thorington vs.
Smith, Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and similar to the short-
lived government established by the Filipino insurgents in the Islands of Cebu during
the Spanish-American war, recognized as de facto government by the Supreme Court of
the United States in the case of Mc Leod vs. United States (299 U. S., 416). According
to the facts in the last-named case, the Spanish forces evacuated the Islands of Cebu
on December 25, 1898, having rst appointed a provisional government, and shortly
afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession thereof was
surrendered to the United States on February 22, 1898. And the said Supreme Court
held in that case that "such government was of the class of de facto government
described in I Moore's International Law Digest, S 20, . . . 'called also by publicists a
government de facto, but which might, perhaps, be more aptly denominated a
government of paramount force . . .'." That is to say, that the government of a country in
possession of belligerent forces in insurrection or rebellion against the parent state,
rest upon the same principles as that of a territory occupied by the hostile army of an
enemy at regular war with the legitimate power.
The governments by the Philippine Executive Commission and the republic of the
Philippines during the Japanese military occupation being de facto governments, it
necessarily follows that the judicial acts and proceedings of the courts of justice of
those governments, which are not of political complexion, were good and valid, and, by
virtue of the well-known principle of postliminy (postliminium) in international law,
remained good and valid after the liberation or reoccupation of the Philippines by the
American and Filipino forces under the leadership of General Douglas McArthur.
According to that well-known principle in international law, the fact that a territory which
has been occupied by an enemy comes again into the power of its legitimate
government or sovereignty, "does not, except in a very few cases, wipe out the effects
of acts done by an invader, which for one reason or another it is within his competence
to do. Thus judicial acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that they may take effect during
the continuance of his control, and the various acts done during the same time by
private persons under the sanction of municipal law, remain good. Were it otherwise,
the whole social life of a community would be paralyzed by an invasion; and as between
the state and individuals the evil would be scarcely less, — it would be hard to example
that payment of taxes made under duress should be ignored, and it would be contrary
to the general interest that sentences passed upon criminals should be annulled by the
disappearance of the intrusive government." (Hall, International Law, 7th ed., 518.) And
when the occupation and the abandonment have been each an incident of the same war
as in the present case, postliminy applies, even though the occupant has acted as
conqueror and for the time substituted his own sovereignty, as the Japanese intended
to do apparently in granting independence to the Philippines and establishing the so-
called Republic of the Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are
not of a political complexion, are and remain valid after reoccupation of a territory
occupied by a belligerent occupant, it con rmed by the Proclamation issued by General
Douglas McArthur on October 23, 1944, which declares null and void all laws,
regulations and proceedings of the governments established in the Philippines during
Japanese occupation, for it would have been necessary for said proclamation to
abrogate them if they were invalid ab initio.
2. The second questions hinges upon the interpretation of the phrase
"processes of any other government" as used in the above-quoted proclamation of
General Douglas McArthur of October 23, 1944 — that is, whether it was the intention of
the Commander in Chief of the American Forces to annul and avoid thereby all
judgments and judicial proceedings of the courts established in the Philippines during
the Japanese military occupation.
The phrase "processes of any other government" is broad and may refer not only
to judicial processes, but also to administrative or legislative, as well as constitutional,
processes of the Republic of the Philippines or other governmental agencies
established in the Islands during the Japanese occupation. Taking into consideration
the fact, that as above indicated, according to the well-known principles of international
law all judgments and judicial proceedings, which are not of a political complexion, of
the de facto governments during the Japanese military occupation were good and valid
before and remained so after the occupied territory had come again into the power of
the titular sovereign, it should be presumed that it was not, and could not have been, the
intention of General Douglas McArthur, in using the phrase "processes of any other
government" in said proclamation, to refer to judicial processes in violation of said
principles of international law. The only reasonable construction of the said phrase is
that it refers to governmental processes other than judicial processes or court
proceedings, for according to a well-known rule of statutory construction, set forth in
25 R. C., p. 1028, "a statute ought never to be construed to violate the law of nations if
any other possible construction remains."
It is true that the commanding general of a belligerent army of occupation, as an
agent of his government, may not unlawfully suspend existing laws and promulgate
new ones in the occupied territory, if and when the exigencies of the military occupation
demand such action. But even assuming that, under the law of nations, the legislative
power of a commander in chief of military forces who liberates or reoccupies his own
territory which has been occupied by an enemy, during the military and before the
restoration on the civil regime, is as broad as that of the commander in chief of the
military forces of invasion and occupation (although the exigencies of military
reoccupation are evidently less than those of occupation), it is to be presumed that
General Douglas McArthur, who was acting as an agent or a representative of the
Government and the President of the United States, constitutional commander in chief
of the United States Army, did not intend to act against the principles of the law of
nations asserted by the Supreme Court of the United States from the early period of its
existence, applied by the Presidents of the United States, and later embodied in the
Hague Convention of 1907, as above indicated. It is not to be presumed that General
Douglas McArthur, who enjoined in the same proclamation of October 23, 1944, "upon
the loyal citizens of the Philippines full respect and obedience to the Constitution of the
Commonwealth of the Philippines," should not only reverse the international policy and
practice of his own government, but also disregard in the same breath the provisions of
section 3, Article II, of our Constitution, which provides that "The Philippines renounces
war as an instrument of national policy, and adopts the generally accepted principles of
international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship
would result, and great public interest would be endangered and sacri ced, for
disputes or suits already adjudged would have to be again settled, accrued or vested
rights nulli ed, sentences passed on criminal set aside, and criminals might easily
become immune for evidence against them may have already disappeared or be no
longer available, especially now that almost all court records in the Philippines have
been destroyed by re as a consequence of the war. And it is another well-established
rule of statutory construction that where great inconvenience will result from a
particular construction, or great public interests would be endangered or sacri ced, or
great mischief done, such construction is to be avoided, or the court ought to presume
that such construction was not intended by the makers of the law, unless required by
clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his
representatives who reoccupies a territory occupied by an enemy, may set aside or
annul all the judicial acts or proceedings of the tribunals which the belligerent occupant
had the right and duty to establish in order to insure public order and safety during
military occupation, would be su cient to paralyze the social life of the country or
occupied territory, for it would have to be expected that litigants would not willingly
submit their litigation to courts whose judgments or decisions may afterwards be
annulled, and criminals would not be deterred from committing crimes or offenses in
the expectancy that they may escape the penalty if judgments rendered against them
may be afterwards set aside.
That the proclamation has not invalidated all the judgments and proceedings of
the courts of justice during the Japanese regime, is impliedly con rmed by Executive
Order No. 37, which has the force of law, issued by the President of the Philippines on
March 10, 1945, by virtue of the emergency legislative power vested in him by the
Constitution and the laws of the Commonwealth of the Philippines. Said Executive
Order abolished the Court of Appeals, and provided "that all cases which have
heretofore been duly appealed to the Court of Appeals shall be transmitted to the
Supreme Court for nal decision." This provision impliedly recognizes that the
judgments and proceedings of the courts during Japanese military occupation have not
been invalidated by the proclamation of General MacArthur of October 23, because the
said Order does not say or refer to cases which had been duly appealed to said court
prior to the Japanese occupation, but to cases which had theretofore, that is, up to
March 10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed
that almost all, if not all, appealed cases pending in the Court of Appeals prior to the
Japanese military occupation of Manila on January 2, 1942, had been disposed of by
the latter before the restoration of the Commonwealth Government in 1945; while
almost all, if not all, appealed cases pending on March 10, 1945 in the Court of Appeals
were from judgments rendered by the Court of First Instance during the Japanese
regime.
The respondent judge quotes a portion of Wheaton's International Law which
says: "Moreover when it is said that an occupier's act are valid and under international
law should not be abrogated by the subsequent conqueror, it must be remembered that
no crucial instances exist to show that if his acts should be reversed, any international
wrong would committed. What does happen is that most matters are allowed to stand
by the restored government, but the matter can hardly be put further than this."
(Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this
quotation the respondent judge "draws the conclusion that whether the acts of the
occupant should be considered valid or not, is a question that is up to the restored
government to decide; that there is no rule of international law that denies to the
restored government the right to exercise its discretion on the matter, imposing upon it
in its instead the obligation of recognizing and enforcing the acts of the overthrown
government."
There is no doubt that the subsequent conqueror has the right to abrogate most
of the acts of the occupier, such as the laws, regulations and processes other than
judicial of the government established by the belligerent occupant. But in view of the
fact that the proclamation uses the words "processes of any other government" and
not judicial processes" precisely, it is not necessary to determine whether or not
General Douglas MacArthur had power to annul and set aside all judgments and
proceedings of the courts during Japanese occupation. The question to be determined
is whether or not it was his intention, as representative of the President of the United
States, to avoid or nullify them. If the proclamation had, expressly or by necessary
implication, declared null and void the judicial processes of any other government, it
would be necessary for this court to decide in the present case whether or not General
Douglas MacArthur had authority to declare, undoubtedly because the author thereof
was fully aware of the limitations of his powers as Commander in Chief of the Military
Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as
they result from the usages established between civilized nations, the laws of humanity
and the requirements of the public conscience, constitute or form the law of nations.
Preamble of the Hague Conventions; Westlake, International Law, 2d ed., Part II, p. 61.)
Article 43, section III, of the Hague Regulations or Conventions which we have already
quoted in discussing the rst question, imposes upon the occupant the to establish
courts; and Article 23 (h), section II, of the same Conventions, which prohibits the
belligerent occupant "to declare . . . suspended . . . in a Court of Law the rights and
action of the nationals of the hostile party," forbids him to make any declaration
preventing the inhabitants from using their court to assert or enforce their civil rights.
(Decision of the Court of Appeals of England in the case of Porter vs. Fruedenburg, L. R.
[1915], 1 K. B., 857.) If a belligerent occupant is required to establish courts of justice in
the territory occupied, and forbidden to prevent the nationals thereof from asserting or
enforcing therein their civil rights, by necessary implication, the military commander of
the forces of liberation or the restored government is restrained from nullifying or
setting aside the judgments rendered by said courts in their litigation during the period
of occupation. Otherwise, the purpose of these precepts of the Hague Conventions
would be thwarted, for to declare them null and void would be tantamount to
suspending in said courts the rights and action of the nationals of the territory during
the military occupation thereof by the enemy. It goes without saying that a law that
enjoins a person to do something will not at the same time empower another to undo
the same. Although the question whether the President or commanding o cer of the
United States Army has violated restraints imposed by the constitution and laws of his
country is obviously of a domestic nature, yet, in construing and applying limitations
imposed on the executive authority, the Supreme Court of the United States, in the case
of Ochoa vs. Hernandez (230 U. S., 139), has declared that they "arise from general
rules of international law and from fundamental principles known wherever the
American flag flies."
In the case of Raymund vs. Thomas (91 U. S., 712), a special order issued by the
o cer in command of the forces of the United States in South Carolina after the end of
the Civil War, wholly annulling a decree rendered by a court of chancery in that State in a
case within its jurisdiction, was declared void, and not warranted by the acts approved
respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14),
which de ned the powers and duties of military o cers in command of the several
states then lately in rebellion. In the course of its decision the court said: "We have
looked carefully through the acts of March 2, 1867 and July 19, 1867. They give very
large governmental powers to the military commanders designated, within the States
committed respectively to their jurisdiction; but we have found nothing to warrant the
order here in question . . .. The clearest language would be necessary to satisfy us that
Congress intended that the power given by these acts should be so exercised . . ..It was
an arbitrary stretch of authority, needful to no good end that can be imagined. Whether
Congress could have conferred the power to do such an act is a question we are not
called upon to consider. It is an unbending rule of law that the exercise of military
power, where the rights of the citizens are concerned, shall never be pushed beyond
what the exigencies requires. (Mitchell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4
Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s. c., 1 Smith's L. C., pt. 2, p. 934.)
Viewing the subject before us from the standpoint indicated, we hold that the order
was void."
It is, therefor, evident that the proclamation of General MacArthur of October 23,
1944, which declared that "all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and void without legal
effect in areas of the Philippines free of enemy occupation and control," has not
invalidated the judicial acts and proceedings, which are not of political complexion, of
the courts of justice in the Philippines that were continued by the Philippine Executive
Commission and the Republic of the Philippines during the Japanese military
occupation, and that said judicial acts and proceedings were good and valid before and
are now good and valid after the reoccupation or liberation of the Philippines by the
American and Filipino forces.
3. The third and last question is whether or not the courts of the
Commonwealth, which are the same as those existing prior to, and continued during,
the Japanese military occupation by the Philippine Commission and by the so-called
Republic of the Philippines, have jurisdiction to continue now the proceedings in actions
pending in said courts at the time the Philippine Islands were reoccupied or liberated by
the American and Filipino forces, and the Commonwealth Government was restored.
Although in theory the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in
practice the invader does not usually take the administration of justice into his own
hands, but continues the ordinary courts or tribunal to administer the laws of the
country which he is enjoined, unless absolutely prevented, to respect. As stated in the
above-quoted Executive Order of President McKinley to the Secretary of War on May
19, 1898, "in practice, they (the municipal laws) are not usually abrogated but are
allowed to remain in force and to be administered by the ordinary tribunals
substantially as they were before the occupation. This enlightened practice is, so far as
possible, to be adhered to on the present occasion." And Taylor in this connection says:
"From a theoretical point of view it may be said that the conqueror is armed with the
right to substitute his arbitrary will for all pre-existing forms of government, legislative,
executive and judicial. From the stand-point of actual practice such arbitrary will is
restrained by the provision of the law of nations which compels the conqueror to
continue local laws and institutions so far as military necessity will permit." (Taylor,
International Public Law, p. 596.) Undoubtedly, this practice has been adopted in order
that the ordinary pursuits and business of society may not be unnecessarily deranged,
inasmuch as belligerent occupation is essentially provisional, and the government
established by the occupant of transient character.
Following these practice and precepts of the law of nations, the Commander in
Chief of the Japanese Forces proclaimed on January 3, 1945, when Manila was
occupied, the military administration under martial law over the territory occupied by
the army, and ordered that "all the laws now in force in the Commonwealth, as well as
executive and judicial institutions, shall continue to be effective for the time being as in
the past," and "all public o cials shall remain in their present posts and carry on
faithfully their duties as before." When the Philippine Executive Commission was
organized by Order No. 1 of the Japanese Commander in Chief, on January 23, 1942,
the Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of
January 30 and February 5, respectively, continued the Supreme Court, Court of
Appeals, Court of First Instance, and justices of the peace courts, with the same
jurisdiction, in conformity with the instructions given by the Commander in Chief of the
Imperial Japanese Army in Order No. 3 of February 20, 1942. And October 14, 1943
when the so-called Republic of the Philippines was inaugurated, the same courts were
continued with no substantial change in the organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the
Japanese military occupation had been continued during the Japanese military
administration, the Philippine Executive Commission, and the so-called Republic of the
Philippines, it stands to reason that the same courts, which have become reestablished
and conceived of as having been in continued existence upon the reoccupation and
liberation of the Philippines by virtue of the principle of postliminy (Hall, International
Law, 7th ed., p. 516), may continue the proceedings in cases then pending in said
courts, without necessity of enacting a law conferring jurisdiction upon them to
continue said proceedings. As Taylor graphically points out in speaking of said
principle "a state or other governmental entity, upon the removal of a foreign military
forces, resumes its old place with its right and duties substantially unimpaired . . .. Such
political resurrection is the result of a law analogous to that which enables elastic
bodies to regain their original shape upon the removal of the external force, — and
subject to the same exception in case of absolute crushing of the whole bre and
content." (Taylor, International Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support of
his conclusion that the Court of First Instance of Manila presided over by him "has no
authority to take cognizance of, and continue said proceedings (of this case) to nal
judgment until and unless the Government of the Commonwealth of the Philippines . . .
shall have provided for the transfer of the jurisdiction of the courts of the now defunct
Republic of the Philippines, and the cases commenced and left pending therein," is "that
said courts were of a government alien to the Commonwealth Government. The laws
they enforced were, true enough, laws of the Commonwealth prior to Japanese
occupation, but they had become the laws —and the courts had become the institutions
— of Japan by adoption (U. S. vs. Reiter, 27 F. Cases, No. 16146), as they became later
on the laws and institutions of the Philippine Executive Commission and the Republic of
the Philippines."
The court in the said case of U. S. vs. Reiter did not and could not say that the
laws and institutions of the country occupied, if continued by the conqueror or
occupant, become the laws and the courts, by adoption, of the sovereign nation that is
militarily occupying the territory. Because, as already shown, belligerent or military
occupation is essentially provisional and does not serve to transfer the sovereignty
over the occupied territory to the occupant. What the court said was that, if such laws
and institution are continued in use by the occupant, they become his and derive their
force from him, in the sense that he may continue or set them aside. The laws and
institutions or courts so continued remain the laws and institutions or courts of
occupied territory. The laws and courts of the Philippines, therefore, did not become, by
being continued as required by the law of nations, laws and courts of Japan. The
provision of Article 45, section III, of the Hague Conventions of the 1907 which
prohibits any compulsion of the population of occupied territory to swear allegiance to
the hostile power, "extends to prohibit everything which would assert or imply a change
made by the invader in the legitimate sovereignty. This duty is neither to innovate in the
political life of the occupied districts, nor needlessly to break the continuity of their
legal life. Hence, so far as the courts of justice are allowed to continue administering
the territorial laws, they must be allowed to give their sentences in the name of the
legitimate sovereign" (Westlake, Int. Law, Part II, second ed., p. 102). According to
Wheaton, however, the victor need not allow the use of that of the legitimate
government. When in 1870, the Germans in France attempted to violate that rule by
ordering, after the fall of the Emperor Napoleon, the courts of Nancy to administer
justice in the name of the "High German Powers occupying Alsace and Lorraine," upon
the ground that the exercise of their powers in the name of the French people and
government was at least an implied recognition of the Republic, the courts refused to
obey and suspended their sitting. Germany originally ordered the use of the name of
"High German Powers occupying Alsace and Lorraine," but later offered to allow the use
