1.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18463 October 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GREGORIO PERFECTOR, defendant-appellant.

Alfonso E. Mendoza and the appellant in behalf of the latter.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The important question is here squarely presented of whether article 256 of the Spanish Penal
Code, punishing "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the
Crown or other person in authority . . .," is still in force.

About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered
that certain documents which constituted the records of testimony given by witnesses in the
investigation of oil companies, had disappeared from his office. Shortly thereafter, the Philippine
Senate, having been called into special session by the Governor-General, the Secretary for the
Senate informed that body of the loss of the documents and of the steps taken by him to discover
the guilty party. The day following the convening of the Senate, September 7, 1920, the
newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article reading as follows:

Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of
records which were kept and preserved in the iron safe of the Senate, yet up to this time
there is not the slightest indication that the author or authors of the crime will ever be
discovered.

To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the
persons in charge of the investigation of the case would not have to display great skill in
order to succeed in their undertaking, unless they should encounter the insuperable obstacle
of offical concealment.

In that case, every investigation to be made would be but a mere comedy and nothing more.

After all, the perpetration of the robbery, especially under the circumstances that have
surrounded it, does not surprise us at all.

The execution of the crime was but the natural effect of the environment of the place in which
it was committed.
 How many of the present Senators can say without remorse in their conscience and with
serenity of mind, that they do not owe their victory to electoral robbery? How may?

The author or authors of the robbery of the records from the said iron safe of the Senate
have, perhaps, but followed the example of certain Senators who secured their election
through fraud and robbery.

The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its
committee on elections and privileges to report as to the action which should be taken with reference
to the article published in La Nacion. On September 15, 1920, the Senate adopted a resolution
authorizing the President of the Senate to indorse to the Attorney-General, for his study and
corresponding action, all the papers referring to the case of the newspaper La Nacion and its editor,
Mr. Gregorio Perfecto. As a result, an information was filed in the municipal court of the City of
Manila by an assistant city fiscal, in which the editorial in question was set out and in which it was
alleged that the same constituted a violation of article 256 of the Penal Code. The defendant
Gregorio Perfecto was found guilty in the municipal court and again in the Court of First Instance of
Manila.

During the course of the trial in the Court of First Instance, after the prosecution had rested, the
defense moved for the dismissal of the case. On the subject of whether or not article 256 of the
Penal Code, under which the information was presented, is in force, the trial judge, the Honorable
George R. Harvey, said:

This antiquated provision was doubtless incorporated into the Penal Code of Spain for the
protection of the Ministers of the Crown and other representatives of the King against free
speech and action by Spanish subjects. A severe punishment was prescribed because it was
doubtless considered a much more serious offense to insult the King's representative than to
insult an ordinary individual. This provision, with almost all the other articles of that Code,
was extended to the Philippine Islands when under the dominion of Spain because the
King's subject in the Philippines might defame, abuse or insult the Ministers of the Crown or
other representatives of His Majesty. We now have no Ministers of the Crown or other
persons in authority in the Philippines representing the King of Spain, and said provision,
with other articles of the Penal Code, had apparently passed into "innocuous desuetude," but
the Supreme Corut of the Philippine Islands has, by a majority decision, held that said article
256 is the law of the land to-day. . . .

The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court
until otherwise determined by proper authority.

In the decision rendered by the same judge, he concluded with the following language:

In the United States such publications are usually not punishable as criminal offense, and
little importance is attached to them, because they are generally the result of political
controversy and are usually regarded as more or less colored or exaggerated. Attacks of this
character upon a legislative body are not punishable, under the Libel Law. Although such
publications are reprehensible, yet this court feels some aversion to the application of the
provision of law under which this case was filed. Our Penal Code has come to us from the
Spanish regime. Article 256 of that Code prescribes punishment for persons who use
insulting language about Ministers of the Crown or other "authority." The King of Spain
doubtless left the need of such protection to his ministers and others in authority in the
Philippines as well as in Spain. Hence, the article referred to was made applicable here.
Notwithstanding the change of sovereignty, our Supreme Court, in a majority decision, has
 held that this provision is still in force, and that one who made an insulting remark about the
President of the United States was punishable under it. (U.S. vs. Helbig, supra.) If it
applicable in that case, it would appear to be applicable in this case. Hence, said article 256
must be enforced, without fear or favor, until it shall be repealed or superseded by other
legislation, or until the Supreme Court shall otherwise determine.

In view of the foregoing considerations, the court finds the defendant guilty as charged in the
information and under article 256 of their Penal Code sentences him to suffer two months
and one day of arresto mayor and the accessory penalties prescribed by law, and to pay the
costs of both instances.

The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and
eloquent oral argument made in his own behalf and by his learned counsel, all reduce themselves to
the pertinent and decisive question which was announced in the beginning of this decision.

It will be noted in the first place that the trial judge considered himself bound to follow the rule
announced in the case of United States vs. Helbig (R. G. No. 14705, 1 not published). In that case,
the accused was charged with having said, "To hell with the President and his proclamations, or
words to that effect," in violation of article 256 of the Penal Code. He was found guilty in a judgment
rendered by the Court of First Instance of Manila and again on appeal to the Supreme Court, with
the writer of the instant decision dissenting on two principal grounds: (1) That the accused was
deprived of the constitutional right of cross-examination, and (2) that article 256 of the Spanish Penal
Code is no longer in force. Subsequently, on a motion of reconsideration, the court, being of the
opinion that the Court of First Instance had committed a prejudicial error in depriving the accused of
his right to cross-examine a principal witness, set aside the judgment affirming the judgment
appealed from and ordered the return of the record to the court of origin for the celebration of a new
trial. Whether such a trial was actually had, is not known, but at least, the record in the Helbig case
has never again been elevated to this court.

There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view
of the circumstances above described. This much, however, is certain: The facts of the Helbig case
and the case before us, which we may term the Perfecto case, are different, for in the first case there
was an oral defamation, while in the second there is a written defamation. Not only this, but a new
point which, under the facts, could not have been considered in the Helbig case, is, in the Perfecto
case, urged upon the court. And, finally, as is apparent to all, the appellate court is not restrained, as
was the trial court, by strict adherence to a former decision. We much prefer to resolve the question
before us unhindered by references to the Helbig decision.

This is one of those cases on which a variety of opinions all leading to the same result can be had. A
majority of the court are of the opinion that the Philippine Libel Law, Act No. 277, has had the effect
of repealing so much of article 256 of the Penal Code as relates to written defamation, abuse, or
insult, and that under the information and the facts, the defendant is neither guilty of a violation of
article 256 of the Penal Code, nor of the Libel Law. The view of the Chief Justice is that the accused
should be acquitted for the reason that the facts alleged in the information do not constitute a
violation of article 156 of the Penal Code. Three members of the court believe that article 256 was
abrogated completely by the change from Spanish to American sovereignty over the Philippines and
is inconsistent with democratic principles of government.

Without prejudice to the right of any member of the court to explain his position, we will discuss the
two main points just mentioned.
 1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code.
— The Libel Law, Act No. 277, was enacted by the Philippine Commission shortly after
organization of this legislative body. Section 1 defines libel as a "malicious defamation,
expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical
exhibitions, tending to blacken the memory of one who is dead or to impeach the honesty,
virtue, or reputation, or publish the alleged or natural deffects of one who is alive, and
thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws
and parts of laws now in force, so far as the same may be in conflict herewith, are hereby
repealed. . . ."

That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that
the Libel Law abrogated certain portion of the Spanish Penal Code, cannot be gainsaid. Title X of
Book II of the Penal Code, covering the subjects of calumny and insults, must have been particularly
affected by the Libel Law. Indeed, in the early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1.
Phil., 468), the Supreme Court spoke of the Libel Law as "reforming the preexisting Spanish law on
the subject of calumnia and injuria." Recently, specific attention was given to the effect of the Libel
Law on the provisions of the Penal Code, dealing with calumny and insults, and it was found that
those provisions of the Penal Code on the subject of calumny and insults in which the elements of
writing an publicity entered, were abrogated by the Libel Law. (People vs. Castro [1922], p.
842, ante.)

The Libel Law must have had the same result on other provisions of the Penal Code, as for instance
article 256.

The facts here are that the editor of a newspaper published an article, naturally in writing, which may
have had the tendency to impeach the honesty, virtue, or reputation of members of the Philippine
Senate, thereby possibly exposing them to public hatred, contempt, or ridicule, which is exactly libel,
as defined by the Libel Law. Sir J. F. Stephen is authority for the statement that a libel is indictable
when defaming a "body of persons definite and small enough for individual members to be
recognized as such, in or by means of anything capable of being a libel." (Digest of Criminal Law,
art. 267.) But in the United States, while it may be proper to prosecute criminally the author of a libel
charging a legislator with corruption, criticisms, no matter how severe, on a legislature, are within the
range of the liberty of the press, unless the intention and effect be seditious. (3 Wharton's Criminal
Law, p. 2131.) With these facts and legal principles in mind, recall that article 256 begins: Any
person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person
in authority," etc.

The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of
statutory construction is, that where the later statute clearly covers the old subject-matter of
antecedent acts, and it plainly appears to have been the purpose of the legislature to give
expression in it to the whole law on the subject, previous laws are held to be repealed by necessary
implication. (1 Lewis' Sutherland Statutory Construction, p. 465.) For identical reasons, it is evident
that Act No. 277 had the effect so much of this article as punishes defamation, abuse, or insults by
writing.

Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected
article 256, but as to this point, it is not necessary to make a pronouncement.

2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article
256 of the Spanish Penal Code. — Appellant's main proposition in the lower court and again
energetically pressed in the appellate court was that article 256 of the Spanish Penal Code is
not now in force because abrogated by the change from Spanish to American sovereignty
 over the Philippines and because inconsistent with democratic principles of government. This
view was indirectly favored by the trial judge, and, as before stated, is the opinion of three
members of this court.

Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of Book II
punishes the crimes of treason, crimes that endanger the peace or independence of the state,
crimes against international law, and the crime of piracy. Title II of the same book punishes the
crimes of lese majeste, crimes against the Cortes and its members and against the council of
ministers, crimes against the form of government, and crimes committed on the occasion of the
exercise of rights guaranteed by the fundamental laws of the state, including crime against religion
and worship. Title III of the same Book, in which article 256 is found, punishes the crimes of
rebellion, sedition, assaults upon persons in authority, and their agents, and contempts,
insults, injurias, and threats against persons in authority, and insults, injurias, and threats against
their agents and other public officers, the last being the title to Chapter V. The first two articles in
Chapter V define and punish the offense of contempt committed by any one who shall be word or
deed defame, abuse, insult, or threathen a minister of the crown, or any person in authority. The with
an article condemning challenges to fight duels intervening, comes article 256, now being weighed in
the balance. It reads as follows: "Any person who, by word, deed, or writing, shall defame, abuse, or
insult any Minister of the Crown or other person in authority, while engaged in the performance of
official duties, or by reason of such performance, provided that the offensive minister or person, or
the offensive writing be not addressed to him, shall suffer the penalty of arresto mayor," — that is,
the defamation, abuse, or insult of any Minister of the Crown of the Monarchy of Spain (for there
could not be a Minister of the Crown in the United States of America), or other person in authority in
the Monarchy of Spain.

It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such
subjects as treason, lese majeste, religion and worship, rebellion, sedition, and contempts of
ministers of the crown, are not longer in force. Our present task, therefore, is a determination of
whether article 256 has met the same fate, or, more specifically stated, whether it is in the nature of
a municipal law or political law, and is consistent with the Constitution and laws of the United States
and the characteristics and institutions of the American Government.

It is a general principle of the public law that on acquisition of territory the previous political relations
of the ceded region are totally abrogated. "Political" is here used to denominate the laws regulating
the relations sustained by the inhabitants to the sovereign. (American Insurance Co. vs. Canter
[1828], 1 Pet., 511; Chicago, Rock Island and Pacific Railway Co. vs. McGlinn [1885], 114 U.S., 542;
Roa vs. Collector of Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United States Supreme
Court stated the obvious when in the course of his opinion in the case of Chicago, Rock Island and
Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of course, all laws, ordinances and
regulations in conflict with the political character, institutions and Constitution of the new government
are at once displaced. Thus, upon a cession of political jurisdiction and legislative power — and the
latter is involved in the former — to the United States, the laws of the country in support of an
established religion or abridging the freedom of the press, or authorizing cruel and unusual
punishments, and he like, would at once cease to be of obligatory force without any declaration to
that effect." To quote again from the United States Supreme Court: "It cannot be admitted that the
King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives;
and much less can it be admitted that they have capacity to receive or power to exercise them.
Every nation acquiring territory, by treaty or otherwise, must hold it subject to the Constitution and
laws of its own government, and not according to those of the government ceding it."
(Pollard vs. Hagan [1845], 3 Hos., 210.)

On American occupation of the Philippines, by instructions of the President to the Military

Commander dated May 28, 1898, and by proclamation of the latter, the municipal laws of the
conquered territory affecting private rights of person and property and providing for the punishment
of crime were nominally continued in force in so far as they were compatible with the new order of
things. But President McKinley, in his instructions to General Merritt, was careful to say: "The first
effect of the military occupation of the enemy's territory is the severance of the former political
relation of the inhabitants and the establishment of a new political power." From that day to this, the
ordinarily it has been taken for granted that the provisions under consideration were still effective. To
paraphrase the language of the United States Supreme Court in Weems vs. United States ([1910],
217 U. S., 349), there was not and could not be, except as precise questions were presented, a
careful consideration of the codal provisions and a determination of the extent to which they
accorded with or were repugnant to the "'great principles of liberty and law' which had been 'made
the basis of our governmental system.' " But when the question has been squarely raised, the
appellate court has been forced on occasion to hold certain portions of the Spanish codes repugnant
t democratic institutions and American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil., 18;
U.S. vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533;
Weems vs. U.S., supra.)

The nature of the government which has been set up in the Philippines under American sovereignty
was outlined by President McKinley in that Magna Charta of Philippine liberty, his instructions to the
Commission, of April 7, 1900. In part, the President said:

In all the forms of government and administrative provisions which they are authorized to
prescribe, the Commission should bear in mind that he government which they are
establishing is designed not for our satisfaction or for the expression of our theoretical views,
but for the happiness, peace, and prosperity of the people of the Philippine Islands, and the
measures adopted should be made to conform to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the accomplishment of the indispensable
requisites of just and effective government. At the same time the Commission should bear in
mind, and the people of the Islands should be made plainly to understand, that there are
certain great principles of government which have been made the basis of our governmental
system, which we deem essential to the rule of law and the maintenance of individual
freedom, and of which they have, unfortunately, been denied the experience possessed by
us; that there are also certain practical rules of government which we have found to be
essential to the preservation of these great principles of liberty and law, and that these
principles and these rules of government must be established and maintained in their islands
for the sake of their liberty and happiness, however much they may conflict with the customs
or laws of procedure with which they are familiar. It is evident that the most enligthened
thought of the Philippine Islands fully appreciates the importance of these principles and
rules, and they will inevitably within a short time command universal assent.

The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme Court,
in the case of United States vs. Bull ([1910], 15 Phil., 7), said: "The President and Congress framed
the government on the model with which American are familiar, and which has proven best adapted
for the advancement of the public interests and the protection of individual rights and privileges."

Therefore, it has come with somewhat of a shock to hear the statement made that the happiness,
peace, and prosperity of the people of the Philippine Islands and their customs, habits, and
prejudices, to follow the language of President McKinley, demand obeisance to authority, and royal
protection for that authority.

According to our view, article 256 of the Spanish Penal Code was enacted by the Government of
Spain to protect Spanish officials who were the representatives of the King. With the change of
sovereignty, a new government, and a new theory of government, as set up in the Philippines. It was
in no sense a continuation of the old, although merely for convenience certain of the existing
institutions and laws were continued. The demands which the new government made, and makes,
on the individual citizen are likewise different. No longer is there a Minister of the Crown or a person
in authority of such exalted position that the citizen must speak of him only with bated breath. "In the
eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal
rights with every other man. We have no rank or station, except that of respectability and intelligence
as opposed to indecency and ignorance, and the door to this rank stands open to every man to
freely enter and abide therein, if he is qualified, and whether he is qualified or not depends upon the
life and character and attainments and conduct of each person for himself. Every man may lawfully
do what he will, so long as it is not malum in se or malum prohibitum or does not infringe upon the
qually sacred rights of others." (State vs. Shepherd [1903], 177 Mo., 205; 99 A. S. R., 624.)

It is true that in England, from which so many of the laws and institutions of the United States are
derived, there were once statutes of scandalum magnatum, under which words which would not be
actionable if spoken of an ordinary subject were made actionable if spoken of a peer of the realm or
of any of the great officers of the Crown, without proof of any special damage. The Crown of
England, unfortunately, took a view less tolerant that that of other sovereigns, as for instance, the
Emperors Augustus, Caesar, and Tiberius. These English statutes have, however, long since,
become obsolete, while in the United States, the offense of scandalum magnatum is not known. In
the early days of the American Republic, a sedition law was enacted, making it an offense to libel the
Government, the Congress, or the President of the United States, but the law met with so much
popular disapproval, that it was soon repealed. "In this country no distinction as to persons is
recognized, and in practice a person holding a high office is regarded as a target at whom any
person may let fly his poisonous words. High official position, instead of affording immunity from
slanderous and libelous charges, seems rather to be regarded as making his character free plunder
for any one who desires to create a senation by attacking it." (Newell, Slander and Libel, 3d ed., p.
245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)

Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American
character and system of government. The gulf which separates this article from the spirit which
inspires all penal legislation of American origin, is as wide as that which separates a monarchy from
a democratic Republic like that of the United States. This article was crowded out by implication as
soon as the United States established its authority in the Philippine Islands. Penalties out of all
proportion to the gravity of the offense, grounded in a distorted monarchical conception of the nature
of political authority, as opposed to the American conception of the protection of the interests of the
public, have been obliterated by the present system of government in the Islands. 1aw ph!l.net

From an entirely different point of view, it must be noted that this article punishes contempts against
executive officials, although its terms are broad enough to cover the entire official class. Punishment
for contempt of non-judicial officers has no place in a government based upon American principles.
Our official class is not, as in monarchies, an agent of some authority greater than the people but it
is an agent and servant of the people themselves. These officials are only entitled to respect and
obedience when they are acting within the scope of their authority and jurisdiction. The American
system of government is calculated to enforce respect and obedience where such respect and
obedience is due, but never does it place around the individual who happens to occupy an official
position by mandate of the people any official halo, which calls for drastic punishment for
contemptuous remarks.

The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris.
Ministers of the Crown have no place under the American flag.
To summarize, the result is, that all the members of the court are of the opinion, although for
different reasons, that the judgment should be reversed and the defendant and appellant acquitted,
with costs de officio. So ordered.

Ostrand and Johns, JJ., concur.

Separate Opinions

ARAULLO, C.J., concurring:

I concur with the dispositive part of the foregoing decision, that is, with the acquittal of the accused,
for the sole reason that the facts alleged in the information do not constitute a violation of article 256
of the Penal Code; for although that article is in force with respect to calumny, injuria, or insult, by
deed or word, against an authority in the performance of his duties or by reason thereof, outside of
his presence, it is repealed by the Libel Law in so far as it refers to calumny, injuria, or insult
committed against an authority by writing or printing, as was that inserted in the said information.

ROMUALDEZ, J., concurring:

I concur with the result. I believe that the responsibility of the accused has not been shown either
under article 256 of the Penal Code or under the Libel Law.

I am of the opinion that article 256 of the Penal Code is still in force, except as it refers to "Ministers
of the Crown," whom we do not have in our Government, and to calumny, injuria, or insult, by writing
or printing, committed against an authority in the performance of his duties or by reason thereof,
which portion was repealed by the Libel Law.

Johnson, Street, Avanceña and Villamor, JJ., concur.

 2. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant,

vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge
Elias B. Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of
Appeals, with "acts unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice
Cecilia Muñoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to
whom this case was referred on October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for
partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto
Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola,
defendant, concerning the properties left by the deceased Francisco Reyes, the
common father of the plaintiff and defendant.

In her defenses to the complaint for partition, Mrs. Macariola alleged among other
things that; a) plaintiff Sinforosa R. Bales was not a daughter of the deceased
Francisco Reyes; b) the only legal heirs of the deceased were defendant Macariola,
she being the only offspring of the first marriage of Francisco Reyes with Felisa
Espiras, and the remaining plaintiffs who were the children of the deceased by his
second marriage with Irene Ondez; c) the properties left by the deceased were all the
conjugal properties of the latter and his first wife, Felisa Espiras, and no properties
were acquired by the deceased during his second marriage; d) if there was any
partition to be made, those conjugal properties should first be partitioned into two
parts, and one part is to be adjudicated solely to defendant it being the share of the
latter's deceased mother, Felisa Espiras, and the other half which is the share of the
deceased Francisco Reyes was to be divided equally among his children by his two
marriages.

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil

Case 3010, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court,

upon a preponderance of evidence, finds and so holds, and hereby
renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes
 as the only children legitimated by the subsequent marriage of
Francisco Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff
Sinforosa R. Bales to have been an illegitimate child of Francisco
Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803,
4581, 4506 and 1/4 of Lot 1145 as belonging to the conjugal
partnership of the spouses Francisco Reyes Diaz and Felisa Espiras;
(4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to
the spouses Francisco Reyes Diaz and Irene Ondez in common
partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging
exclusively to the deceased Francisco Reyes Diaz; (6) Declaring the
defendant Bernardita R. Macariola, being the only legal and forced
heir of her mother Felisa Espiras, as the exclusive owner of one-half
of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and
the remaining one-half (1/2) of each of said Lots Nos. 4474, 4475,
4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth (1/4)
of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz;
(7) Declaring Irene Ondez to be the exclusive owner of one-half (1/2)
of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416;
the remaining one-half (1/2) of Lot 2304 and the remaining one-half
(1/2) of one-fourth (1/4) of Lot No. 3416 as belonging to the estate of
Francisco Reyes Diaz; (8) Directing the division or partition of the
estate of Francisco Reyes Diaz in such a manner as to give or grant
to Irene Ondez, as surviving widow of Francisco Reyes Diaz, a
hereditary share of. one-twelfth (1/12) of the whole estate of
Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New
Civil Code), and the remaining portion of the estate to be divided
among the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and defendant
Bernardita R. Macariola, in such a way that the extent of the total
share of plaintiff Sinforosa R. Bales in the hereditary estate shall not
exceed the equivalent of two-fifth (2/5) of the total share of any or
each of the other plaintiffs and the defendant (Art. 983, New Civil
Code), each of the latter to receive equal shares from the hereditary
estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of
Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days
after this judgment shall have become final to submit to this court, for
approval a project of partition of the hereditary estate in the
proportion above indicated, and in such manner as the parties may,
by agreement, deemed convenient and equitable to them taking into
consideration the location, kind, quality, nature and value of the
properties involved; (10) Directing the plaintiff Sinforosa R. Bales and
defendant Bernardita R. Macariola to pay the costs of this suit, in the
proportion of one-third (1/3) by the first named and two-thirds (2/3) by
the second named; and (I 1) Dismissing all other claims of the parties
[pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on October
16, 1963, a project of partition was submitted to Judge Asuncion which is marked
Exh. A. Notwithstanding the fact that the project of partition was not signed by the
parties themselves but only by the respective counsel of plaintiffs and defendant,
Judge Asuncion approved it in his Order dated October 23, 1963, which for
convenience is quoted hereunder in full:
The parties, through their respective counsels, presented to this
Court for approval the following project of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled

case, to this Honorable Court respectfully submit the following Project
of Partition:

l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong
exclusively to Bernardita Reyes Macariola;

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters

along the eastern part of the lot shall be awarded likewise to
Bernardita R. Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa

Reyes Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters

along the western part of the lot shall likewise be awarded to
Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz
Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes
and Priscilla Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking
the portions awarded under item (2) and (4) above shall be awarded
to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes in equal shares, provided, however that
the remaining portion of Lot No. 3416 shall belong exclusively to
Priscilla Reyes.

WHEREFORE, it is respectfully prayed that the Project of Partition

indicated above which is made in accordance with the decision of the
Honorable Court be approved.

Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City

While the Court thought it more desirable for all the parties to have
signed this Project of Partition, nevertheless, upon assurance of both
counsels of the respective parties to this Court that the Project of
Partition, as above- quoted, had been made after a conference and
agreement of the plaintiffs and the defendant approving the above
Project of Partition, and that both lawyers had represented to the
Court that they are given full authority to sign by themselves the
Project of Partition, the Court, therefore, finding the above-quoted
Project of Partition to be in accordance with law, hereby approves the
 same. The parties, therefore, are directed to execute such papers,
documents or instrument sufficient in form and substance for the
vesting of the rights, interests and participations which were
adjudicated to the respective parties, as outlined in the Project of
Partition and the delivery of the respective properties adjudicated to
each one in view of said Project of Partition, and to perform such
other acts as are legal and necessary to effectuate the said Project of
Partition.

SO ORDERED.

Given in Tacloban City, this 23rd day of October, 1963.

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963, only
for the purpose of giving authority to the Register of Deeds of the Province of Leyte
to issue the corresponding transfer certificates of title to the respective adjudicatees
in conformity with the project of partition (see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather
one-half thereof with an area of 15,162.5 sq. meters. This lot, which according to the
decision was the exclusive property of the deceased Francisco Reyes, was
adjudicated in said project of partition to the plaintiffs Luz, Anacorita Ruperto, Adela,
and Priscilla all surnamed Reyes in equal shares, and when the project of partition
was approved by the trial court the adjudicatees caused Lot 1184 to be subdivided
into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge

Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of
2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2)
who was issued transfer certificate of title No. 2338 of the Register of Deeds of the
city of Tacloban (Exh. 12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E
with an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S.
Asuncion (Exh. 11), which particular portion was declared by the latter for taxation
purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their
respective shares and interest in Lot 1184-E to "The Traders Manufacturing and
Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the stockholders of the
corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan,
Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as
the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of
Incorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we
shall henceforth refer to as "TRADERS" were registered with the Securities and
Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6,
1968 alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491,
paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was
one of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated
Article 14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil
Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself with the
Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he
was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an
impostor and acted in disregard of judicial decorum by closely fraternizing with a certain Dominador
Arigpa Tan who openly and publicly advertised himself as a practising attorney when in truth and in
fact his name does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar;
and [4] that there was a culpable defiance of the law and utter disregard for ethics by respondent
Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on
October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this
case to then Justice Cecilia Muñoz Palma of the Court of Appeals, for investigation, report and
recommendation. After hearing, the said Investigating Justice submitted her report dated May 27,
1971 recommending that respondent Judge should be reprimanded or warned in connection with the
first cause of action alleged in the complaint, and for the second cause of action, respondent should
be warned in case of a finding that he is prohibited under the law to engage in business. On the third
and fourth causes of action, Justice Palma recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant
herein instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R.
Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case
No. 4235, seeking the annulment of the project of partition made pursuant to the decision in Civil
Case No. 3010 and the two orders issued by respondent Judge approving the same, as well as the
partition of the estate and the subsequent conveyances with damages. It appears, however, that
some defendants were dropped from the civil case. For one, the case against Dr. Arcadio Galapon
was dismissed because he was no longer a real party in interest when Civil Case No. 4234 was
filed, having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on
August 31, 1966 the remainder was sold to the Traders Manufacturing and Fishing Industries, Inc.
Similarly, the case against defendant Victoria Asuncion was dismissed on the ground that she was
no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed as the
portion of Lot 1184 acquired by her and respondent Judge from Dr. Arcadio Galapon was already
sold on August 31, 1966 to the Traders Manufacturing and Fishing industries, Inc. Likewise, the
cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez,
Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial,
Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A.
Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was
directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now
Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a
decision, the dispositive portion of which reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has
jurisdiction to take cognizance of the issue of the legality and validity of the Project of
 Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"] approving the
partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias
B. Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00]

for moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001

for exemplary damages;

(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal

damages; and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's

Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA

VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE
DECEASED GERARDO VILLASIN —

(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs
of the deceased Gerardo Villasin;

(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of
Gerardo Villasin the cost of the suit.

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R.

BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010
—

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer,
Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.

SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals
upon perfection of the appeal on February 22, 1971.

I
WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her
first cause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of
the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those
properties involved in Civil Case No. 3010. 'That Article provides:

Article 1491. The following persons cannot acquire by purchase, even at a public or
judicial action, either in person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and
other officers and employees connected with the administration of justice, the
property and rights in litigation or levied upon an execution before the court within
whose jurisdiction or territory they exercise their respective functions; this prohibition
includes the act of acquiring by assignment and shall apply to lawyers, with respect
to the property and rights which may be the object of any litigation in which they may
take part by virtue of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is
the subject of litigation to the persons disqualified therein. WE have already ruled that "... for the
prohibition to operate, the sale or assignment of the property must take place during the pendency of
the litigation involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519
[1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).

In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E,
the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because
none of the parties therein filed an appeal within the reglementary period; hence, the lot in question
was no longer subject of the litigation. Moreover, at the time of the sale on March 6, 1965,
respondent's order dated October 23, 1963 and the amended order dated November 11,
1963 approving the October 16, 1963 project of partition made pursuant to the June 8, 1963
decision, had long become final for there was no appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the
plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31,
1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R.
Bakunawa after the finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or
more specifically one-half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes,
Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the same was
subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold
on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of Deeds of
Tacloban City, and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife
who declared the same for taxation purposes only. The subsequent sale on August 31, 1966 by
spouses Asuncion and spouses Galapon of their respective shares and interest in said Lot 1184-E to
the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the president and
his wife was the secretary, took place long after the finality of the decision in Civil Case No. 3010
and of the subsequent two aforesaid orders therein approving the project of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before
the Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of
partition and the two orders approving the same, as well as the partition of the estate and the
subsequent conveyances, the same, however, is of no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from
Dr. Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in
Civil Case No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963.
Therefore, the property was no longer subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter,
change or affect the aforesaid facts — that the questioned sale to respondent Judge, now Court of
Appeals Justice, was effected and consummated long after the finality of the aforesaid decision or
orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one
year after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the
project of partition, and not during the pendency of the litigation, there was no violation of paragraph
5, Article 1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio
Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal
the illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval
of the project of partition. In this connection, We agree with the findings of the Investigating Justice
thus:

And so we are now confronted with this all-important question whether or not the
acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer of
the whole lot to "TRADERS" of which respondent was the President and his wife the
Secretary, was intimately related to the Order of respondent approving the project of
partition, Exh. A.

Respondent vehemently denies any interest or participation in the transactions

between the Reyeses and the Galapons concerning Lot 1184-E, and he insists that
there is no evidence whatsoever to show that Dr. Galapon had acted, in the
purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of
Respondent's Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record showing
that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot
1184-E from the Reyeses. Dr. Galapon appeared to this investigator as a
respectable citizen, credible and sincere, and I believe him when he testified that he
bought Lot 1184-E in good faith and for valuable consideration from the Reyeses
without any intervention of, or previous understanding with Judge Asuncion (pp. 391-
394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the
project of partition although it was not signed by the parties, We quote with approval the findings of
the Investigating Justice, as follows:

1. I agree with complainant that respondent should have required the signature of the
parties more particularly that of Mrs. Macariola on the project of partition submitted to
him for approval; however, whatever error was committed by respondent in that
respect was done in good faith as according to Judge Asuncion he was assured by
Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola, That he was
authorized by his client to submit said project of partition, (See Exh. B and tsn p. 24,
January 20, 1969). While it is true that such written authority if there was any, was
not presented by respondent in evidence, nor did Atty. Ramo appear to corroborate
the statement of respondent, his affidavit being the only one that was presented as
respondent's Exh. 10, certain actuations of Mrs. Macariola lead this investigator to
believe that she knew the contents of the project of partition, Exh. A, and that she
gave her conformity thereto. I refer to the following documents:

1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban
Cadastral Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh.
9-a). On tills certificate of title the Order dated November 11, 1963, (Exh. U)
approving the project of partition was duly entered and registered on November 26,
1963 (Exh. 9-D);

2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita Reyes

Macariola on October 22, 1963, conveying to Dr. Hector Decena the one-fourth
share of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee
stated that she was the absolute owner of said one-fourth share, the same having
been adjudicated to her as her share in the estate of her father Francisco Reyes Diaz
as per decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-
A). The deed of sale was duly registered and annotated at the back of OCT 19520 on
December 3, 1963 (see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in the project

of partition dated October 16, 1963, which was approved by respondent on October
23, 1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather
1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which
complainant sold to Dr. Decena on October 22, 1963, several days after the
preparation of the project of partition.

Counsel for complainant stresses the view, however, that the latter sold her one-
fourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and not because
of the project of partition, Exh. A. Such contention is absurd because from the
decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 belonged to the
estate of Francisco Reyes Diaz while the other half of said one-fourth was the share
of complainant's mother, Felisa Espiras; in other words, the decision did not
adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see
Exhs. C-3 & C-4). Complainant became the owner of the entire one-fourth of Lot
1154 only by means of the project of partition, Exh. A. Therefore, if Mrs. Macariola
sold Lot 1154 on October 22, 1963, it was for no other reason than that she was wen
aware of the distribution of the properties of her deceased father as per Exhs. A and
B. It is also significant at this point to state that Mrs. Macariola admitted during the
cross-examination that she went to Tacloban City in connection with the sale of Lot
1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can deduce that
she could not have been kept ignorant of the proceedings in civil case 3010 relative
to the project of partition.

Complainant also assails the project of partition because according to her the
properties adjudicated to her were insignificant lots and the least valuable.
Complainant, however, did not present any direct and positive evidence to prove the
alleged gross inequalities in the choice and distribution of the real properties when
she could have easily done so by presenting evidence on the area, location, kind, the
 assessed and market value of said properties. Without such evidence there is
nothing in the record to show that there were inequalities in the distribution of the
properties of complainant's father (pp. 386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New
Civil Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was,
however, improper for him to have acquired the same. He should be reminded of Canon 3 of the
Canons of Judicial Ethics which requires that: "A judge's official conduct should be free from the
appearance of impropriety, and his personal behavior, not only upon the bench and in the
performance of judicial duties, but also in his everyday life, should be beyond reproach." And as
aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the part of
respondent to have purchased or acquired a portion of a piece of property that was or had been in
litigation in his court and caused it to be transferred to a corporation of which he and his wife were
ranking officers at the time of such transfer. One who occupies an exalted position in the judiciary
has the duty and responsibility of maintaining the faith and trust of the citizenry in the courts of
justice, so that not only must he be truly honest and just, but his actuations must be such as not give
cause for doubt and mistrust in the uprightness of his administration of justice. In this particular case
of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and render his
actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was
no longer in litigation in his court and that he was purchasing it from a third person and not from the
parties to the litigation, he should nonetheless have refrained from buying it for himself and
transferring it to a corporation in which he and his wife were financially involved, to avoid possible
suspicion that his acquisition was related in one way or another to his official actuations in civil case
3010. The conduct of respondent gave cause for the litigants in civil case 3010, the lawyers
practising in his court, and the public in general to doubt the honesty and fairness of his actuations
and the integrity of our courts of justice" (pp. 395396, rec.).

II

With respect to the second cause of action, the complainant alleged that respondent Judge violated
paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the
Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said
corporation having been organized to engage in business. Said Article provides that:

Article 14 — The following cannot engage in commerce, either in person or by proxy,

nor can they hold any office or have any direct, administrative, or financial
intervention in commercial or industrial companies within the limits of the districts,
provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department of public
prosecution in active service. This provision shall not be applicable to mayors,
municipal judges, and municipal prosecuting attorneys nor to those who by chance
are temporarily discharging the functions of judge or prosecuting attorney.

xxx xxx xxx

5. Those who by virtue of laws or special provisions may not engage in commerce in
a determinate territory.

It is Our considered view that although the aforestated provision is incorporated in the Code of
Commerce which is part of the commercial laws of the Philippines, it, however, partakes of the
nature of a political law as it regulates the relationship between the government and certain public
officers and employees, like justices and judges.

Political Law has been defined as that branch of public law which deals with the organization and
operation of the governmental organs of the State and define the relations of the state with the
inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that
political law embraces constitutional law, law of public corporations, administrative law including the
law on public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more
of the nature of an administrative law because it regulates the conduct of certain public officers and
employees with respect to engaging in business: hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of
1885, with some modifications made by the "Commission de Codificacion de las Provincias de
Ultramar," which was extended to the Philippines by the Royal Decree of August 6, 1888, and took
effect as law in this jurisdiction on December 1, 1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the United States
to the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have
been abrogated because where there is change of sovereignty, the political laws of the former
sovereign, whether compatible or not with those of the new sovereign, are automatically abrogated,
unless they are expressly re-enacted by affirmative act of the new sovereign.

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by one nation to another,
either following a conquest or otherwise, ... those laws which are political in their
nature and pertain to the prerogatives of the former government immediately cease
upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).

While municipal laws of the newly acquired territory not in conflict with the, laws of
the new sovereign continue in force without the express assent or affirmative act of
the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14).
However, such political laws of the prior sovereignty as are not in conflict with the
constitution or institutions of the new sovereign, may be continued in force if the
conqueror shall so declare by affirmative act of the commander-in-chief during the
war, or by Congress in time of peace. (Ely's Administrator vs. United States, 171 U.S.
220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of
Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:

On such transfer (by cession) of territory, it has never been held that
the relations of the inhabitants with each other undergo any change.
Their relations with their former sovereign are dissolved, and new
relations are created between them and the government which has
acquired their territory. The same act which transfers their country,
transfers the allegiance of those who remain in it; and the law which
may be denominated political, is necessarily changed, although that
which regulates the intercourse and general conduct of individuals,
remains in force, until altered by the newly- created power of the
State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general
principle of the public law that on acquisition of territory the previous political relations of the ceded
region are totally abrogated. "

There appears no enabling or affirmative act that continued the effectivity of the aforestated
provision of the Code of Commerce after the change of sovereignty from Spain to the United States
and then to the Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has
no legal and binding effect and cannot apply to the respondent, then Judge of the Court of First
Instance, now Associate Justice of the Court of Appeals.

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides
that:

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of

public officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any

business, contract or transaction in connection with which he
intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is no
showing that respondent participated or intervened in his official capacity in the business or
transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the
business of the corporation in which respondent participated has obviously no relation or connection
with his judicial office. The business of said corporation is not that kind where respondent intervenes
or takes part in his capacity as Judge of the Court of First Instance. As was held in one case
involving the application of Article 216 of the Revised Penal Code which has a similar prohibition on
public officers against directly or indirectly becoming interested in any contract or business in which
it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this crime; it
is necessary that by reason of his office, he has to intervene in said contracts or transactions; and,
hence, the official who intervenes in contracts or transactions which have no relation to his office
cannot commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice
Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue advantage
in its business operations by reason of respondent's financial involvement in it, or that the
corporation benefited in one way or another in any case filed by or against it in court. It is undisputed
that there was no case filed in the different branches of the Court of First Instance of Leyte in which
the corporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita
R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein the complainant herein sought to
recover Lot 1184-E from the aforesaid corporation. It must be noted, however, that Civil Case No.
4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge
Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having
disposed of his interest therein on January 31, 1967.
Furthermore, respondent is not liable under the same paragraph because there is no provision in
both the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly
prohibiting members of the Judiciary from engaging or having interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of
1948, does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said
law, municipal judges may engage in teaching or other vocation not involving the practice of law
after office hours but with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is,
as heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to
America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by
judges of a property in litigation before the court within whose jurisdiction they perform their duties,
cannot apply to respondent Judge because the sale of the lot in question to him took place after the
finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of
partition; hence, the property was no longer subject of litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil
Service Act of 1959 prohibits an officer or employee in the civil service from engaging in any private
business, vocation, or profession or be connected with any commercial, credit, agricultural or
industrial undertaking without a written permission from the head of department, the same, however,
may not fall within the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act
because the last portion of said paragraph speaks of a prohibition by the Constitution or law on any
public officer from having any interest in any business and not by a mere administrative rule or
regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil service, that
is, engaging in private business without a written permission from the Department Head may not
constitute graft and corrupt practice as defined by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil
Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service
Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of
the Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private
business, vocation, or profession or be connected with any commercial, credit, agricultural or
industrial undertaking without a written permission from the Head of Department ..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by
Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7,
Article X, 1973 Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the
President of the Philippines, not in the Commissioner of Civil Service, and only on two grounds,
namely, serious misconduct and inefficiency, and upon the recommendation of the Supreme Court,
which alone is authorized, upon its own motion, or upon information of the Secretary (now Minister)
of Justice to conduct the corresponding investigation. Clearly, the aforesaid section defines the
grounds and prescribes the special procedure for the discipline of judges.

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can
discipline judges of inferior courts as well as other personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ...
violation of the existing Civil Service Law and rules or of reasonable office regulations, or in the
interest of the service, remove any subordinate officer or employee from the service, demote him in
rank, suspend him for not more than one year without pay or fine him in an amount not exceeding
six months' salary." Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action
against civil service officers and employees.

However, judges cannot be considered as subordinate civil service officers or employees subject to
the disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not
the head of the Judicial Department to which they belong. The Revised Administrative Code (Section
89) and the Civil Service Law itself state that the Chief Justice is the department head of the
Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is
the only other or second branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a
violation of Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against
judges because to recognize the same as applicable to them, would be adding another ground for
the discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two
grounds for their removal, namely, serious misconduct and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service
who has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after
submission to it, all administrative cases against permanent officers and employees in the
competitive service, and, except as provided by law, to have final authority to pass upon their
removal, separation, and suspension and upon all matters relating to the conduct, discipline, and
efficiency of such officers and employees; and prescribe standards, guidelines and regulations
governing the administration of discipline" (emphasis supplied). There is no question that a judge
belong to the non-competitive or unclassified service of the government as a Presidential appointee
and is therefore not covered by the aforesaid provision. WE have already ruled that "... in interpreting
Section 16(i) of Republic Act No. 2260, we emphasized that only permanent officers and employees
who belong to the classified service come under the exclusive jurisdiction of the Commissioner of
Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619
[1963]).

Although the actuation of respondent Judge in engaging in private business by joining the Traders
Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of
the provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt
Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to
the Civil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon
25 of the Canons of Judicial Ethics expressly declares that:

A judge should abstain from making personal investments in enterprises which are
apt to be involved in litigation in his court; and, after his accession to the bench, he
should not retain such investments previously made, longer than a period sufficient
to enable him to dispose of them without serious loss. It is desirable that he should,
so far as reasonably possible, refrain from all relations which would normally tend to
arouse the suspicion that such relations warp or bias his judgment, or prevent his
impartial attitude of mind in the administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on
January 31, 1967 from the aforesaid corporation and sold their respective shares to third parties,
and it appears also that the aforesaid corporation did not in anyway benefit in any case filed by or
against it in court as there was no case filed in the different branches of the Court of First Instance of
Leyte from the time of the drafting of the Articles of Incorporation of the corporation on March 12,
1966, up to its incorporation on January 9, 1967, and the eventual withdrawal of respondent on
January 31, 1967 from said corporation. Such disposal or sale by respondent and his wife of their
shares in the corporation only 22 days after the incorporation of the corporation, indicates that
respondent realized that early that their interest in the corporation contravenes the aforesaid Canon
25. Respondent Judge and his wife therefore deserve the commendation for their immediate
withdrawal from the firm after its incorporation and before it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty
of coddling an impostor and acted in disregard of judicial decorum, and that there was culpable
defiance of the law and utter disregard for ethics. WE agree, however, with the recommendation of
the Investigating Justice that respondent Judge be exonerated because the aforesaid causes of
action are groundless, and WE quote the pertinent portion of her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent
associated and closely fraternized with Dominador Arigpa Tan who openly and
publicly advertised himself as a practising attorney (see Exhs. I, I-1 and J) when in
truth and in fact said Dominador Arigpa Tan does not appear in the Roll of Attorneys
and is not a member of the Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and
claims that all the time he believed that the latter was a bona fide member of the bar.
I see no reason for disbelieving this assertion of respondent. It has been shown by
complainant that Dominador Arigpa Tan represented himself publicly as an attorney-
at-law to the extent of putting up a signboard with his name and the words "Attorney-
at Law" (Exh. I and 1- 1) to indicate his office, and it was but natural for respondent
and any person for that matter to have accepted that statement on its face value.
"Now with respect to the allegation of complainant that respondent is guilty of
fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to be a
godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if true did not
render respondent guilty of violating any canon of judicial ethics as long as his
friendly relations with Dominador A. Tan and family did not influence his official
actuations as a judge where said persons were concerned. There is no tangible
convincing proof that herein respondent gave any undue privileges in his court to
Dominador Arigpa Tan or that the latter benefitted in his practice of law from his
personal relations with respondent, or that he used his influence, if he had any, on
the Judges of the other branches of the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much as

possible from maintaining close friendly relations with practising attorneys and
litigants in his court so as to avoid suspicion 'that his social or business relations or
friendship constitute an element in determining his judicial course" (par. 30, Canons
of Judicial Ethics), but if a Judge does have social relations, that in itself would not
constitute a ground for disciplinary action unless it be clearly shown that his social
relations be clouded his official actuations with bias and partiality in favor of his
friends (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did
not violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in
engaging in business by joining a private corporation during his incumbency as judge of the Court of
First Instance of Leyte, he should be reminded to be more discreet in his private and business
activities, because his conduct as a member of the Judiciary must not only be characterized with
propriety but must always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS

HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ.,
concur.

Concepcion Jr., J., is on leave.

Fernando, C.J., Abad Santos and Esolin JJ., took no part.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.

 3. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN

and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed
Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential
Adviser on the Peace Process, respondents.

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

G.R. No. 183752 October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City

Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep.
MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of
Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL
(GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the
Presidential Adviser on Peace Process,respondents.

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

G.R. No. 183893 October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES
ESPERON, JR., in his capacity as the present and duly appointed Presidential Adviser on the
Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive
Secretary. respondents.

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

G.R. No. 183951 October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON.

ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his
capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, HON.
CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON. CESAR G.
JALOSJOS, Congressman, 3rd Congressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P.
JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON.
EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON.
FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B.
EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON.
LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL
[GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in
his capacity as the Presidential Adviser of Peace Process, respondents.

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

G.R. No. 183962 October 14, 2008

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,

vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL,
represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION
FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER
IQBAL, respondents.

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

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

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

SEN. MANUEL A. ROXAS, petitioners-in-intervention.

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

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N.

DEANO, petitioners-in-intervention,

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

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

SANTOS-AKBAR,petitioners-in-intervention.

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

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his

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

x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in
Mindanao Not Belonging to the MILF, petitioner-in-intervention.

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

CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and

RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention.

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

MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.

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

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.

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

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT

(MMMPD), respondent-in-intervention.

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

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing the
peace process.While the facts surrounding this controversy center on the armed conflict in Mindanao
between the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has
a bearing on all areas in the country where there has been a long-standing armed conflict. Yet again,
the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the
bounds within which the President may lawfully exercise her discretion, but it must do so in strict
adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that
same Constitution in the Chief Executive precisely to enable her to pursue the peace process
effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through
the Chairpersons of their respective peace negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the
late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by
Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the
MNLF away from an Islamic basis towards Marxist-Maoist orientations.1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for
upon motion of petitioners, specifically those who filed their cases before the scheduled signing of
the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the
same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations
began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General
Cessation of Hostilities. The following year, they signed the General Framework of Agreement of
Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the
same contained, among others, the commitment of the parties to pursue peace negotiations, protect
and respect human rights, negotiate with sincerity in the resolution and pacific settlement of the
conflict, and refrain from the use of threat or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going.2

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF
peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan,
Lanao del Norte.3 In response, then President Joseph Estrada declared and carried out an "all-out-
war" against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF
was suspended and the government sought a resumption of the peace talks. The MILF, according to
a leading MILF member, initially responded with deep reservation, but when President Arroyo asked
the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF
to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the
matter and, eventually, decided to meet with the GRP.4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian
government, the parties signing on the same date the Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the
outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001)
containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to
the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be
discussed further by the Parties in their next meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended
with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement
2001 leading to a ceasefire status between the parties. This was followed by the Implementing
Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement
2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was
replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as
chief peace negotiator was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading
to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last
August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an
instrument - the MOA-AD which is assailed principally by the present petitions bearing docket
numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the
Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a
petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance
of Writ of Preliminary Injunction and Temporary Restraining Order.9 Invoking the right to information
on matters of public concern, petitioners seek to compel respondents to disclose and furnish them
the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated
signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a
public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus
and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco
and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein
moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and
directing public respondents and their agents to cease and desist from formally signing the MOA-
AD.13 The Court also required the Solicitor General to submit to the Court and petitioners the official
copy of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed
as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same
had already been signed, from implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as
respondent.