of the name of the Emperor or a compromise. (Wheaton, International Law, War, 7th
English ed., of 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law
once established continues until changed by some competent legislative power. It is
not change merely by change of sovereignty." (Joseph H. Beale, Cases on Con ict of
Laws, III, Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the
same author says, in his Treatise on the Con ict of Laws (Cambridge, 1916, Section
131): "There can be no break or interregnum in law. From the time the law comes into
existence with the rst-felt corporateness of a primitive people it must last until the
nal disappearance of human society. Once created, it persists until a change takes
place, and when changed it continues in such changed condition until the next change,
and so forever. Conquest or colonization is impotent to bring law to an end; in spite of
change of constitution, the law continues unchanged until the new sovereign by
legislative act creates a change."
As court are creatures of statutes and their existence depends upon that of the
laws which create and confer upon them their jurisdiction, it is evident that such laws,
not being of a political nature, are not abrogated by a change of sovereignty, and
continue in force "ex proprio vigore" unless and until repealed by legislative acts. A
proclamation that said laws and courts are expressly continued is not necessary in
order that they may continue in force. Such proclamation, if made, is but a declaration
of the intention of respecting and not repealing those laws. Therefore, even assuming
that Japan had legally acquired sovereignty over these Islands, which she had
afterwards transferred to the so-called Republic of the Philippines, and that the laws
and the courts of these Islands had become the court of Japan, as the said courts and
the laws creating and conferring jurisdiction upon them have continued in force until
now, it necessarily follows that the same courts may continue exercising the same
jurisdiction over cases pending therein before the restoration of the Commonwealth
Government, unless and until they are abolished or the laws creating and conferring
jurisdiction upon them are repealed by the said government.
As a consequence, enabling laws or acts providing that proceedings pending in
one court be continued by or transferred to another court, are not required by the mere
change of government or sovereignty. They are necessary only in case the former
courts are abolished or their jurisdiction so changed that they can no longer continue
taking cognizance of the cases and proceedings commenced therein, in order that the
new courts or the courts having jurisdiction over said cases may continue the
proceedings. When the Spanish sovereignty in the Philippines Islands ceased and the
Islands came into the possession of the United States, the Audiencia" or Supreme Court
was continued and did not cease to exist, and proceeded to take cognizance of the
actions pending therein upon the cessation of the Spanish sovereignty until the said
"Audiencia" or Supreme Court was abolished, and the Supreme Court created in Chapter
II of Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of the
Islands during the Spanish regime continued taking cognizance of cases pending
therein upon the change of sovereignty, until section 65 of the same Act No. 136
abolished them and created in its Chapter IV the present Courts of First Instance in
substitution of the former. Similarly, no enabling acts were enacted during the
Japanese occupation, but a mere proclamation or order that the courts in the Islands
were continued.
On the other hand, during the American regime, when section 78 of Act No. 136
was enacted abolishing the civil jurisdiction of the provost courts created by the
military government of occupation in the Philippines during the Spanish-American war
of 1898, the same section 78 provided for the transfer of all civil actions then pending
in the said provost courts to the proper tribunals, that is, to the justices of the peace
courts, Courts of First Instance, or Supreme Court having jurisdiction over them
according to law. And later on, when the criminal jurisdiction of provost courts in the
City of Manila was abolished by section 3 of Act No. 186, the same section provided
that criminal cases pending therein within the jurisdiction of the municipal courts
created by Act No. 183 were transferred to the latter.
That the present courts are the same courts which had been functioning during
the Japanese regime and, therefore, can continue the proceedings in cases pending
therein prior to the restoration of the Commonwealth of the Philippines, is con rmed by
Executive Order No. 37 which we have already quoted in support of our conclusion in
connection with the second question. Said Executive Order provides "(1) that the Court
of Appeals, created and established under Commonwealth Act No. 3, as amended, be
abolished, as it is hereby abolished," and "(2) that all cases which have heretofore been
duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for
nal decision. . . .". In so providing, the said Order considers that the Court of Appeals
abolished was the same that existed prior to, and continued after, the restoration of the
Commonwealth Government; for, as we have stated in discussing the previous
question, almost all, if not all, of the cases pending therein, or which had theretofore
(that is, up to March 10, 1945) been duly appealed to said court, must have been cases
coming from the Courts of First Instance during the so-called Republic of the
Philippines. If the Court of Appeals abolished by the said Executive Order was not the
same one which had been functioning during the Republic, but that which had existed
up to that time of the Japanese occupation, it would have provided that all the cases
which had, prior to and up to that occupation on January 2, 1942, been duly appealed to
the said Court of Appeals shall be transmitted to the Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue, to
nal judgment, the proceedings in cases, not of political complexion, pending therein at
the time of the restoration of the Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First Instance
of Manila has jurisdiction to continue to nal judgment the proceedings in civil case No.
3012, which involves civil rights of the parties under the laws of the Commonwealth
Government, pending in said court at the time of the restoration of the said
Government; and that the respondent judge of the court, having refused to act and
continue the said proceedings, which the law speci cally enjoins him to do as a duty
resulting from his o ce as presiding judge of that court, mandamus is the speedy and
adequate remedy in the ordinary course of law, especially taking into consideration the
fact that the question of jurisdiction herein involved does affect not only this particular
case, but many other cases now pending in all the courts of these Islands.
In view of all the foregoing, it is adjudged and decreed that a writ of a mandamus
issue, directed to the respondent judge of the Court of First Instance of Manila,
ordering him to take cognizance of and continue to nal judgment the proceedings in
civil case No. 3012 of said court. No pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jarannila and Pablo, JJ., concur.
Separate Opinions
DE JOYA , J., concurring :
The principal question involved in this case is the validity of the proceedings held
in civil case No. 3012, in the Court of First Instance of the City of Manila, under the now
defunct Philippine Republic, during Japanese occupation; and the effect on said
proceedings of the proclamation of General Douglas MacArthur, dated October 23,
1944. The decision of this question requires the application of principles of
International Law, in connection with the municipal law in force in this country, before
and during Japanese occupation.
Questions of International Law must be decided as matters of general awl
(Juntington vs. Attril, 146 U. S., 657; 13 Sup. Ct., 224; 36 Law. ed., 1123); and
(International Law is no alien in this Tribunal, as, under the Constitution of the
commonwealth of the Philippines, it is a part of the fundamental law of the land)
(Article II, section 3).
As International Law is an integral part of our laws, it must be ascertained and
administered by this Court, whenever questions of right depending upon it are
presented for our determination, sitting as an international as well as a domestic
Tribunal (Kansas vs. Colorado, 184 U.S., 146; 22 Sup. Ct., 552; 46 Law. ed., 838).
Since International Law is a body of rules actually accepted by nations as
regulating their mutual relations, the proof of the existence of a given rule is to be found
in the consent of nations to abide by that rule; and this consent is evidenced chie y by
the usages and customs of nations, and to ascertain what these usages and customs
are, the universal practice is to turn to the writings of publicists and to the decisions of
the highest courts of the 677; 20 Sup. Cit., 290; 44 Law. ed., 320).
But while usage is the older and original source of International Law, great
international treaties are a later source of increasing importance, such as The Hague
Conventions of 1899 and 1907.
The Hague Convention of 1899, respecting laws and customs of war on land,
expressly declares that:
"ARTICLE XLII.Territory is considered occupied when it is actually placed
under the authority of the hostile army.
"The occupation applies only to the territory where such authority is
established, and in a position to assert itself.
"ARTICLE XLIII.The authority of the legitimate power having actually
passed into the hands of the occupant, the latter shall take all steps in his power
to reestablish and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country." (32 Stat.
II, 1821.)
The above provisions of The Hague Convention have been adopted by the
nations giving adherence to them, among which is the United States of America (32
Stat. II, 1821).
The commander in chief of the invading forces or military occupant may exercise
governmental authority, but only when in actual possession of the enemy's territory, and
this-authority will be exercised upon principles of International Law (New Orleans vs.
Steamship Co. [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 99 U. S., 441; MacLeod
vs. U. S., 299 U. S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; II Oppenheim on
International Law, section 167).
There can be no question that the Philippines was under Japanese military
occupation, from January, 1942, up to the time of the reconquest by the armed forces
of the United States of the Island of Luzon, in February, 1945.
It will thus be readily seen that the civil laws of the invaded State continue in
force, in so far as they do not affect the hostile occupant unfavorably. The regular
judicial Tribunals of the occupied territory continue to act in cases not affecting the
military occupation, and it is not usual for the invader to take the whole administration
into his own hands, partly because it is easier to preserve order through the agency of
the native o cials, and partly because the latter are more competent to administer the
laws in force within the territory, and the military occupant generally keeps in their
posts such of the judicial and administrative o cers as are willing to serve under him,
subjecting them only to supervision by the military authorities, or by superior civil
authorities appointed by him. (Young vs. U. S., 97 U. S., 39; 24 Law. ed., 992; Coleman
vs. U. S., 229 U. S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on International Law,
sections 576, 578; Wilson on International Law, pp. 331-37; Hall on International Law,
6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on International Law, pp. 331-37;
Hall on International Law, 7th ed., pp. 412, 413; Davis, Elements of International Law, 3d
ed., pp. 330-332; 335; Holland on International Law, 2d ed., pp. 121-23.)
It is, therefore, evident that the establishment of the government under the so-
called Philippine Republic, during Japanese occupation, respecting the laws in force in
the country, and permitting the local courts to function and administer such laws, as
proclaimed in the City of Manila, by the Commander in chief of the Japanese Imperial
Forces, on January 3, 1942, was in accordance with the rules and principles of
International Law.
If the military occupant is thus in duty bound to establish in the territory under
military occupation governmental agencies for the preservation of peace and order and
for the proper administration of justice, in accordance with the laws in force within said
territory, it must necessarily follow that the judicial proceedings conducted before the
courts established by the military occupant must be considered legal and valid, even
after said government established by the military occupant has been displaced by the
legitimate government of the territory.
Thus the judgments rendered by the Confederate Courts, during the American
Civil War, merely settling the rights of private parties actually within their jurisdiction,
not tending to defeat the legal rights of citizens of the United States, nor in furtherance
of law passed in aid of the rebellion, had been declared valid and binding (Cock vs.
Oliver, 1 Woods, 437; Fed. Cas., Nos. 3, 164; Coleman vs. Tennessee, 97 U. S., 509; 24
Law. ed., 118; Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott
vs. United States, 20 id., 459; Texas vs. White, 7 id., 700; Ketchum vs. Buckley [1878], 99
U.S., 188); and the judgment of a court of Georgia rendered in November, 1861, for the
purchase money of slaves was held valid judgment when entered, and enforceable in
1871 (French vs. Tumlin, 10 Am. Law. Reg. [N. S.], 641; Fed. Case, No. 5104).
Said judgments rendered by the courts of the states constituting the
Confederate States of America were considered legal and valid and enforceable, even
after the termination of the American Civil War, because they had been rendered by the
courts of a de facto government. The Confederate States were a de facto government
in the sense that its citizens were bound to render the government obedience in civil
matters, and did not become responsible, as wrong-doers, for such acts of obedience
(Thorington vs. Smith, 8 Wall. [U. S.], 9; 19 Law. ed., 361).
In the case of Ketchum vs. Buckley ([1878], 99 U. S., 188), the Court held — "It is
now settled law in this court that during the late civil war the same general form of
government, the same general law for the administration of justice and the protection
of private rights, which had existed in the States prior to the rebellion, remained during
its continuance and afterwards. As far as the acts of the States did not impair or tend
to impair the supremacy of the national authority, or the just and legal rights of the
citizens, under the Constitution, they are in general to be treated as valid and binding."
(Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United
States, 20 id., 459; Texas vs. White, 7 id., 700.)
The government established in the Philippines, during Japanese occupation,
would seem to fall under the following de nition of de facto government given by the
Supreme Court of the United States:
"But there is another description of government, called also by publicists, a
government of paramount force. Its distinguishing characteristics are (1) that its
existence is maintained by active military power within the territories, and against
the rightful authority of an established and lawful government; and (2) that while
it exists it must necessarily be obeyed in civil matters by private citizens who, by
acts of obedience rendered in submission to such force, do not become
responsible, as wrongdoers, for those acts, though not warranted by the laws of
the rightful government. Actual governments of this sort are established over
districts differing greatly in extent and conditions. They are usually administered
directly by military authority, but they may be administered, also, by civil authority,
supported more or less directly by military force." (Macleod vs. United States
[1913], 229 U. S., 416.)
The government established in the Philippines, under the so- called Philippine
Republic, during Japanese occupation, was and should be considered as a de facto
government; and that the judicial proceedings conducted before the courts which had
been established in this country, during said Japanese occupation, are to be considered
legal and valid and enforceable, even after the liberation of this country by the American
forces, as long as the said judicial proceedings had been conducted, under the laws of
the Commonwealth of the Philippines.
The judicial proceedings involved in the case under consideration merely refer to
the settlement of property rights, under the provisions of the Civil Code, in force in this
country under the Commonwealth government, before and during Japanese
occupation.
Now, petitioner contends that the judicial proceedings in question are null and
void, under the provisions of the proclamation issued by General Douglas MacArthur,
dated October 23, 1944; as said proclamation "nulli es all the laws, regulations and
processes of any other government in the Philippines than that of the Commonwealth
of the Philippines."
In other words, petitioner demands a literal interpretation of said proclamation
issued by General Douglas MacArthur, a contention which, in our opinion, is untenable,
as it would inevitably produce judicial chaos and uncertainties.
When an act is susceptible of two or more constructions, one of which will
maintain and the others destroy it, the courts will always adopt the former (U. S. vs.
Coombs [1838], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of Granada Country
vs. Brown [1884], 112 U. S., 261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125; In re Guarina
[1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46 Phil., 22; Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385). The judiciary, always alive to the dictates of national
welfare, can properly incline the scales of its decisions in favor of that solution which
will most effectively promote the public policy (Smith, Bell & Co., Ltd. vs. Natividad
[1919], 40 Phil., 136). All laws should receive a sensible construction. General terms
should be so limited in their application as not to lead to injustice, oppression or an
absurd consequence. It will always, therefore, be presumed that the legislature
intended exceptions to its language, which would avoid results of this character. The
reason of the law in such cases should prevail over its letter (U. S. vs. Kirby, 7 Wall. [U.
S.], 482; 19 Law. ed., 278; Church of Holy Trinity vs. U. S., 143 U. S., 461; 12 Sup. Ct.,
511; 36 Law. ed., 226; Jacobson vs. Massachusetts, 197 U. S., 39; 25 Sup. Ct., 358; 49
Law. ed., 643; 3 Ann. Cas., 765; In re Allen, 2 Phil., 630). The duty of the court in
construing a statute, which is reasonably susceptible of two constructions to adopt
that which saves its constitutionality, includes the duty of avoiding a construction which
raises grave and doubtful constitutional questions, if it can be avoided (U. S. vs.
Delaware & Hudson Co., 213 U. S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836).
According to the rules and principles of International Law, and the legal doctrines
cited above, the judicial proceedings conducted before the courts of justice,
established here during Japanese military occupation, merely applying the municipal
law of the territory, such as the provisions of our Civil Code, which have no political or
military significance, should be considered legal, valid and binding.
It is to be presumed that General Douglas MacArthur is familiar with said rules
and principles, as International Law is an integral part of the fundamental law of the
land, in accordance with the provisions of the Constitution of the United States. And it is
also to be presumed that General MacArthur has acted, in accordance with said rules
and principles of International Law, which have been sanctioned by the Supreme Court
of the United States, as the nulli cation of all judicial proceedings conducted before our
courts, during Japanese occupation, would lead to injustice and absurd results, and
would be highly detrimental to public interests.
For the foregoing reasons, I concur in the majority opinion.
PERFECTO , J., dissenting :
Law must be obeyed. To keep the bonds of society, it must not be evaded. On its
supremacy depends the stability of states and nations. No government can prevail
without it. The preservation of the human race itself hinges on law.
Since time immemorial, man has relied on law as an essential means of attaining
his purposes, his objectives, his mission in life. More than twenty-two centuries before
the Christian Era, on orders of the Assyrian King Hammurabi, the rst known code was
engraved in black diorite with cuneiform characters. Nine centuries later Emperor Hung
Wu, in the cradle of the most ancient civilization, compiled the Code of the Great Ming.
The laws of Manu were written in the vedic India. Moses received at Sinai the ten
commandments. Draco, Lycurgus, Solon made laws in Greece. Even ruthless
Jengiskhan used laws to keep discipline among the nomad hordes with which he
conquered the greater part of the European and Asiatic continents.
Animal and plant species must follow the mendelian heredity rules and other
biological laws to survive. Thanks to them, the chalk cliffs of the infusoria show the
marvel of an animal so tiny as to be imperceptible to the naked eye creating a whole
mountain. Even the inorganic world has to conform to law. Planets and stars follow the
laws discovered by Kepler, known as the law-maker of heavens. If, endowed with
rebellious spirit, they should happen to challenge the law of universal gravity, the
immediate result would be cosmic chaos. The tiny and twinkling points of light set
above us on the velvet darkness of the night will cease to inspire us with dreams of
more beautiful and happier worlds.
Again we are called upon to do our duty. Here is a law that we must apply. Shall
we shrink? Shall we circumvent it? Can we ignore it?
The laws enacted by the legislators shall be useless if courts are not ready to
apply them. It is actual application to real issues which gives laws the breath of life.
In the varied and confused market of human endeavor there are so many things
that might induce us to forget the elementals. There are so many events, so many
problems, so many preoccupations that are pushing among themselves to attract our
attention, and we might miss the nearest and most familiar things, like the man who
went around his house to look for a pencil perched on one of his ears.
THE OCTOBER PROCLAMATION
In October, 1944, the American Armed Forces of Liberation landed successfully
in Leyte.
When victory in the island was accomplished, after the most amazing and
spectacular war operations, General of the Army Douglas MacArthur, as Commander in
Chief of the American Army, decided to reestablish, in behalf of the United States, the
Commonwealth Government.
Then he was confronted with the question as to what policy to adopt in regards
to the o cial acts of the governments established in the Philippines by the Japanese
regime. He might have thought of recognizing the validity of some of said acts, but,
certainly, there were acts which he should declare null and void, whether against the
policies of the American Government, whether inconsistent with military strategy and
operations, whether inconsistent with military strategy and operations, whether
detrimental to the interests of the American or Filipino peoples, whether for any other
strong or valid reasons.
But, which to recognize, and which not? He was not in a position to gather
enough information for a safe basis to distinguish and classify which acts must be
nulli ed, and which must be validated. At the same time he had to take immediate
action. More pressing military matters were requiring his immediate attention. He
followed the safer course: to nullify all the legislative, executive, and judicial acts and
processes under the Japanese regime. After all, when the Commonwealth Government
is already functioning, with proper information, he will be in a position to declare by law,
through its Congress, which acts and processes must be revived and validated in the
public interest.
So on October 23, 1944, the Commander in Chief issued the following
proclamation:
"GENERAL HEADQUARTERS
"SOUTHWEST PACIFIC AREA
"OFFICE OF THE COMMANDER IN CHIEF

"PROCLAMATION
"To the People of the Philippines:
"WHEREAS the military forces under my command have landed in
Philippine soil as a prelude to the liberation of the entire territory of the
Philippines; and
"WHEREAS the seat of the Government of the Commonwealth of the
Philippines has been re-established in the Philippines under President Sergio
Osmeña and the members of his cabinet; and
"WHEREAS, under enemy duress, a so-called government styled as the
'Republic of the Philippines' was established on October 14, 1943, based upon
neither the free expression of the people's will nor the sanction of the Government
of the United States, and is purporting to exercise Executive, Judicial and
Legislative powers of government over the people;
"Now, therefore, I, Douglas MacArthur, General, United States Army, as
Commander in Chief of the military forces committed to the liberation of the
Philippines, do hereby proclaim and declare:
"1. That the Government of the Commonwealth of the
Philippines is, subject to the supreme authority of the Government of the
United States, the sole and only government having legal and valid
jurisdiction over the people in areas of the Philippines free of enemy
occupation and control;
"2. That the laws now existing on the statute books of the
Commonwealth of the Philippines and the regulations promulgated
pursuant thereto are in full force and effect and legally binding upon the
people in areas of the Philippines free of enemy occupation and control;
and
"3. That all laws, regulations and processes of any other
government in the Philippines than that of the said Commonwealth are null
and void and without legal effect in areas of the Philippines free of enemy
occupation and control; and
"I do hereby announce my purpose progressively to restore and extend to
the people of the Philippines the sacred right of government by constitutional
process under the regularly constituted Commonwealth Government as rapidly as
the several occupied areas are liberated and the military situation will otherwise
permit;
"I do enjoin upon all loyal citizens of the Philippines full respect for and
obedience to the Constitution of the Commonwealth of the Philippines and the
laws, regulations and other acts of their duty constituted government whose seat
is now firmly re-established on Philippine soil.
"October 23, 1944.
"DOUGLAS MACARTHUR
"General, U. S. Army
"Commander in Chief"
IS THE OCTOBER PROCLAMATION A LAW?