The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis,
Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the Sangguniang
Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus
and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared
null and void and without operative effect, and that respondents be enjoined from executing the
MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for
Prohibition,20docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-AD and or any other agreement
derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal.
Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-/comments-
in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate
President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-
Akbar, the Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon
in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of
Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to address the
issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents' motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following
principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with the
finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel

committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to information on matters of public

concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its
transactions involving public interest (1987 Constitution, Article II, Sec. 28) including public
consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be
BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate

state, or a juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;
 c) to concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS
PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga,

Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas
covered by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the
Government of the Republic of the Philippines.24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties
submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions
and six petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in
favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and the MNLF:
the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of the 1976
Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel
Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region
in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and several
international law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal
Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous
Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment
emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty device."

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a
simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode
of War). The first referred to those lands where Islamic laws held sway, while the second denoted
those lands where Muslims were persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however, became more complex through the centuries
as the Islamic world became part of the international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-
harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving
non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-
sulh (land of treaty) referred to countries which, though under a secular regime, maintained peaceful
and cooperative relations with Muslim States, having been bound to each other by treaty or
agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not
bound by treaty with Muslim States, maintained freedom of religion for Muslims.28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-
mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine
government - the Philippines being the land of compact and peace agreement - that partake of the
nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that
sets out understandings, obligations, and benefits for both parties which provides for a framework
that elaborates the principles declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and
starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles,
Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples
of Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro
people" as the natives or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only
"Moros" as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and
its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be
respected. What this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested
exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to
the MOA-AD acknowledge that ancestral domain does not form part of the public domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right is
said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their
sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-state in the
modern sense.34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past
suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland
was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by
datus and sultans, none of whom was supreme over the others.35

The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined territory
and with a system of government having entered into treaties of amity and commerce with foreign
nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory,
particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled
to be called "First Nation," hence, all of them are usually described collectively by the plural "First
Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" -
suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the
term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the
Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above
it, embracing the Mindanao-Sulu-Palawan geographic region.38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus
constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi
City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for
inclusion in the ARMM in the 2001 plebiscite.39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which
are grouped into two categories, Category A and Category B. Each of these areas is to be subjected
to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are
to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-
AD.40 Category B areas, also called "Special Intervention Areas," on the other hand, are to be
subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement - the
Comprehensive Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources
within its "internalwaters," defined as extending fifteen (15) kilometers from the coastline of the BJE
area;42 that the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorial waters, the BJE and the "Central
Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority and
management over all natural resources.43 Notably, the jurisdiction over the internal waters is not
similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the
Central Government and the BJE, in favor of the latter, through production sharing and economic
cooperation agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration and utilization of natural
resources, regulation of shipping and fishing activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of minerals and allowed activities with
respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations
with foreign countries and shall have the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include aggression against the GRP. The BJE
may also enter into environmental cooperation agreements.46

The external defense of the BJE is to remain the duty and obligation of the Central Government. The
Central Government is also bound to "take necessary steps to ensure the BJE's participation in
international meetings and events" like those of the ASEAN and the specialized agencies of the UN.
The BJE is to be entitled to participate in Philippine official missions and delegations for the
negotiation of border agreements or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or between the islands forming part
of the ancestral domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested
in the BJE "as the party having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so requires," the Central
Government may, for a fixed period and under reasonable terms as may be agreed upon by both
Parties, assume or direct the operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE.49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust
dispossession of their territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to
be in such form as mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements,
mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest
Management Agreements (IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the "details for the
effective enforcement" and "the mechanisms and modalities for the actual implementation" of the
MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way
affect the status of the relationship between the Central Government and the BJE.52

The "associative" relationship

between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as "associative,"
characterized by shared authority and responsibility. And it states that the structure of governance is
to be based on executive, legislative, judicial, and administrative institutions with defined powers and
functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal framework"
shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid
amendments, with due regard to the non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of
the present controversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil
service, electoral, financial and banking, education, legislation, legal, economic, police and internal
security force, judicial system and correctional institutions, the details of which shall be discussed in
the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF,
respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the
negotiating panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED
BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED
BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary
General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE
PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr.
Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the
provinces, municipalities, and barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies.54 Courts decline to issue
advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions.55 The
limitation of the power of judicial review to actual cases and controversies defines the role assigned
to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas
committed to the other branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence.57 The Court can decide the constitutionality of an act or treaty only
when a proper case between opposing parties is submitted for judicial determination.58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it.59 For a case to be considered ripe for adjudication, it is a prerequisite
that something had then been accomplished or performed by either branch before a court may come
into the picture,60 and the petitioner must allege the existence of an immediate or threatened injury to
itself as a result of the challenged action.61 He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of.62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in
the present petitions, reasoning that
 The unsigned MOA-AD is simply a list of consensus points subject to further negotiations
and legislative enactments as well as constitutional processes aimed at attaining a final
peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not
automatically create legally demandable rights and obligations until the list of operative acts
required have been duly complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to
pass upon issues based on hypothetical or feigned constitutional problems or interests
with no concrete bases. Considering the preliminary character of the MOA-AD, there are no
concrete acts that could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary
and illusory apart from being unfounded and based on mere conjectures. (Underscoring
supplied)

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:

xxxx

d. Without derogating from the requirements of prior agreements, the Government stipulates
to conduct and deliver, using all possible legal measures, within twelve (12) months following
the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and
depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an
integral part of this framework agreement. Toward this end, the Parties shall endeavor to
complete the negotiations and resolve all outstanding issues on the Comprehensive
Compact within fifteen (15) months from the signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to
enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,65 this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action,
the dispute is said to have ripened into a judicial controversy even without any other overt
act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x
x settling the dispute becomes the duty and the responsibility of the courts.66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the
challenge to the constitutionality of the school's policy allowing student-led prayers and speeches
before games was ripe for adjudication, even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on its face.68

That the law or act in question is not yet effective does not negate ripeness. For example, in New
York v. United States,69 decided in 1992, the United States Supreme Court held that the action by
the State of New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was
ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996,
because the parties agreed that New York had to take immediate action to avoid the provision's
consequences.70

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition are
remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.72 Mandamus is a remedy granted by law when
any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or office to which such other is
entitled.73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued
on February 28, 2001.75 The said executive order requires that "[t]he government's policy framework
for peace, including the systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order."76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of
the MOA-AD without consulting the local government units or communities affected, nor informing
them of the proceedings. As will be discussed in greater detail later, such omission, by itself,
constitutes a departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The
MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework," implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of
the Constitution. Such act constitutes another violation of its authority. Again, these points will be
discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority, by
violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the
petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of government is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute.77

B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions."78

Because constitutional cases are often public actions in which the relief sought is likely to affect
other persons, a preliminary question frequently arises as to this interest in the constitutional
question raised.79

When suing as a citizen, the person complaining must allege that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute or act complained of.80 When the issue concerns
a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the
laws.81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally
disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.82 The Court retains discretion whether or not to
allow a taxpayer's suit.83

In the case of a legislator or member of Congress, an act of the Executive that injures the institution
of Congress causes a derivative but nonetheless substantial injury that can be questioned by
legislators. A member of the House of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office.84

An organization may be granted standing to assert the rights of its members,85 but the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty
to preserve the rule of law does not suffice to clothe it with standing.86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an
interest of its own, and of the other LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention,88 such as a legal interest in the matter in litigation,
or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given the
liberal attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,89 where
technicalities of procedure were brushed aside, the constitutional issues raised being of paramount
public interest or of transcendental importance deserving the attention of the Court in view of their
seriousness, novelty and weight as precedents.90 The Court's forbearing stance on locus standi on
issues involving constitutional issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether
the other branches of government have kept themselves within the limits of the Constitution and the
laws and have not abused the discretion given them, has brushed aside technical rules of
procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury
that they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in
the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in
the ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus
beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would
have no standing as citizens and taxpayers for their failure to specify that they would be denied
some right or privilege or there would be wastage of public funds. The fact that they are a former
Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of
no consequence. Considering their invocation of the transcendental importance of the issues at
hand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation
that the issues involved in these petitions are of "undeniable transcendental importance" clothes
them with added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the
Senate and a citizen to enforce compliance by respondents of the public's constitutional right to be
informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the
success or failure of either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao
City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP
Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of
the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege
any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to
relax the procedural technicality on locus standi given the paramount public interest in the issues at
hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an

advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao;
and Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers,
allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the
petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein
stated. Such legal interest suffices to clothe them with standing.

B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the satisfaction of all the
reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that
"[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA."92

In lending credence to this policy decision, the Solicitor General points out that the President had
already disbanded the GRP Peace Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a
magical formula that automatically dissuades courts in resolving a case, it will decide cases,
otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution;95 (b) the
situation is of exceptional character and paramount public interest is involved;96 (c) the constitutional
issue raised requires formulation of controlling principles to guide the bench, the bar, and the
public;97 and (d) the case is capable of repetition yet evading review.98

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of
the activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily
ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and
determine the case and does not render the case moot especially when the plaintiff seeks damages
or prays for injunctive relief against the possible recurrence of the violation.99

The present petitions fall squarely into these exceptions to thus thrust them into the domain of
judicial review. The grounds cited above in David are just as applicable in the present cases as they
were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the
signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining
Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus
points," especially given its nomenclature, the need to have it signed or initialed by all the parties
concerned on August 5, 2008, and the far-reaching Constitutional implications of these
"consensus points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents
to amend and effect necessary changes to the existing legal framework for certain provisions
of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms
and provisions of the MOA-AD, but to other on-going and future negotiations and agreements
necessary for its realization. The petitions have not, therefore, been rendered moot and academic
simply by the public disclosure of the MOA-AD,102 the manifestation that it will not be signed as well
as the disbanding of the GRP Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a
significant part of the country's territory and the wide-ranging political modifications of affected LGUs.
The assertion that the MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no
longer legitimately constitute an actual case or controversy [as this] will do more harm than good to
the nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed
and eventually cancelled was a stand-alone government procurement contract for a national
broadband network involving a one-time contractual relation between two parties-the government
and a private foreign corporation. As the issues therein involved specific government procurement
policies and standard principles on contracts, the majority opinion in Suplico found nothing
exceptional therein, the factual circumstances being peculiar only to the transactions and parties
involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements necessary
to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain
Aspect of said Tripoli Agreement is the third such component to be undertaken following the
implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor
General, has stated that "no matter what the Supreme Court ultimately decides[,] the government
will not sign the MOA[-AD]," mootness will not set in in light of the terms of the Tripoli Agreement
2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the
Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could
contain similar or significantly drastic provisions. While the Court notes the word of the Executive
Secretary that the government "is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured," it is minded to
render a decision on the merits in the present petitions to formulate controlling principles to
guide the bench, the bar, the public and, most especially, the government in negotiating with
the MILF regarding Ancestral Domain.

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet
evading review" can override mootness, "provided the party raising it in a proper case has been
and/or continue to be prejudiced or damaged as a direct result of their issuance." They contend that
the Court must have jurisdiction over the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises
questions that need to be resolved.105 At all events, the Court has jurisdiction over most if not the rest
of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases.106 There is
a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga
del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of
Linamon, will again be subjected to the same problem in the future as respondents' actions are
capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents
having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of
the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have
procured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE
issues to be resolved, one relating to the manner in which the MOA-AD was negotiated and
finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the right
to information when they negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as

provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and
inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987
Constitution, has been recognized as a self-executory constitutional right.109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records
is predicated on the right of the people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political
significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic perception by the public of the
nation's problems, nor a meaningful democratic decision-making if they are denied access to
information of general interest. Information is needed to enable the members of society to cope with
the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x111

In the same way that free discussion enables members of society to cope with the exigencies of their
time, access to information of general interest aids the people in democratic decision-making by
giving them a better perspective of the vital issues confronting the nation112 so that they may be able
to criticize and participate in the affairs of the government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by the people.113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern114 faces
no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In
previous cases, the Court found that the regularity of real estate transactions entered in the Register
of Deeds,116 the need for adequate notice to the public of the various laws,117 the civil service
eligibility of a public employee,118 the proper management of GSIS funds allegedly used to grant
loans to public officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity
of party-list nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD
subject of the present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading
to the consummation of the contract. In not distinguishing as to the executory nature or commercial
character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the

consummation of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be too
late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which
may be grossly disadvantageous to the government or even illegal, becomes fait accompli.
This negates the State policy of full transparency on matters of public concern, a situation
which the framers of the Constitution could not have intended. Such a requirement will
prevent the citizenry from participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an
emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full
disclosure of all its transactions involving public interest."122 (Emphasis and italics in the
original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy
of public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of
access to information on matters of public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is a
mandate of the State to be accountable by following such policy.126 These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at all times accountable to
the people.127

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional

Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will
not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the
implementing law will have to be enacted by Congress, Mr. Presiding Officer.128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is
enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get
the Gentleman correctly as having said that this is not a self-executing provision? It would
require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment
from Commissioner Regalado, so that the safeguards on national interest are modified by
the clause "as may be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and
Congress may provide for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course,
Congress here may no longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a
statute. As Congress cannot revoke this principle, it is merely directed to provide for "reasonable
safeguards." The complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the broader130 right to information on matters of
public concern is already enforceable while the correlative duty of the State to disclose its
transactions involving public interest is not enforceable until there is an enabling law. Respondents
cannot thus point to the absence of an implementing legislation as an excuse in not effecting such
policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of

communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive
and be responsive to the people's will.131Envisioned to be corollary to the twin rights to information
and disclosure is the design for feedback mechanisms.
 MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to
participate? Will the government provide feedback mechanisms so that the people
can participate and can react where the existing media facilities are not able to
provide full feedback mechanisms to the government? I suppose this will be part of
the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses
take place. There is a message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public
officials but also network of private business o[r] community-based organizations that
will be reacting. As a matter of fact, we will put more credence or credibility on the private
network of volunteers and voluntary community-based organizations. So I do not think we
are afraid that there will be another OMA in the making.132(Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the
"marching orders" to respondents. The mechanics for the duty to disclose information and to conduct
public consultation regarding the peace agenda and process is manifestly provided by E.O. No.
3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by institutionalizing the people's
participation.

One of the three underlying principles of the comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and principles important to all Filipinos" and
"shall be defined not by the government alone, nor by the different contending groups only, but by all
Filipinos as one community."134 Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes "continuing consultations on both
national and local levels to build consensus for a peace agenda and process, and the mobilization
and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more than
sufficient consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to
"[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek
relevant information, comments, recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace process."137 E.O. No. 3 mandates the
establishment of the NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e
from the peace advocates, peace partners and concerned sectors of society on both national and
local levels, on the implementation of the comprehensive peace process, as well as for government[-
]civil society dialogue and consensus-building on peace agenda and initiatives."138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary
and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or
manner. It may, however, require him to comply with the law and discharge the functions within the
authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying
the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which
they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the
express mandate of the President is not much different from superficial conduct toward token
provisos that border on classic lip service.140 It illustrates a gross evasion of positive duty and a
virtual refusal to perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions
on continuing consultation and dialogue on both national and local levels. The executive order
even recognizes the exercise of the public's right even before the GRP makes its official
recommendations or before the government proffers its definite propositions.141 It bear emphasis that
E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the
people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their
unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally
complying with the Court's August 4, 2008 Resolution, without a prayer for the document's
disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad
cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to
"require all national agencies and offices to conduct periodic consultations with appropriate local
government units, non-governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective jurisdictions"142 is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by government

authorities unlessthe consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants
in areas where such projects are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the provisions of the
Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision
of the LGU apply only to national programs or projects which are to be implemented in a particular
local community. Among the programs and projects covered are those that are critical to the
environment and human ecology including those that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.145 The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests
are represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs
have, under the IPRA, the right to participate fully at all levels of decision-making in matters which
may affect their rights, lives and destinies.147 The MOA-AD, an instrument recognizing ancestral
domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said
Act,148 which entails, among other things, the observance of the free and prior informed consent of
the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or compromise. The
recognition of the ancestral domain is the raison d'etre of the MOA-AD, without which all other
stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping
declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR
of the MOA-AD, respondents clearly transcended the boundaries of their authority. As it
seems, even the heart of the MOA-AD is still subject to necessary changes to the legal framework.
While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the
legal framework, such clause is itself invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to be so if the country is to remain democratic, with
sovereignty residing in the people and all government authority emanating from them.149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much in the
oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing
legal framework to render effective at least some of its provisions. Respondents, nonetheless,
counter that the MOA-AD is free of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be considered later. For now, the Court shall
pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein
to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the present ARMM. Before assessing
some of the specific powers that would have been vested in the BJE, however, it would be useful to
turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to
this concept, indicating that the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and

paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD
most clearly uses it to describe the envisioned relationship between the BJE and the Central
Government.

4. The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive compact. A period of
 transition shall be established in a comprehensive peace compact specifying the relationship
between the Central Government and the BJE. (Emphasis and underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more precisely in
the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of
"association" in international law, and the MOA-AD - by its inclusion of international law instruments
in its TOR- placed itself in an international legal context, that concept of association may be brought
to bear in understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable
links. In the basic model, one state, the associate, delegates certain responsibilities to
the other, the principal, while maintaining its international status as a state. Free
associations represent a middle ground between integration and independence. x x
x150 (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of
Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,151 are
associated states of the U.S. pursuant to a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own
travel documents, which is a mark of their statehood. Their international legal status as states was
confirmed by the UN Security Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have
the capacity to conduct foreign affairs in their own name and right, such capacity extending to
matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and
cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult
with the governments of the Marshall Islands or the FSM on matters which it (U.S. government)
regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has
the authority and obligation to defend them as if they were part of U.S. territory. The U.S.
government, moreover, has the option of establishing and using military areas and facilities within
these associated states and has the right to bar the military personnel of any third country from
having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is understood as
an international association between sovereigns. The Compact of Free Association is a treaty which
is subordinate to the associated nation's national constitution, and each party may terminate the
association consistent with the right of independence. It has been said that, with the admission of the
U.S.-associated states to the UN in 1990, the UN recognized that the American model of free
association is actually based on an underlying status of independence.152

In international practice, the "associated state" arrangement has usually been used as a transitional
device of former colonies on their way to full independence. Examples of states that have passed
through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.153

Back to the MOA-AD, it contains many provisions which are consistent with the international legal
concept of association, specifically the following: the BJE's capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense. Moreover, the BJE's right
to participate in Philippine official missions bearing on negotiation of border agreements,
environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or
between the islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter
affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the
BJE the status of an associated state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
"associative" relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies
the recognition of the associated entity as a state. The Constitution, however, does not contemplate
any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for
its validity the amendment of constitutional provisions, specifically the following provisions of Article
X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures, and
other relevant characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.

The BJE is a far more powerful

entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but
name as it meets the criteria of a state laid down in the Montevideo Convention,154 namely,
a permanent population, a defined territory, a government, and a capacity to enter into relations with
other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it - which has betrayed itself by its use of the concept of association
- runs counter to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the
BJE being itself contrary to the present Constitution, it is not surprising that many of the
specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict
with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall
be effective when approved by a majority of the votes cast by the constituent units in a plebiscite
called for the purpose, provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it
is covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD
would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which
voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal - are automatically part of the BJE without need of another plebiscite, in
contrast to the areas under Categories A and B mentioned earlier in the overview. That the present
components of the ARMM and the above-mentioned municipalities voted for inclusion therein in
2001, however, does not render another plebiscite unnecessary under the Constitution, precisely
because what these areas voted for then was their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution
and national laws, the organic act of autonomous regions shall provide for legislative powers
over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare
of the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would
require an amendment that would expand the above-quoted provision. The mere passage of new
legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since
any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with
other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting
the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on
RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade
relations with foreign countries: provided, however, that such relationships and understandings do
not include aggression against the Government of the Republic of the Philippines x x x." Under our
constitutional system, it is only the President who has that power. Pimentel v. Executive
Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise transact
the business of foreign relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in
the MOA-AD is to be effected. That constitutional provision states: "The State recognizes and
promotes the rights of indigenous cultural communities within the framework of national unity and
development." (Underscoring supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties between the BJE and the
national government, the act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for independence, is certainly not conducive
to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing
statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM, and
the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition
of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those
who are natives or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants
whether mixed or of full blood. Spouses and their descendants are classified as
Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis
and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the
Organic Act, which, rather than lumping together the identities of the Bangsamoro and other
indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and
Tribal peoples, as follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino
citizens residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of
ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro
people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply
agree that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and
historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial
domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-
Palawan geographic region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the
following provisions thereof:

SECTION 52. Delineation Process. - The identification and delineation of ancestral domains
shall be done in accordance with the following procedures:

xxxx

b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated
by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation
filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including

census of all community members therein, shall be immediately undertaken by the Ancestral
Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be
done in coordination with the community concerned and shall at all times include genuine
involvement and participation by the members of the communities concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders
or community under oath, and other documents directly or indirectly attesting to the
possession or occupation of the area since time immemorial by such ICCs/IPs in the concept
of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries

entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting

grounds;
 9) Pictures and descriptive histories of traditional landmarks such as mountains,
rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact based
thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete
with technical descriptions, and a description of the natural features and landmarks
embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary census
and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the native
language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least
fifteen (15) days. A copy of the document shall also be posted at the local, provincial and
regional offices of the NCIP, and shall be published in a newspaper of general circulation
once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto
within fifteen (15) days from date of such publication: Provided, That in areas where no such
newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further,
That mere posting shall be deemed sufficient if both newspaper and radio station are not
available;

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection
process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a
favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is
deemed insufficient, the Ancestral Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed
patently false or fraudulent after inspection and verification: Provided, further, That in case of
rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on
the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a preliminary resolution of the
conflict, without prejudice to its full adjudication according to the section below.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in order,
for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the
Universal Declaration of Human Rights is part of the law of the land on account of which it ordered
the release on bail of a detained alien of Russian descent whose deportation order had not been
executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid
constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples," understood not
merely as the entire population of a State but also a portion thereof. In considering the question of
whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that
"the right of a people to self-determination is now so widely recognized in international conventions
that the principle has acquired a status beyond ‘convention' and is considered a general principle of
international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights161 and
the International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of
both covenants, that all peoples, by virtue of the right of self-determination, "freely determine their
political status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a

unilateral right of secession. A distinction should be made between the right of internal and external
self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination - a
people's pursuit of its political, economic, social and cultural development within the
framework of an existing state. A right to external self-determination (which in this
case potentially takes the form of the assertion of a right to unilateral secession)
arises in only the most extreme of cases and, even then, under carefully defined
circumstances. x x x