In times of war the Commander in Chief of an army is vested with extraordinary
inherent powers, as a natural result of the nature of the military operations aimed to
achieve the purposes of his country in the war, victory being paramount among them.
Said Commander in Chief may establish in the occupied or reoccupied territory,
under his control, a complete system of government; he may appoint o cers and
employees to manage the affairs of said government; he may issue proclamations,
instructions, orders, all with the full force of laws enacted by a duly constituted
legislature; he may set the policies that should be followed by the public administration
organized by him; he may abolish the said agencies. In fact, he is the supreme ruler and
law-maker of the territory under his control, with powers limited only by the receipts of
the fundamental laws of his country.
"California, or the port of San Francisco, had been conquered by the arms
of the United States as early as 1846. Shortly afterward the United States had
military possession of all upper California. Early in 1847 the President, as
constitutional commander in chief of the army and navy, authorized the military
and naval commander of our forces in California to exercise the belligerent rights
of a conqueror, and to form a civil government for the conquered country, and to
impose duties on imports and tonnage as military contributions for the support of
the government, and of the army which has the conquest in possession. . . ."
(Cross vs. Harrison, 16 Howard, 164, 189.)
"In May, 1862, after the capture of New Orleans by the United States Army,
General Butler, then in command of the army at that place, issued a general order
appointing Major J. M. Bell, volunteer aide-de-camp, of the division staff, provost
judge of the city, and directed that he should be obeyed and respected
accordingly. The same order appointed Capt. J. H. French provost marshal of the
city, and Capt. Stafford deputy provost marshal. A few days after this order the
Union Bank lent to the plaintiffs the sum of $130,000, and subsequently, the loan
not having been repaid, brought suit before the provost judge to recover the debt.
The defense was taken that the judge had no jurisdiction over civil cases, but
judgment was given against the borrowers, and they paid the money under
protest. To recover it back is the object of the present suit, and the contention of
the plaintiffs is that the judgment was illegal and void, because the Provost Court
had no jurisdiction of the case. The judgment of the District Court was against the
plaintiffs, and this judgment was a rmed by the Supreme Court of the State. To
this affirmance error is now assigned.
"The argument of the plaintiffs in error is that the establishment of the
Provost Court, the appointment of the judge, and his action as such in the case
brought by the Union Bank against them were invalid, because in violation of the
Constitution of the United States, which vests the judicial power of the General
government in one Supreme Court and in such inferior courts as Congress may
from time to time ordain and establish, and that under this constitutional
provision they were entitled to immunity from any liability imposed by the
judgment of the Provost Court. Thus, it is claimed, a Federal question is
presented, and the highest court of the State having decided against the immunity
claimed, our jurisdiction is invoked.
"Assuming that the case is thus brought within our right to review it, the
controlling question is whether the commanding general of the army which
captured New Orleans and held it in May, 1862, had authority after the capture of
the city to establish a court and appoint a judge with power to try and adjudicate
civil causes. Did the Constitution of the United States prevent the creation of civil
courts in captured districts during the war of the rebellion, and their creation by
military authority?
"This cannot be said to be an open question. The subject came under
consideration by this court in The Grapeshot, where it was decided that when,
during the late civil war, portions of the insurgent territory were occupied by the
National forces, it was within the constitutional authority of the President, as
commander in chief, to establish therein provisional courts for the hearing and
determination of all causes arising under the laws of the States or of the United
States, and it was ruled that a court instituted by President Lincoln for the State of
Louisiana, with authority to hear, try, and determine civil causes, was lawfully
authorized to exercise such jurisdiction. Its establishment by military authority
was held to be no violation of the constitutional provision that 'the judicial power
of the United States shall be vested in one Supreme Court and in such inferior
courts as the Congress may from time to time ordain and establish.' That clause
of the Constitution has no application to the abnormal condition of conquered
territory in the occupancy of the conquering army. It refers only to courts of the
United States, which military courts are not. As was said in the opinion of the
court, delivered by Chief Justice Chase, in The Grapeshot, 'It became the duty of
the National government, wherever the insurgent power was overthrown, and the
territory which had been dominated by it was occupied by the National forces, to
provide, as far as possible, so long as the war continued, for the security of
persons and property and for the administration of justice. The duty of the
National government in this respect was no other than that which devolves upon
a regular belligerent, occupying during war the territory of another belligerent. It
was a military duty, to be performed by the President, as Commander in Chief,
and intrusted as such with the direction of the military force by which the
occupation was held.'
"Thus it has been determined that the power to establish by military
authority courts for the administration of civil as well as criminal justice in
portions of the insurgent States occupied by the National forces, is precisely the
same as that which exists when foreign territory has been conquered and is
occupied by the conquerors. What that power is has several times been
considered. In Leitensdorfer & Houghton vs. Webb, may be found a notable
illustration. Upon the conquest of New Mexico, in 1846, the commanding o cer
of the conquering army, in virtue of the power of conquest and occupancy, and
with the sanction and authority of the President, ordained a provisional
government for the country. The ordinance created courts, with both civil and
criminal jurisdiction. It did not undertake to change the municipal laws of the
territory, but it established a judicial system with a superior or appellate court, and
with circuit courts, the jurisdiction of which was declared to embrace, rst, all
criminal causes that should not otherwise be provided for by law; and secondly,
original and exclusive cognizance of all civil cases not cognizable before the
prefects and alcaldes. But though these courts and this judicial system were
established by the military authority of the United States, without any legislation
of Congress, this court ruled that they were lawfully established. And there was no
express order for their establishment emanating from the President or the
Commander in Chief. The ordinance was the act of General Kearney, the
commanding officer of the army occupying the conquered territory.
"In view of these decisions it is not to be questioned that the Constitution
did not prohibit the creation by military authority of courts for the trial of civil
causes during the civil war in conquered portions of the insurgent States. The
establishment of such courts is but the exercise of the ordinary rights of
conquest. The plaintiffs in error, therefore, had no constitutional immunity against
subjection to the judgments of such courts. They argue, however, that if this be
conceded, still General Butler had no authority to establish such a court; that the
President alone, as Commander in Chief, had such authority. We do not concur in
this view. General Butler was in command of the conquering and occupying army.
He was commissioned to carry on the war in Louisiana. He was, therefore,
invested with all the powers of making war, except so far as they were denied to
him by the Commander in Chief, and among these powers, as we have seen, was
that of establishing courts in conquered territory. It must be presumed that he
acted under the orders of his superior o cer, the President, and that his acts, in
the prosecution of the war, were the acts of his commander in chief." (Mechanics'
etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)
There is no question, therefore, that when General of the Army Douglas
MacArthur issued the October Proclamation, he did it in the legitimate exercise of his
powers. He did it as the o cial representative of the supreme authority of the United
States of America. Consequently, said proclamation is legal, valid, and binding.
Said proclamation has the full force of a law. In fact, of a paramount law. Having
been issued in the exercise of the American sovereignty, in case of con ict, it can even
supersede, not only the ordinary laws of the Commonwealth of the Philippines, but also
our Constitution itself while we remain under the American flag.
"PROCESSES" IN THE OCTOBER PROCLAMATION
In the third section of the dispositive part of the October Proclamation, it is
declared that all laws, regulations, and processes of any other government in the
Philippines than that of the Commonwealth, are null and void.
Does the word "processes" used in the proclamation include judicial processes?
In its broadest sense, process is synonymous with proceedings or procedures
and embraces all the steps and proceedings in a judicial cause from its
commencement to its conclusion.
"PROCESS.In Practice. — The means of compelling a defendant to appear
in court after suing out the original writ, in civil, and after indictment, in criminal
cases.
"The method taken by law to compel a compliance with the original writ or
command as of the court.
"A writ, warrant, subpoena, or other formal writing issued by authority of
law; also the means of accomplishing an end, including judicial proceedings;
Gollobitch vs. Rainbow, 84 Ia., 567; 51 N. W., 48; the means or method pointed out
by a statute, or used to acquire jurisdiction of the defendants, whether by writ or
notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St. Rep., 624)." (3
Bouvier's Law Dictionary, p. 2731.)
"A. Process generally.1.Definition. — As a legal term, process is a
generic word of very comprehensive signi cation and many meanings. In its
broadest sense it is equivalent to, or synonymous with, 'proceedings' or
'procedure,' and embraces all the steps and proceedings in a cause from its
commencement to its conclusion. Sometimes the term is also broadly de ned as
the means whereby a court compels a compliance with its demands. 'Process'
and 'writ' or 'writs' are synonymous in the sense that every writ is a process, and in
a narrow sense of the term 'process' is limited to judicial writs in an action, or at
least to writs or writings issued from or out of a court, under the seal thereof, and
returnable thereto; but it is not always necessary to construe the term so strictly
as to limit it to a writ issued by a court in the exercise of its ordinary jurisdiction;
the term is sometimes defined as a writ or other formal writing issued by authority
of law or by some court, body, or o cial having authority to issue it; and it is
frequently used to designate a means, by writ or otherwise, or acquiring
jurisdiction of defendant or his property, or of bringing defendant into, or
compelling him to appear in, court to answer.
"As employed in statutes the legal meaning of the word 'process' varies
according to the context, subject matter, and spirit of the statute in which it
occurs. In some jurisdictions codes or statutes variously de ne 'process' as
signifying or including: A writ or summons issued in the course of judicial
proceedings; all writs, warrants, summonses, and orders of courts of justice or
judicial o cers; or any writ, declaration, summons, order, or subpoena whereby
any action, suit, or proceeding shall be commenced, or which shall be issued in or
upon any action, suit or proceeding. (50 C. J., pp. 441, 442.)
"The de nition of 'process' given by Lord Coke comprehends any lawful
warrant, authority, or proceeding by which a man may be arrested. He says:
'Process of law is twofold, namely, by the King's writ, or by due proceeding and
warrant, either in deed or in law, without writ.' (People vs. Nevins [N. Y.], 1 Hill, 154,
169, 170; State vs. Shaw, 50 A., 863, 869; 73 Vt., 149.)
"Baron Comyn says that process, in a large acceptance, comprehends the
whole proceedings after the original and before judgment; but generally it imports
the writs which issue out of any court to bring the party to answer, or for doing
execution, and all process out of the King's courts ought to be in the name of the
King. It is called 'process' because it proceeds or goes out upon former matter,
either original or judicial. Gilmer vs. Bird, 15 Fla., 410, 421." (34 Words and
Phrases, permanent edition, 1940 edition, p. 147.)
"In a broad sense the word 'process' includes the means whereby a court
compels the appearance of the defendant before it, or a compliance with its
demands, and any and every writ, rule, order, notice, or decree, including any
process of execution that may issue in or upon any action, suit, or legal
proceedings, and is not restricted to mesne process. In a narrow or restricted
sense it means those mandates of the court intending to bring parties into court
or to require them to answer proceedings there pending. Colquitt Nat. Bank vs.
Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329." (34 Words and Phrases, permanent
edition, 1940 edition, p. 148.)
"A 'process' is an instrument in an epistolary form running in the name of
the sovereign of a state and issued out of a court of justice, or by a judge thereof,
at the commencement of an action or at any time during its progress or incident
thereto, usually under seal of the court, duly attested and directed to some
municipal o cer or to the party to be bound by it, commanding the commission
of some act at or within a speci ed time, or prohibiting the doing of some act.
The cardinal requisites are that the instrument issue from a court of justice, or a
judge thereof; that it run in the name of the sovereign of the state; that it be duly
attested, but not necessarily by the judge, though usually, but not always, under
seal; and that it be directed to some one commanding or prohibiting the
commission of an act. Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70
Kan., 43." (34 Words and Phrases, permanent edition, 1940 edition, p. 148.)
"Jacobs in his Law Dictionary says: 'Process' has two quali cations: First,
it is largely taken for all the proceedings in any action or prosecution, real or
personal, civil or criminal, from the beginning to the end; secondly, that is termed
the 'process' by which a man is called into any temporal court, because the
beginning or principal part thereof, by which the rest is directed or taken. Strictly, it
is the proceeding after the original, before judgment. A policy of re insurance
contained the condition that if the property shall be sold or transferred, or any
change takes place in the title or possession, whether by legal process or judicial
decree or voluntary transfer or convenience, then and in very such case the policy
shall be void. The term 'legal process,' as used in the policy, means what is known
as a writ; and, as attachment or execution on the writs are usually employed to
effect a change of title to property, they are or are amongst the processes
contemplated by the policy. The words 'legal process' mean all the proceedings in
an action or proceeding. They would necessarily embrace the decree, which
ordinarily includes the proceedings. Perry vs. Lorillard Fire Ins. Co., N. Y., 6 Lans.,
201, 204. See also, Tipton vs. Cordova, 1 N. M., 383, 385." (34 Words and Phrases,
permanent edition, 1940 edition, p. 148.)
"'Process' in a large acceptation, is nearly synonymous with 'proceedings,'
and means the entire proceedings in an action, from the beginning to the end. In a
stricter sense, it is applied to the several judicial writs issued in an action. Hanna
vs. Russell, 12 Minn., 80, 86 (Gil., 43, 45)." (34 Words and Phrases, permanent
edition, 1940 edition, 149.)
"The term 'process' as commonly applied, intends that proceeding by
which a party is called into court, but it has a more enlarged signi cation, and
covers all the proceedings in a court, from the beginning to the end of the suit;
and, in this view, all proceedings which may be had to bring testimony into court,
whether viva voce or in writing, may be considered the process of the court. Rich
vs. Trimble, Vt., 2 Tyler, 349, 350." Id.
"'Process' in its broadest sense comprehends all proceedings to the
accomplishment of an end, including judicial proceedings. Frequently its
signi cation is limited to the means of bringing a party into court. In the
Constitution process which at the common law would have run in the name of the
king is intended. In the Code process issued from a court is meant. Mc Kenna vs.
Cooper, 101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn., 80.
(Gil., 43); Black Com. 279; Bouv. law Dict." (34 Words and Phrases, permanent
edition, 1940 edition, p. 149.)
"'Judicial process' includes the mandate of a court to its o cers, and a
means whereby courts compel the appearance of parties, or compliance with its
commands, and includes a summons. Ex parte Hill, 51 So., 786, 787; 165 Ala.,
365.
"'Judicial process' comprehends all the acts of the court from the
beginning of the proceeding to its end, and in a narrower sense is the means of
compelling a defendant to appear in court after suing out the original writ in civil
cases and after the indictment in criminal cases, and in every sense is the act of
the court and includes any means of acquiring jurisdiction and includes
attachment, garnishment, or execution, and also a writ. Blair vs. Maxbass Security
Bank of Maxbass, 176 N. W., 98, 100; 44 N. D. 12." (23 Words and Phrases,
permanent edition, 1940 edition, p. 328.)
There is no question that the word process, as used in the October Proclamation,
includes all judicial processes or proceedings.
The intention of the author of the proclamation of including judicial processes
appears clearly in the preamble of the document.
The second "Whereas," states that a so-called government styled as the "Republic
of the Philippines," based upon neither the free expression of the people's will nor the
sanction of the Government of the United States, and is "purporting to exercise
Executive, Judicial, and Legislative powers of government over the people."
It is evident from the above-mentioned words that it was the purpose of General
MacArthur to declare null and void all acts of government under the Japanese regime,
and he used, in section 3 of the dispositive part, the word laws, as pertaining to the
legislative branch, the word regulations, as pertaining to the executive branch, and
lastly, the word processes, as pertaining to the judicial branch of the government which
functioned under the Japanese regime.
It is reasonable to assume that he might include in the word "processes," besides
those of judicial character, those of executive or administrative character. At any rate,
judicial processes cannot be excluded.
THE WORDS OF THE PROCLAMATION EXPRESS UNMISTAKABLY
THE INTENTION OF THE AUTHOR
The October Proclamation is written in such a way that it is impossible to make a
mistake as to the intention of its author.
Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme
Court of the United States, stated the following:
"When the words in their literal sense have a plain meaning, courts must be
very cautious in allowing their imagination to give them a different one." Guild vs.
Walter, 182 Mass., 225, 226 (1902).
Upon questions of construction when arbitrary rule is involved, it is always
more important to consider the words and the circumstances than even strong
analogies in earlier decisions. The successive neglect of a series of small
distinctions, in the effort to follow precedent, is very liable to end in perverting
instruments from their plain meaning. In no other branch of the law (trusts) is so
much discretion required in dealing with authority. . . . There is a strong
presumption in favor of giving them words their natural meaning, and against
reading them as if they said something else, which they are not fitted to express."
Merrill vs. Preston, 135 Mass., 451, 455 (1883).
When the words of an instrument are free from ambiguity and doubt, and express
plainly, clearly and distinctly the sense of the framer, there is no occasion to resort to
other means of interpretation. It is not allowable to interpret what needs no
interpretation.
Very strong expressions have been used by the courts to emphasize the principle
that they are to derive their knowledge of the legislative intention from the words or
language of the statute itself which the legislature has used to express it. The language
of a statute is its most natural guide. We are not at liberty to imagine an intent and bind
the letter to that intent.
The Supreme Court of the United States said: "The primary and general rule of
statutory construction is that the intent of the law- maker is to be found in the language
that he has used. He is presumed to know the meaning of words and the rules of
grammar. The courts have no function of legislation, and simply seek to ascertain the
will of the legislator. It is true that there are cases in which the letter of the statute is
not deemed controlling, but the cases are few and exceptional, and only arise where
there are cogent reasons for believing that the letter does not fully and accurately
disclose the intent. No mere omission, no mere failure to provide for contingencies,
which it may seem wise should have speci cally provided for will justify any judicial
addition to the language of the statute." (United States vs. Goldenberg, 168 U. S., 95,
102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)
That the Government of the Commonwealth of the Philippines shall be the sole
and only government in our country; that our laws are in full force and effect and legally
binding; that "all laws, regulations and processes of any other government are null and
void and without legal effect", are provisions clearly, distinctly, unmistakably expressed
in the October Proclamation, as to which there is no possibility of error, and there is
absolutely no reason in trying to nd different meanings of the plain words employed in
the document.
As we have already seen, the annulled processes are precisely judicial processes,
procedures and proceedings, including the one which is under our consideration.
THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY
Although, as we have already stated, there is no possible mistakes as to the
meaning of the words employed in the October Proclamation, and the text of the
document expresses, in clear-cut sentences, the true purposes of its author, it might
not be amiss to state here what was the policy intended to be established by said
proclamation.
It is a matter of judicial knowledge that in the global war just ended on
September 2, 1945, by the signatures on the document of unconditional surrender
a xed by representatives of the Japanese government, the belligerents on both sides
resorted to what we may call war weapons of psychological character.
So Japan, since its military forces occupied Manila, had waged an intensive
campaign of propaganda, intended to destroy the faith of the Filipino people in
America, to wipe out all manifestations of American or occidental civilization, to create
interest in all things Japanese, which the imperial o cers tried to present as the acme
of oriental culture, and to arouse racial prejudice among orientals and occidentals, to
induce the Filipinos to rally to the cause of Japan, which she tried to make us believe is
the cause of the inhabitants of all East Asia.
It is, then, natural that General MacArthur should take counter- measures to
neutralize or annul completely all vestiges of Japanese in uence, specially those which
might jeopardize in any way his military operations and his means of achieving the main
objective of the campaign of liberation, that is, to restore in our country constitutional
processes and the high ideals which constitute the very essence of democracy.
It was necessary to free, not only our territory, but also our spiritual patrimony. It
was necessary, not only to restore to us the opportunity of enjoying the physical
treasures which a bene cent Providence accumulated on this bountiful land, the true
paradise in the western Paci c, but to restore the full play of our ideology, that
wonderful admixture of sensible principles of human conduct, bequeathed to us by our
Malayan ancestors, the moral principles of Christianity assimilated by our people from
teachers of Spain, and the common-sense rules of the American democratic way of life.
It was necessary to free that ideology from any Japanese impurity.
Undoubtedly, the author of the proclamation thought that the laws, regulations,
and processes of all the branches of the governments established under the Japanese
regime, if allowed to continue and to have effect, might be a means of keeping and
spreading in our country the Japanese in uence, with the same deadly effect as the
mines planted by the retreating enemy.
The government o ces and agencies which functioned during the Japanese
occupation represented a sovereignty and ideology antagonistic to the sovereignty and
ideology which MacArthur's forces sought to restore in our country.
Under Chapter I of the Japanese Constitution, it is declared that Japan shall be
reigned and governed by a line of Emperors unbroken for ages eternal (Article 1); that
the Emperor is sacred and inviolable (Article 3); that he is the head of the Empire,
combining in himself the rights of sovereignty (Article 4); that he exercises the
legislative power (Article 5); that he gives sanction to laws, and orders to be
promulgated and executed (Article 6); that he has the supreme command of the Army
and Navy (Article 11); that he declares war, makes peace, and concludes treaties
(Article 13).
There is no reason for allowing to remain any vestige of Japanese ideology, the
ideology of a people which, as confessed in a book we have at our desk, written by a
Japanese, insists in doing many things precisely in a way opposite to that followed by
the rest of the world.
It is the ideology of a people which insists in adopting the policy of self-delusion;
that believes that their Emperor is a direct descendant of gods and he himself is a god,
and that the typhoon which occurred on August 14, 1281, which destroyed the eet
with which Kublai Khan tried to invade Japan was the divine wind of Ise; that de es the
heinous crime of the ronin, the 47 assassins who, in order to avenge the death of their
master Asano Naganori, on February 3, 1703, entered stealthily into the house of
Yoshinaka Kiro and killed him treacherously.
It is an ideology which digni es harakiri or sepukku, the most bloody and
repugnant form of suicide, and on September 13, 1912, on the occasion of the funeral
of Emperor Meiji, induced General Maresuke Nogi and his wife to practice the abhorrent
"junshi", and example of which is offered to us in the following words of an historian:
"When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that,
following the occasion, his attendants were assembled to form the hito-bashira
(pillar-men) to gird the grave. They were buried alive in a circle up to the neck
around the tomb and 'for several days they died not, but wept and wailed day and
night. At last they died and rotted. Dogs and cows gathered and ate them.'"
(Gowen, an Outline of History of Japan, p. 50.)
The practice shows that the Japanese are the spiritual descendants of the
Sumerians, the ferocious inhabitants of Babylonia who, 3500 years B. C., appeared in
history as the rst human beings to honor their patesis by killing and entombing with
him his widow, his ministers, and notable men and women of his kingdom, selected by
the priests to partake of such abominable honor. (Brodeur, The Pageant of Civilization,
pp. 62-66.)
General MacArthur sought to annul completely the o cial acts of the
governments under the Japanese occupation, because they were done at the shadow
of the Japanese dictatorship, the same which destroyed the independence of Korea,
the "Empire of Morning Freshness"; they violated the territorial integrity of China,
invaded Manchuria, and initiated therein the deceitful system of puppet governments,
by designating irresponsible Pu Yi as Emperor of Manchukuo; they violated the
trusteeship granted by the Treaty of Versailles by usurping the mandated islands in the
Paci c; they initiated what they call China Incident, without war declaration, and,
therefore, in complete disregard of an elemental international duty; they attacked Pearl
Harbor treacherously, and committed a long series of agrant violations of
international law that have logically bestowed on Japan the title of the bandit nation in
the social world.
The conduct of the Japanese during the occupation shows a shocking
anachronism of a modern world power which seems to be the re- incarnation of one of
those primitive social types of pre-history, whose proper place must be found in an
archeological collection. It represents a backward jump in the evolution of ethical and
juridical concepts, a reversion that, more than a simple pathological state, represents a
characteristic and well defined case of sociological teratology.
Since they entered the threshold of our capital, the Japanese had announced that
for every one of them killed they would kill ten prominent Filipinos. They promised to
respect our rights by submitting us to wholesale and indiscriminate slapping, tortures,
and atrocious massacres. Driving nails in the cranium, extraction of teeth and eyes,
burning of organs, hangings, diabolical zonings, looting of properties, establishment of
redlight districts, machine-gunning of women and children, interment of alive persons,
they are just mere preludes of the promised paradise that they called "Greater East Asia
Co-Prosperity Sphere."
They promised religious liberty by compelling all protestant sects to unite,
against the religious scruples and convictions of their members, in one group, and by
profaning convents, seminaries, churches, and other cult centers of the Catholics,
utilizing them as military barracks, munition dumps, artillery bases, deposits of bombs
and gasoline, torture chambers and zones, and by compelling the government o cials
and employees to face and to bow in adoration before that caricature of divinity in the
imperial palace of Tokyo.
The Japanese offered themselves to be our cultural mentors by depriving us of
the use of our schools and colleges, by destroying our books and other means of
culture, by falsifying the contents of school texts, by eliminating free press, the radio, all
elemental principles of civilized conduct, by establishing classes of rudimentary
Japanese so as to reduce the Filipinos to the mental level of the rude Japanese guards,
and by disseminating all kinds of historical, political, and cultural falsehoods.
Invoking our geographical propinquity and race a nity, they had the insolence of
calling us their brothers, without the prejudice of placing us in the category of slaves,
treating the most prominent Filipinos in a much lower social and political category than
that of the most ignorant and brutal subject of the Emperor.
The civil liberties of the citizens were annulled. Witnesses and litigants were
slapped and tortured during investigations. In the prosecuting attorney's offices, no one
was safe. When the Japanese arrested a person, the lawyer who dared to intercede was
also placed under arrest. Even courts were not free from their despotic members.
There were judges who had to trample laws and shock their conscience in order not to
disgust a Nipponese.
The most noble of all professions, so much so that the universities of the world
could not conceive of a higher honor that may be conferred than that of Doctor of Laws,
became the most despised. It was dangerous to practice the profession by which faith
in the effectiveness of law is maintained; citizens feel con dent in the protection of
their liberties, honor, and dignity; the weak may face the powerful; the lowest citizen is
not afraid of the highest o cial; civil equality becomes a reality; justice is administered
with more e ciency; and democracy becomes the best system of government and the
best guaranty for the welfare and happiness of the individual human being. In fact, the
profession of law was annulled, and the best lawyers for the unfortunate prisoners in
Fort Santiago and other centers of torture were the military police, concubines,
procurers, and spies, the providers of war materials and shameful pleasures, and the
accomplices in fraudulent transactions, which were the specialty of many naval and
military Japanese officers.
The courts and the Filipino government o cials were completely helpless in the
question of protecting the constitutional liberties and fundamental rights of the citizens
who happen to be unfortunate enough to fall under the dragnet of the hated kempei.
Even the highest government o cials were not safe from arrest and imprisonment in
the dreaded military dungeons, where torture or horrible death were always awaiting
the defenseless victim of Japanese brutality.
May any one be surprised if General MacArtur decided to annul all the judicial
processes?
The evident policy of the author of the October Proclamation can be seen if we
take into consideration the following provisions of the Japanese Constitution:
"ART. 57. The Judicature shall be exercised by the Courts of Law
according to law, in the name of the Emperor.
"ART. 61. No suit at law, which relates to rights alleged to have been
infringed by the illegal measures of the executive authority . . . shall be taken
cognizance of by a Court of Law."
INTERNATIONAL LAW
Nobody dared challenge the validity of the October Proclamation.
Nobody dared challenged the authority of the military Commander in Chief who
issued it.
Certainly not because of the awe aroused by the looming gure of General of the
Army Douglas MacArthur, the Allied Supreme Commander, the military hero, the
greatest American general, the Liberator of the Philippines, the conqueror of Japan, the
gallant soldier under whose authority the Emperor of Japan, who is supposed to rule
supreme for ages as a descendant of gods, is receiving orders with the humility of a
prisoner of war.
No challenge has been hurled against the proclamation or the authority of the
author to issue it, because everybody acknowledges the full legality of its issuance.
But because the proclamation will affect the interest and rights of a group of
individuals, and to protect the same, a way is being sought to neutralize the effect of
the proclamation.
The way found is to invoke international law. The big and resounding word is
considered as a shibboleth powerful enough to shield the affected persons from the
annulling impact.
Even then, international law is not invoked to challenge the legality or authority of
the proclamation, but only to construe it in a convenient way so that judicial processes
during the Japanese occupation, through an exceptional effort of the imagination, might
be segregated from the processes mentioned in the proclamation.
An author said that the law of nations, the "jus gentiun", is not a xed nor
immutable science. On the contrary, it is developing incessantly, it is perpetually
changing in forms. In each turn it advances or recedes, according to the vicissitudes of
history, and following the monotonous rhythm of the ebb and rise of the tide of the sea.
"Le droit des gens, en effet, n'est point une science xe est immuable: bien
au contraire, il se developpe sans cesse, il change eternellement de formes; tour a
tour il avance et il recule, selon less vicissitudes de l'histoire et suivan un rhythme
monotone qui est comme le ux et le re ux d'n mer." (M. Revon, De l'existence du
droit international sous la republique romain.)
Another author has this to say:
"International law, if it is or can be a science at all, or can be, at most, a
regulative science, dealing with the conduct of States, that is, human beings in a
certain capacity; and its principles and prescriptions are not, like those of science
proper, nal and unchanging. The substance of science proper is already made
for man; the substance of international is actually made by man, — and different
ages make differently." (Coleman Philippson, The International Law and Custom
of Ancient Greece and Rome, Vol. I, p. 50.)
"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of
Legal History, p. 1) Justice Cardozo adds: "Here is the great antinomy confronting us at
every turn. Rest and motion, unrelieved and unchecked, are equally destructive. The law,
like human kind, if life is to continue, must nd some path of compromise." (The Growth
of Law, p. 2.) Law is just one of the manifestations of human life, and "Life has relations
not capable of division into in exible compartments. The moulds expand and shrink."
(Glanzer vs. Shepard, 233 N. Y., 236, 241.) The characteristic plasticity of law is very
noticeable, much more than in any other department, in international law.
"In certain matters it is clear we have made substantial progress, but in
other points, he (M. Revon) maintains, we have retrograded; for example, in the
middle ages the oath was not always respected as faithfully as in ancient Rome;
and nearer our own times, in the seventeenth century, Grotius proclaims the
unquestioned right of belligerents to massacre the women and children of the
enemy; and in our more modern age the due declaration of war which Roman
always conformed to has not been invariably observed." (Coleman Philippson,
The International Law and Custom of Ancient Greece and Rome, Vol. I, p. 209.)
Now let us see if any principle of international law may affect the enforcement of
the October Proclamation.
In this study we should be cautioned not to allow ourselves to be deluded by
generalities and vagueness which are likely to lead us easily to error, in view of the
absence of codification and statutory provisions.
Our Constitution provides:
"The Philippines renounces war as an instrument of national policy, and
adopts the generally accepted principles of international law as part of the law of
the Nation." (Sec. 3, Art. II.)
There being no codi ed principles of international law, or enactments of its rules,
we cannot rely on merely legal precepts.
With the exception of international conventions and treaties and, just recently, the
Charter of the United Nations, adopted in the San Francisco Conference on June 26,
1945, we have to rely on unsystematized judicial pronouncements and reasonings and
on theories, theses, and propositions that we may nd in the works of authors and
publicists.
Due to that characteristic pliability and imprecision of international law, the
drafters of our Constitution had to content themselves with "generally accepted
principles."
We must insist, therefore, that the principles should be speci c and unmistakably
de ned, and that there is de nite and conclusive evidence to the effect that they are
generally accepted among the civilized nations of the world and that they belong to the
current era and no other epochs of history.
The temptation of assuming the role of a legislator is greater in international law
than in any other department of law, since there are no parliaments, congresses,
legislative assemblies which can enact laws and speci c statutes on the subject. It
must be our concern to avoid falling in so a great temptation, as its dangers are
incalculable. It would be like building castles in the thin air, or trying to nd an exit in the
thick dark forest where we are irretrievably lost. We must also be very careful in our
logic. In so vast a eld as international law, the fanciful wanderings of the imagination
often impair the course of dialectics.
THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW
Is there any principle of international law that may affect the October
Proclamation?
We tried in vain to nd out in the majority opinion anything as to the existence of
any principle of international law under which the authority of General MacArthur to
issue the proclamation can effectively be challenged.
No principle of international law has been, or could be, invoked as a basis for
denying the author of the document legal authority to issue the same or any part
thereof.
We awaited in vain for any one to dare deny General MacArthur the authority,
under international law, to declare null and void and without effect, not only the laws and
regulations of the governments under the Japanese regime, but all the processes of
said governments, including judicial processes.

If General MacArthur, as Commander in Chief of the American Armed Forces of
Liberation, had authority, full and legal, to issue the proclamation, the inescapable result
will be the complete voidance and nullity of all judicial processes, procedures, and
proceedings of all courts under the Japanese regime.
But those who are sponsoring the cause of said judicial processes try to achieve
their aim, not by direct means, but by following a tortuous side-road.
They accept and recognize the full authority of the author of the proclamation to
issue it and all its parts, but they maintain that General MacArthur did not and could not
have in mind the idea of nullifying the judicial processes during the Japanese
occupation, because that will be in violation of the principles of international law.
If we follow the reasoning of the majority opinion we will have to reach the
conclusion that the word "processes" does not appear at all in the October
Proclamation.
It is stated more than once, and reiterated with dogmatic emphasis, that under
the principles of international law the judicial processes under an army of occupation
cannot be invalidated.
But we wanted in vain for the speci c principle of international law, only one of
those alluded to, to be pointed out to us.
If the law exists, it can be pointed out. If the principle exists, it can be stated
speci cally. The word is being used very often in plural, principles, but we need only one
to be convinced.
The imagined principles are so shrouded in a thick maze of strained analogies
and reasoning, that we confess our inability even to have a eeting glimpse at them
through their thick and invulnerable wrappers.
At every turn international law, the blatant words, are haunting us with the
deafening bray of a trumpet, but after the transient sound has ed away, absorbed by
the resiliency of the vast atmosphere, the announced principles, which are the very soul
of international law, would disappear too with the lightning speed of vanishing dream.
WEAKNESS OF THE MAJORITY POSITION
In the majority opinion three questions are propounded: rst, whether judicial
acts and proceedings during the Japanese occupation are valid even after liberation;
second, whether the October Proclamation has invalidated all judgments and judicial
proceedings under the Japanese regime; and third, whether the present courts of the
Commonwealth may continue the judicial proceedings pending at the time of liberation.
As regards the rst question, it is stated that it is a legal truism in political and
international law that all acts of a de facto government are good and valid, that the
governments established during the Japanese occupation, that is, the Philippine
Executive Commission and the Republic of the Philippines, were de facto governments,
and that it necessarily follows that the judicial acts and proceedings of the courts of
those governments, "which are not of a political complexion," were good and valid, and,
by virtue of the principle of postliminum, remain good and valid after the liberation.
In the above reasoning we will see right away how the alleged legal truism in
political and international law, stated as a premise in a sweeping way, as an absolute
rule, is immediately quali ed by the exception as to judicial acts and proceedings which
are of a "political complexion."
So it is the majority itself which destroys the validity of what it maintains as a
legal truism in political and international law, by stating from the beginning the absolute
proposition that all acts and proceedings of the legislative, executive, and judicial
departments of a de facto government are good and valid.
It is to be noted that no authority, absolutely no authority, has been cited to
support the absolute and sweeping character of the majority proposition as stated in
their opinion.
No authority could be cited, because the majority itself loses faith in the validity
of such absolute and sweeping proposition, by establishing an unexplained exception
as regards the judicial acts and proceedings of a "political complexion."
Besides, it is useless to try to nd in the arguments of the majority anything that
may challenge the power, the authority of a de jure government to annul the o cial acts
of a de facto government, or the legal and indisputable authority of the restored
legitimate government to refuse to recognize the o cial acts, legislative, executive and
judicial, of the usurping government, once the same is ousted.
As to the second question, the majority argues that, the judicial proceedings and
judgments of the de facto governments under the Japanese regime being good and
valid, "it should be presumed that it was not, and could not have been, the intention of
General Douglas MacArthur to refer to judicial processes, when he used the last word in
the October Proclamation, and that it only refers to governmental processes other than
judicial processes or court proceedings."
To weakness and absolute ineffectiveness of the argument are self-evident.
It is maintained that when General MacArthur declared the processes of the
governments under the Japanese regime null and void, he could not refer to judicial
processes, because the same are valid and remained so under the legal truism
announced by the majority to the effect that, under political and international law, all
official acts of a de facto government, legislative, executive or judicial, are valid.
But we have seen already how the majority excepted from said legal truism the
judicial processes of "political complexion."
And now it is stated that in annulling the processes of the government under
Japanese occupation, General MacArthur referred to "processes other than judicial
processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and proceedings of legislative and
executive departments of a de facto government are good and valid? Did it not maintain
that they are so as a "legal truism in political and international law?
"Now, if the reasoning of the majority to the effect that General MacArthur could
not refer to judicial processes because they are good and valid in accordance with
international law, why should the same reasoning not apply to legislative and executive
processes?
Why does the majority maintain that, notwithstanding the fact that, according to
said legal truism, legislative and executive o cial acts of de facto governments are
good and valid, General MacArthur referred to the latter in his annulling proclamation,
but not to judicial processes?
If the argument is good so as to exclude judicial processes from the effect of the
October Proclamation, we can see no logic in considering it bad with respect to
legislative and executive processes.
If the argument is bad with respect to legislative and executive processes, there
is no logic in holding that it is not good with respect to judicial processes.
Therefore, if the argument of the majority opinion is good, the inevitable
conclusion is that General MacArthur did not declare null and void any processes at all,
whether legislative processes, executive processes, or judicial processes, and that the
word "processes" used by him in the October Proclamation is a mere surplusage or an
ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the position of the
majority, which is but a mere legal pretense that can not stand the least analysis or the
test of logic.
A great legal luminary admonished that we must have courage to unmask
pretense if we are to reach a peace that will abide beyond the fleeting hour.
It is admitted that the commanding general of a belligerent army of occupation
as an agent of his government, "may not unlawfully suspend existing laws and
promulgate new ones in the occupied territory if and when exigencies of the military
occupation demand such action," but it is doubted whether the commanding general of
the army of the restored legitimate government can exercise the same broad legislative
powers.
We beg to disagree with a theory so unreasonable and subversive.
We cannot accept that the commanding general of an army of occupation, of a
rebellious army, of an invading army, or of a usurping army, should enjoy greater legal
authority during the illegal, and in the case of the Japanese, iniquitous and bestial
occupation, than the o cial representative of the legitimate government, once restored
in the territory wrested from the brutal invaders and aggressors. We cannot agree with
such legal travesty.
Broad and unlimited powers are granted and recognized in the commanding
general of an army of invasion, but the shadow of the vanishing alleged principle of
international law is being brandished to gag, manacle, and make completely powerless
the commander of an army of liberation to wipe out the o cial acts of the government
of usurpation, although said acts might impair the military operation or neutralize the
public policies of the restored legitimate government.
We are not unmindful of the interests of the persons who might be adversely
affected by the annulment of the judicial processes of the governments under the
Japanese regime, but we can not help smiling when we hear that chaos will reign or that
the world will sink.
It is possible that some criminals will be let loose unpunished, but nobody has
ever been alarmed that the President, in the exercise of his constitutional powers of
pardon and amnesty, had in the past released many criminals from imprisonment. And
let us not forget that, due to human limitations, in all countries, under all governments, in
peace or in war, there were, there are, and there will always be unpunished criminals,
and that situation never caused despair to any one.
We can conceive of inconveniences and hardships, but they are necessary
contributions to great and noble purposes. Untold sacri ces were always offered to
attain high ideals and in behalf of worthy causes.
We cannot refrain from feeling a paternal emotion for those who are trembling
with all sincerity because of the belief that the avoidance of judicial proceedings of the
governments under the Japanese regime "would paralyze the social life of the country."
To allay such fear we must remind them that the country that produced many great
heroes and martyrs; that contributed some of the highest moral gures that humanity
has ever produced in all history; which is inhabited by a race which was able to traverse
in immemorial times the vast expanses of the Indian Ocean and the Paci c with
inadequate means of navigation, and to inhabit in many islands so distantly located,
from Madagascar to the eastern Pacific; which made possible the wonderful resistance
of Bataan and Corregidor, can not have a social life so frail as to be easily paralyzed by
the annulment of some judicial proceedings. The Japanese vandalisms during the last
three years of nightmares and bestial oppression, during the long period of our national
slavery, and the wholesale massacres and destructions in Manila and many other cities
and municipalities and populated areas, were not able to paralyze the social life of our
people. Let us not lose faith so easily in the inherent vitality of the social life of the
people and country of Rizal and Mabini.
It is insinuated that because of the thought that the representative of the
restored sovereign power may set aside all judicial processes of the army of
occupation, in the case of a future invasion, litigants will not submit their cases to
courts whose judgment may afterwards be annulled, and criminals would not be
deterred from committing offenses in the expectancy that they may escape penalty
upon liberation of the country. We hope that Providence will never allow the Philippines
to fall again under the arms of an invading army, but if such misfortune will happen, let
the October Proclamation serve as a notice to the ruthless invaders that the o cial
acts of the government of occupation will not merit any recognition from the legitimate
government, specially if they should not conduct themselves, as exempli ed by the
Japanese, in accordance with the rules of action of a civilized state.
One conclusive evidence of the untenableness of the majority position is the fact
that it had to resort to Executive Order No. 37, issued on March 10, 1945, providing
"that all cases that have heretofore been appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final decision." The far-fetched theory is advanced
that this provision impliedly recognizes the court processes during the Japanese
military occupation, on the false assumption that it refers to the Court of Appeals
existing during the Japanese regime. It is self-evident that the Executive Order could
have referred only to the Commonwealth Court of Appeals, which is the one declared
abolished in said order. Certainly no one will entertain the absurd idea that the
President of the Philippines could have thought of abolishing the Court of Appeals
under the government during the Japanese occupation. Said Court of Appeals
disappeared with the ouster of the Japanese military administration from which it
derived its existence and powers. The Court of Appeals existing on March 10, 1945, at
the time of the issuance of Executive Order No. 37, was the Commonwealth Court of
Appeals and it was the only one that could be abolished.
Without discussing the correctness of the principle stated, the majority opinion
quotes from Wheaton the following: "Moreover when it is said that an occupier's acts
are valid and under international law should not be abrogated by the subsequent
conqueror, it must be remembered that no crucial instances exist to show that if his
acts should be reversed, any international wrong would be committed. What does
happen is that most matters are allowed to stand by the restored government, but the
matter can hardly be put further than this," (Wheaton, International Law, War, 7th English
edition of 1944, p. 245.)
Then it says that there is no doubt that the subsequent conqueror has the right to
abrogate most of the acts of the occupier, such as the laws, regulations and processes
other than judicial of the government established by the belligerent occupant.
It is evident that the statement just quoted is a complete diversion from the
principle stated in an unmistakable way by Wheaton, who says in de nite terms that "it
must be remembered that no crucial instances exist to show that if his acts (the
occupant's) should be reversed, any international wrong would be committed."
It can be clearly seen that Wheaton does not make any distinction or point our
any exception.
But in the majority opinion the principle is quali ed, without stating any reason
therefor, by limiting the right of the restored government to annul "most of the acts of
the occupier' and "processes other than judicial."
The statement made by the respondent judge after quoting the above-mentioned
principle, as stated by Wheaton, to the effect that whether the acts of the military
occupant should be considered valid or not, is a question that is up to the restored
government to decide, and that there is no rule of international law that denies to the
restored government the right to exercise its discretion on the matter, is quoted
without discussion in the majority opinion.
As the statement is not disputed, we are entitled to presume that it is concurred
in and, therefore, the quali cations made in the statement in the majority opinion seem
to be completely groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT
LIMITATIONS TO THE RIGHTS OF THE LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many duties
imposed by international law on the military occupant of an invaded country.
And from said duties it is deduced that the legitimate government, once restored
in his own territory, is bound to respect all the o cials acts of the government
established by the usurping army, except judicial processes of political complexion.
The reasoning calls for immediate opposition. It is absolutely contrary to all
principles of logic.
Between the duties imposed on the military occupant and the legal prerogatives
of the legitimate government there are no logical relationship or connection that might
bind the ones with the others.
The military occupant is duty bound to protect the civil rights of the inhabitants,
but why should the legitimate government necessarily validate the measures adopted
by said occupant in the performance of this duty, if the legitimate government believes
the duty to annul them for weighty reasons?
The military occupant is duty bound to establish courts of justice. Why should the
legitimate government validate the acts of said courts, if it is convinced that said courts
were absolutely powerless, as was the case during the Japanese occupation, to stop
the horrible abuses of the military police, to give relief to the victims of zoning and Fort
Santiago tortures, to protect the fundamental human rights of the Filipinos — life,
property, and personal freedom?
The majority opinion recognizes in the military occupant the power to annul the
o cial acts of the ousted and supplanted legitimate government, a privilege which is
inversely denied to the last. This preference and predilection in favor of the military
occupant, that is in favor of the invader and usurper, and against the legitimate
government, is simply disconcerting, if we have to say the least.

PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS
The invading military occupant is duty bound to establish and maintain courts of
justice in the invaded territory, for the protection of the inhabitants thereof. It is
presumed that the restored legitimate government will respect the acts of said courts
of the army of occupation. Therefore, it is a principle of international law that said acts
are valid and should be respected by the legitimate government. It is presumed that
General MacArthur is acquainted with such principle, discovered or revealed through
presumptive operations, and it is presumed that he had not the intention of declaring
null and void the judicial processes of the government during the Japanese regime.
Therefore, his October Proclamation, declaring null and void and without effect "all
processes" of said government, in fact, did not annul the Japanese regime judicial
processes.
So runs the logic of the majority.
They don't mind that General MacArthur speaks in the October Proclamation as
follows:
"NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as
Commander-in-Chief of the military forces committed to the liberation of the
Philippines, do hereby proclaim and declare:
xxx xxx xxx
"3. That all laws, regulations and processes of any other government
control." (Emphasis supplied.)
General MacArthur says categorically "all processes", but the majority insists on
reading differently, that is: "NOT ALL processes."
The majority presume, suppose, against the unequivocal meaning of simple and
well known words, that when General MacArthur said "all processes", in fact, he said
"not all processes", because it is necessary, by presumption, by supposition, to exclude
judicial processes.
If where General MacArthur says "all", the majority shall insist on reading "not all",
it is impossible to foresee the consequences of such so stubborn attitude, but it is
possible to understand how they reached the unacceptable conclusion which we
cannot avoid opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted to our
consideration, by presumptions and suppositions putting aside truths and facts? Are
we to place in the documents presented to us, such as the October Proclamation,
different words than what are written therein? Are we to read "not all", where it is written
"all"?
We are afraid that such procedure is not precisely the most appropriate to keep
public confidence in the effectiveness of the administration of justice.
That is why we must insist that in the October Proclamation should be read what
General MacArthur has written in it, that is, that, besides laws and regulations, he
declared and proclaimed null and void "ALL PROCESSES", including naturally judicial
processes, of the governments under the Japanese regime.
THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO
CONTINUE JAPANESE REGIME JUDICIAL PROCESSES
Now we come to the third and last question propounded in the majority opinion.
The jurisdiction of the Commonwealth tribunals is to de ned, prescribed, and
apportioned by legislative act.
It is provided so in our Constitution. (Section 2, Article VIII.)
The Commonwealth courts of justice are continuations of the courts established
before the inauguration of the Commonwealth and before the Constitution took effect
on November 15, 1935. And their jurisdiction is the same as provided by existing laws
at the time of the inauguration of the Commonwealth Government.
Act No. 136 of the Philippine Commission, known as the Organic Act of the
courts of justice of the Philippines, is the one that de nes the jurisdiction of justice of
the peace and municipal courts, Courts of First Instance, and the Supreme Court. It is
not necessary to mention here the jurisdiction of the Courts of Appeals, because the
same has been abolished by Executive Order No. 37.
No provision may be found in Act No. 136, nor in any other law of the Philippines,
conferring on the Commonwealth tribunals jurisdiction to continue the judicial
processes or proceedings of tribunals belonging to other governments, such as the
governments established during the Japanese occupation.
The jurisdiction of our justice of the peace and municipal courts is provided in
Section 68, Chapter V, of Act No. 136. The original and appellate jurisdiction of the
Courts of First Instance is provided in sections 56 and 57, Chapter IV, of Act No. 136.
The original and appellate jurisdiction of the Supreme Court is provided in sections 17
and 18, Chapter II, of the same Act. The provisions of the above-cited sections do not
authorize, even implicitly, any of the said tribunals to execute or order the execution of
the decisions and judgments of other governments, nor to continue the processes or
proceedings of said tribunals.
NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE
PREVAILING IN THE PHILIPPINES AND IN
THE UNITED STATES
Taking aside the question as to whether the judicial processes of the
government established during the Japanese occupation should be considered valid or
not, in order that said processes could be continued and the Commonwealth tribunals
could exercise proper jurisdiction to continue them, under a well-established legal
doctrine, prevailing not only in the Philippines, but also in the United States, it is
necessary to that effect to enact the proper enabling law.
Almost half a century ago, in the instructions given by President McKinley on
April 7, 1900, for the guidance of the Philippine Commission, it was stated that, in all the
forms of the government and administrative provisions which they were authorized to
prescribe, the Commission should bear in mind that the government which they were
establishing was designed not for the satisfaction of the Americans or for the
expression of their theoretical views, but for the happiness, peace, and prosperity of the
people of the Philippines, and the measures adopted should be made to conform to
their customs, their habits, and even their prejudices, to the fullest extent consistent
with the accomplishment of the indispensable requisites of just and effective
government.
Notwithstanding the policy so outlined, it was not enough for the Philippine
Commission to create and establish the courts of justice provided in Act No. 136, in
order that said tribunals could take cognizance and continue the judicial proceedings of
the tribunals existing in the Philippines at the time of the American occupation.
It needed speci c enabling provisions in order that the new tribunals might
continue the processes pending in the tribunals established by the Spaniards, and
which continued to function until they were substituted by the courts created by the
Philippine Commission.
So it was done in regards to the transfer of the cases pending before the Spanish
Audiencia to the newly created Supreme Court, in sections 38 and 39 of Act No. 136,
quoted as follows:
"SEC. 38. Disposition of causes, actions, proceedings, appeals, records,
papers, and so forth, pending in the existing Supreme Court and in the
'Contencioso Administrativo.' — All records, books, papers, causes, actions,
proceedings, and appeals lodged, deposited, or pending in the existing Audiencia
or Supreme Court, or pending by appeal before the Spanish tribunal called
'Contencioso Administrativo,' are transferred to the Supreme Court above provided
for, which has the same power and jurisdiction over them as if they had been in
the rst instance lodged, led, or pending therein, or, in case of appeal, appealed
thereto.
"SEC. 39. Abolition of existing Supreme Court. — The existing
Audiencia or Supreme Court is hereby abolished, and the Supreme Court is
provided by this Act is substituted in place thereof."
Sections 64 and 65 of the same Act followed the same Act followed the same
procedure as regards the transfer of cases and processes pending in the abolished
Spanish Courts of First Instance to the tribunals of the same name established by the
Philippine Commission.
"SEC. 64. Disposition of records, papers, causes, and appeals, now
pending in the existing Courts of First Instance. — All records, books, papers,
actions, proceedings, and appeals lodged, deposited, or pending in the Court of
First Instance as now constituted of or in any province, are transferred to the
Court of First Instance of such province hereby established, which shall have the
same power and jurisdiction over them as if they had been primarily lodged,
deposited, filed, or commenced therein, or in cases of appeal, appealed thereto.
"SEC. 65. Abolition of existing Courts of First Instance. — The existing
Courts of First Instance are hereby abolished, and the Courts of First Instance
provided by this Act are substituted in place thereof."
The same procedure has been followed by the Philippine Commission even
though the courts of origin of the judicial processes to be transferred and continued
belonged to the same government and sovereignty of the courts which are empowered
to continue said processes.
So section 78 of Act No. 136, after the repeal of all acts conferring upon
American provost courts in the Philippines jurisdiction over civil actions, expressly
provided that said civil actions, expressly provided that said civil actions shall be
transferred to the newly created tribunals.
And it provided speci cally that "the Supreme Court, Courts of First Instance, and
courts of the justices of the peace established by this Act (No. 136) are authorized to
try and determine the actions so transferred to them respectively from the provost
courts, in the same manner and with the same legal effect as though such actions had
originally been commenced in the courts created" by virtue of said Act.

MUNICIPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission enacted the Organic Act of the City
of Manila, No. 183.
Two municipal courts for the city were created by section 40 of said Act, one for
the northern side of Pasig River and the other for the southern side.
They were courts with criminal jurisdiction on identical cases under the
jurisdiction of the justices of the peace then existing in Manila. Although both courts
were of the same jurisdiction, in order that the criminal cases belonging to the justice of
the peace courts may be transferred to the municipal courts just created, and the
proceedings may be continued by the same, the Philippine Commission considered it
necessary to pass the proper enabling act.
So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all
criminal cases and proceedings pending in the justices of the peace of Manila are
transferred to the municipal courts, which are conferred the jurisdiction to continue
said cases and proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was convicted of murder by a military
commission. (Cabantag vs. Wolfe, 6 Phil., 273.) The decision was con rmed on
December 10, 1901, and his execution by hanging was set for January 12, 1902.
On December 26, 1901, he ed, but surrendered to the authorities on July 18,
1902. The Civil Governor on December 2, 1903, commuted the death penalty to 20
years imprisonment. The commutation was approved by the Secretary of War,
following instructions of the President.
Cabantag led later a writ of habeas corpus on the theory that, with the abolition
of the military commission which convicted him, there was no existing tribunal which
could order the execution of the penalty of imprisonment.
The Supreme Court denied the writ, but stated that, if the petitioner had led the
writ before the enactment of Act No. 865, the question presented to the Supreme Court
would have been different.
Act No. 865, enacted on September 3, 1903, is an enabling law, wherein it is
provided that decisions rendered by provost courts and military commissions shall be
ordered executed by Courts of First Instance in accordance with the procedure outlined
in said Act.
It is evident from the foregoing that this Supreme Court has accepted and
con rmed the doctrine of the necessity of an enabling act in order that our Courts of
First Instance could exercise jurisdiction to execute the decisions of the abolished
provost courts and military commission.
It is evident that the doctrine is applicable, with more force, to the judicial
processes coming from governments deriving their authority from a foreign enemy
state.
THE DOCTRINE IN THE UNITED STATES
It is also evident that the Congress of the United States, by enacting the Bill of
the Philippines on July 1, 1902, confirmed also the same doctrine.
In effect, in section 9 of said Act, the Congress approved what the Philippine
Commission did as to the jurisdiction of the courts established and transfer of cases
and judicial processes, as provided in Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United States government as part of its
international policy, as could be seen in Article XII of the Treaty concluded with Spain on
December 10, 1898, in Paris.
Even in 1866 the Congress of the United States followed the same doctrine.
"The suit, shown by the record, was originally instituted in the District Court
of the United States for the District of Louisiana, where a decree was rendered for
the libellant. From the decree an appeal was taken to the Circuit Court, where the
case was pending, when, in 1861, the proceedings of the court were interrupted by
the civil war. Louisiana had become involved in the rebellion, and the courts and
o cers of the United States were excluded from its limits. In 1862, however, the
National authority had been partially re-established in the State, though still liable
to be overthrown by the vicissitudes of war. The troops of the Union occupied
New Orleans, and held military possession of the city and such other portions of
the State as had submitted to the General Government. The nature of this
occupation and possession was fully explained in the case of The Venice.
"Whilst it continued, on the 20th of October, 1862, President Lincoln, by
proclamation, instituted a Provisional Court of the State of Louisiana, with
authority, among other powers, to hear, try and determine all causes in admiralty.
Subsequently, by consent of parties, this cause was transferred into the
Provisional Court thus constituted, and was heard, and a decree was again
rendered in favor of the libellants. Upon the restoration of civil authority in the
State, the Provisional Court, limited in duration, according to the terms of the
proclamation, by that event, ceased to exist.
"On the 28th of July, 1866, Congress enacted that all suits, causes, and
proceedings in the Provisional Court, proper for the jurisdiction of the Circuit Court
of the United States for the Eastern District of Louisiana, should be transferred to
that court, and heard and determined therein; and that all judgments, orders, and
decrees of the Provisional Court in causes transferred to the Circuit Court should
at once become the orders, judgments, and decrees of that court, and might be
enforced, pleaded and proved accordingly.
"It is questioned upon these facts whether the establishment by the
President of a Provisional Court was warranted by the Constitution.
xxx xxx xxx
"We have no doubt that the Provisional Court of Louisiana was properly
established by the President in the exercise of this constitutional authority during
the war; or that Congress had power, upon the close of the war, and the
dissolution of the Provisional Court, to provide for the transfer of cases pending in
that court, and of its judgments and decrees, to the proper courts of the United
States." (U.S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)
JUDGMENTS OF REBEL COURTS IN LOUISIANA WHERE VALIDATED

BY CONSTITUTIONAL PROVISION
During the civil war in 1861, the prevailing rebel forces established their own
government in Louisiana.
When the rebel forces were overpowered by the Union forces and the de facto
government was replaced by the de jure government, to give effect to the judgments
and other judicial acts of the rebel government, from January 26, 1861, up to the date
of the adoption of the State Constitution, a provision to said effect was inserted in said
document.
Section 149 of the Louisiana Constitution reads as follows:
"All rights, actions, prosecutions, claims, contracts, and all laws in force at
the time of the adoption of this constitution, and not inconsistent therewith, shall
continue as if it had been adopted; all judgments and judicial sales, marriages,
and executed contracts made in good faith and in accordance with existing laws
in this State rendered, made, or entered into, between the 26th day of January,
1861, and the date when this Constitution shall be adopted, are hereby declared to
be valid," etc. (U.S. Reports, Wallace, Vol. 22, Mechanics' etc. Bank vs. Union Bank,
281.)
EVEN AMONG SISTER STATES OF THE UNITED STATES

JUDGMENTS ARE NOT EXECUTORY
The member states of the United States of America belong to the same nation,
to the same country, and are under the same sovereignty.
But judgments rendered in one state are not executory in other states.
To give them effect in other states it is necessary to initiate an original judicial
proceedings, and therein the defendants in the domestic suit may plead in bar the sister
state judgment puis darrien continuance. (Wharton, on the Con ict of laws, Vol. II, p.
1411.)
"Under the Constitution of the United States, when a judgment of one state
in the Union is offered in a court of a sister state as the basis of a suit nil debet
cannot be pleaded. The only proper plea is nul tiel record." (Id., pp. 1413.)
"It is competent for the defendant, however, to an action on a judgment of
a sister state, as to an action on a foreign judgment, to set up as a defense, want
of jurisdiction of the court rendering the judgment; and, as indicating such want
of jurisdiction, to aver by plea that the defendant was not an inhabitant of the
state rendering the judgment, and had not been served with process, and did not
enter his appearance; or that the attorney was without authority to appear." ( Id.,
pp. 1414-1415.)
The inevitable consequence is that the courts of the Commonwealth of the
Philippines, in the absence of an enabling act or of an express legislative grant, have no
jurisdiction to take cognizance and continue the judicial processes, procedures, and
proceedings of the tribunals which were created by the Japanese Military
Administration and functioned under the Vargas Philippine Executive Commission or
the Laurel Republic of the Philippines, deriving their authority from the Emperor, the
absolute ruler of Japan, the invading enemy, and not from the Filipino people in whom,
according to the Constitution, sovereignty resides, and from whom all powers of
government emanate.
The position of Honorable Arsenio P. Dizon, the respondent judge of the Court of
First Instance of Manila, in declaring himself without jurisdiction nor authority to
continue the proceedings which provoked the present controversy, being a judicial
process of a Japanese sponsored government, is absolutely correct, under the legal
doctrines established by the United States and the Philippine Government, and
consistently, invariably, and without exception, followed by the same.
If we accept, for the sake of argument, the false hypothesis that the
Commonwealth tribunals have jurisdiction to continue the judicial processes left
pending by the courts of the governments established under the Japanese regime, the
courts which disappeared and, automatically, ceased to function with the ouster of the
enemy, the position of Judge Dizon, in declining to continue the case, is still
unassailable, because, for all legal purposes, it is the same as if the judicial processes
in said case were not taken at all, as an inevitable result of the sweeping and absolute
annulment declared by General MacArthur in the October Proclamation.
In said proclamation it is declared in unmistakable and de nite terms that "ALL
PROCESSES" of the Japanese sponsored governments "ARE NULL AND VOID AND
WITHOUT LEGAL EFFECT", and they shall remain so until the Commonwealth, through
its legislative power, decides otherwise in a proper validating act.
The fact that the Japanese invaders, under international law, were in duty bound
to establish courts of justice during the occupation, although they made them
completely powerless to safeguard the constitutional rights of the citizens, and mere
gureheads as regards the fundamental liberties of the helpless men, women and
children of our people, so much so that said courts could not offer even the semblance
of protection when the life , the liberty, the honor and dignity of our individual citizens
were wantonly trampled by any Japanese, military or civilian, does not change the
situation. "ALL PROCESSES" of said court are declared "NULL AND VOID AND WITHOUT
LEGAL EFFECT" in the October Proclamation, and we do not have any other alternative
but to accept the law, as said proclamation has the full force of a law.
The fact that in the past, the legitimate governments, once restored in their own
territory, condescended in many cases to recognize and to give effect to judgments
rendered by courts under the governments set up by an invading military occupant or
by a rebel army, does not elevate such condescension to the category of a principle of
international law. It cannot be a principle, when Wheaton declares that no international
wrong is done if the acts of the invader are reversed.
Many irrelevant authorities were cited to us as to the duties imposed by
international law on military occupants, but no authority has been cited to the effect
that the representative of the restored legitimate government is bound to recognize
and accept as valid the acts and processes of said occupants. On the contrary,
Wheaton says that if the occupant's acts are reversed "no international wrong would be
committed."
Following the authority of Wheaton, undisputed by the majority, General
MacArthur thought, as the wisest course, of declaring "NULL AND VOID AND WITHOUT
EFFECT," by official proclamation, "ALL PROCESSES" under the Japanese regime, that is,
legislative, executive and judicial processes, which fall under the absolute adjective
"ALL".
The declaration is a law. It is a law that everybody is bound to accept and
respect, as all laws must be accepted and respected. It is a law that the tribunals are
duty bound to give effect and apply.
We are not unmindful of the adverse consequences to some individuals of the
annulment of all the judicial processes under the Japanese regime, as provided in the
October Proclamation, but the tribunals are not the guardians of the legislative
authorities, either an army commander in chief, during war, or a normal legislature, in
peace time. The tribunals are not called upon to guide the legislative authorities as to
the wisdom of the laws to be enacted. That is the legislative responsibility. Our duty
and our responsibility is to see to it that the law, once enacted, be applied and complied
with.
No matter the consequences, no matter who might be adversely affected, a
judge must have the rm resolve and the courage to do his duty, as, in the present case,
Judge Dizon did, without fear nor favor. We cannot see any reason why we should not
uphold him in his stand in upholding the law.
It is our o cial duty, national and international duty. Yes. Because this Supreme
Court is sitting, not only as a national court, but as an international court, as is correctly
stated in the concurring opinion of Justice De Joya, and we should feel the full weight of
the corresponding responsibility, as the American courts with admiralty jurisdiction and
the Prize Courts of England did feel. In fact, it is in the judiciary where, more than in any
other department of the government, the international point of view is more pressing,
more imperative, more unavoidable. Justice has no country. It is of all countries. The
horizon of justice cannot be limited by the scene where our tribunals are functioning
and moving. That horizon is boundless. That is why in our Constitution the bill of rights
has been written not for Filipinos, but for all persons. They are rights that belong to
men, not as Filipinos, American, Russians, Chinese or Malayan, but as members of
humanity. The international character of our duty to administer justice has become
more speci c by the membership of our country in the United Nations. And let us not
forget, as an elemental thing, as it is; that we must not replace the words of the law with
what we might be inclined to surmise; that what is clearly and de nitely provided
should not be substituted with conjectures and suppositions; that we should not try to
deduce a contrary intention to that which is unequivocally stated in the law; that we
should not hold valid what is conclusively declared null and void.
The October Proclamation declared "ALL PROCESSES" under the Japanese
regime "NULL AND VOID AND WITHOUT EFFECT", so they must stand. There is no
possible way of evasion. "ALL PROCESSES", view of the meaning of the absolute
adjective "ALL", include "JUDICIAL PROCESSES". Allegatio contra factum non est
admittenda.
CONCLUSION
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal authority to issue the October
Proclamation, and that no principle of international law is violated by said proclamation,
no international wrong being committed by the reversal by the legitimate government
of the acts of the military invader.
2. That said proclamation was issued in full conformity with the o cial
policies to which the United States and Philippine Governments were committed, and
the annulment of all the acts of the governments under the Japanese regime, legislative,
executive, and judicial, is legal, and justified by the wrongs committed by the Japanese.
3. That when General MacArthur proclaimed and declared in the October
Proclamation "That all laws, regulations and processes" of the Japanese sponsored
governments, during enemy occupation, "are null and void and without effect", he meant
exactly what he said.
4. That where General MacArthur said "all processes", we must read and
understand precisely and exactly "all processes", and not "some processes". "All" and
"some" have incompatible meanings and are not interchangeable.
5. That the word "processes" includes judicial procedures, proceedings,
processes, and cases. Therefore, "all processes" must include "all judicial processes."
6. That we have no right to attribute to General MacArthur an intention
different from what he has plainly, clearly, unmistakably expressed in unambiguous
words with familiar meaning generally understood by the common man.
7. That the judicial proceedings here in question are included among those
adversely affected by the October Proclamation.
8. That the Commonwealth tribunals have no jurisdiction to take cognizance
of nor to continue the judicial proceedings under the Japanese regime.
9. That to exercise said jurisdiction an enabling act of Congress is necessary.
10. That respondent Judge Dizon did not commit the error complained of in
the petition, and that the petition has no merits at all.
We refuse to follow the course of action taken by the majority in the present
case. It is a course based on a mistaken conception of the principles of international
law and of their interpretation and application, and on a pinchbeck and self-
contradicting logic in support of a baseless surmise. It is a course based on
misconstruction or misunderstanding of the October Proclamation, in utter disregard
of the most elemental principles of legal hermeneutics. It is a course that leads to
nowhere, except to the brink of disaster, because it is following the dangerous path of
ignoring or disobeying the law.
Let us not allow ourselves to be deceived. The issue confronting us is not of
passing importance. It is an issue of awesome magnitude and transcendency. It goes
to and reaches the very bottom. It is simple. Lacking in complexities. But it may shake
the very foundation of society, the cornerstone of the state, the primary pillar of the
nation. It may dry the very foundation of social life, the source of the vitalizing sap that
nurtures the body politic. The issue is between the validity of one or more Japanese-
regime processes and the sanctity of the law.
That is the question, reduced to its ultimate terms. It is simple dilemma that is
facing us. It is the alpha and omega of the whole issue. Either the processes, or the law.
We have to select between two, which to uphold. It is a dilemma that does not admit of
middle terms, or of middle ways where we can loiter with happy unconcern. We are in
the crossroad: which way shall we follow? The processes and the law are placed in the
opposite ends of the balance. Shall we incline the balance of justice to uphold the
processes and defeat law, or vice versa?
We feel jittery because some judicial processes might be rescinded or annulled,
but we do not tremble with sincere alarm at the thought of putting the law under the
axe, of sentencing law to be executed by the guillotine. We feel uneasy, fancying chaos
and paralyzation of social life, because some litigants in cases during the Japanese
regime will be affected in their private interests, with the annulment of some judicial
processes, but we adopt an attitude of complete nonchalance in throwing law
overboard. This ba ing attitude is a judicial puzzle that nobody will understand. So it is
better that we should shift to a more understandable way, that which is conformable to
the standard that the world expects in judicial action.
No amount of arguments and elucubrations, no amount of speculative
gymnastics, no amount of juggling of immaterial principles of international law, no
amount of presumptions and suppositions, surmises and conjectures, no amount of
dexterity in juridical exegesis can divert our attention from the real, simple, looming
hypostasis of the issue before us: Law. It is Law with all its majestic grandeur which we
are defying and intending to overthrow from the sacred pedestal where the ages had
placed her as a goddess, to be enshrined, obeyed, and venerated by men, forever. Let us
not dare to lay our profaning hands on her vestal virginity, lest the oracle should ing at
us the thunder of his prophetic anathema.
We cannot therefore vote except for the denial of the petition.
HILADO , J., dissenting :
I dissent from the opinion of the majority and, pursuant to the Constitution,
proceed to state the reason for my dissent.
The proceedings involved in the case at bar were commenced by a complaint
led by the instant petitioner, as plaintiff, on November 18, 1944, in civil case No. 3012
of the so-called Court of First Instance of Manila, the complaint bearing this heading
and title: "The Republic of the Philippines — In the Court of First Instance of Manila"
(Annex X of Exhibit A of petition for mandamus). The farthest that said proceedings
had gone before the record was burned or destroyed during the battle for Manila, was
the ling by counsel for plaintiff therein of their opposition to a motion for dismissal
filed by opposing counsel.
It is, therefore, plain that the case had not been heard on the merit when the
record was burned or destroyed.
The respondent judge, in his order dated June 6, 1945, disposing of the petition
dated May 25, 1945 led by petitioner, as plaintiff in said case, and of the petition led
by respondent Eusebio Valdez Tan Keh, as defendant therein, on May 31, 1945, held:
first, that by virtue of the proclamation of General MacArthur quoted above, all laws,
regulations and processes of any other government in the Philippines than that of the
Commonwealth became null and void and without legal effect in Manila on February 3,
1945 or, at the latest, on February 27 of the same year; second, that the proceedings
and processes had in the present case having been before a court of the Republic of
the Philippines and in accordance with the laws and regulations of said Republic, the
same are now void and without legal effect; third, that this Court, as one of the different
courts of general jurisdiction of the Commonwealth of the Philippines, has no authority
to take cognizance of and continue said proceedings to nal judgment, until and unless
the Government of the Philippines, in the manner and form provided by law, shall have
provided for the transfer of the jurisdiction of the courts of the now defunct Republic of
the Philippines, and the causes commenced and left pending therein, to the courts
created and organized by virtue of the provisions of Act No. 4007, as revived by
Executive Order No. 36, or for the validation of all proceedings had in said courts."
Petitioner prays that this Court declare that the respondent judge should not
have ordered the suspension of the proceedings in civil case No. 3012 and should
continue and dispose of all the incidents in said case till its complete termination. In my
opinion, the petition should be denied.
In stating the reasons for this dissent, we may divide the arguments under the
following propositions:
1. The proceedings in said civil case No. 3012 are null and void under General
of the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);
2. (a) The government styled as, rst, the "Philippine Executive Commission"
and later as the "Republic of the Philippines", established here by the Commander in
Chief of the Imperial Japanese Forces or by his order was not a de facto government —
the so called Court of First Instance of Manila was not a de facto court, and the judge
who presided it was not a de facto judge; (b ) the rules of International Law regarding
the establishment of a de facto government in territory belonging to a belligerent but
occupied or controlled by an opposing belligerent are in applicable to the governments
thus established here by Japan;
3. The courts of those governments were entirely different from our
Commonwealth courts before and after the Japanese occupation;
4. The question boils down to whether the Commonwealth Government, as
now restored, is to be bound by the acts of either or both of those Japanese-sponsored
governments;
5. Even considerations of policy or practical convenience militate against
petitioner's contention.
I
The proceedings in said civil case No. 3012 are null and void under General
of the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz.,
147,148).
In this proclamation, after reciting certain now historic facts, among which was
that so-called government styled as the "Republic of the Philippines" was established
on October 14, 1943 "under enemy duress" . . .based upon neither the free expression
of the people's will nor the sanction of the Government of the United States," the great
Commander-in-Chief proclaimed and declared:
xxx xxx xxx
3. "That all laws, regulations and processes of any other government
control; and
xxx xxx xxx
"I do enjoin upon all loyal citizens of the Philippines full respect for and
obedience to the Constitution of the Commonwealth of the Philippines and the
laws, regulations and other acts of their duly constituted government whose seat
is now firmly re-established on Philippine soil."
The evident meaning and effect of the 3rd paragraph above quoted is, I think, that
as the different areas of the Philippines were progressively liberated, the declaration of
nullity therein contained shall attach to the law, regulations and processes thus
condemned in so far as said areas were concerned. Mark that the proclamation did not
provide such laws, regulations and processes shall be or are annulled, but that they are
null and void. Annulment implies some degree of effectiveness in the act annulled
previous to the annulment, but a declaration of nullity denotes that the act is null and
void ab initio — the nullity precedes the declaration. The proclamation speaks in the
present tense, not in the future. If so, the fact that the declaration of nullity as to the
condemned laws, regulations and processes in areas not yet free from enemy
occupation and control upon the date of the proclamation, would attach thereto at a
later date, is no argument for giving them validity or effectiveness in the interregnum.
By the very terms of the proclamation itself, that nullity had to date back from the
inception of such laws, regulations and processes; and to dispel any shadow of doubt
which may still remain, we need only consider the concluding paragraph of the
proclamation wherein the Commander in Chief of the army of liberation solemnly
enjoined upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and
other acts of their duly constituted government. This is all-inclusive — it comprises not
only the loyal citizens in the liberated areas but also those in areas still under enemy
occupation and control. It will be noticed that the complaint in said civil case No. 3012
was led twenty-six days after the above-quoted proclamation of General of the Army
MacArthur. If the parties to said case were to consider the proceedings therein up to
the date of the liberation of Manila valid and binding, they would hardly be complying
with the severe injunction to render full respect for and obedience to our Constitution
and the laws, regulations and other acts of our duly constituted government from
October 23, 1944, onwards. Indeed, to my mind, in choosing between these two
courses of action, they would be dangerously standing on the dividing line between
loyalty and disloyalty to this country and its government.
The proceedings in question, having been had before the liberation of Manila,
were unquestionably "processes" of the Japanese- sponsored government in the
Philippines within the meaning of the aforesaid proclamation of General of the Army
MacArthur and, consequently, fall within the condemnation of that proclamation. Being
processes of a branch of a government which had been established in hostility to the
Commonwealth Government, as well as the United States Government, they could not
very well be considered by the parties to be valid and binding, at least after October 23,
1944, without said parties incurring in disobedience and contempt of the proclamation
which enjoins them to render full respect for and obedience to our Constitution and the
laws, regulations and other acts of our duly constituted government. Nine days after the
inauguration of the so-called "Republic of the Philippines," President Franklin Delano
Roosevelt of the United States declared in one of his most memorable
pronouncements about the activities of the enemy in the Philippines, as follows:
"On the fourteenth of this month, a puppet government was set up in the
Philippine Islands with Jose P. Laurel, formerly a justice of the Philippine
Supreme Court, as 'president.' Jorge Vargas, formerly a member of the Philippine
Commonwealth Cabinet and Benigno Aquino, also formerly a member of that
cabinet, were closely associated with Laurel in this movement. The rst act of the
new puppet regime was to sign a military alliance with Japan. The second act
was a hypocritical appeal for American sympathy which was made in fraud and
deceit, and was designed to confuse and mislead the Filipino people.
"I wish to make it clear that neither the former collaborationist 'Philippine
Executive Commission' nor the present 'Philippine Republic' has the recognition or
sympathy of the Government of the United States. . . .
"Our sympathy goes out to those who remain loyal to the United States and
the Commonwealth — that great majority of the Filipino people who have been
deceived by the promises of the enemy.
"October 23, 1943.
"FRANKLIN DELANO ROOSEVELT
President of the United States"