External self-determination can be defined as in the following statement from

the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or

integration with an independent State or the emergence into any other political status
freely determined by a peopleconstitute modes of implementing the right of self-
determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a

framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to self-determination
also contain parallel statements supportive of the conclusion that the exercise of such a right
must be sufficiently limited to prevent threats to an existing state's territorial integrity or the
stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign
domination or exploitation outside a colonial context, and - less definitely but asserted by a number
of commentators - is blocked from the meaningful exercise of its right to internal self-determination.
The Court ultimately held that the population of Quebec had no right to secession, as the same is
not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political
choices and pursue economic, social and cultural development, citing that Quebec is equitably
represented in legislative, executive and judicial institutions within Canada, even occupying
prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND
ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations the
question of whether the inhabitants of the Aaland Islands should be authorized to determine by
plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the
kingdom of Sweden. The Council, before resolving the question, appointed an International
Committee composed of three jurists to submit an opinion on the preliminary issue of whether the
dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The
Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of disposing
of national territory is essentially an attribute of the sovereignty of every State.
Positive International Law does not recognize the right of national groups, as such, to
separate themselves from the State of which they form part by the simple expression
of a wish, any more than it recognizes the right of other States to claim such a
separation. Generally speaking, the grant or refusal of the right to a portion of its
population of determining its own political fate by plebiscite or by some other method,
is, exclusively, an attribute of the sovereignty of every State which is definitively
constituted. A dispute between two States concerning such a question, under normal
conditions therefore, bears upon a question which International Law leaves entirely to the
domestic jurisdiction of one of the States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the risk of creating difficulties
and a lack of stability which would not only be contrary to the very idea embodied in term
"State," but would also endanger the interests of the international community. If this right is
not possessed by a large or small section of a nation, neither can it be held by the State to
which the national group wishes to be attached, nor by any other State. (Emphasis and
underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which
is left by international law to the domestic jurisdiction of Finland, thereby applying the exception
rather than the rule elucidated above. Its ground for departing from the general rule, however, was a
very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal situation of Finland was, according to the
Committee, so abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the
Finnish national government was disputed by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying out its duties. The armed camps and
the police were divided into two opposing forces. In light of these circumstances, Finland was not,
during the relevant time period, a "definitively constituted" sovereign state. The Committee,
therefore, found that Finland did not possess the right to withhold from a portion of its population the
option to separate itself - a right which sovereign nations generally have with respect to their own
populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in
scholarship as well as international, regional, and state practices, to refer to groups with distinct
cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded as "indigenous" since they
are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise
stated, indigenous peoples, nations, or communities are culturally distinctive groups that find
themselves engulfed by settler societies born of the forces of empire and conquest.164 Examples of
groups who have been regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not have a
general right to independence or secession from those states under international law,165 but they do
have rights amounting to what was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United
Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor,
and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration
clearly recognized the right of indigenous peoples to self-determination, encompassing the
right to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right

to autonomy or self-government in matters relating to their internal and local affairs,
as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions, while retaining their right to participate fully, if they
so choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been
understood as equivalent to "internal self-determination."166 The extent of self-determination provided
for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted
hereunder:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or
undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic

discrimination directed against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of education, employment,
vocational training and retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special measures to ensure
continuing improvement of their economic and social conditions. Particular attention shall be
paid to the rights and special needs of indigenous elders, women, youth, children and
persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources.
Such recognition shall be conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested by
the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative institutions,
prior to using their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for
the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other
 resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities,
and appropriate measures shall be taken to mitigate adverse environmental, economic,
social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of

indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate
measures, including legislative measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded
as embodying customary international law - a question which the Court need not definitively resolve
here - the obligations enumerated therein do not strictly require the Republic to grant the
Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers
provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope,
allowing for flexibility in its application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous
peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the State
which will provide protection for indigenous peoples against acts like the forced dispossession of
their lands - a function that is normally performed by police officers. If the protection of a right so
essential to indigenous people's identity is acknowledged to be the responsibility of the State, then
surely the protection of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the
aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources which they have traditionally owned,
occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not
obligate States to grant indigenous peoples the near-independent status of an associated state. All
the rights recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people, group
or person any right to engage in any activity or to perform any act contrary to the Charter of
the United Nations or construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2
of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its
compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not have entailed any violation of law or grave
abuse of discretion on their part, precisely because it stipulates that the provisions thereof
inconsistent with the laws shall not take effect until these laws are amended. They cite paragraph 7
of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for
convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation of
this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps
to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming
into force until the necessary changes to the legal framework are effected. While the word
"Constitution" is not mentioned in the provision now under consideration or anywhere else in
the MOA-AD, the term "legal framework" is certainly broad enough to include the
Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in
the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the
Central Government, have already violated the Memorandum of Instructions From The President
dated March 1, 2001, which states that the "negotiations shall be conducted in accordance with x x x
the principles of the sovereignty and territorial integrityof the Republic of the Philippines."
(Emphasis supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or worse, an
implicit acknowledgment of an independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because
the suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No.
3, Section 5(c), which states that there shall be established Government Peace Negotiating Panels
for negotiations with different rebel groups to be "appointed by the President as her official
emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups."
These negotiating panels are to report to the President, through the PAPP on the conduct and
progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through
its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under
the laws as they presently stand. One of the components of a comprehensive peace process, which
E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of
E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,167 states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace
process comprise the processes known as the "Paths to Peace". These component
processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may not be
limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component

involves the vigorous implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed conflicts and social
unrest. This may require administrative action, new legislation or even constitutional
amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address,

pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O.
authorized them to "think outside the box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic, and political reforms which cannot,
however, all be accommodated within the present legal framework, and which thus would require
new legislation and constitutional amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must
be asked whether the President herself may exercise the power delegated to the GRP Peace
Panel under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the
course of peace negotiations, agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only to those solutions which the
present laws allow? The answer to this question requires a discussion of the extent of the
President's power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v.
Executive Secretary,168 in issue was the authority of the President to declare a state of rebellion - an
authority which is not expressly provided for in the Constitution. The Court held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence.
There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of
her exiled predecessor. The rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
 commander-in-chief clause, but not a diminution of the general grant of executive
power.

Thus, the President's authority to declare a state of rebellion springs in the main from
her powers as chief executive and, at the same time, draws strength from her
Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as
Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general
responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty
to prevent and suppress rebellion and lawless violence.169

As the experience of nations which have similarly gone through internal armed conflict will show,
however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-
reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form the
core of any post-conflict peace-building mission. As we have observed in Liberia and Haiti
over the last ten years, conflict cessation without modification of the political environment,
even where state-building is undertaken through technical electoral assistance and
institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of
states emerging from conflict return to conflict. Moreover, a substantial proportion of
transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important role in
the political and governance transition. Constitution-making after conflict is an opportunity to
create a common vision of the future of a state and a road map on how to get there. The
constitution can be partly a peace agreement and partly a framework setting up the rules by
which the new democracy will operate.170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm mechanisms
for demilitarization and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights institutions.171

In the Philippine experience, the link between peace agreements and constitution-making has been
recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution
on autonomous regions172 is the framers' intention to implement a particular peace agreement,
namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I will
reserve my right to ask them if they are not covered by the other speakers. I have only two
questions.

I heard one of the Commissioners say that local autonomy already exists in the
Muslim region; it is working very well; it has, in fact, diminished a great deal of the
problems. So, my question is: since that already exists, why do we have to go into
something new?
 MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is merely a
partial response to the Tripoli Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state policy.173(Emphasis
supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the
credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with
the reality of an on-going conflict between the Government and the MILF. If the President is to be
expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao,
then she must be given the leeway to explore, in the course of peace negotiations, solutions that
may require changes to the Constitution for their implementation. Being uniquely vested with the
power to conduct peace negotiations with rebel groups, the President is in a singular position to
know the precise nature of their grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but
she may not be prevented from submitting them as recommendations to Congress, which could
then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment
and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and
3 of the Constitution, to propose the recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question of calling such a convention.

While the President does not possess constituent powers - as those powers may be exercised only
by Congress, a Constitutional Convention, or the people through initiative and referendum - she may
submit proposals for constitutional change to Congress in a manner that does not involve the
arrogation of constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly
submitting proposals for constitutional amendments to a referendum, bypassing the interim National
Assembly which was the body vested by the 1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never convened the interim National Assembly.
The majority upheld the President's act, holding that "the urges of absolute necessity" compelled the
President as the agent of the people to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling, Justices Teehankee and Muñoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the point on
which it was then divided in that controversial case, but on that which was not disputed by either
side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President
may directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a
recognition that he would have upheld the President's action along with the majority had the
President convened the interim National Assembly and coursed his proposals through it. Thus
Justice Teehankee opined:

"Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the President's questioned
decrees proposing and submitting constitutional amendments directly to the people (without
 the intervention of the interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis."176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of
conducting peace negotiations - may validly consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally implement them without the intervention
of Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose
amendments through initiative and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to
what President Marcos did in Sanidad, but for their independent consideration of whether these
recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions to
the people, for any further involvement in the process of initiative by the Chief Executive may vitiate
its character as a genuine "people's initiative." The only initiative recognized by the Constitution is
that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:177

"The Lambino Group claims that their initiative is the ‘people's voice.' However, the Lambino
Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their
petition with the COMELEC, that ‘ULAP maintains its unqualified support to the agenda of
Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino
Group thus admits that their ‘people's' initiative is an ‘unqualified support to the
agenda' of the incumbent President to change the Constitution. This forewarns the Court to
be wary of incantations of ‘people's voice' or ‘sovereign will' in the present initiative."

It will be observed that the President has authority, as stated in her oath of office,178 only to preserve
and defend the Constitution. Such presidential power does not, however, extend to allowing her to
change the Constitution, but simply to recommend proposed amendments or revision. As long as
she limits herself to recommending these changes and submits to the proper procedure for
constitutional amendments and revision, her mere recommendation need not be construed as an
unconstitutional act.

The foregoing discussion focused on the President's authority to

propose constitutional amendments, since her authority to propose new legislation is not in
controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new
legislation. One of the more prominent instances the practice is usually done is in the yearly State of
the Nation Address of the President to Congress. Moreover, the annual general appropriations bill
has always been based on the budget prepared by the President, which - for all intents and
purposes - is a proposal for new legislation coming from the President.179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards

Given the limited nature of the President's authority to propose constitutional amendments,
she cannot guaranteeto any third party that the required amendments will eventually be put in
place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which
cannot be reconciled with the present Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework." This
stipulation does not bear the marks of a suspensive condition - defined in civil law as a future
and uncertain event - but of a term. It is not a question of whether the necessary changes to the
legal framework will be effected, but when. That there is no uncertainty being contemplated is plain
from what follows, for the paragraph goes on to state that the contemplated changes shall be "with
due regard to non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal
framework contemplated in the MOA-AD - which changes would include constitutional amendments,
as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among the
"prior agreements" from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing
details for these "consensus points" and, notably, the deadline for effecting the contemplated
changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the

President's authority to propose constitutional amendments, it being a virtual guarantee that
the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform
to all the "consensus points" found in the MOA-AD. Hence, it must be struck down
as unconstitutional.

A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in
the 1996 final peace agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two
phases. Phase Icovered a three-year transitional period involving the putting up of new
administrative structures through Executive Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the
ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-
AD virtually guarantees that the "necessary changes to the legal framework" will be put in
place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase
II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing
law."

Concerns have been raised that the MOA-AD would have given rise to a binding international law
obligation on the part of the Philippines to change its Constitution in conformity thereto, on the
ground that it may be considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international community that it would grant
to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support
in international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries
as signatories. In addition, representatives of other nations were invited to witness its signing in
Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had
the status of a binding international agreement had it been signed. An examination of the prevailing
principles in international law, however, leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord case) of the
Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace agreement signed on
July 7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had been in armed conflict for around eight
years at the time of signing. There were non-contracting signatories to the agreement, among which
were the Government of the Togolese Republic, the Economic Community of West African States,
and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the
Sierra Leone Government, another agreement was entered into by the UN and that Government
whereby the Special Court of Sierra Leone was established. The sole purpose of the Special Court,
an international court, was to try persons who bore the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone
since November 30, 1996.

Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the
RUF with respect to anything done by them in pursuit of their objectives as members of that
organization since the conflict began.

In the Lomé Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among
other things, the participation of foreign dignitaries and international organizations in the finalization
of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord
is not a treaty and that it can only create binding obligations and rights between the parties in
municipal law, not in international law. Hence, the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy
to assume and to argue with some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in addition to the parties to the
conflict, the document formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international organizations, means the
agreement of the parties is internationalized so as to create obligations in
international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the mediator or
facilitator of the settlement, or persons or bodies under whose auspices the settlement took
place but who are not at all parties to the conflict, are not contracting parties and who do not
claim any obligation from the contracting parties or incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and the
RUF which has no status of statehood and is to all intents and purposes a faction
within the state. The non-contracting signatories of the Lomé Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this
peace agreement is implemented with integrity and in good faith by both parties". The
moral guarantors assumed no legal obligation. It is recalled that the UN by its
 representative appended, presumably for avoidance of doubt, an understanding of the extent
of the agreement to be implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and obligations
regulated by international law so that a breach of its terms will be a breach determined under
international law which will also provide principle means of enforcement. The Lomé
Agreement created neither rights nor obligations capable of being regulated by
international law. An agreement such as the Lomé Agreement which brings to an end
an internal armed conflict no doubt creates a factual situation of restoration of peace
that the international community acting through the Security Council may take note
of. That, however, will not convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from municipal, law. A breach
of the terms of such a peace agreement resulting in resumption of internal armed conflict or
creating a threat to peace in the determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited with possible legal consequences
arising from the new situation of conflict created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from the situation and not from the agreement,
nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the
breach. A peace agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international armed conflict which,
essentially, must be between two or more warring States. The Lomé Agreement
cannot be characterised as an international instrument. x x x" (Emphasis, italics and
underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international
organizations not parties to the Agreement would not have sufficed to vest in it a binding character
under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration
of the Philippine State, binding under international law, that it would comply with all the stipulations
stated therein, with the result that it would have to amend its Constitution accordingly regardless of
the true will of the people. Cited as authority for this view is Australia v. France,181 also known as
the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests
in the South Pacific. France refused to appear in the case, but public statements from its President,
and similar statements from other French officials including its Minister of Defence, that its 1974
series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case.182 Those
statements, the ICJ held, amounted to a legal undertaking addressed to the international community,
which required no acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the
international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning legal or
factual situations, may have the effect of creating legal obligations. Declarations of this kind
may be, and often are, very specific. When it is the intention of the State making the
declaration that it should become bound according to its terms, that intention confers
on the declaration the character of a legal undertaking, the State being thenceforth
legally required to follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be bound, even though not
made within the context of international negotiations, is binding. In these circumstances,
 nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration,
nor even any reply or reaction from other States, is required for the declaration to take effect,
since such a requirement would be inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take
up a certain position in relation to a particular matter with the intention of being
bound-the intention is to be ascertained by interpretation of the act. When States make
statements by which their freedom of action is to be limited, a restrictive interpretation is
called for.

xxxx

51. In announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests. It was bound to assume that other States
might take note of these statements and rely on their being effective. The validity of
these statements and their legal consequences must be considered within the general
framework of the security of international intercourse, and the confidence and trust
which are so essential in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects of these statements
are clear and they were addressed to the international community as a whole, and the
Court holds that they constitute an undertaking possessing legal effect. The Court
considers *270 that the President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to which his words
were addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may
be construed as a unilateral declaration only when the following conditions are present: the
statements were clearly addressed to the international community, the state intended to be bound to
that community by its statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in
peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by
the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute.
The public declaration subject of that case was a statement made by the President of Mali, in an
interview by a foreign press agency, that Mali would abide by the decision to be issued by a
commission of the Organization of African Unity on a frontier dispute then pending between Mali and
Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a
unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the
peculiar circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be taken
of all the factual circumstances in which the act occurred. For example, in the Nuclear
Tests cases, the Court took the view that since the applicant States were not the only
ones concerned at the possible continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had ‘conveyed to the world at
large, including the Applicant, its intention effectively to terminate these tests‘ (I.C.J.
 Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those
cases, the French Government could not express an intention to be bound otherwise
than by unilateral declarations. It is difficult to see how it could have accepted the
terms of a negotiated solution with each of the applicants without thereby
jeopardizing its contention that its conduct was lawful. The circumstances of the
present case are radically different. Here, there was nothing to hinder the Parties from
manifesting an intention to accept the binding character of the conclusions of the
Organization of African Unity Mediation Commission by the normal method: a formal
agreement on the basis of reciprocity. Since no agreement of this kind was concluded
between the Parties, the Chamber finds that there are no grounds to interpret the declaration
made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in
regard to the present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the international community. The Philippine panel
did not draft the same with the clear intention of being bound thereby to the international community
as a whole or to any State, but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD,
they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé
Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is
signed by representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such
commitments would not be detrimental to the security of international intercourse - to the trust and
confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina
Faso wherein, as already discussed, the Mali President's statement was not held to be a binding
unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine
panel, had it really been its intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of
a clear commitment to be legally bound to the international community, not just the MILF, and by an
equally clear indication that the signatures of the participating states-representatives would
constitute an acceptance of that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the international community, which
was one of the difficulties that prevented the French Government from entering into a formal
agreement with other countries. That the Philippine panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under international law.

The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies
not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within
a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino
people would give their imprimatur to their solution. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory
to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the
change is not inconsistent with what, in international law, is known as Jus Cogens.184 Respondents,
however, may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government
units or communities affected constitutes a departure by respondents from their mandate under E.O.
No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David
v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present
petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation
of the Constitution involved; (b) the exceptional character of the situation and paramount public
interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public;
and (d) the fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF
Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the
present MOA-AD can be renegotiated or another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the
respondents' action in providing the Court and the petitioners with the official copy of the final draft of
the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the
Constitution is in splendid symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody demands. The complete and effective
exercise of the right to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to reasonable safeguards or
limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the
highest order. In declaring that the right to information contemplates steps and negotiations leading
to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or process of

communication between the government and the people. Corollary to these twin rights is the design
for feedback mechanisms. The right to public consultation was envisioned to be a species of these
public rights.
At least three pertinent laws animate these constitutional imperatives and justify the exercise of the
people's right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and
local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential
Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations before any project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality,
is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of inhabitants from their total
environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut
procedure for the recognition and delineation of ancestral domain, which entails, among other things,
the observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or
any government agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information
or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of
executive secrecy. In any event, respondents effectively waived such defense after it unconditionally
disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public
scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No.
7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and
a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the
present legal framework will not be effective until that framework is amended, the same does not
cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship
between the BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001, addressed to the government peace panel.
Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the
President herself is authorized to make such a guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue influence or
interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding
on the Philippines under international law, respondents' act of guaranteeing amendments is, by
itself, already a constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are
GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 is declared contrary to law and the Constitution.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice
ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice
RENATO C. CORONA ADOLFO S. AZCUNA
Associate Justice Associate Justice
DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice
RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice
ARTURO D. BRION
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

REYNATO S. PUNO
Chief Justice

Separate Concurring Opinion - C.J. Puno, J. Ynares-Santiago, J. Carpio

Separate Concurring and Dissenting Opinion - J. Leonardo-De Castro, J. Brion
Separate Opinion - J. Azcuna, J. Tinga, J. Chico-Nazario, J. Reyes
Dissenting Opinion - J. Velasco, Jr., J. Nachura

Footnotes

1Eric Gutierrez and Abdulwahab Guialal, The Unfinished Jihad: The Moro Islamic Liberation
Front and Peace in Mindanao in Rebels, Warlords and Ulama: A Reader on Muslim
Separatism and the War in Southern Philippines 275 (1999).

2 Memorandum of Respondents dated September 24, 2008, p. 10.

3
Memorandum of Respondents dated September 24, 2008, pp. 10-11.

4Vide Salah Jubair, The Long Road to Peace: Inside the GRP-MILF Peace Process 35-36
(2007).

5 Memorandum of Respondents dated September 24, 2008, p. 12.

6Vide Salah Jubair, The Long Road to Peace: Inside the GRP-MILF Peace Process 40-41
(2007).

7Composed of its Chairperson, Sec. Rodolfo Garcia, and members, Atty. Leah Armamento,
Atty. Sedfrey Candelaria, with Mark Ryan Sullivan as Secretariat head.

8
Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piñol.

9 Rollo (G.R. No. 183591), pp. 3-33.

10Supplement to Petition (with motion for leave) of August 11, 2008, rollo (G.R. No. 183591),
pp. 143-162.

11 Rollo (G.R. No. 183752), pp. 3-28.

12 Represented by Mayor Celso L. Lobregat.

13 Rollo (G.R. No. 183591), pp. 132-135; rollo (G.R. No. 183752), pp. 68-71.

14 Rollo (G.R. No. 183591), pp. 130-131; rollo (G.R. No. 183752), pp. 66-67.

15 Rollo (G.R. No. 183752), pp. 173-246.

16 Represented by Mayor Lawrence Lluch Cruz.

17 Represented by Governor Rolando Yebes.

18Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico Mejorada II, Edionar
Zamoras, Edgar Baguio, Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero,
Norbideiri Edding, Anecito Darunday, Angelica Carreon, and Luzviminda Torrino.

19 Rollo (G.R. No. 183951), pp. 3-33.

20 Rollo (G.R. No. 183962), pp. 3- 20.

21 Represented by Mayor Cherrylyn Santos-Akbar.

22 Represented by Gov. Suharto Mangudadatu.

23 Represented by Mayor Noel Deano.

24 Rollo (G.R. No. 183591), pp. 451-453.

25R.A. No. 6734, as amended by R.A. 9054 entitled An Act to Strengthen and Expand the
organic act for the Autonomous Region in Muslim Mindanao, Amending for the purpose
republic act no. 6734, entitled an act of providing for the autonomous region in muslim
mindanao, as amended.

26R.A. No. 8371, An act to recognize, protect and promote the rights of indigenous cultural
communities/indigenous peoples, creating a national commission on indigenous peoples,
establishing implementing mechanisms, appropriating funds therefor, and for other purposes,
October 29, 1997.

27Cesar Adib Majul, The General Nature of Islamic Law and its Application in the Philippines,
lecture delivered as part of the Ricardo Paras Lectures, a series jointly sponsored by the
Commission on Bar Integration of the Supreme Court, the Integrated Bar of the Philippines
and the U.P. Law Center, September 24, 1977.

28Ibid., vide M.A. Muqtedar Khan Ph.D., immigrant American Muslims and the Moral
Dilemmas of Citizenship, http://www.islamfortoday.com/khan04.htm, visited on September
18, 2008, and Syed Shahabuddin, Muslim World and the contemporary Ijma' on rules of
governance - ii, http://www.milligazette.com/Archives/2004/01-15May04-Print-
Edition/0105200471.htm, visited on September 18, 2008.

29 MOA-AD Terms of Reference.

30 MOA-AD, Concepts and Principles, par. 1.

31A traditional Muslim historical account of the acts of Shariff Kabungsuwan is quoted by
historian Cesar Adib Majul in his book, Muslims in the Philippines (1973):

After a time it came to pass that Mamalu, who was the chief man next to
Kabungsuwan, journeyed to Cotabato. He found there that many of the people had
ceased to regard the teachings of the Koran and had fallen into evil ways. Mamamlu
sent to Kabungsuwan word of these things.

Kabungsuwan with a portion of his warriors went from Malabang to Cotabato and
found that the word sent to him by Mamamlu was true. Then he assembled together
all the people. Those of them, who had done evilly and disregarded the teachings of
the Koran thenceforth, he drove out of the town into the hills, with their wives and
children.

Those wicked one who were thus cast out were the beginnings of the tribes of the
Tirurais and Manobos, who live to the east of Cotabato in the country into which their
evil forefathers were driven. And even to this day they worship not God; neither do
they obey the teachings of the Koran . . . But the people of Kabungsuwan, who
regarded the teachings of the Koran and lived in fear of God, prospered and
increased, and we Moros of today are their descendants. (Citation omitted, emphasis
supplied).

32 Id., par. 2.

33 Id., par. 3.

34 Id., par. 4.

Francisco L. Gonzales, Sultans of a Violent Land, in Rebels, Warlords and Ulama: A

35

Reader on Muslim Separatism and the War in Southern Philippines 99, 103 (1999).

36The Charter of the Assembly of First Nations, the leading advocacy group for the
indigenous peoples of Canada, adopted in 1985, begins thus:

"WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN CANADA HAVING

DECLARED:
THAT our peoples are the original peoples of this land having been put here by the
Creator; x x x."

37 Id., par. 6.

38 MOA-AD, Territory, par. 1.

39 Id., par. 2(c).

40 Id., par. 2(d).

41 Id., par. 2(e).

42 Id., par. 2(f).

43 Id., par, 2(g)(1).

44 Id., par. 2(h).

45 Id., par. 2(i).

46 MOA-AD, Resources, par. 4.

47 Ibid.

48 Id., par. 5.

49 Id., par. 6.

50 Id., par. 7.

51 Id., par. 9.

52 MOA-AD, Governance, par. 3.

53"IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,]
hereby affix their signatures."

54 Vide 1987 Constitution, Article VIII, Section 1.

55 Vide Muskrat v. US, 219 US 346 (1911).

56 Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).

Didipio Earth Savers' Multi-Purpose Association, Incorporated (DESAMA) v. Gozun, G.R.

57

No. 157882, March 30, 2006, 485 SCRA 286.

58 Vide U.S. v. Muskrat, 219 U.S. 346, 357 (1902).

59 Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998).

Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901-902 (2003) (citation
60

omitted).

61 Vide Warth v. Seldin, 422 US 490, 511 (1975).

62 Vide id. at 526.

63 Solicitor General's Comment to G.R. No. 183752, pp. 9-11.

64 MOA-AD, pp. 3-7, 10.

65 391 Phil. 43 (2000).

66 Id. at 107-108.
67 530 US 290 (2000).

68 Id. at 292.

69 505 U.S. 144 (1992).

70 Id. at 175.

71Although only one petition is denominated a petition for certiorari, most petitions pray that
the MOA-AD be declared unconstitutional/null and void.

72 Vide Rules of Court, Rule 65, Secs. 1 and 2.

73 Vide Rules of Court, Rule 65, Sec. 3.

74 Tañada v. Angara, 338 Phil. 546, 575 (1997).

75Entitled Defining Policy and Administrative Structure for Government's Peace Efforts which
reaffirms and reiterates Executive Order No. 125 of September 15, 1993.

76 E.O. No. 3, (2001), Sec. 1.

77 Vide Tañada v. Angara, supra note 74.

78 Baker v. Carr, 369 U.S. 186 (1962).

79 Vicente V. Mendoza , Judicial Review of Constitutional Questions 137 (2004).

80 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003).

81 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 223.

82 Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995).

83 Macasiano v. NHA, G.R. No. 107921, July 1, 1993, 224 SCRA 236.

Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 328-329 (2000) citing Phil.
84

Constitution Ass'n., Inc. v. Mathay, et al., 124 Phil. 890 (1966).

85 Vide NAACP v. Alabama, 357 U.S. 449 (1958).

86 Francisco, Jr. v. The House of Representatives, supra note 80.

87 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) citing Gibson v. Judge
88

Revilla, 180 Phil. 645 (1979).

89 Supra note 81.

90 Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 (2000).

91 Tatad v. Secretary of Energy, 346 Phil. 321 (1997).

92 Vide Compliance of September 1, 2008 of respondents.

93 Vide Manifestation of September 4, 2008 of respondents.

94 Supra note 81.

95 Id. citing Province of Batangas v. Romulo, supra note 87.

96 Id. citing Lacson v. Perez, 410 Phil. 78 (2001).

97 Id. citing Province of Batangas v. Romulo, supra note 87.

Id. citing Albaña v. Comelec, 478 Phil. 941 (2004); Chief Supt. Acop v. Guingona Jr., 433
98

Phil. 62 (2002); SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482 (2004).

99US v. W.T. Grant Co., 345 U.S. 629 (1953); US v. Trans-Missouri Freight Assn, 166 U.S.
290, 308-310 (1897); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43 (1944); Gray v.
Sanders, 372 U.S. 368, 376 (1963); Defunis v. Odegaard, 416 U.S. 312 (1974).

100 Supra note 87.

101 G.R. No. 178920, October 15, 2007, 536 SCRA 290.

102 Chavez v. PCGG, 366 Phil. 863, 871 (1999).

103 G.R. No. 178830, July 14, 2008.

104 Supra note 98.

Ortega v. Quezon City Government, G.R. No. 161400, September 2, 2005, 469 SCRA
105

388.

Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III, 343 Phil. 184 (1997); Chief
106

Superintendent Acop v. Guingona, Jr., supra note 98; Roble Arrastre, Inc. v. Villaflor, G.R.
No. 128509, August 22, 2006, 499 SCRA 434, 447.

107 Constitution, Article III, Sec. 7.

108 80 Phil. 383 (1948).

109 Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530.

110 162 Phil. 868 (1976).

111 Baldoza v. Dimaano, supra at 876.

112 Legaspi v. Civil Service Commission, supra note 109.

113 Chavez v. PCGG, 360 Phil 133, 164 (1998).

114 In Legaspi v. Civil Service Commission, supra note 109 at 541, it was held that:

In determining whether or not a particular information is of public concern there is no rigid

test which can be applied. `Public concern' like `public interest' is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to
determine on a case by case basis whether the matter at issue is of interest or importance,
as it relates to or affects the public.

115 Respondents' Comment of August 4, 2008, p. 9.

116 Subido v. Ozaeta, supra note 108.

Tañada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Tañada, v. Hon. Tuvera, 230
117

Phil. 528 (1986).

118 Legaspi v. Civil Service Commission, supra note 109.

119 Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170 SCRA 256.

120 Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102.

Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 177271, May 4,
121

2007, 523 SCRA 1.

122 Chavez v. Public Estates Authority, 433 Phil. 506, 532-533 (2002).

123Vide V Record, Constitutional Commission 26-28 (September 24, 1986) which is replete
with such descriptive phrase used by Commissioner Blas Ople.

124 Constitution, Article II, Sec. 28.

Bernas, Joaquin, The 1987 Constitution of the Republic of the Philippines: A Commentary
125

100 (2003).

126 Vide Bernas, Joaquin, The Intent of the 1986 Constitution Writers 155 (1995).

127 Vide Chavez v. Public Estates Authority, supra note 122.

128 V Record, Constitutional Commission 25 (September 24, 1986).

129V Record, Constitutional Commission 28-29 (September 24, 1986). The phrase
"safeguards on national interest" that may be provided by law was subsequently replaced by
"reasonable conditions," as proposed by Commissioner Davide [vide V Record,
Constitutional Commission 30 (September 24, 1986)].
 In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA
130

235, 331, the Court stated:

x x x The duty to disclose covers only transactions involving public interest, while the
duty to allow access has a broader scope of information which embraces not only
transactions involving public interest, but any matter contained in official
communications and public documents of the government agency. (Underscoring
supplied)

131 Valmonte v. Belmonte, Jr., supra note 119.

132 V Record, Constitutional Commission 28, 30 (September 24, 1986).

133
Supra note 55.

134 Executive Order No. 3 (2001), Sec. 3 (a).

135 Executive Order No. 3 (2001), Sec. 4 (b).

136 Respondents' Memorandum of September 24, 2008, p. 44.

137 Executive Order No. 3 (2001), Sec. 5 (b), par. 6.

138 Executive Order No. 3 (2001), Sec. 8, see also Sec. 10.

139Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7, 1989, 177 SCRA 374,
382-384 where it was held that the Omnibus Investment Code of 1987 mandates the holding
of consultations with affected communities, whenever necessary, on the acceptability of
locating the registered enterprise within the community.

In their Memorandum, respondents made allegations purporting to show that

140

consultations were conducted on August 30, 2001 in Marawi City and Iligan City, on
September 20, 2001 in Midsayap, Cotabato, and on January 18-19, 2002 in Metro Manila.
(Memorandum of September 24, 2008, p. 13)

141 Cf. Chavez v. Public Estates Authority, supra note 120.

142 Republic Act No. 7160, Sec. 2(c).

143 Republic Act No. 7160, Sec. 27.

144 416 Phil. 438 (2001).

Id.; vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243, November 29, 2006, 508
145

SCRA 498; Cf. Bangus Fry Fisherfolk v. Lanzanas, 453 Phil. 479 (2002).

146Vide MOA-AD "Concepts and Principles," pars. 2 & 7 in relation to "Resources," par. 9
where vested property rights are made subject to the cancellation, modification and review
by the Bangsamoro Juridical Entity.
147 Republic Act No. 8371 or "The Indigenous Peoples Rights Act of 1997," Sec. 16.

148 Id., Sec. 3 (g), Chapter VIII, inter alia.

149 Tañada v. Tuvera, No. L-63915, December 29, 1986, 146 SCRA 446, 456.

150 C.I. Keitner and W.M. Reisman, Free Association: The United States Experience, 39 Tex.
Int'l L.J. 1 (2003).

"The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the
151

Marshall Islands, and the Northern Mariana Islands, which extend east of the Philippines and
northeast of Indonesia in the North Pacific Ocean." (Ibid.)

H. Hills, Free Association for Micronesia and the Marshall islands: A Political Status
152

Model, 27 U. Haw. L. Rev. 1 (2004).

153 Henkin, et al., International Law: Cases and Materials, 2nd ed., 274 (1987).

Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S.
154

19.

155 G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.

156An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim
Mindanao, Amending for the purpose Republic Act No. 6734, Entitled ‘An Act Providing for
the Autonomous Region in Muslim Mindanao,' as Amended, March 31, 2001.

An Act To Recognize, Protect And Promote The Rights Of Indigenous Cultural

157

Communities/Indigenous Peoples, Creating A National Commission On Indigenous Peoples,

Establishing Implementing Mechanisms, Appropriating Funds Therefor, And For Other
Purposes, October 29, 1997.

158 90 Phil. 70, 73-74 (1951).

159 177 Phil. 160, 178-179 (1979).

160 2 S.C.R. 217 (1998).

161 999 U.N.T.S. 171 (March 23, 1976).

162 993 U.N.T.S. 3 (January 3, 1976).

163 League of Nations Official Journal, Special Supp. No. 3 (October 1920).

164Lorie M. Graham, Resolving Indigenous Claims To Self-Determination, 10 ILSA J. Int'l &

Comp. L. 385 (2004). Vide S. James Anaya, Superpower Attitudes Toward Indigenous
Peoples And Group Rights, 93 Am. Soc'y Int'l L. Proc. 251 (1999): "In general, the term
indigenous is used in association with groups that maintain a continuity of cultural identity
with historical communities that suffered some form of colonial invasion, and that by virtue of
that continuity of cultural identity continue to distinguish themselves from others."
 Catherine J. Iorns, Indigenous Peoples And Self Determination: Challenging State
165

Sovereignty, 24 Case W. Res. J. Int'l L. 199 (1992).

166Federico Lenzerini, "Sovereignty Revisited: International Law And Parallel Sovereignty Of

Indigenous Peoples," 42 Tex. Int'l L.J. 155 (2006). Vide Christopher J. Fromherz, Indigenous
Peoples' Courts: Egalitarian Juridical Pluralism, Self-Determination, And The United Nations
Declaration On The Rights Of Indigenous Peoples, 156 U. Pa. L. Rev. 1341 (2008): "While
Australia and the United States made much of the distinction between ‘self-government' and
‘self-determination' on September 13, 2007, the U.S. statement to the UN on May 17, 2004,
seems to use these two concepts interchangeably. And, indeed, under the DRIP [Declaration
on the Rights of Indigenous Peoples], all three terms should be considered virtually
synonymous. Self-determination under the DRIP means ‘internal self-determination' when
read in conjunction with Article 46, and ‘self-government,' articulated in Article 4, is the core
of the ‘self-determination.'"

Defining The Approach And Administrative Structure For Government's Comprehensive

167

Peace Efforts, September 15, 1993.

168 466 Phil. 482, 519-520 (2004).

169 Constitution, Article VII, Sec. 18.

170Kirsti Samuels, Post-Conflict Peace-Building And Constitution-Making, 6 Chi. J. Int'l L. 663

(2006).

171Christine Bell, Peace Agreements: Their Nature And Legal Status, 100 Am. J. Int'l L. 373
(2006).

172 Constitution, Article X, Sections 15-21.

173 III Record, Constitutional Commission, 180 (August 11, 1986).

174 165 Phil. 303 (1976).

175 Id. at 412.

176 Id. at 413.

177 G.R. No. 174153, October 25, 2006, 505 SCRA 160, 264-265.

178 Constitution, Art. VII, Sec. 5.

179Article VI, Section 25 (1) of the Constitution states as follows: "The Congress may not
increase the appropriations recommended by the President for the operation of the
Government as specified in the budget. The form, content, and manner of preparation of the
budget shall be prescribed by law."

Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-

180

AR72(E), March 13, 2004].

181 1974 I.C.J. 253, 1974 WL 3 (I.C.J.).

182 M. Janis and J. Noyes, International Law, Cases and Commentary, 3rd ed. 280 (2006).

183 1986 I.C.J. 554, 1986 WL 15621 (I.C.J.), December 22, 1986.

184 Planas v. COMELEC, 151 Phil. 217, 249 (1973).

4. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.

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

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

RESOLUTION

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

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

Considering that the absolute and permanent allegiance of the inhabitants of a

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

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

Considering that even adopting the words "temporarily allegiance," repudiated by

Oppenheim and other publicists, as descriptive of the relations borne by the
inhabitants of the territory occupied by the enemy toward the military government
established over them, such allegiance may, at most, be considered similar to the
temporary allegiance which a foreigner owes to the government or sovereign of the
territory wherein he resides in return for the protection he receives as above
described, and does not do away with the absolute and permanent allegiance which
the citizen residing in a foreign country owes to his own government or sovereign;
that just as a citizen or subject of a government or sovereign may be prosecuted for
and convicted of treason committed in a foreign country, in the same way an
inhabitant of a territory occupied by the military forces of the enemy may commit
treason against his own legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort; and that if the allegiance of a
citizen or subject to his government or sovereign is nothing more than obedience to
its laws in return for the protection he receives, it would necessarily follow that a
citizen who resides in a foreign country or state would, on one hand, ipso
factoacquire the citizenship thereof since he has enforce public order and regulate
the social and commercial life, in return for the protection he receives, and would, on
the other hand, lose his original citizenship, because he would not be bound to obey
most of the laws of his own government or sovereign, and would not receive, while in
a foreign country, the protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of the rights of
sovereignty by the legitimate government in the territory occupied by the enemy
military forces, because the authority of the legitimate power to govern has passed
into the hands of the occupant (Article 43, Hague Regulations), the political laws
which prescribe the reciprocal rights, duties and obligation of government and
citizens, are suspended or in abeyance during military occupation (Co Kim
cham vs. Valdez Tan Keh and dizon, supra), for the only reason that as they
exclusively bear relation to the ousted legitimate government, they are inoperative or
not applicable to the government established by the occupant; that the crimes
against national security, such as treason and espionage; inciting to war,
correspondence with hostile country, flight to enemy's country, as well as those
against public order, such as rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear relation to, and are
penalized by our Revised Penal Code as crimes against the legitimate government,
are also suspended or become inapplicable as against the occupant, because they
can not be committed against the latter (Peralta vs. Director of Prisons, supra); and
that, while the offenses against public order to be preserved by the legitimate
government were inapplicable as offenses against the invader for the reason above
stated, unless adopted by him, were also inoperative as against the ousted
government for the latter was not responsible for the preservation of the public order
in the occupied territory, yet article 114 of the said Revised Penal Code, was
applicable to treason committed against the national security of the legitimate
government, because the inhabitants of the occupied territory were still bound by
their allegiance to the latter during the enemy occupation;

Considering that, although the military occupant is enjoined to respect or continue in

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

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

Considering that adoption of the petitioner's theory of suspended allegiance would

lead to disastrous consequences for small and weak nations or states, and would be
repugnant to the laws of humanity and requirements of public conscience, for it
would allow invaders to legally recruit or enlist the Quisling inhabitants of the
occupied territory to fight against their own government without the latter incurring
the risk of being prosecuted for treason, and even compel those who are not aid
them in their military operation against the resisting enemy forces in order to
completely subdue and conquer the whole nation, and thus deprive them all of their
own independence or sovereignty — such theory would sanction the action of
invaders in forcing the people of a free and sovereign country to be a party in the
nefarious task of depriving themselves of their own freedom and independence and
repressing the exercise by them of their own sovereignty; in other words, to commit a
political suicide;

(2) Considering that the crime of treason against the government of the Philippines
defined and penalized in article 114 of the Penal Code, though originally intended to
be a crime against said government as then organized by authority of the sovereign
people of the United States, exercised through their authorized representative, the
Congress and the President of the United States, was made, upon the establishment
of the Commonwealth Government in 1935, a crime against the Government of the
Philippines established by authority of the people of the Philippines, in whom the
sovereignty resides according to section 1, Article II, of the Constitution of the
Philippines, by virtue of the provision of section 2, Article XVI thereof, which provides
that "All laws of the Philippine Islands . . . shall remain operative, unless inconsistent
with this Constitution . . . and all references in such laws to the Government or
officials of the Philippine Islands, shall be construed, in so far as applicable, to refer
to the Government and corresponding officials under this constitution;

Considering that the Commonwealth of the Philippines was a sovereign government,

though not absolute but subject to certain limitations imposed in the Independence
Act and incorporated as Ordinance appended to our Constitution, was recognized
not only by the Legislative Department or Congress of the United States in approving
the Independence Law above quoted and the Constitution of the Philippines, which
contains the declaration that "Sovereignty resides in the people and all government
authority emanates from them" (section 1, Article II), but also by the Executive
Department of the United States; that the late President Roosevelt in one of his
messages to Congress said, among others, "As I stated on August 12, 1943, the
United States in practice regards the Philippines as having now the status as a
government of other independent nations — in fact all the attributes of complete and
respected nationhood" (Congressional Record, Vol. 29, part 6, page 8173); and that
it is a principle upheld by the Supreme Court of the United States in many cases,
among them in the case of Jones vs. United States (137 U.S., 202; 34 Law. ed., 691,
696) that the question of sovereignty is "a purely political question, the determination
of which by the legislative and executive departments of any government
conclusively binds the judges, as well as all other officers, citizens and subjects of
the country.
 Considering that section I (1) of the Ordinance appended to the Constitution which
provides that pending the final and complete withdrawal of the sovereignty of the
United States "All citizens of the Philippines shall owe allegiance to the United
States", was one of the few limitations of the sovereignty of the Filipino people
retained by the United States, but these limitations do not away or are not
inconsistent with said sovereignty, in the same way that the people of each State of
the Union preserves its own sovereignty although limited by that of the United States
conferred upon the latter by the States; that just as to reason may be committed
against the Federal as well as against the State Government, in the same way
treason may have been committed during the Japanese occupation against the
sovereignty of the United States as well as against the sovereignty of the Philippine
Commonwealth; and that the change of our form of government from Commonwealth
to Republic does not affect the prosecution of those charged with the crime of
treason committed during the Commonwealth, because it is an offense against the
same government and the same sovereign people, for Article XVIII of our
Constitution provides that "The government established by this constitution shall be
known as the Commonwealth of the Philippines. Upon the final and complete
withdrawal of the sovereignty of the United States and the proclamation of Philippine
independence, the Commonwealth of the Philippines shall thenceforth be known as
the Republic of the Philippines";

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

Separate Opinions

PERFECTO, J., concurring:

Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While
there is peace, there are no traitors. Treason may be incubated when peace reigns. Treasonable
acts may actually be perpetrated during peace, but there are no traitors until war has started.

As treason is basically a war crime, it is punished by the state as a measure of self-defense and self-
preservation. The law of treason is an emergency measure. It remains dormant until the emergency
arises. But as soon as war starts, it is relentlessly put into effect. Any lukewarm attitude in its
enforcement will only be consistent with national harakiri. All war efforts would be of no avail if they
should be allowed to be sabotaged by fifth columnists, by citizens who have sold their country out to
the enemy, or any other kind of traitors, and this would certainly be the case if he law cannot be
enforced under the theory of suspension.

Petitioner's thesis that allegiance to our government was suspended during enemy occupation is
advanced in support of the proposition that, since allegiance is identical with obedience to law,
during the enemy occupation, the laws of the Commonwealth were suspended. Article 114 of the
Revised Penal Code, the law punishing treason, under the theory, was one of the laws obedience to
which was also suspended.
Allegiance has been defined as the obligation for fidelity and obedience which the individual owes to
his government or his sovereign in return for the protection which he receives.

"Allegiance", as the return is generally used, means fealty or fidelity to the

government of which the person is either a citizen or subject. Murray vs. The
Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208.

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

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

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

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

Allegiance. — Fealty or fidelity to the government of which the person is either a

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

Classification. — Allegiance is of four kinds, namely: (1) Natural allegiance — that

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

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

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

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

Citizenship is membership in a political society and implies a duty of allegiance on

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

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

It is a comparatively modern corruption of ligeance (ligeantia), which is derived from

liege (ligius), meaning absolute or unqualified. It signified originally liege fealty, i. e.,
absolute and qualified fealty. 18 L. Q. Rev., 47.

xxx xxx xxx

Allegiance may be an absolute and permanent obligation, or it may be a qualified

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

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

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

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

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

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

unacceptable. We have already decided in Brodett vs. De la Rosa and Vda. de Escaler (p.
752, ante) that the Constitution of the Republic is the same as that of the Commonwealth. The
advent of independence had the effect of changing the name of our Government and the withdrawal
by the United States of her power to exercise functions of sovereignty in the Philippines. Such facts
did not change the sovereignty of the Filipino people. That sovereignty, following our constitutional
philosophy, has existed ever since our people began to exist. It has been recognized by the United
States of America, at least since 1935, when President Roosevelt approved our Constitution. By
such act, President Roosevelt, as spokesman of the American people, accepted and recognized the
principle that sovereignty resides in the people that is, that Philippine sovereignty resides in the
Filipino people.
The same sovereignty had been internationally recognized long before the proclamation of
independence on July 4, 1946. Since the early part of the Pacific war, President Quezon had been
sitting as representative of a sovereign people in the Allied War Council, and in June, 1945, the
same Filipino people took part — outstanding and brilliant, it may be added — in the drafting and
adoption of the charter of the United Nations, the unmistakable forerunner of the future democratic
federal constitution of the world government envisioned by all those who adhere to the principle of
unity of all mankind, the early realization of which is anxiously desired by all who want to be spared
the sufferings, misery and disaster of another war.

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

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

"The defense of the State is a prime duty of Government, and in the fulfillment of that duty all citizens
may be required by law to render personal, military or civil service." Thus, section 2 of Article II of the
Constitution provides: That duty of defense becomes more imperative in time of war and when the
country is invaded by an aggressor nation. How can it be fulfilled if the allegiance of the citizens to
the sovereign people is suspended during enemy occupation? The framers of the Constitution surely
did not entertain even for the moment the absurdity that when the allegiance of the citizens to the
sovereign people is more needed in the defense of the survival of the state, the same should be
suspended, and that upon such suspension those who may be required to render personal, military
or civil service may claim exemption from the indispensable duty of serving their country in distress.

Petitioner advances the theory that protection in the consideration of allegiance. He argues that the
Commonwealth Government having been incapacitated during enemy occupation to protect the
citizens, the latter were relieved of their allegiance to said government. The proposition is untenable.
Allegiance to the sovereign is an indispensable bond for the existence of society. If that bond is
dissolved, society has to disintegrate. Whether or not the existence of the latter is the result of the
social compact mentioned by Roseau, there can be no question that organized society would be
dissolved if it is not united by the cohesive power of the citizen's allegiance. Of course, the citizens
are entitled to the protection of their government, but whether or not that government fulfills that
duty, is immaterial to the need of maintaning the loyalty and fidelity of allegiance, in the same way
that the physical forces of attraction should be kept unhampered if the life of an individual should
continue, irrespective of the ability or inability of his mind to choose the most effective measures of
personal protection.

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

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

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

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

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

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

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

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

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

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

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

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

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

I. SUSPENDED ALLEGIANCE.

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

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

International law is not capable of development by legislation, for there is no

continuously sitting international legislature. Innovations and revisions in international
law are brought about by the action of governments designed to meet a change
circumstances. It grows, as did the common law, through decisions reached from
time to time in adopting settled principles to new situations.

xxx xxx xxx

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

The re-establishment of the principle of justifiable war is traceable in many steps.

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

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

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

Without attempting an exhaustive catalogue, we may mention the Geneva Protocol

of 1924 for the Pacific Settlement of International Disputes, signed by the
representatives of forty-eight governments, which declared that "a war of aggression
constitutes .. an International crime. . . .

The Eight Assembly of the League of Nations in 1927, on unanimous resolution of

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

xxx xxx xxx

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

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

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

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

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

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

If an unjustifiable war is a crime; if a war of aggression constitutes an international crime; if such a

war is an international crime against the human species: a nation which occupies a foreign territory
in the course of such a war cannot possibly, under any principle of natural or positive law, acquire or
posses any legitimate power or right growing out or incident to such occupation. Concretely, Japan
in criminally invading the Philippines and occupying certain portions of its territory during the Pacific
war, could not have nor exercise, in the legal sense — and only this sense should we speak here —
with respect to this country and its citizens, any more than could a burglar breaking through a man's
house pretends to have or to exercise any legal power or right within that house with respect either
to the person of the owner or to his property. To recognize in the first instance any legal power or
right on the part of the invader, and in the second any legal power or right on the part of the burglar,
the same as in case of a military occupant in the course of a justifiable war, would be nothing short
of legalizing the crime itself. It would be the most monstrous and unpardonable contradiction to
prosecute, condemn and hang the appropriately called war criminals of Germany, Italy, and Japan,
and at the same time recognize any lawfulness in their occupation invaded. And let it not be
forgotten that the Philippines is a member of the United Nations who have instituted and conducted
the so-called war crimes trials. Neither should we lose sight of the further fact that this government
has a representative in the international commission currently trying the Japanese war criminals in
Tokyo. These facts leave no room for doubt that this government is in entire accord with the other
United Nations in considering the Pacific war started by Japan as a crime. Not only this, but this
country had six years before the outbreak of the Pacific war already renounced war as an instrument
of national policy (Constitution, Article II, section 2), thus in consequence adopting the doctrine of the
Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong and improper for this Court to apply
to the occupation by Japan of certain areas of the Philippines during that war the rules and principles
of international law which might be applicable to a military occupation occurring in the course of a
justifiable war. How can this Court recognize any lawfulness or validity in that occupation when our
own government has sent a representative to said international commission in Tokyo trying the
Japanese "war criminals" precisely for the "crimes against humanity and peace" committed by them
during World War II of which said occupation was but part and parcel? In such circumstances how
could such occupation produce no less an effect than the suspension of the allegiance of our people
to their country and government?