(From U.S. Naval War College International Law Documents, 1943, pp.
93,94.)
It is a fact of contemporary history that while President Manuel L. Quezon of the
Philippines was in Washington, D.C., with his exiled government, he also repeatedly
condemned both the "Philippine Executive Commission" and the "Philippine Republic,"
as they had been established by or under orders of the Commander in Chief of the
Imperial Japanese Forces. With these two heads of the Governments of United States
and the Commonwealth of the Philippines condemning the "puppet regime" from its
very inception, it is beyond my comprehension to see how the proceedings in question
could be considered valid and binding without adopting an attitude incompatible with
theirs. As President Roosevelt said in his above quoted message, "Our sympathy goes
out to those who remain loyal to the United States and the Commonwealth — that great
majority of the Filipino people who have not been deceived by the promises of the
enemy."
The most that I can concede is that while the Japanese Army of occupation was
in control in the Islands and their paramount military strength gave those of our people
who were within their reach no other alternative, these had to obey their orders and
decrees, but the only reason for such obedience would be that paramount military
strength and not any intrinsic legal validity in the enemy's orders and decrees. And once
that paramount military strength disappeared, the reason for the obedience vanished,
and obedience should likewise cease.
As was stated by the Supreme Court of the United States in the case of Williams
vs. Bruffy (96 U.S., 176; 24 Law. ed., 719), "In the face of an overwhelming force,
obedience in such matters may often be a necessity and, in the interest of order, a duty.
No concession is thus made to the rightfulness of the authority exercised." (Emphasis
ours.) The court there refers to its own former decision in Thorington vs. Smith, and
makes it clear that the doctrine in the Thorington case, so far as the effects of the acts
of the provisional government maintained by the British in Castine, from September,
1814 to the Treaty of Peace in 1815, and the consideration of Tampico as United
States territory, were concerned, was limited to the period during which the British, in
the rst case, retained possession of Castine, and the United States, in the second,
retained possession of Tampico. In referring to the Confederate Government during the
Civil War, as mentioned in the Thorington case, the court again says in effect that the
actual supremacy of the Confederate Government over a portion of the territory of the
Union was the only reason for holding that its inhabitants could not but obey its
authority. But the court was careful to limit this to the time when that actual supremacy
existed, when it said: ". . . individual resistance to its authority then would have been
futile and, therefore, unjustifiable." (Emphasis ours.)
Because of its persistence, we beg leave to quote the following paragraph from
that leading decision:
"There is nothing in the language used in Thorington vs. Smith (supra),
which con icts with these views. In that case, the Confederate Government is
characterized as one of paramount force, and classed among the governments of
which the one maintained by Great Britain in Castine, from September, 1814, to
the Treaty of Peace in 1815, and the one maintained by the United States in
Tampico, during our War with Mexico, are examples. Whilst the British retained
possession of Castine, the inhabitants were held to be subject to such laws as the
British Government chose to recognize and impose. Whilst the United States
retained possession of Tampico, it was held that it must be regarded and
respected as their territory. The Confederate Government, the court observed,
differed from these temporary governments in the circumstance that its authority
did not originate in lawful acts of regular war; but it was not, on that account, less
actual or less supreme; and its supremacy, while not justifying acts of hostility to
the United States, 'Made obedience to its authority in civil and local matters not
only a necessity, but a duty.' All that was meant by this language was, that as the
actual supremacy of the Confederate Government existed over certain territory,
individual resistance to its authority then would have been futile and, therefore,
unjusti able. In the face of an overwhelming force, obedience in such matters
may often be a necessity and, in the interest of order, a duty. No concession is
thus made to the rightfulness of the authority exercised." (Williams vs. Bruffy, 24
Law ed., 719; emphasis ours.)
The majority opinion, in considering valid the proceedings in questions, invokes
the rule that when a belligerent army occupies a territory belonging to the enemy, the
former, through its Commander in Chief, has the power to establish thereon what the
decisions and treaties have variously denominated provisional or military government,
and the majority holds that the Japanese-sponsored government in the Philippines was
such a government. Without prejudice to later discussing the effects which the
renunciation of war as an instrument of national policy contained in our Commonwealth
Constitution, as well as in the Briand-Kellog Pact, must have produced in this rule in so
far as the Philippines is concerned, let us set forth some considerations apropos of this
conclusion of the majority. If the power to establish here such a provisional government
is recognized in the Commander in Chief of the invasion army, why should we not
recognize at least an equal power in the Commander in Chief of the liberation army to
overthrow that government with all of its acts, at least those of an executory nature
upon the time of liberation? Considering the theory maintained by the majority, it would
seem that they would recognize in the Japanese Commander in Chief the power to
overthrow the Commonwealth Government, and all of its acts and institutions if he had
chosen to. Why should at least an equal power be denied the Commander in Chief of
the United States Army to overthrow the substitute government thus erected by the
enemy with all of its acts and institutions which are still not beyond retrieve? Hereafter
we shall have occasion to discuss the aspects of this question from the point of view
of policy or the practical convenience of the inhabitants. If the Japanese Commander in
Chief represented the sovereignty of Japan, the American Commander in Chief
represented the sovereignty of the United States, as well as the Government of the
Commonwealth. If Japan had won this war, her paramount military supremacy would
have continued to be exerted upon the Filipino people, and out of sheer physical
compulsion this country would have had to bow to the continuance of the puppet
regime that she had set up here for an inde nite time. In such a case, we admit that, not
because the acts of that government would have intrinsically been legal and valid, but
simply because of the paramount military force to which our people would then have
continued to be subjected, they would have had to recognize as binding and obligatory
the acts of the different departments of that government. But fortunately for the
Filipinos and for the entire civilized world, Japan was defeated. And I now ask: Now that
Japan has been defeated, why should the Filipinos be still bound to respect or
recognize validity in the acts of that Japanese- sponsored government which has been
so severely condemned by both the heads of the United States and our Commonwealth
Government throughout the duration of the war? If we were to draw a parallel between
that government and that which was established by the Confederate States during the
American Civil War, we will nd that both met with ultimate failure. And, in my opinion,
the conclusion to be drawn should be the same in both cases.
As held by the United States Supreme Court in Williams vs. Bruffy (supra),
referring to the Confederate Government, its failure carried with it the dissipation of its
pretentions and the breaking down in pieces of the whole fabric of its government. The
Court said among other things:
"The immense power exercised by the government of the Confederate
States for nearly 4 years, the territory over which it extended, the vast resources it
wielded, and the millions who acknowledged its authority, present an imposing
spectacle well tted to mislead the mind in considering the legal character of that
organization. It claimed to represent an independent nation and to possess
sovereign powers; and as such to displace the jurisdiction and authority of the
United States from nearly half of their territory and, instead of their laws, to
substitute and enforce those of its own enactment. Its pretensions being resisted,
they were submitted to the arbitrament of war. In that contest the Confederacy
failed; and in its failure its pretensions were dissipated, its armies scattered, and
the whole fabric of its government broken in pieces." (24 Law ed., 719; emphasis
ours.)
By analogy, if the Japanese invasion and occupation of the Philippines had been
lawful — which, however, is not the case — and if Japan had succeeded in permanently
maintaining the government that she established in the Philippines, which would have
been the case had victory been hers, there would be more reason for holding the acts of
that government valid, but because Japan has lost the war and therefore, failed in giving
permanence to that government, the contrary conclusion should legitimately follow.
The validity of legislation exercised by either contestant "depends not upon the
existence of hostilities but upon the ultimate success of the party by which it is
adopted" (emphasis ours). And, referring to the overthrow of the Confederacy, the
Court said, "when its military forces were overthrown, it utterly perished, and with it all
its enactments" (emphasis ours).
The majority cite on pages 9-10 of their opinion a passage from the same case
of Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says
that in this passage the Court was "discussing the validity of the acts of the
Confederate States". In the rst place, an examination of the decision will reveal that the
controversy dealt with an act of the Confederate Government, not of the Confederate
States individually; and in the second place, the quoted passage refers to something
which was not in issue in the case, namely, the acts of the individual States composing
the Confederacy. But even this passage clearly places the case at bar apart from the
Court's pronouncement therein. The quoted passage commences by stating that "The
same general form of government, the same general laws for the administration of
justice and the protection of private rights, which has existed in the States prior to the
rebellion, remained during the (its) continuance and afterwards." In the case at bar, the
same general form of the Commonwealth Government did not continue under the
Japanese, for the simple reason that one of the rst acts of the invaders was to
overthrow the Commonwealth Constitution and, therefore, the constitutional
government which existed thereunder, as an effect of the following acts and decrees of
the Commander in Chief of the Imperial Japanese Forces:
1.Order No. 3, dated February 20, 1942 of the Commander in Chief of the
Imperial Japanese Forces to the Chairman of the Philippine Executive Commission
directed that, in the exercise of legislative, executive and judicial powers in the
Philippines, the "activities" of the "administrative organs and judicial courts in the
Philippines shall be based upon the existing statutes, orders, ordinances and customs
until further orders," etc., signi cantly omitting the Commonwealth Constitution (1
O cial Journal of the Japanese Military Administration, page 34). Under the frame of
government existing in this Commonwealth upon the date of the Japanese invasion, the
Constitution was the very fountain-head of the validity and effects of all the "statutes,
orders, and ordinances" mentioned by the Japanese Commander in Chief, and in
overthrowing the Constitution he, in effect, overthrew all of them.
2.Instruction No. 6 of the Japanese Military Administration (Vol. 1, pages 36 et
seq., O cial Gazzette, edited at the O ce of the Executive Commission) gave the
"Detailed Instructions Based on Guiding Principles of Administration," and among other
things required "The entire personnel shall be required to pledge their loyalty to the
Imperial Japanese Forces . . .." (This, of course, was repugnant to the frame of
government existing here under the Commonwealth Constitution upon the date of
invasion.)
3.Proclamation dated January 3, 1942 of the Japanese Commander in Chief
provided in paragraph 3 that "The Authorities and the People of the Commonwealth
should sever their relations with the U.S.A. . . ." (This is likewise, repugnant to the
Commonwealth Constitution and to the Government of that Commonwealth which was
expressly made subject made subject to the supreme sovereignty of the United States
until complete independence is granted, not by the mere will of the United States, but by
virtue of an agreement between that Government and ours, under the Tydings-McDu e
Act.)
The individual States of the Confederacy and their governments existed prior to
the Civil War and had received the sanction and recognition of the Union Government,
for which the Federal Supreme Court was speaking in the Williams-Bruffy case; while
the Japanese- sponsored governments of the "Philippine Executive Commission" and
the "Republic of the Philippines" neither existed here before the war nor had received
the recognition or sanction of either the United States or the Commonwealth
Government — nay, they had received the most vigorous condemnation of both.
The Court further says in Williams vs. Bruffy (supra):
"No case has been cited in argument , and we think none can be found, in
which the Acts of a portion of a State unsuccessfully attempting to establish a
separate revolutionary government have been sustained as a matter of legal right.
As justly observed by the late Chief Justice in the case of Shortridge vs. Macon, 1
Abb. U.S., 58, decided at the circuit, and, in all material respects like the one at bar,
'Those who engage in rebellion must consider the consequences. If they succeed,
rebellion becomes revolution, and the new government will justify its founders. If
they fall, all their acts hostile to the rightful government are violations of law, and
originate no rights which can be recognized by the courts of the nation whose
authority and existence have been alike assailed.' S. C., Chase, Dec., 136."
(Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716,718.) (Italics ours.)
I am of opinion that the principles thus enunciated for the case of an
unsuccessful rebellion should be applied with greater force to the case of a belligerent
who loses the war. And since the founding of the Japanese-sponsored government in
the Philippines was designed to supplant and did actually supplant the rightful
government and since all its acts could not but be hostile to the latter (however
blameless the o cials who acted under enemy duress might be), and since Japan
failed, all said acts, particularly those of the Japanese-sponsored court in said civil case
No. 3012, "are violations of law, and originate no rights which can be recognized by the
courts of the nation whose authority and existence have been alike assailed", quoting
the language of the court in Shortridge vs. Macon, cited by Mr. Justice Field in Williams
vs. Bruffy, supra (24 Law. ed., 718).
II
(a)The government styled as, rst, the "Philippine Executive Commission"
and later as the "Republic of the Philippines", established here by the Commander
in Chief of the Imperial Japanese Forces or by his order was not a de facto
government — the so-called Court of First Instance of Manila was not a de facto
court, and the judge who presided it was not de facto judge;
(b)The rules of International Law regarding the establishment of a de facto
government in territory belonging to a belligerent but occupied or controlled by an
opposing belligerent are inapplicable to the governments thus established here by
Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent case therein
cited, the short-lived provisional governments thus established by the Japanese in the
Philippines should be classi ed, at best, as a government of paramount force. But this
is not all. The Constitution of this Commonwealth which has been expressly approved
by the United States Governments, in Article II, section 3, under the heading "Declaration
of Principles", renounces war as an instrument of national policy. This renunciation of
war as an instrument of national policy follows an equal renunciation in the Briand-
Kellog Pact. The rules of International Law, cited in support of the power or right of a
belligerent army of occupation to set up a provisional government on occupied enemy
territory, were evolved prior to the rst World War, but the horrors and devastations of
the war convinced, at least the governments of the United States and France, that they
should thereafter renounce was as an instrument of national policy, and they
consequently subscribed the Briand-Kellog Pact. Those horrors and devastations were
increased a hundred fold, if not more, in this second World War, but even before this
war occurred, our own people , through our Constitutional delegates, who framed the
Commonwealth Constitution also adopted the same doctrine, and embodied an
express renunciation of war as an instrument of national policy in the instrument that
they drafted. It is true that in section 3, Article II, above-cited, our Constitution adopts
the generally accepted principles of International Law as a part of the law of the Nation.
But, of course, this adoption is exclusive of those principles of International Law which
might involve recognition of war as an instrument of national policy. It is plain that on
the side of the Allies, the present war is purely defensive. When Japan started said war,
treacherously and without previous declaration, and attacked Pearl Harbor and the
Philippines on those two fateful days of December 7 and 8, 1941, she employed war as
instrument of her national policy. Under the Briand-Kellog Pact and our Commonwealth
Constitution, the United States and the Commonwealth Government could not possibly
have recognized in Japan any right, as against them, to employ that war as an
instrument of her national policy, and, consequently, they could not have recognized in
Japan the power to set up in the Philippines the puppet government that she later set
up, because such power would be a mere incident or consequence of the war itself. The
authorities agree that such a power, under the cited rules, is said to be a right derived
from war. (67 C. J., p. 421, sec 171.) There can be no question that the United States
and the Commonwealth Governments were free to refuse to be bound by those rules
when they made their respective renunciations above referred to. Indeed, all the United
Nations have exercised this free right in their Charter recently signed at San Francisco.
As a necessary consequence of this, those rules of International Law were no
longer applicable to the Philippines and to the United States at the time of the
Japanese invasion and as a corollary, it follows that we have no legal foundation on
which to base the proposition that the acts of that Japanese-sponsored government in
the Philippines were valid & binding. Moreover, I am of opinion, that although at the time
of Japanese invasion & up to the present, the United States retains over the Philippines,
a certain measure of sovereignty, it is only for certain specified purposes enumerated in
the Tydings-McDu e Act and the Commonwealth Constitution. (Ordinance appended
to the Constitution.) And our territory was at the time of the Japanese invasion not a
territory of the United States, within the meaning of the laws of war governing war-like
operations on enemy territory. Our territory is signi cantly called "The National
Territory" in Article I of our Constitution and this bears the stamp of express approval
of the United States Government. The Philippines has been recognized and admitted as
a member of the United Nations. We, therefore, had our own national & territorial
identity previous to that invasion. Our nation was not at war with Japan and has never
been. The Japanese, themselves, were proclaiming to the world that they were not at
war with the Filipinos. And in line with this, the Japanese army, in time released Filipino
war prisoners captured in Bataan. Lt. Gen. Maeda, Chief of Staff, Imperial Japanese
Forces, in his speech of January 2, 1942, said:
". . . we had not the slightest intentions to make your people our enemy;
rather we considered them as our friends who will join us hand-in-hand in the
establishment of an orderly Greater East Asia . . . ." (Official Gazette, edited at the
Office of the Executive Commission, Vol. I, p. 55.)
If the Philippines was a neutral territory when invaded by the Japanese, the
following principles from Lawrence, International Law (7th ed.), p. 603 are pertinent:
"The Duties of Belligerent States towards Neutral States. — . . . To refrain
from carrying on hostilities within neutral territory. — We have already seen that,
though this obligation was recognized in theory during the infancy of
International law, it was often very imperfectly observed in practice. But in modern
times it has been strictly enforced, and any State which knowingly ordered warlike
operations to be carried on in neutral territory, . . . would bring down upon itself
the reprobation of civilized mankind. Hostilities may be carried on in the territory
of either belligerent, on the high seas, and in the territory belonging to no one.
Neutral land and neutral territorial waters are sacred. No acts of warfare may
lawfully take place within them. . . ." (Emphasis ours.)
In all the cases and authorities supporting the power or right to set up a
provisional government, the belligerent had the right to invade or occupy the territory in
the rst instance. Such was not the case with the Philippines. President Roosevelt, in
his message to the Filipino people, soon after the landing of American Forces in Leyte,
on October 20, 1944, characterized Japan's invasion and occupation of the Philippines
as "the barbarous, unprovoked and treacherous attack upon the Philippines," and he
announced the American people's " rm determination to punish the guilty." (41 Off.
Gaz., 149.) (Italics ours.) The illustrious leader of the United Nations could not have
declared in more unmistakable terms the utter illegality of that invasion and
occupation. If the establishment of a provisional government in occupied territory by a
belligerent is "a mere application or extension of the force by which the invasion or
occupation was effected" (67 C. J., p. 421, sec 171), the illegality of the invasion, would
necessarily permeate that government, which was its mere application or extension.
The fact that shortly before December 8, 1941, the date of the "barbarous,
unprovoked and treacherous attack," the meager and almost untrained forces of the
Philippine Army had been inducted into the American Army, did not change the neutral
status of the Philippines. That military measure had been adopted for purely defensive
purposes. Nothing could be farther from the minds of the government and military
leaders of the United States and the Philippines in adopting it than to embark upon any
aggressive or warlike enterprise against any other nation. It is an old and honored rule
dating as far back as the 18th century than even solemn promises of assistance made
before the war by a neutral to a nation which later becomes a belligerent, would not
change the status of the neutral even if such promises were carried out, so long as they
were made for purely defensive purposes. In the words of Vattel "when a sovereign
furnishes the succor due in virtue of a former defensive alliance, he does not associate
himself in the war. Therefore he may ful ll his engagements and yet preserve an exact
neutrality." (Lawrence, Principles of International Law [7th ed.], pp. 585, 586.)
If the Filipinos had, from contemptible cowardice and fear, allowed their shores
to be invaded, and their territory occupied by the Japanese without resistance, such
invasion and occupation would undoubtedly have been considered in violation of
International Law. Should the Filipinos be punished for having had the patriotism,
bravery, and heroism to ght in defense of the sacredness of their land, the sanctity of
their homes, and the honor and dignity of their government, by giving validity, in
whatever limited measure, to the lawless acts of the ruthless enemy who thus overran
their country, and robbed them of the tranquility and happiness of their daily lives? And
yet, to my mind, to give any measure of validity or binding effect to the proceedings of
the Japanese-sponsored Court of First Instance of Manila, involved herein, would be to
give that much validity or effect to the acts of those same invaders. To equalize the
consequences of a lawful and a wrongful invasion of occupation, would be to equalize
right and wrong, uphold the creed that might makes right, and adopt "the law of the
jungle."
If said Japanese-sponsored government was not a de facto government, it would
seem clearly to follow that its "Court of First Instance of Manila" was not a de facto
court. But it should additionally be stated that for it to be a de facto court, its judge had
to be a de facto judge, which he could not be, as presently demonstrated.
As said by President Osmeña, in replying to the speech of General of the Army
MacArthur when the latter turned over to him the full powers and responsibilities of the
Commonwealth Government, on February 27, 1945:
xxx xxx xxx
"The time has come when the world should know that when our forces
surrendered in Bataan and Corregidor, resistance to the enemy was taken up by
the people itself — resistance which was inarticulate and disorganized in its
inception but which grew from day to day and from island to island, until it broke
out into an open warfare against the enemy.
"The ght against the enemy was truly a people's war because it counted
with the wholehearted support of the masses. From the humble peasant to the
barrio school teacher, from the volunteer guard to the women's auxiliary service
units, from the loyal local o cial to the barrio folk — each and every one of those
contributed his share in the great crusade for liberation.
"The guerillas knew that without the support of the civilian population, they
could not survive. Whole towns and villages dared enemy reprisal to oppose the
hated invader openly or give assistance to the underground movement . . ." (41
Off. Gaz., 88,89.)
Under these facts, taken together with General of the Army MacArthur's accurate
statement that the "Republic of the Philippines" had been established under enemy
duress, it must be presumed — to say the least — that the judge who presided over the
proceedings in question during the Japanese occupation, rstly, accepted his
appointment under duress; and secondly, acted by virtue of that appointment under the
same duress. In such circumstances he could not have acted in the bona fide belief that
the new "courts" created by or under the orders of the Japanese Military Commander in
Chief had been legally created — among them the "Court of First Instance of Manila," —
that the Chairman of the "Philippine Executive Commission" or the President of the
"Republic of the Philippines", whoever appointed him, had conferred upon him a valid
title to his o ce and a legitimate jurisdiction to act as such judge. Good faith is
essential for the existence of a de facto judge (Tayco vs. Capistrano, 53 Phil., 866, 872).
The very idea of enemy duress would necessarily imply that but for the duress exerted
upon him by the enemy he would have refused to accept the appointment and to act
thereunder. And why? Because he must be presumed to know that the o ce to which
he was thus appointed had been created by the enemy in open de ance of the
Commonwealth Constitution and the laws and regulations promulgated by our
Commonwealth Government, and that his acceptance of said o ce and his acting
therein, if willfully done, would have been no less than an open hostility to the very
sovereignty of the United States and to the Commonwealth Government, and a
renunciation of his allegiance to both. There is no middle ground here. Either the judge
acted purely under duress, in which case his acts would be null and void; or maliciously
in de ance of said governments, in which case his acts would be null and void for more
serious reasons.
The courts created here by the Japanese government had to look for the source
of their supposed authority to the orders of the Japanese Military Commander in Chief
and the so-called Constitution of the "Republic of the Philippines," which had been
adopted in a manner which would shock the conscience of democratic peoples, and
which was designed to supplant the Constitution which had been duly adopted by the
Filipino people in a Constitutional Convention of their duly elected Constitutional
Delegates. And it was decreed that the Commander in Chief of the Imperial Japanese
Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p.7, Official Journal of the
Japanese Military Administration, cited on pp. 2,3, of the order of the respondent judge
complained of and marked Exhibit H of the petition for mandamus.) How can our
present courts legitimately recognize any e cacy in the proceedings of such an exotic
judicial system, wherein the Commander in Chief of the Imperial Japanese Forces
possessed the highest judicial jurisdiction?
III
The courts of those governments were entirely different from our
Commonwealth courts before and after the Japanese occupation.
Executive Order No. 36 of the President of the Philippines, dated March 10, 1945,
in its very rst paragraph, states the prime concern of the government "to re-establish
the courts as fast as provinces are liberated from the Japanese occupation." If the
courts under the Japanese-sponsored government of the "Republic of the Philippines"
were the same Commonwealth courts that existed here under the Constitution at the
time of the Japanese invasion, President Osmeña would not be speaking of re-
establishing those courts in his aforesaid Executive Order. Forsooth, how could those
courts of the Commonwealth of the Philippines when they were not functioning under
the Constitution of the Commonwealth and the laws enacted in pursuance of said
Constitution? The jurisdiction of the Commonwealth courts was de ned and conferred
under the Commonwealth Constitution and the pertinent legislation enacted thereunder,
that of the Japanese- sponsored courts was de ned and conferred by the orders and
decrees of the Japanese Commander in Chief, and, perhaps, the decrees of the
"Philippine Executive Commission" and the laws of the so-called Legislature under the
Republic, which was not composed of the elected representatives of the people. The
Justices and Judges of the Commonwealth courts had to be appointed by the
President of the Commonwealth with con rmation by the Commission on
Appointments, pursuant to the Commonwealth Constitution. The Chief Justice of the
Supreme Court, under the "Philippine Executive Commission" was appointed by the
Commander in Chief of the Imperial Japanese Forces, and the Associate Justices of the
Supreme Court, the Presiding Justice and Associate Justices of the Court of Appeals,
the Judges of First Instance and of all inferior courts were appointed by the Chairman
of the Executive Commission, at rst, and later, by the President of the republic, of
course, without con rmation by the Commission on Appointments under the
Commonwealth Constitution. The Chief Justice and Associate Justices of the Supreme
Court, the Presiding and Associate Justices of the Court of Appeals, and the Judges of
First Instance and of all inferior courts in the Commonwealth judicial system, had to
swear to support and defend the Commonwealth Constitution, while this was
impossible under that Japanese-sponsored government. In the Commonwealth judicial
system, if a Justice or Judge should die or be incapacitated to continue in the
discharge of his o cial duties, his successor was appointed by the Commonwealth
President with con rmation by the Commission on Appointments, and said successor
had to swear to support and defend the Commonwealth Constitution; in the exotic
judicial system implanted here by the Japanese, if a Justice or Judge should die or be
so incapacitated, his successor would be appointed by the Japanese Commander in
Chief, if the dead or incapacitated incumbent should be the Chief Justice of the
Supreme Court, or otherwise, by the Chairman of the "Executive Commission" or the
President of the "Republic", of course without con rmation by the Commission on
Appointments of the Commonwealth Congress, and, of course, without the successor
swearing to support and defend the Commonwealth Constitution.
If, as we believe having conclusively shown, the Japanese-sponsored courts were
not the same Commonwealth courts, the conclusion is unavoidable that any jurisdiction
possessed by the former and any cases left pending therein, were not and could not be
automatically transferred to the Commonwealth courts which were re- established
under Executive Order No. 36. For this purpose, a special legislation was necessary.
Executive Order No. 37, in my humble opinion, does not, as held by the majority,
imply that the President recognized as valid the proceedings in all cases appealed to
the Court of Appeals. Section 2 of that order simply provides that all cases which have
been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court
for nal decision. The adverb "duly" would indicate that the President foresaw the
possibility of appeals not having been duly taken. All cases appealed to the Court of
Appeals before the war and otherwise duly appealed, would come under the phrase
"duly appealed" in this section of the Executive Order. But considering the determined
and rm attitude of the Commonwealth Government towards those Japanese-
sponsored governments since the beginning, it would seem inconceivable that
President OsmeÑa, in section 2 of Executive Order No. 37, intended to include therein
appeals taken to the Japanese- sponsored Court of Appeals, or from the Japanese
sponsored inferior courts. It should be remembered that in the Executive Order
immediately preceding and issued on the same date, the said President speaks of re-
establishing the courts as fast as provinces were liberated from the Japanese
occupation.
IV
The question boils down to whether the Commonwealth Government, as
now restored, is to be bound by the acts of either or both of those Japanese-
sponsored governments.
In the last analysis, in deciding the question of validity or nullity of the
proceedings involved herein, we are confronted with the necessity to decide whether
the Court of First Instance of Manila and this Supreme Court, as re-established under
the Commonwealth Constitution, and the entire Commonwealth Government, are to be
bound by the acts of the said Japanese-sponsored court and government. To propound
this question, to my mind, to answer it most decidedly in the negative, not only upon the
ground of legal principles but also for reasons of national dignity and international
decency. To answer the question in the a rmative would be nothing short of legalizing
the Japanese invasion and occupation of the Philippines. Indeed, it would be virtual
submission to the dictation of an invader our people's just hatred of whom gave rise to
the epic Philippine resistance movement, which has won the admiration of the entire
civilized world.
V
Even considerations of policy or practical convenience militate against
petitioner's contention.
In this connection, the respondent judge, in his order of June 6, 1945, complained
of, has the following to say:
"It is contended, however, that the judicial system implanted by the
Philippine Executive Commission and the Republic was the same as that of the
Commonwealth prior to Japanese occupation; that the laws administered and
enforced by said courts during the existence of said regime were the same laws
on the statute books of the Commonwealth before Japanese occupation, and that
even the judges who presided them were, in many instances, the same persons
who held the position prior to Japanese occupation. All this may be true, but other
facts are just as stubborn and pitiless. One of them is that said courts were of a
government alien to the Commonwealth Government. The laws they enforced
were, true enough, laws of the Commonwealth prior to Japanese occupation, but
they had become the laws — and the Courts had become the institutions — of
Japan by adoption (U.S. vs. Reiter, 27 F. Case No. 16, 146), as they became later
on the laws and institutions of the Philippine Executive Commission and the
Republic of the Philippines. No amount of argument or legal ction can obliterate
this fact."
Besides, I am of the opinion that the validity of the acts of the courts in the
"judicial system implanted by the Philippine Executive Commission and the Republic"
would not depend upon the laws that they "administered and enforced", but upon the
authority by virtue of which they acted. If the members of this Court were to decide the
instant case in strict accordance with the Constitution and laws of the Commonwealth
but not by the authority that they possess in their o cial capacity as the Supreme
Court of the Philippines, but merely as lawyers, their decision would surely be null and
void. And yet, I am rmly of opinion that whoever was the "judge" of the Japanese-
sponsored Court of First Instance of Manila who presided over the said court when the
proceedings and processes in dispute were had, in acting by virtue of the supposed
authority which he was supposed to have received from that government, did so with
no more legal power than if he had acted as a mere lawyer applying the same laws to
the case. If duplication of work or effort, or even if confusion, should be alleged to
possibly arise from a declaration of nullity of judicial proceedings had before those
Japanese-sponsored courts, it should su ce to answer that the party so complaining
in voluntarily resorting to such courts should be prepared to assume the consequences
of his voluntary act. On the other hand, his convenience should not be allowed to visit
upon the majority of the inhabitants of this country, the dire consequences of a
sweeping and wholesale validation of judicial proceedings in those courts. Let us set
forth a few considerations apropos of this assertion. It is a fact of general knowledge
that during the Japanese occupation of the Philippines, the overwhelming majority of
our people and other resident inhabitants were literally afraid to go to any place where
there were Japanese sentries, soldiers or even civilians, and that these sentries were
posted at the entrance into cities and towns and at government o ces; that the feared
Japanese "M.P.'s" or "Kempeitai's" were a constant terror to them; and lastly, that the
greater number who lived of had evacuated to places far from the Japanese, were also
afraid of the fth columnists who, unfortunately, were found precisely in the cities and
towns where the courts were located; and as a consequence, the great majority of the
people were very strongly averse to traveling any considerable distance from their
homes and were, one might say, in constant hiding. Add to these circumstances, the
fact of the practical absence of transportation facilities and the no less important fact
of the economic structure having been so dislocated as to have impoverished the many
in exchange for the enrichment of the few — and we shall have a fair picture of the
practical di culties which the ordinary litigant would in those days have encountered in
defending his rights against anyone of the favored few who would bring him to court. It
should be easy to realize how hard it was for instance, to procure the attendance of
witnesses, principally because of the fact that most of them were in hiding or, at least,
afraid to enter the cities and towns, and also because of the generally di cult and
abnormal conditions prevailing. Under such conditions, cases of denial of a party's day
in court, as known in our constitutional government, were to be expected. Such denial
might arise from many a cause. It might be the party's fear to appear before the court
because in doing so, he would have had to get near the feared Japanese. It might be
because he did not recognize any legal authority in that court, or it might be his down-
right repugnance of the hated enemy. And I dare say that among such people would be
found more than seventeen million of the eighteen million Filipinos. These are but a few
of countless causes. So that if some form of validation of such judicial proceedings
were to be attempted, all necessary safeguards should be provided to avoid that in any
particular case the validation should violate any litigant's constitutional right to his day
in court, within the full meaning of the phrase, or any other constitutional or statutory
right of his. More people, I am afraid, would be prejudiced than would be bene ted by a
wholesale validation of said proceedings.
Much concern has been shown for the possible confusion which might result
from a decision declaring null and void the acts and processes of the Japanese-
sponsored governments in the Philippines. I think, this aspect of the question has been
unduly stressed. The situation is not without remedy, but the remedy lies with the
legislature and not with the courts. As the courts cannot create a new or special
jurisdiction for themselves, which is a legislative function, and as the situation demands
such new or special jurisdiction, let the legislature act in the premises. For instance, the
Congress may enact a law conferring a special jurisdiction upon the courts of its
selection, whereby said courts may, after hearing all the parties interested, and taking
all the necessary safeguards, so that, a party's day in court or other constitutional or
statutory right under the Commonwealth Government should not be prejudiced by any
of said acts, processes or proceedings, particularly those in the Japanese-sponsored
courts, and subject to such other conditions as the special law may provide, validate
the corresponding acts, processes or proceedings. This, is to my mind, would be more
conducive to a maximum of bene t and a minimum of prejudice to the inhabitants of
this country, rather than the procedure favored by the majority.
Finally, let us not equalize the conditions then prevailing in Manila to that
prevailing in the provinces, where the greater number of the people were then living
outside the towns, in the farms and the hills. These people constitute the great majority
of the eighteen million Filipinos. To them the semblance of an administration of justice
which the Japanese allowed, was practically unknown. But they constituted the majority
of loyal citizens to whom President Roosevelt's message of October 23, 1943 refers.
They — the majority of our people — had an unshaken faith in the arrival of American aid
here and the nal triumph of the Allied cause. They were willing to wait for the
restoration of their rightful government, with its courts and other institutions, for the
settlement of their differences. Nay, in their common hardships and sufferings under
the yoke of foreign oppression, they had not much time to think of such differences, if
they did not utterly forget them. Their undoubted hatred of the invader was enough to
keep them away from the judicial system that said invader allowed them to have. Those
who voluntarily went to the courts in those tragic days belong to the small minority.
As to public order — why! any public order which then existed was not due to the
courts or other departments of the puppet government. It was maintained at the point
of the bayonet by the Japanese army, and in their own unique fashion.
Footnotes
1.Resolution on motion for reconsideration, see p. 371, post.

Petitioner Vs Vs Respondents Marcelino Lontok, P. A. Revilla, Respondent Judge Dizon

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EN BANC

[G.R. No. L-5. September 17, 1945.]

1. POLITICAL AND INTERNATIONAL LAW; VALIDITY OF ACTS OF "DE FACTO"

PERFECTO , J., dissenting :

"OFFICE OF THE COMMANDER IN CHIEF

IS THE OCTOBER PROCLAMATION A LAW?

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JUDGMENTS OF REBEL COURTS IN LOUISIANA WHERE VALIDATED

EVEN AMONG SISTER STATES OF THE UNITED STATES

President of the United States"

1.Resolution on motion for reconsideration, see p. 371, post.

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