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

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

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

. . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance.

Since the authority of the occupant is not sovereignty, the inhabitants owe no
temporary allegiance to him. . . . (II Oppenheim, International Law, pp. 341-344.)

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

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

II. CHANGE OF SOVEREIGNTY

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

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

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

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

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

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

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

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

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

To have bound those of our people who constituted the great majority who never
submitted to the Japanese oppressors, by the laws, regulations, processes and other
acts of those two puppet governments, would not only have been utterly unjust and
downright illegal, but would have placed them in the absurd and impossible condition
of being simultaneously submitted to two mutually hostile governments, with their
respective constitutional and legislative enactments and institutions — on the one
hand bound to continue owing allegiance to the United States and the
Commonwealth Government, and, on the other, to owe allegiance, if only temporary,
to Japan.

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

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

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

No objection can be set up to the legality of its provisions in the light of the precepts
of our Commonwealth Constitution relating to the rights of the accused under that
Constitution, because the latter was not in force during the period of the Japanese
military occupation, as we have already stated. Nor may said Constitution be applied
upon its revival at the time of the re-occupation of the Philippines by the virtue of the
priciple of postliminium, because "a constitution should operate prospectively only,
unless the words employed show a clear intention that it should have a retrospective
effect," (Cooley's Constitutional Limitations, seventh edition, page 97, and a case
quoted and cited in the foot-note), especially as regards laws of procedure applied to
cases already terminated completely.

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

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

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

The majority have resorted to distinctions, more apparent than real, if not immaterial, in trying to
argue that the law of treason was obligatory on the Filipinos during the Japanese occupation. Thus it
is insisted that a citizen or subject owes not a qualified and temporary, but an absolute and
permanent allegiance, and that "temporary allegiance" to the military occupant may be likened to the
temporary allegiance which a foreigner owes to the government or sovereign to the territory wherein
he resides in return for the protection he receives therefrom. The comparison is most unfortunate.
Said foreigner is in the territory of a power not hostile to or in actual war with his own government; he
is in the territory of a power which has not suspended, under the rules of international law, the laws
of political nature of his own government; and the protections received by him from that friendly or
neutral power is real, not the kind of protection which the inhabitants of an occupied territory can
expect from a belligerent army. "It is but reasonable that States, when they concede to other States
the right to exercise jurisdiction over such of their own nationals as are within the territorial limits of
such other States, should insist that States should provide system of law and of courts, and in actual
practice, so administer them, as to furnish substantial legal justice to alien residents. This does not
mean that a State must or should extend to aliens within its borders all the civil, or much less, all the
political rights or privileges which it grants to its own citizens; but it does mean that aliens must or
should be given adequate opportunity to have such legal rights as are granted to them by the local
law impartially and judicially determined, and, when thus determined, protected." (Willoughby, The
Fundamental Concepts of Public Law [1931], p. 360.)

When it is therefore said that a citizen of a sovereign may be prosecuted for and convicted of
treason committed in a foreign country or, in the language of article 114 of the Revised Penal Code,
"elsewhere," a territory other than one under belligerent occupation must have been contemplated.
This would make sense, because treason is a crime "the direct or indirect purpose of which is the
delivery, in whole or in part, of the country to a foreign power, or to pave the way for the enemy to
obtain dominion over the national territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14);
and, very evidently, a territory already under occupation can no longer be "delivered."

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

It is of common knowledge that even with the alleged cooperation imputed to the collaborators, an
alarming number of Filipinos were killed or otherwise tortured by the ruthless, or we may say
savage, Japanese Army. Which leads to the conclusion that if the Filipinos did not obey the
Japanese commands and feign cooperation, there would not be any Filipino nation that could have
been liberated. Assuming that the entire population could go to and live in the mountains, or
otherwise fight as guerrillas — after the formal surrender of our and the American regular fighting
forces, — they would have faced certain annihilation by the Japanese, considering that the latter's
military strength at the time and the long period during which they were left military unmolested by
America. In this connection, we hate to make reference to the atomic bomb as a possible means of
destruction.
If a substantial number of guerrillas were able to survive and ultimately help in the liberation of the
Philippines, it was because the feigned cooperation of their countrymen enabled them to get food
and other aid necessary in the resistance movement. If they were able to survive, it was because
they could camouflage themselves in the midst of the civilian population in cities and towns. It is
easy to argue now that the people could have merely followed their ordinary pursuits of life or
otherwise be indifferent to the occupant. The fundamental defect of this line of thought is that the
Japanese assumed to be so stupid and dumb as not to notice any such attitude. During belligerent
occupation, "the outstanding fact to be reckoned with is the sharp opposition between the inhabitants
of the occupied areas and the hostile military force exercising control over them. At heart they
remain at war with each other. Fear for their own safety may not serve to deter the inhabitants from
taking advantage of opportunities to interfere with the safety and success of the occupant, and in so
doing they may arouse its passions and cause to take vengeance in cruel fashion. Again, even when
it is untainted by such conduct, the occupant as a means of attaining ultimate success in its major
conflict may, under plea of military necessity, and regardless of conventional or customary
prohibitions, proceed to utilize the inhabitants within its grip as a convenient means of military
achievement." (Hyde, International Law, Vol. III, Second Revised Edition [1945], p. 1912.) It should
be stressed that the Japanese occupation was not a matter of a few months; it extended over a little
more than three years. Said occupation was a fact, in spite of the "presence of guerrilla bands in
barrios and mountains, and even in towns of the Philippines whenever these towns were left by
Japanese garrisons or by the detachments of troops sent on patrol to those places." (Co Kim
Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.) The law of nations accepts belligerent
occupation as a fact to be reckoned with, regardless of the merits of the occupant's cause. (Hyde,
International Law, Second Revised Edition [1945], Vol. III, p. 1879.)

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

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

Our great liberator himself, General Douglas MacArthur, had considered the laws of the Philippines
ineffective during the occupation, and restored to their full vigor and force only after the liberation.
Thus, in his proclamation of October 23, 1944, he ordained that "the laws now existing on the statute
books of the Commonwealth of the Philippines . . . are in full force and effect and legally binding
upon the people in areas of the Philippines free of enemy occupation and control," and that "all laws
. . . of any other government in the Philippines than that of the said Commonwealth are null and void
and without legal effect in areas of the Philippines free of enemy occupation and control." Repeating
what we have said in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "it is to be
presumed that General Douglas MacArthur, who was acting as an agent or a representative of the
Government and the President of the United States, constitutional Commander-in-Chief of the
United States Army, did not intend to act against the principles of the law of nations asserted by the
Supreme Court of the United States from the early period of its existence, applied by the President
of the United States, and later embodied in the Hague Conventions of 1907."

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

"Before he was appointed prosecutor, Justice Jackson made a speech in which he warned against
the use of judicial process for non judicial ends, and attacked cynics who "see no reason why courts,
just like other agencies, should not be policy weapons. If we want to shoot Germans as a matter of
policy, let it be done as such, said he, but don't hide the deed behind a court. If you are determined
to execute a man in any case there is no occasion for a trial; the word yields no respect for courts
that are merely organized to convict." Mussoloni may have got his just desserts, but nobody
supposes he got a fair trial. . . . Let us bear that in mind as we go about punishing criminals. There
are enough laws on the books to convict guilty Nazis without risking the prestige of our legal system.
It is far, far better that some guilty men escape than that the idea of law be endangered. In the long
run the idea of law is our best defense against Nazism in all its forms." These passages were taken
from the editorial appearing in the Life, May 28, 1945, page 34, and convey ideas worthy of some
reflection.
If the Filipinos in fact committed any errors in feigning cooperation and obedience during the
Japanese military occupation, they were at most — borrowing the famous and significant words of
President Roxas — errors of the mind and not of the heart. We advisedly said "feigning" not as an
admission of the fallacy of the theory of suspended allegiance or sovereignty, but as an affirmation
that the Filipinos, contrary to their outward attitude, had always remained loyal by feeling and
conscience to their country.

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

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

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

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

The majority have drawn an analogy between the Commonwealth Government and the States of the
American Union which, it is alleged, preserve their own sovereignty although limited by the United
States. This is not true for it has been authoritatively stated that the Constituent States have no
sovereignty of their own, that such autonomous powers as they now possess are had and exercised
by the express will or by the constitutional forbearance of the national sovereignty, and that the
sovereignty of the United States and the non-sovereign status of the individual States is no longer
contested.

It is therefore plain that the constituent States have no sovereignty of their own, and
that such autonomous powers as they now possess are had and exercised by the
express will or by the constitutional forbearance of the national sovereignty. The
Supreme Court of the United States has held that, even when selecting members for
the national legislature, or electing the President, or ratifying proposed amendments
to the federal constitution, the States act, ad hoc, as agents of the National
Government. (Willoughby, the Fundamental Concepts of Public Law [1931], p.250.)

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

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

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

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

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

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

Footnotes

PARAS, J., dissenting:

1English case of De Jager vs. Attorney General of Naval; Belgian case of Auditeur
Militaires vs. Van Dieren; cases of Petain, Laval and Quisling.

The Lawphil Project - Arellano Law Foundation

 5. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-6 November 29, 1945

ANICETO ALCANTARA, petitioner,

vs.
DIRECTOR OF PRISONS, respondent.

Buenaventura B. Martinez for petitioner.

Office of the Solicitor General Tañada for respondent.

FERIA, J.:

This is a petition for the issuance of a writ of habeas corpus and for the release of the petitioner on
the ground that the latter is unlawfully imprisoned and restrained of his liberty by the respondent
Director of Prison in the provincial jail at Vigan, Ilocos Sur.

Petitioner was convicted by the Court First Instance of Ilocos Sur (Criminal case No. 23) of the crime
of illegal discharge of firearms with less serious physical injuries. Upon appeal, the Court of Appeals
of Northern Luzon at Baguio modified said sentence (CA- G.R. No. 790)and sentence the petitioner
to an indeterminate penalty of from four months four months and twenty-one days of arresto
mayor to three years, nine months and three days of prison correccional. The sentence as modified
became final on September 12, 1944, and June 23, 1945, petitioner commenced serving his
sentence.

Petitioner now questions the validity of the decision of the Court of Appeals of Northern Luzon, on
the sole ground that said court was only a creation of the so-called Republic of the Philippines during
the Japanese military occupation of the Islands; that the Court of Appeals was not authorized by
Commonwealth Act No. 3 to hold sessions in Baguio, and that only the two Justices constituted the
majority which promulgated the decision in question. The petitioner does not question the validity of
said decision on the strength of the Proclamation of General Douglas McArthur of October 23, 1944,
which according to our decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, G.R.
No. L-5 (p. 113, ante), does not refer to judicial processes.

In the said case of Co Kim Cham vs. Valdez Tan Keh and Dizon, this Court ruled that the so-called
Republic of the Philippines and the Philippine Executive Commission established in the Philippines
during the Japanese regime were governments de facto organized by the belligerent occupant by
the judicial acts thereof were good and valid and remained good and valid after the restoration of the
Commonwealth Government, except those a political complexion. In that the same case this Court
held that the Court of Appeals which was continued throughout the Japanese occupation, was the
same Court of Appeals existed prior to the Japanese occupation and was lately abolished by
Executive Order No. 37. The division of the Court of Appeals into several District Court of Appeals,
and the reduction of the number of Justices sitting in each division, the regime of the so-called
Republic effected no substantial change in its nature and jurisdiction.

Even assuming that the Court of Appeals of Northern Luzon was a new court created by the
belligerent occupant or the de facto governments established by him, the judgments of such court,
like those of the court which were continued during the Japanese occupation, were good and valid
and remain good and valid, and therefore enforceable now after the liberation or occupation of the
Philippines, provided that such judgments do not have a political complexion, as this court held in its
decision in the abovementioned case of Co Kim Cham vs. Valdez Tan Keh and Dizon supra, in
accordance with the authorities therein cited.

Obviously, the sentence which petitioner is now serving has no political complexion. He was charged
with and convicted of an offense punishable under the municipal law of the Commonwealth, the
Revised Penal Code. Therefore, the sentence of the Court of First Instance of Ilocos Sur, as
modified by the Court of Appeals of Northern Luzon, is valid and enforceable.

A punitive or penal sentence is said to of a political complexion when it penalizes either a new act
not defined in the municipal laws, or acts already penalized by the latter as a crime against the
legitimate government, but taken out of the territorial law and penalized as a new offenses
committed against belligerent occupant, incident to a state of a war and necessary for the control of
the occupied territory and the protection of the army of the occupier. They are acts penalized for
public rather than private reasons, acts which tend, directly or indirectly, to aid or favor the enemy
and are directed against the welfare, safety and security, of the belligerent occupant. As example,
the crimes against national security , such as treason, espionage, etc., and against public order,
such as rebellion, sedition, etc., were crimes against the Commonwealth or United States
Government under the Revised Penal Code, which were made crimes against the belligerent
occupant.

In view of the foregoing, the petitioner for the writ of habeas corpus is denied.

Moran, C.J., Ozaeta, Paras, Jaranilla, Pablo and Bengzon, JJ., concur.

Separate Opinions

DE JOYA, J., concurring:

The principal question involved in this habeas corpus case is the validity of the judicial proceedings
held, during the Japanese occupation, in the Court First Instance of Ilocos Sur, in which herein
petitioner was accused of frustrated murder, and in the Court of Appeals of Northern Luzon, in
which, on appeal, said petitioner was found guilty of illegal discharge of firearms with less serious
physical injuries, and sentenced to a term of imprisonment ranging from four moths and twenty-one
days of arresto mayor to three years, and nine months and three days of prison correccional; and
the effect on said proceedings of the proclamation of General Douglas McArthur, dated October 24
1944. The decision of this questions requires the application of principles of International Law, in
connection with the municipal law of this country.

Under the Constitution Commonwealth of the Philippines, International Law is part of the
Fundamental law of the land (Article II, sec. 3). As International Law is an integral part of our law, it
must be ascertained and administered by this Court, whenever question of right depending upon it
are presented for our determination (Kansas vs. Colorado, 185 U.S. 146; 22 Sup. Ct., 552; 46 Law.
ed., 838).
Since International Law is a body of rules accepted by nations as regulating their mutual relations,
the proof of their existence is to be found in the consent of the nations to abide by them; and this
consent is evidenced chiefly by the usages and customs of nation, as found in the writings of
publicist and in the decisions of the highest courts of the different countries of the world (The
Habana, 175 U. S., 677; 20 Sup. Ct., 290; 44 Law. ed., 320.).

But while usages and customs are the older original source of International Law, great international
treaties are a latter source of increasing importance, such as The Hogue Conventions of 1899 and
1907.

The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declare
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.

ART. XLII. 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 Conventions 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. United States 229 U.S. 416; 33 Sup Ct.,
955; 57 Law. ed., 1260; II Oppenheim on International Law, sec. 167).

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 is not usual for the invader to take
the whole administration into his own hands, because it is easier to preserve order through the
agency of the native officials, and also because the latter are more competent to administer the laws
of the territory; and the military occupant generally keeps in their posts such of the judicial and
administrative officers as are willing to serve under him, subjecting them only to supervision by the
military authorities, or by superior civil authorities appointed by him (Young vs. United States, 97
U.S. 39; 24 Law. ed 992; Coleman vs. Tennessee, 97 U.S. 509; 24 Law ed., 1118;
MacLeod vs. United States, 229 U.S. 416; 33 Sup Ct., 955; 57 Law. ed., 1260 Taylor, International
Law, secs. 576, 578; Wilson, International Law, pp. 331-337; Hall, International Law, 6th ed. [1909],
pp. 464, 465, 475, 476; Lawrence, International Law, 7th ed., 412, 413; Davis, Elements of
International Law, 3d ed., pp. 330-332, 335; Holland, International Law, pp. 356, 357, 359; Westlake,
International Law, Part II, 2d ed., pp. 121-123).

In 1811, during the occupation of Catalonia, Spain, by the French army, a Frenchman, accused of
the murder of a Catalan in that province, was tried and convicted by the assize Court of the
Department of the Pyrenees Orientales, France. Upon appeal to the French Court of Cassation, the
conviction was quashed, on the ground that the courts of the territory within which the crime had
been committed had exclusive jurisdiction to try the case and that "the occupation of Catalonia by
French troops and its government by the French authorities had not communicated to its inhabitants
the character of French citizens, nor to their territory the character of French territory, and that such
character could only be acquired by a solemn act of incorporation which had not been gone
through." (Hall, International Law, 6th ed., p. 461.)

It is, therefore, evident that the establishment of the government under the name of the Philippine
Executive Commission, or the so-called Philippine Republic, afterwards, during Japanese
occupation, respecting the laws in force in the country, and permitting our courts to function and
administer said laws, as proclaim 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 local laws, it must necessarily follow that the judicial proceeding
conducted before the courts established by the military occupant must be considered legal and valid,
even after said government established by the military occupant had been displaced by the
legitimate government of the territory.

Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely
setting the rights of private parties actually within their jurisdiction, not only tending to defeat the
legal rights of citizens of the United States, nor in furtherance of laws passed in aid of the rebellion,
had been declared valid and binding (Cook vs.Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164;
Coleman vs. Tennessee, 97 U.S., 509;24 Law. ed., 1118; Williams vs.Bruffy, 96 U.S. 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 Wall., 459; Texas vs. White, 7 Wall.,
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 slaves was held valid judgment when entered, and
enforceable in 1871 (French vs. Tumllin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).

The judgments by the courts of the states constituting the Confederate States of the 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 act of
obedience (Thorington vs. Smith, 8 Wall. [U.S.] 9; 19 Law ed., 361).

In the more recent case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Supreme Court of the
United States held-- "It is now settled law in this court that during the late civil war 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 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
Wall., 459; Texas vs. White 7 Wall., 700.)

The government established in the Philippines, during Japanese occupation, would seem to fall
under the following definition of de facto government given by the Supreme Court of the United
States:

But there is another description of government de facto, called also by publicists a

government de facto, but which might, perhaps, he more aptly denominated a government of
 paramount force. Its distinguishing characteristics (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 Philippine Executive Commission or under
the so-called Philippine Republic, during Japanese occupation, was and should, therefor, be
considered as a de factogovernment; and that the judicial proceedings conducted before the courts
has been established in this country, during said Japanese occupation, and are should be
considered as legal and valid enforceable, even after the liberation of this country by the American
forces, as a long a said judicial proceedings had been conducted, in accordance with the law of the
Commonwealth of the Philippines.

The judicial proceedings involved in the case under consideration merely refer to the prosecution of
the petitioner in this case, for the crime of frustrated murder, which was reduced to illegal discharge
of firearms with less serious physical injuries, under the provisions of the Revised Penal 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, and that the
accused should be immediately released from the custody, under the provisions of the proclamation
issued by General Douglas McArthur dated October 23, 1944; as said proclamation nullifies all the
laws, regulations and processes of any other government in the Philippines than that of the
Commonwealth of the Philippines.

In other words petition demands a literal interpretation of said proclamation issued by the General
Douglas McArthur, 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 (United
States vs. Coombs [1838]], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of Grenada
County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125; In re Guariña
[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 as not to lead it injustice, oppression or an absurd consequence. It will always,
therefore, be presumed that the legislature intended exception to its language, which would avoid
results of this character. The reason of the law in such cases should prevail over its letter (United
States vs. Kirby, 7 Wall [U.S.], 482; 19 Law. ed, 278; Church of Holy Trinity vs. United States, 143
U.S., 461; 12 Sup. Ct., 511; 36 Law. ed., 226; Jacobson vs. Massachussetts, 197 U.S., 39; 25 Sup.
Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765; In re Allen, 2 Phil., 630). The duty of the court in
construing a statute, which is reasonably susceptible of two constructions to adopt that which saves
its constitutionality, includes the duty of a avoiding a construction which raises grave and doubtful
constitutional questions, if it can be avoided (United States 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 court of the justice, established here during Japanese
military occupation, merely applying the provisions of the municipal law of the territory, as the
provisions of the Revised Penal Code in the instant case which have no political or military
significance, are and should be considered legal, valid and binding. It is to be presumed that General
Douglas McArthur knows said rules and principles of International Law, 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 Douglas McArthur has acted, in
accordance with said principles of International Law, which have been sanction by the Supreme
Court of the United States, as the nullification of all judicial proceedings conducted before our courts,
during the Japanese occupation would be highly detrimental to public interests.

For the forgoing reasons, I concur in the majority opinion, and the petition for habeas corpus filed in
this case should, therefore, be denied.

PERFECTO, J., dissenting:

Following our opinions in this cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (p. 153, ante),
and Peralta vs. Director of Prisons (p. 334, ante), G.R. No. L-5 and G.R. No. L-49 respectively, the
proceedings attacked by petitioner belong to the judicial processes declared null and void in the
proclamation issued by General McArthur on October 23, 1944, and therefore, we vote the granting
of the writ of habeas corpus prayed for.

HILADO, J., dissenting:

Upon the grounds stated my main dissenting opinion, in G.R. No. L-5 Co Kim Cham vs. Valdez Tan
Keh and Dizon (p. 199, ante), and in my concurring opinion in G.R. No. L-49, Peralta vs. Director of
Prisons (p. 355, ante), I dissent from the opinion of the majority herein. The writ of habeas
corpus sought by petitioner should be granted because the nullity of the judgment and proceedings
under which he has been imprisoned and restrained of his liberty. As stated in the majority opinion,
the sentence against him became final on September 122, 1944, and had been pronounced by the
Japanese-sponsored Court of Appeals of Northern Luzon upon appeal from a judgment of conviction
by the Japanese sponsored Court of First Instance of Ilocos Sur.
 6. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-49 November 12, 1945

WILLIAM F. PERALTA, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

William F. Peralta in his own behalf.

Office of the Solicitor General Tañada for respondent.
City Fiscal Mabanag as amicus curiae.

FERIA, J.:

Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the

supervision and control of the production, procurement and distribution of goods and other
necessaries as defined in section 1 of Act No. 9 of the National Assembly of the so-called Republic
of the Philippines, was prosecuted for the crime of robbery as defined and penalized by section 2 (a)
of Act No. 65 of the same Assembly. He was found guilty and sentenced to life imprisonment, which
he commenced to serve on August 21, 1944, by the Court of Special and Exclusive Criminal
Jurisdiction, created in section 1 of Ordinance No. 7 promulgated by the President of the so-called
Republic of the Philippines, pursuant to the authority conferred upon him by the Constitution and
laws of the said Republic. And the procedure followed in the trial was the summary one established
in Chapter II of Executive Order No. 157 of the Chairman of the Executive Commission, made
applicable to the trial violations of said Act No. 65 by section 9 thereof and section 5 of said
Ordinance No. 7.

The petition for habeas corpus is based on the ground that the Court of Special and Executive
Criminal Jurisdiction created by Ordinance No. 7 "was a political instrumentality of the military forces
of the Japanese Imperial Army, the aims and purposes of which are repugnant to those aims and
political purposes of the Commonwealth of the Philippines, as well as those of the United States of
America, and therefore, null and void ab initio," that the provisions of said Ordinance No. 7 are
violative of the fundamental laws of the Commonwealth of the Philippines and "the petitioner has
been deprived of his constitutional rights"; that the petitioner herein is being punished by a law
created to serve the political purpose of the Japanese Imperial Army in the Philippines, and "that the
penalties provided for are much (more) severe than the penalties provided for in the Revised Penal
Code."

The Solicitor General, in his answer in behalf of the respondent, states that, in his own opinion, for
the reasons expressed in his brief in the case of People of the Philippines, plaintiff-appellant, vs.
Benedicto Jose y Santos, defendant-appellee, G. R. No. L-22 (p. 612, post), the acts and
proceedings taken and had before the said Court of Special and Exclusive Criminal Jurisdiction
which resulted in the conviction and imprisonment of the herein petitioner, should now be denied
force and efficacy, and therefore the petition for habeas corpus should be granted. The reasons
advanced by the Solicitor General in said brief and in his reply memorandum in support of his
contention are, that the Court of Special and Exclusive Criminal Jurisdiction created, and the
summary procedure prescribed therefor, by said Ordinance No. 7 in connection with Executive Order
No. 157 of the Chairman of the Executive Commission are tinged with political complexion; that the
procedure prescribed in Ordinance No. 7 does not afford a fair trial, violates the Constitution of the
Commonwealth, and impairs the Constitutional rights of accused persons under their legitimate
Constitution. And he cites, in support of this last proposition, the decisions of the Supreme Court of
the United States in the cases of Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart (17 Wall.,
570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104); Sprott vs. United States (20
Wall., 459).

The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum he
submits that the petition for habeas corpus be denied on the following grounds: That the Court of
Special and Exclusive Criminal Jurisdiction and the Acts, Ordinances and Executive Orders, creating
it are not of a political complexion, for said Court was created, and the crimes and offenses placed
under its jurisdiction were penalized heavily, in response to an urgent necessity, according to the
preamble of Ordinance No. 7; that the right to appeal in a criminal case is not a constitutional right;
and that the summary procedure established in said Ordinance No. 7 is not violative of the provision
of Article III, section 1 (18) of the Constitution of the Commonwealth, to the effect that no person
shall be compelled to be a witness against himself, nor of the provision of section 1 (1) of the same
Article that no person shall be deprived of life, liberty, or property without due process of law.

The features of the summary procedure adopted by Ordinance No. 7, assailed by the petitioner and
the Solicitor General as impairing the constitutional rights of an accused are: that court may
interrogate the accused and witnesses before trial in order to clarify the points in dispute; that the
refusal of the accused to answer the questions may be considered unfavorable to him; that if from
the facts admitted at the preliminary interrogatory it appears that the defendant is guilty, he may be
immediately convicted; and that the sentence of the sentence of the court is not appealable, except
in case of death penalty which cannot be executed unless and until reviewed and affirmed by a
special division of the Supreme Court composed of three Justices.

Before proceeding further, and in order to determine the law applicable to the questions involved in
the present case, it is necessary to bear in mind the nature and status of the government established
in these Islands by the Japanese forces of occupation under the designation of Republic of the
Philippines.

In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113, 127, ante),
recently decided, this Court, speaking through the Justice who pens this decision, held:

In view of the foregoing, it is evident that the Philippines Executive Commission, which was
organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese
forces, was a civil government established by the military forces of occupation and therefore
a de facto government of the second kind. It was not different from the government
established by the British in Castine, Maine, or by the United States in Tanpico, Mexico. As
Halleck says, "the government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the conqueror over the
conquered, and is subject to all restrictions which that code imposes. It is of little
consequence whether such government be called a military or civil government. Its character
is the same and the source of its authority the same. In either case it is a government
imposed by the laws of war and so far as it concerns the inhabitants of such territory or the
rest of the world those laws alone determine the legality or illegality of its acts." (vol. 2 p.
466.) The fact that the Philippine Executive Commission was a civil and not a military
government and was run by Filipinos and not by Japanese nationals is of no consequence.

And speaking of the so-called Republic of the Philippines in the same decision, this Court said:
 The so-called Republic of the Philippines, apparently established and organized as a
sovereign state independent from any other government by the Filipino people, was, in truth
and reality, a government established by the belligerent occupant or the Japanese forces of
occupation. It was of the same character as the Philippine Executive Commission, and the
ultimate source of its authority was the same — the Japanese military authority and
government. As General MacArthur stated in his proclamation of October 23, 1944, a portion
of which has been already quoted, "under enemy duress, a so-called government styled as
the 'Republic of the Philippines' was established on October 14, 1943, based upon neither
the free expression of the peoples" will nor the sanction of the Government of the United
States.' Japan had no legal power to grant independence to the Philippines or transfer the
sovereignty of the United States to, or recognize the latent sovereignty of the Filipino people,
before its military occupation and possession of the Islands had matured into an absolute
and permanent dominion or sovereignty by a treaty of peace or other means recognized in
the law of nations.

As the so-called Republic of the Philippines was a de facto government of the second kind (of
paramount force), as the government established in Castine, Maine, during its occupation by the
British forces and as that of Tampico, Mexico, occupied during the war with that the country by the
United State Army, the question involved in the present case cannot be decided in the light of the
Constitution of the Commonwealth Government; because the belligerent occupant was totally
independent of the constitution of the occupied territory in carrying out the administration over said
territory; and the doctrine laid down by the Supreme Court of the United States in the cases involving
the validity of judicial and legislative acts of the Confederate States, considered as de
facto governments of the third kind, does not apply to the acts of the so-called Republic of the
Philippines which is a de facto government of paramount force. The Constitution of the so-called
Republic of the Philippines can neither be applied, since the validity of an act of a belligerent
occupant cannot be tested in the light of another act of the same occupant, whose criminal
jurisdiction is drawn entirely from the law martial as defined in the usages of nations.

In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United States held
that, by the military occupation of Castine, Maine, the sovereignty of the United States in the territory
was, of course, suspended, and the laws of the United States could no longer be rightfully enforced
there or be obligatory upon the inhabitants who remained and submitted to the belligerent occupant.
By the surrender the inhabitants passed under a temporary allegiance to the British government, and
were bound by such laws, and such only, as it chose to recognize and impose. And Oppenheim, in
his Treatise on International Law, says that, in carrying out the administration over the occupied
territory and its inhabitants, "the (belligerent) occupant is totally independent of the constitution and
the laws of the territory, since occupation is an aim of warfare, and the maintenance and safety of
his forces, and the purpose of war, stand in the foreground of his interest and must be promoted
under all circumstances or conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.)

The doctrine laid down in the decisions of the Supreme Court of the United States (in the cases of
Texas vs. White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570; Williams vs. Bruffy, 96 U. S., 176
United States vs. Home Insurance Co., 20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and
others) that the judicial and legislative acts of the Confederate States which impaired the rights of
the citizens under the Constitution of the United States or of the States, or were in conflict with those
constitutions, were null and void, is not applicable to the present case. Because that doctrine rests
on the propositions that "the concession (of belligerency) made to the Confederate Government . . .
sanctioned no hostile legislation . . . and it impaired in no respect the rights of loyal and citizens as
they existed at the commencement of hostilities" (Williams vs. Bruffy, supra);that the Union is
perpetual and indissoluble, and the obligation of allegiance to the to the estate and obedience to her
laws and the estate constitution, subject to the Constitution of the United States, remained
unimpaired during the War of Secession (Texas vs. White, supra) and that the Confederate States
"in most, if not in all instances, merely transferred the existing state organizations to the support of a
new and different national head. the same constitution, the same laws for the protection of the
property and personal rights remained and were administered by the same officers."
(Sprott vs. United States, supra). In fine, because in the case of the Confederate States, the
constitution of each state and that of the United States or the Union continued in force in those
states during the War of Secession; while the Constitution of the Commonwealth Government was
suspended during the occupation of the Philippines by the Japanese forces of the belligerent
occupant at regular war with the United States.

The question which we have to resolve in the present case in the light of the law of nations are, first,
the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction, and of the
summary procedure adopted for that court; secondly, the validity of the sentence which
imprisonment during the Japanese military occupation; and thirdly, if they were then valid, the effect
on said punitive sentence of the reoccupation of the Philippines and the restoration therein of the
Commonwealth Government.

(1) As to the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction by
Ordinance No. 7, the only factor to be considered is the authority of the legislative power which
promulgated said law or ordinance. It is well established in International Law that "The criminal
jurisdiction established by the invader in the occupied territory finds its source neither in the laws of
the conquering or conquered state, — it is drawn entirely form the law martial as defined in the
usages of nations. The authority thus derived can be asserted either through special tribunals,
whose authority and procedure is defined in the military code of the conquering state, or through the
ordinary courts and authorities of the occupied district." (Taylor, International Public Law, p. 598.)
The so-called Republic of the Philippines, being a governmental instrumentality of the belligerent
occupant, had therefore the power or was competent to create the Court of Special and Exclusive
Criminal Jurisdiction. No question may arise as to whether or not a court is of political complexion,
for it is mere a governmental agency charged with the duty of applying the law to cases falling within
its jurisdiction. Its judgments and sentences may be of political complexion, or not depending upon
the nature or character of the law so applied. There is no room for doubt, therefore, as to the validity
of the creation of the court in question.

With respect to the Summary procedure adopted by Ordinance No. 7, and followed in the trial of the
case which resulted in the conviction of the herein petitioner, there is also no question as to the
power or competence of the belligerent occupant to promulgate the law providing for such
procedure. For "the invader deals freely with the relations of the inhabitants of the occupied territory
towards himself . . . for his security also, he declares certain acts, not forbidden by the ordinary laws
of the country, to be punishable; and he so far suspends the laws which guard personal liberty as is
required for the summary punishment of any one doing such acts." (Hall's International Law, seventh
ed., p. 5000). A belligerent "occupant may where necessary, set up military courts instead of the
ordinary courts; and in case, and in so far as, he admits the administration of justice by the ordinary
courts, he may nevertheless, so far as is necessary for military purposes, or for the maintenance of
public order and safety temporarily alter the laws, especially the Criminal Law, on the basis of which
justice is administered as well as the laws regarding procedure." (Oppenheim's International Law,
Vol. II, sixth edition, 1944, p.349.)

No objection can be set up to the legality of its provisions in the light of the precepts of our
Commonwealth Constitution relating to the rights of accused under that Constitution, because the
latter was not in force during the period of the Japanese military occupation, as we have already
stated. Nor may said Constitution be applied upon its revival at the time of the re-occupation of the
Philippines by virtue of the principle of postliminium because "a constitution should operate
prospectively only, unless the words employed show a clear intention that it should have a
retrospective effect" (Cooley's Constitutional Limitations, seventh edition, page 97, and cases quoted
and cited in the footnote), especially as regards laws of procedure applied to cases already
terminated completely.

The only restrictions or limitations imposed upon the power of a belligerent occupant to alter the laws
or promulgate new ones, especially the criminal law as well as the laws regarding procedure, so far
as it is necessary for military purposes, that is, for his control of the territory and the safety and
protection of his army, are those imposed by the Hague Regulations, the usages established by
civilized nations, the laws of humanity and the requirements of public conscience. It is obvious that
the summary procedure under consideration does not violate those precepts. It cannot be
considered as violating the laws of humanity and public conscience, for it is less objectionable, even
from the point of view of those who are used to the accusatory system of criminal procedure than the
procedural laws based on the semi-inquisitorial or mixed system prevailing in France and other
countries in continental Europe.

(2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction
which imposes life imprisonment upon the herein petitioner, depends upon the competence or power
of the belligerent occupant to promulgate Act No. 65 which punishes the crime of which said
petitioner was convicted.

Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907 "indicates that the
laws to be enforced by the occupant consist of, first, the territorial law in general, as that which
stands to the public order and social and commercial life of the district in a relation of mutual
adaptation, so that any needless displacement of it would defeat the object which the invader is
enjoined to have in view, and secondly, such variations of the territorial law as may be required by
real necessity and are not expressly prohibited by any of the rules which will come before us. Such
variations will naturally be greatest in what concerns the relation of the communities and individuals
within the district to the invading army and its followers, it being necessary for the protection of the
latter, and for the unhindered prosecution of the war by them, that acts committed to their detriment
shall not only lose what justification the territorial law might give them as committed against
enemies, but shall be repressed more severely than the territorial law would repress acts committed
against fellow subjects. Indeed the entire relation between the invaders and the invaded, so far as it
may fall within the criminal department whether by the intrinsic nature of the acts done or in
consequence of the regulations made by the invaders, may be considered as taken out of the
territorial law and referred to what is called martial law." (Westlake, International Law, Part II, War, p.
96.)

According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so far as it is used to
describe any fact in relation to belligerent occupation, does not refer to a particular code or system of
law, or to a special agency entrusted with its administration. The term merely signifies that the body
of law actually applied, having the sanction of military authority, is essentially martial. All law, by
whomsoever administered, in an occupied district martial law; and it is none the less so when
applied by civil courts in matters devoid of special interest to the occupant. The words "martial law"
are doubtless suggestive of the power of the occupant to share the law as he sees fit; that is, to
determine what shall be deemed lawful or unlawful acts, to establish tests for ascertaining the guilt of
offenders, to fix penalties, and generally to administer justice through such agencies as the found
expedient.

And the United States Rules of Land Warfare provide that the belligerent occupant may promulgate
such new laws and regulations as military necessity demands, and in this class will be included
those laws which come into being as a result of military rule; that is, those which establish new
crimes and offenses incident to a state of war and are necessary for the control of the country and
the protection of the army, for the principal object of the occupant is to provide for the security of the
invading army and to contribute to its support and efficiency and the success of its operations. (Pub.
1940, pp. 76, 77.)

From the above it appears clear that it was within the power and competence of the belligerent
occupant to promulgate, through the National Assembly of the so-called Republic of the Philippines,
Act No. 65 of the said Assembly, which penalizes the crimes of robbery and other offenses by
imprisonment ranging from the maximum period of the imprisonment prescribed by the laws and
ordinances promulgated by the President of the so-called Republic as minimum, to life imprisonment
or death as maximum. Although these crimes are defined in the Revised Penal Code, they were
altered and penalized by said Act No. 65 with different and heavier penalties, as new crimes and
offenses demanded by military necessity, incident to a state of war, and necessary for the control of
the country by the belligerent occupant, the protection and safety of the army of occupation, its
support and efficiency, and the success of its operations.

They are not the same ordinary offenses penalized by the Revised Penal Code. — The criminal acts
penalized by said Act No. 65 are those committed by persons charged or connected with the
supervision and control of the production, procurement and distribution of foods and other
necessaries; and the penalties imposed upon the violators are different from and much heavier than
those provided by the Revised Penal Code for the same ordinary crimes. The acts penalized by said
Act were taken out of the territorial law or Revised Penal Code, and referred to what is called martial
law by international jurists, defined above by Hyde, in order, not only to prevent food and other
necessaries from reaching the "guerrillas" which were harassing the belligerent occupant from every
nook and corner of the country, but also to preserve the food supply and other necessaries in order
that, in case of necessity, the Imperial Japanese forces could easily requisition them, as they did,
and as they had the right to do in accordance with the law of nations for their maintenance and
subsistence (Art. LII, Sec. III, Hague Conventions of 1907). Especially taking into consideration the
fact, of which this court may take judicial notice, that the Imperial Japanese Army had depended
mostly for their supply upon the produce of this country.

The crimes penalized by Act No. 65 — as well as the crimes against national security and the law of
nations, to wit: treason, espionage, inciting war, violation of neutrality, correspondence with hostile
country, flight to enemy's country, piracy; and the crimes against public order, such as rebellion,
sedition and disloyalty, illegal possession of firearms and other, penalized by Ordinance No. 7 and
placed under jurisdiction of the Court of Special and Exclusive Criminal Jurisdiction — are all of a
political complexion, because the acts constituting those offenses were punished, as are all political
offenses, for public rather than private reasons, and were acts in aid or favor of the enemy and
against the welfare, safety and security of the belligerent occupant. While it is true that these
offenses, when committed against the Commonwealth or United States Government, are defined
and also penalized by the territorial law Revised Penal Code, they became inapplicable as crimes
against the occupier upon the occupation of the Islands by the Japanese forces. And they had to be
taken out of the territorial law and made punishable by said Ordinance No. 7, for they were not
penalized before under the Revised Penal Code when committed against the belligerent occupant or
the government established by him in these Island. They are also considered by some writers as war
crimes in a broad sense. In this connection Wheaton observes the following:

"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to
time ordered to be done or forbidden to be done in the martial law proclamation or regulations of the
invading or occupying commander. Thus, in the Anglo-Boer war, the British military authorities
proclaimed the following to be offenses against their martial law; — Being in possession of arms,
ammunition, etc.; traveling without a permit; sending prohibited goods; holding meetings other than
those allowed; using seditious language; spreading alarmist reports; overcharging for goods;
wearing uniforms without due authority; going out of doors between certain hours; injuring military
animals or stores; being in possession, without a permit, of horses, vehicles, cycles, etc.; hindering
those in execution of military orders; trespassing on defense works. Such offenses, together with
several others, were specified in the Japanese regulations made in the Russo-Japanese war."
(Wheaton's International Law, War, seventh edition, 1944, p. 242.)

It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive Criminal
Jurisdiction against the petitioner, imposing upon him the penalty of life imprisonment, was good and
valid, since it was within the admitted power or competence of the belligerent occupant to
promulgate the law penalizing the crime of which petitioner was convicted.

(3) The last question is the legal effect of the reoccupation of the Philippines and restoration of the
Commonwealth Government; that is whether or not, by the principle of postliminy, the punitive
sentence which petitioner is now serving fell through or ceased to be valid from that time.

In order to resolve this last question, it is not necessary to enter into an elaborate discussion on the
matter. It is sufficient to quote the opinion on the subject of several international jurists and our
recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra.

Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals
continued or created by the belligerent occupant, opines "that judicial acts done under this control,
when they are not of a political complexion, administrative acts so done, to the extent that they take
effect during the continuance of his control, and the various acts done during the same time by
private persons under the sanction of municipal law, remain good. . . . Political acts on the other
hand fall through as of course, whether they introduce any positive change into the organization of
the country, or whether they only suspend the working of that already in existence. The execution
also of punitive sentences ceases as of course when they have had reference to acts not criminal by
the municipal law of the state, such for example as acts directed against the security or control of the
invader." (Hall's International Law, seventh edition, p. 518.)

Westlake, speaking of the duration of the validity of punitive sentences for offenses such as the one
in question, which is within the admitted power or competence of the belligerent occupant to punish,
says that: "To the extent to which the legal power of the occupant is admitted he can make law for
the duration of his occupation. Like any other legislator he is morally subject to the duty of giving
sufficient notice of his enactments or regulations, not indeed so as to be debarred from carrying out
his will without notice, when required by military necessity and so far as practically carrying out his
will can be distinguished from punishment, but always remembering that to punish for breach of a
regulation a person who was justifiably ignorant of it would be outrageous. But the law made by the
occupant within his admitted power, whether morally justifiable or not, will bind any member of the
occupied population as against any other member of it, and will bind as between them all and their
national government, so far as it produces an effect during the occupation. When the occupation
comes to an end the authority of the national government is restored, either by the progress of
operations during the war or by the conclusion of a peace, no redress can be had for what has been
actually carried out but nothing further can follow from the occupant's legislation. A prisoner detained
under it must be released, and no civil right conferred by it can be further enforced. The enemy's law
depends on him for enforcement as well as for enactment. The invaded state is not subject to the
indignity of being obliged to execute his commands. (Westlake, International Law, Part II, War, pp.
97, 98.)

And Wheaton, who, as above stated, considers as war crimes such offenses as those penalized in
Ordinance No. 7 and Act No. 65, says: "In general, the cast of the occupant possess legal validity,
and under international law should not be abrogated by the subsequent government. But this rule
does not necessarily apply to acts that exceed the occupant's power (e.g., alienation of the domains
of the State or the sovereign), to sentences for 'war treason' and 'war crimes,' to acts of a political
character, and to those that beyond the period of occupation. When occupation ceases, no
reparation is legally due for what has already been carried out." (Wheaton's International Law, supra,
p. 245.)

We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and
Dizon, supra, that all judgments of political complexion of the courts during the Japanese regime,
ceased to be valid upon the reoccupation of the islands by virtue of the principle or right of
postliminium. Applying that doctrine to the present case, the sentence which convicted the petitioner
of a crime of a political complexion must be considered as having ceased to be valid ipso facto
upon the reoccupation or liberation of the Philippines by General Douglas MacArthur.

It may not be amiss to say in this connection that it is not necessary and proper to invoke the
proclamation of General Douglas MacArthur declaring null and void all laws, among them Act No.
65, of the so-called Republic of the Philippines under which petitioner was convicted, in order to give
retroactive effect to the nullification of said penal act and invalidate sentence rendered against
petitioner under said law, a sentence which, before the proclamation, had already become null and
of no effect.

We therefore hold that the punitive sentence under consideration, although good and valid during
the military occupation of the Philippines by the Japanese forces, ceased to be good and valid ipso
facto upon the reoccupation of these Island and the restoration therein of the Commonwealth
Government.

In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and it is ordered
that the petitioner be released forthwith, without pronouncement as to costs. So ordered.

Jaranilla, Pablo and Bengzon, JJ., concur.

Moran, C.J., concurs in the result.

Separate Opinions

OZAETA, J., concurring:

Amidst the forest of opinions that have cropped up in this case it would seem unnecessary to plant
an additional tree. To justify our effort — lest we seem intent to bring coal to Newcastle — we ought
to state that the following opinion had been prepared before the others were tendered. It has been
impossible for the Court to reconcile and consolidate the divergent views of its members although
they arrive at practically the same result.

Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction of Manila, the
petitioner was found guilty and sentenced to life imprisonment. He commenced to serve the
sentence on August 21, 1944. He now petitions this Court for the writ of habeas corpus, alleging that
Ordinance No. 7, by which the Court of Special and Exclusive Criminal Jurisdiction was created and
which was promulgated on March 8, 1944, by the President of the "Republic of the Philippines," was
null and void ab initio. The Solicitor General, answering the petition on behalf of the respondent
Director of Prisons, expressed the opinion that "the acts and proceedings taken and before the said
Court of Special and Exclusive Criminal Jurisdiction which resulted in the conviction and
imprisonment of the herein prisoner should now be denied force and efficacy," and recommended
"that the writ of habeas corpus prayed for be granted and that the City Fiscal be instructed to
prepare and file the corresponding information for robbery against the petitioner herein in the Court
of First Instance of Manila."

The case was argued before us on September 21 and 22, 1945, by the First Assistant Solicitor
General on behalf of the respondent and the City Fiscal as amicus curiae — the former impugning
and the latter sustaining the validity of said Ordinance No. 7. Section 1 of the ordinance in question
reads as follows:

SECTION 1. There is hereby created in every province and city throughout the Philippines
one or more courts of special criminal jurisdiction as the President of the Republic of the
Philippines may determine upon recommendation of the Minister of Justice, which courts
shall have exclusive jurisdiction to try and determine crimes and offenses penalized by Act
No. 65 entitled "An Act imposing heavier penalties for crimes involving robbery, bribery,
falsification, frauds, illegal exactions and transactions, malversation of public funds and
infidelity as defined in the Revised Penal Code and violations of food control laws, when
committed by public officers and employees, and for similar offenses when committed by
private individuals or entities, and providing for a summary procedure for the trial of such
offenders."

Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction also to try the following
crimes as defined in the Revised Penal Code: crimes against national security and the law of
nations, crimes against public order, brigandage, arson and other crimes involving destruction, illegal
detention committed by private individuals and kidnapping of minors; and illegal possession of
firearms, as defined in an executive order. Section 3 provides for the appointment of one judge of
first instance to preside over the court above mentioned and of a special prosecutor in each special
court. Section 4 authorizes the court to impose a longer term of imprisonment than that fixed by law,
or imprisonment for life or death where not already fixed by law, for the crimes and offenses
mentioned in section 2. The remaining sections read as follows:

SEC. 5. The trial of the cases arising sections 1 and 2 hereof shall be started within two days
after the filing of the corresponding information, shall be summary in procedure, and shall
aim at their expeditious and prompt disposition. Technicalities shall be avoided and all
measures calculated to serve this end shall be taken by the trial judge. Said cases shall be
decided within four days after the same are submitted for decision. The summary procedure
provided in Act No. 65 insofar as not inconsistent with the provisions of this Ordinance, shall
govern the trial of the cases enumerated in said sections 1 and 2 hereof.

SEC. 6. The decisions of the special courts herein created shall be final except where the
penalty imposed is death, in which case the records of the particular case shall be
elevated en consulta to a special division of the Supreme Court composed of the three
members to be designated by the President of the Republic of the Philippines. The clerk of
each special court, upon the promulgation of a decision imposing the death penalty, shall
immediately forward the records of the case to the special division of the Supreme Court
herein created, which shall decide the case within fifteen days from the receipt of the records
thereof.

SEC. 7. The interest of public safety so requiring it, the privileges of the writ of habeas
corpus are hereby suspended with respect to persons accused of, or under investigations
for, any of the crimes and offenses enumerated in sections 1 and 2 hereof.
 SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the provisions hereof, are
hereby repealed or modified accordingly.

SEC. 9. This Ordinance shall take effect immediately upon its promulgation.

The summary procedure provided in Act No. 65 of the "Republic," as referred to in section 5 above
quoted, is in turn that established by Chapter II of Executive Order No. 157 of the Chairman of the
Philippine Executive Commission, dated May 18, 1943. Under said procedure (section 17) "search
warrants may be issued by the court or by any prosecuting officer, authorizing peace officers to
search for and seize any articles or objects described in the warrant, including those which may be
regarded as evidence of an offense under this Order even if such articles or objects are not included
among those described in section 2, Rule 122, of the Rules of Court." Section 18 reads as follows:

SEC. 18. The accused or his representative may be examined by the court, and with the
permission of the court, by the fiscal or other prosecuting officer as to any matters favorable
or unfavorable to him or his principal; and either may apply to the judge for the examination
of the co-accused or the representative of the latter in matters related to the defense of the
accused. Statements made by the accused, his co-accused, or the representative of the
accused or a person acting in a similar capacity, irrespective of the circumstances under
which they were made, shall be admissible in evidence if material to the issue.

Section 21 provides for the summary trial in the following manner:

Such trials shall be conducted according to the following rules:

(a) After arraignment and plea, the court shall immediately cause to be explained to the
accused the facts constituting the offenses with which he is charged, and the judge shall
interrogate the accused and the witnesses as to the facts and circumstances of the case in
order to clarify the points in dispute and those which are admitted.

(b) Refusal of the accused to answer any questions made or allowed by the court may be
considered unfavorable to him.

(c) Except for justifiable reasons, the accused shall not be allowed to plead and assert
defenses that are inconsistent with each other.

(d) If from the facts admitted at the preliminary interrogation, it should appear that the
accused is guilty of the crime charged in the information, or in any other information, or in
any other information, or in any other information subsequently filed by the prosecuting
officer, a sentence of conviction may be immediately rendered against the accused.
Otherwise, the judge shall dictate an order distinctly specifying the facts admitted by the
accused and those which are in dispute, and the trial shall be limited to the latter, unless the
judge, for special reasons, otherwise directs.

(e) Unjustified absence of an accused who has been released on bail, or of his
representative shall not be a ground for interrupting the proceedings or attacking the validity
of the judgment.

The provisions of Rules 115 to 117 of the Rules of Court shall be suppletory to the foregoing
insofar as they are not in conflict therewith.
The records shows that during their existence the courts of special and exclusive criminal jurisdiction
created by the ordinance in question convicted and sentenced a total of 94 individuals, 55 of whom
had been prosecuted for illegal possession of firearms and 15 for robbery; and that of the 94
convicts only 3, including the herein petitioner, remain in confinement, 21 having escaped, 37 having
been released, and 33 having died.

In synthesis, the argument of the Solicitor General is as follows: Acts of the military occupant which
exceed his power tested by the criterion set forth in article 43 of the Hague Regulations, are null and
without effect as against the legitimate government. (Wheaton's International Law, 7th ed., p. 245.)
Acts in furtherance or support of rebellion against the United States, or intended to defeat the just
rights of citizens, and other Acts of like nature, must, in general, be regarded as invalid and void.
(Texas vs. White, 74 U. S., 733; 19 Law. ed., 240.) Judicial or legislative acts in the insurrectionary
states were valid where they were not hostile in their purpose or mode of enforcement to the
authority of the national government, and did not impair the rights of citizens under the Constitution.
(Horn vs.Lockhart, 17 Wall., 570-581; 21 Law. ed., 660.) All the enactment of the de
facto legislatures in the insurrectionary states during the war, which were not hostile to the Union or
to the authority of the General Government and which were not in conflict with the Constitution of the
United States, or of the states, have the same validity as if they had been enactments of legitimate
legislatures. (United States vs. The Home Insurance Co., 22 Wall., 99-104; 22 Law. ed., 818.)
Tested by these principles of international law, Ordinance No. 7 must be declared void (1) because it
favored the forces of occupation and the civilian Japanese inasmuch as it provided an excessively
heavy penalty for the summary trial of possession of firearms and violations of food control
regulations and (2) because it impaired the rights of citizens under the Constitution inasmuch as the
procedure therein prescribed withdrew the privilege of the accused against self-incrimination and his
right to appeal to the Supreme Court even where the penalty imposed was life imprisonment or
death.

In substance, the City Fiscal argues that the heavier penalty for the illegal possession of firearms
than that fixed by the Administrative Code was not directed toward the suppression of underground
activities against the Japanese army, and the rigid enforcement of the food control measures was
not intended to insure the procurement of supplies by said army, because in any event the Japanese
military occupant freely exercised the power to go after and punish his enemies directly without
recurring to the agencies of the "Republic," for there were even cases where the offenders were
already in the hands of the police or courts of the "Republic" but they were unceremoniously taken
from said agencies by the Japanese military police and punished or liquidated by it at Fort Santiago
or elsewhere; and as regards food control, the Japanese forces did not have any need of the
measures or agencies established by the "Republic" because the Japanese forces themselves
commandeered what they needed or sent out their own agents to purchase it for them at prices even
much higher than those fixed by the "Republic"; that the procedure prescribed afforded a fair trial
and did not violate any fundamental rights; that the military occupant was not in duty bound to
respect the constitution and the laws of the occupied territory; that he could abrogate all of them and
promulgate new ones if he so chose; that the cases cited by the Solicitor General are not applicable
because they deal with the validity of acts and processes of the governments of the rebel states
during the Civil War and are based upon the indissolubility of the Union; that the validity or nullity of
the ordinance in question should be judged in the light of the provisions of the Constitution and the
laws of the "Republic" and of generally accepted principles of international law; that even assuming
that it should be judged by the standard or the Constitution of the Commonwealth, the ordinance
satisfies all the requirements of said Constitution; that the right to appeal in a criminal case is not a
constitutional but a purely statutory right which may be granted or withheld at the pleasure of the
state; and, finally, that the supposed invalidity of the sentence imposed against the petitioner cannot
be raised by habeas corpus.
There is no question that in virtue of that of the proclamation of General MacArthur of October 23,
1944 (41 Off. Gaz., 147, 148), Ordinance No. 7 is no longer of any force and effect since the
restoration of the Government of the Common wealth of the Philippines. The question before us is
whether said ordinance ever acquired any force and effect or was null and void ab initio.

Invoking decisions of the Supreme Court of the United States in cases involving the validity of Acts
of the Confederacy and of a rebel state as a de facto government during the Civil War, the Solicitor
General maintains that the ordinance in question was null and void because it impaired the rights of
citizens under the Constitution and because it was hostile in its purpose to the United States and the
Commonwealth of the Philippines.

The decisions invoked would be applicable if the so-called Republic of the Philippines should be
considered as a government established by the Filipino people in rebellion against the
Commonwealth and the Sovereignty of the United States. The decisions of the Supreme Court of the
United States declaring invalid Acts of a rebel state or of the Confederacy which were in furtherance
or support of rebellion against the United States or which impaired the rights of citizens under the
Constitution, rest on the proposition that the Union is perpetual and indissoluble and that the
obligations of allegiance to the state, and obedience to her laws, subject to the Constitution of the
United States, remained unimpaired during the War of Secession. (See Texas vs. White, 74 U.S.,
700; 19 Law. ed., 227, 237; William vs. Bruffy, 96 U.S., 176; 24 Law. ed. 716.) Obviously, that
proposition does not hold true with respect to a de facto government established by the enemy in an
invaded and occupied territory in the course of a war between two independent nations. Such
territory is possessed temporarily so possessed temporarily by lawful government at war with the
country of which the territory so possessed is a part, and during that possession the obligations of
the inhabitants to their country are suspended, although not abrogated (United States vs. Rice, 4
Wheat., 253; Fleming vs. Page 9 How., 614; Baldy vs. Hunter, 171 U.S., 388; 43 Law. ed., 208,
210.) In the case of Williams vs. Bruffy, supra, the court, speaking though Mr. Justice Field,
observed: "The rule stated by Vattel, that the justice of the cause between two enemies being by law
of nations reputed to be equal, whatsoever is permitted to the one in virtue of war is also permitted to
the other, applies only to cases of regular war between independent nations. It has no application to
the case of a war between an established government and insurgents seeking to withdraw
themselves from its jurisdiction or to overthrow its authority. The court further stated that the
concession of belligerent rights made to the Confederate Government sanctioned no hostile
legislation and impaired in no respect the rights loyal citizens as they had existed at the
commencement of hostilities.

On the other hand, in a war between independent nations "the rights of the occupant as a law-giver
have broad scope." He many "suspend the existing laws and promulgate new ones when the
exigencies of the military service demand such action. According to the Rules of Land Warfare he
will naturally alter or suspend all laws of a political nature as well as a political privileges, and laws
which affect the welfare and safety of his command." (Hyde on International Law, vol. 2, p. 367.) It
will be seen then that in a war between independent nation the army of occupation has the right to
enact laws and take measures hostile to its enemy, for its purpose was to harass and subdue the
latter; and it is not bound to respect or preserve the rights of the citizens of the occupied territory
under their Constitution.

Let us now look into the nature and status of the government styled "Republic of the Philippines "in
order to determined the criterion by which the validity of its enactments should be tested. In the
recent case of Co Kim Cham vs. Valdez Tan Keh Dizon (G.R. No. L-5, p. 113, ante), this Court
speaking through Justice Feria, had occasion to comment upon the nature of said government in the
following words:
 The so-called Republic of the Philippines, apparently established and organized as a
sovereign state independent from any other government by the Filipino people, was, in truth
and reality, a government established by the belligerent occupant or the Japanese forces of
occupation. It was of the same character as the Philippines Executive Commission, and the
ultimate source of its authority was the same — the Japanese military authority and
government. As General McArthur stated in his proclamation of October 23, 1944, a portion
of which had been already quoted, "under enemy duress a was established on October 14,
1943, base upon neither the free expression of the peoples" will nor the sanction of the
Government of the United States.' Japan had no legal power to grant independence to the
Philippines or transfer the sovereignty of the United State to, or recognize the latent
sovereignty of, the Filipino people, before its military occupation and possession of the
Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of
peace or other means recognized in the law of nations. For it is a well-established doctrine in
internal law, recognized in the law, recognized in Article 45 of the Hague Conventions of
1907 (which prohibits compulsion of the population of the occupied territory to swear
allegiance to the hostile power), that belligerent occupation, being essentially provisional,
does not severe to transfer sovereignty over the territory controlled although the de jure
government is during the period of occupancy deprived of the power to exercise its rights as
such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United 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 of the Filipino
people into believing in the apparent magnanimity of the Japanese gesture of transferring or
turning over the rights of governments into the hands of Filipinos. It was established under
the mistaken belief that, by doing so, Japan would secure the cooperation or at least the
neutrality of the Filipino people in her war against the United States and other allied nations.

We reaffirmed those statements. To show further the fictitious character of much-propagandized

"independence" which Japan purported to grant to the Philippines through the establishment of the
"Republic", we may add that, as matter of contemporary history and of common knowledge, in
practice the Japanese military authorities in the Philippines never treated the "Republic of the
Philippines" as an independent government after its inauguration. They continued to impose their will
on its executive officials when their interests so required. The Japanese military police arrested and
punished various high officials of said government, including the First Assistant Solicitor General,
and paid no attention to the protests and representations made on their behalf by the President of
the "Republic." As a climax of their continual impositions, in December 1944 the Japanese military
authorities placed the President and the members of his Cabinet under the "protective" custody of
the military police, and on the 22nd of the month forced them to leave the seat of the government in
Manila and hide with them in the mountains. The only measure they did not succeed in imposing
upon the "Republic" was the conscription of the Filipino youth into an army to fight with the Japanese
against the United States. So, while in theory and for the purpose of propaganda Japan professed to
be a benefactor and liberator of the Filipinos, hoping thereby to secure their willing cooperation in
her war efforts, in practice she continued to enslave and oppress the Filipinos, as she saw that the
latter remained loyal to the United States. She found that the Filipinos merely feigned cooperation as
their only means of self-preservation and that those who could stay beyond the reach of her army of
occupation manifested their hospitality by harassing and attacking that army. Thus Japan continued
to oppress and tyrannize the Filipinos notwithstanding the former's grant of "independence" to the
latter. It would therefore be preposterous to declare that the "Republic of the Philippines" was a
government established by the Filipino people in rebellion against the Commonwealth and the
sovereignty of the United States.

The said government being a mere instrumentality of the Commander in Chief of the Japanese army
as military occupant, the ordinance question promulgated by the President of the "Republic" must be
deemed as an act emanating from the power or authority of said occupant. The question, therefore,
is whether or not it was within the competence of the military occupant to pass such a law.

Article 43 of the Hague Regulations provides as follows:

ART. 43. The authority of the legitimate power having actually passed into the hands of the
occupant, the latter shall take all steps in his power to reestablish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country.

Commenting upon this article, Hyde in his work on International Law, volume 2, pages 366, 367,
368, says:

In consequence of his acquisition of the power to control the territory concerned, the
occupant enjoys the right and is burdened with the duty to take all the measures within his
power to restore and insure public order and safety. In so doing he is given great freedom
may be partly due to circumstance that the occupant is obliged to consider as a principal
object the security, support, efficiency and success of his own force in a hostile land
inhabited by nationals of the enemy. . . .

xxx xxx xxx

The right to legislate is not deemed to be unlimited. According to the Hague Regulations of
1907, the occupant is called upon to respect, "unless absolutely prevented, the laws in force
the ordinary civil and criminal laws which do not conflict with security of his army or its
support, efficiency, and success."

In the exercise of his powers the commander must be guided by his judgment and his experience
and a high sense of justice. (President McKinley, Order to the Secretary of War, July 18, 1898, on
the occupation of Santiago de Cuba by the American forces, Moore, Dig. VII, p. 261.)

Acts of the military occupant which exceed his power tested by the criterion set forth in article 43 of
the Hague Regulations, are null and without effect as against the legitimate government. (Wheaton's
International Law, 7th ed. [1944], p. 245.)

Hall in his Treatise on Internal Law, (7th edition), discussing the extent of the right of a military
occupant, states:

If occupation is merely a phase in military operations, and implies no change in the legal
position of the invader with respect to the occupied territory and its inhabitants, the rights
which he possesses over them are those which in the special circumstances represent his
general right to do whatever acts are necessary for the prosecution of his war; in other words
he has the right of exercising such control, and such control only, within the occupied
territory as is required for his safety and the success of his operations. . . . On occupying a
country an invader at once invest himself with absolute authority; and the fact of occupation
draws with it as of course the substitution of his will for previously existing law whenever
such substitution is reasonably needed, and also the replacement of the actual civil judicial
administration by the military jurisdiction. In its exercise however this ultimate authority is
governed by the condition that the invader, having only a right to such control as is
necessary for his safety and the success of his operations, must use his power within the
limits defined by the fundamental notion of occupation, and with due reference to its transient
character. He is therefore forbidden as a general rule to vary or suspend laws affecting
 property and private personal relations, or which regulate the moral order of the community. .
. . (Pages 498, 499.)

We deduce from the authorities that the power of the occupant is broad and absolute in matters
affecting his safety. But in affairs which do not affect the security, efficacy, and success of his
military operations, his power is qualified by the transient character of his administration. He is
forbidden "to vary or suspend laws affecting property and private personal relations, or which
regulate the moral order of the community." Unless absolutely prevented, he is bound to laws, and
civil and criminal, in force in the country.

Tested by this criterion, was it within the power or competence of the Commander in Chief of the
Japanese army of occupation of the Philippines to promulgate Ordinance No. 7? In so far as said
ordinance created new court of special criminal jurisdiction we think his power to promulgate and
enforce it during the occupation cannot be seriously disputed; but in so far as that ordinance varied
radically our law of criminal procedure and deprived the accused of certain rights which our people
have always treasured and considered inviolate, we are of the that it transcended his power or
competence. We base this opinion upon the following considerations:

1. The occupant was not absolutely prevented from respecting our law of criminal procedure and the
Court of Special and Exclusive Criminal jurisdiction. The application or nonapplication of said law did
not affect the security, efficacy, and success of his military operations. The crimes over which the
said court was vested with jurisdiction were mostly crimes against property penalized in our Revised
Penal Code, which crimes did not affect the army of occupation. As to the illegal possession of
firearms the City Fiscal himself, who the validity of the ordinance, informs us that the occupant did
not avail himself of said court but punished his enemies direct without recurring to the agencies of
the "Republic"; and he further informs us that "as regards food control, the Japanese forces did not
have any need of the measures or agencies established by "Republic", nor did they make use of
them.

2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial, repugnant to the
humanitarian method of administering criminal justice adopted by all progressive, democratic, and
freedom-loving countries of the world, and, therefore, devoid of that high sense of justice by which
the military occupant must be guided in the exercise of his powers. This concept is, we think, borne
out by an examination of the following features of said procedure:

(a) Under the rule of procedure embodied in said ordinance any prosecuting officer may, on his own
volition and even without probable cause, issue a search warrant for the seizure of documents and
articles which may be regarded as evidence of an offense — in violation of section 2, Rule 122 of the
Bill of Rights contained in the Constitution of the Commonwealth, which guarantees "the right of the
people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures," and prohibits the issuance of warrants except upon probable cause to be determined
by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce.

(b) The trial must be commenced within two days after the filing of the information — in violation of
section 7, Rule 114, which give the accused at least two days after the plea of not guilty within which
to prepare fort trial.

(c) The presumption of innocence in favor of the accused in all criminal prosecutions until the
contrary is proved, which is likewise guaranteed by the Bill of Rights, is violated in that, after the
arraignment and before the presentation of any proof for the prosecution, the accused is interrogated
by the judge as to the facts and circumstances of the case, and if from the facts obtained by such
interrogation it should appear (to the judge) that accused is guilty a sentence of conviction may be
immediately rendered against him, thereby also depriving him of his right to meet the witnesses face
to face and of his privilege against self-incrimination.

The City Fiscal justifies this feature of the procedure by giving the following hypothetical case: "In the
house of Juan and under his bed a policeman finds a revolver. Juan is arrested and an information
for illegal possession of firearms is filed against him by the fiscal. He is brought before the judge of
the corresponding special court for the preliminary interrogatory. He is asked whether or not he
admits that the revolver was found in his house. He answers in the affirmative but says that he is not
the owner of the revolver and he does not know how it placed there. Asked whether he knows of
anybody who could have placed the revolver under his bed, he answers that it might have been
place there by a guest who slept on his bed the night previous to its discovery by the polices. He is
asked to give the name of the guest reffered to and his address, but he refuses to answers. Asked if
he has other witnesses to support his claim, he answer that he has none. As may be seen, the
evidence of guilt is complete, and there being no further evidence to be presented that may change
the result the accused may be then and there sentenced by the court. In this case, the conviction of
the accused is reasonable and fair, for his refusal to reveal the identity of his alleged guest may due,
either to the fact that there was no such guest, or that the cause for concealing his identity is worth
suffering for. Volente non fit injuria."

But to us that hypothetical case is a good illustration of the injustice of such procedure. There the
accused was convicted not because the prosecution had proved his guilt but because he was unable
to prove his innocence. His inability to prove who the owner of the revolver was, did not to our mind
prove him guilt, beyond reasonable doubt, under the circumstances. He was accused of illegal
possession of firearm, an offense punishable under the ordinance in question with imprisonment for
six to twelve years. He pleaded not guilty, for according to him the revolver was not his and he did
not know how it got into his house. He had no time to investigate and try to find out whether the
policeman himself or some the other person who wished to do him harm had planted it there, sooner
was the revolver seized than he was brought before the court and interrogated about it when he was
naturally dazed and in a state of alarm. If the law of criminal procedure had been followed, he would
have had ample time to reflect and endeavor to unravel the mystery. He could have consulted a
lawyer, and he would have been entitled to at least two days after the information was read to him to
investigate the facts and prepare for the trial. At the trial he would not have been required to answer
to any proof in his defense until the prosecution had presented its witness, principally the policeman.
His lawyer could have cross-examined the policeman and found out from him whether he had any
grudge against the accused and how he happened to search the latter's house. From the testimony
of the policeman the accused might have been enlightened as to how and by whom the revolver was
place in his house. Suppose that the policeman should say that his informant as to the presence of
the revolver under the bed of the accused was a houseboy of the latter, and suppose that houseboy
was really the one who planted the revolver because of some grievance he had against his master
but that the latter had not suspected before that his houseboy had any revolver. In view of the
revelation of the policeman he would had been able to investigate and ascertain that fact. In that he
way he could have satisfactory explained how and by whom the revolver was placed under his bed.
But under the procedure in question as outlined by the City Fiscal, the accused was of course utterly
unable to do that and was consequently doomed to at least six years' imprisonment for a crime he
had not committed.

(d) Section 6 of the Ordinance in question provided: "The decisions of the special courts herein
created shall be final except where the penalty imposed is death, in which case the records of the
particular case shall be elevated en consulta to a special division of the Supreme Court composed of
three members to be designated by the President of the Republic of the Philippines." Under our law
of criminal procedure, which the military occupant was bound to respect unless absolutely
prevented, all persons accused of any offense have the right to appeal to the Court Appeals or to the
Supreme Court. It is true that as rule that right is statutory and may be withdrawn by the legislature
except in certain cases where the right to appeal is provided in the Constitution itself, as in the cases
involving life imprisonment and death penalty; but the question here is not whether the legislative
department of the legitimate government has the power to abrogate that right but whether it was
within the competence of the military occupant to do so.

(e) In the instant case the penalty imposed upon accused by the special court, after a summary trial
was life imprisonment, and he was denied the right to have that sentence reviewed by the Supreme
Court, altho under sub-section 4, section 2, Article VIII of the Constitution of the Commonwealth, he
could not have been deprived by law of that right.

( f ) Section 7 of the Ordinance suspended the privilege of the writ of habeas corpus with respect to
persons accused of or under investigation for any of the crimes and offenses enumerated in sections
1 and 2. The Constitution of the Commonwealth prohibit the suspension of that privilege except in
cases of invasion, insurrection, or rebellion when the public safety requires it. The suspension by the
ordinance was not motivated by any one of these cases but by the necessity for waging a campaign
against certain classes of crime; martial law was not declared; and the suspension of habeas
corpus did not apply to all persons living in the specified territory (as should have been done if the
public safety required such suspension) but only to those accused of or investigated for certain
specified crimes or offenses. The result of such partial suspension was that persons accused of or
under investigation for any of the offenses specified in section 1 and 2 could be held in detention
indefinitely, whereas person accused of or under investigation for crimes other than those specified,
such for example as theft, physical injuries, homicide, murder, and parricide, had the right to demand
their release by habeas corpus after the lapse of six hours. The same discrimination holds true with
reference to the other features already noted above, namely, unreasonable searches and seizures,
summary trial, denial of the presumption innocence, self-incrimination, and denial of the right to
appeal. Such discrimination was unwarranted and unjust and was contrary to the concept of justice
prevailing in all democratic countries, where every person is entitled to the equal protection of the
laws.

3. It is apparent from the foregoing examination of the main features of the ordinance that while the
methods thus adopted may not be unusual under totalitarian governments like those of the
aggressor nations in the recent global war, they are strange and repugnant to the people of the
democratic countries which united together to defeat said aggressors and "to reaffirm faith in
fundamental human person, in the equal rights of men and women and of nations large and small, . .
. and to promote social progress and better standards of life in larger freedom." (Preamble Charter
for Peace adopted by the United Nations at San Francisco, California, June 26, 1945.) The recent
global war was a clash between two antagonistic ways of life, between facism and democracy. It
would be strange indeed if his Court, which functions under a democratic government that fought
with the other democratic nations in that war, should sanction or approve the way of life, against
which that war was fought and won the cost of million of lives and untold sacrifices.

4. The case involves the interpretation not of constitution but of international law, which "is based on
usage and opinion"; and "he who in such a case bases his reasoning on high considerations of
morality may succeed in resolving the doubt in accordance with humanity and justice." (Principles of
International Lawrence, 7th ed., pp. 12, 13.) We think the contentions for the petitioner against the
validity of the ordinance in question are in accord with humanity and justice.

Before concluding this opinion we deem it pertinent to comment on the remark of the City Fiscal that,
as stated in its preamble, the ordinance in question was promulgated in response to "an urgent
necessity for waging an immediately and relentless campaign against certain classes and expediting
the trail and determination thereof in order to hasten the re-establishment of peace and other
throughout the country and promote a feeling of security among the people conducive to the earlier
return of normalcy in our national life." We concede that the objective of the author of the ordinance
was commendable, but we think — and in this we are supported by the actual result — it was
unattainable thru the means and methods prescribed in said ordinance. Peace and order and
normalcy could not be restored unless the root cause of their disturbance were eliminated first. That
cause was the presence in the country of the Japanese army, which wrecked our political, social,
and economic structures, destroyed our means of communication, robbed the people of their food,
clothing, and medicine and other necessities of life, ejected them from their own homes, punished
and tortured innocent men and women, and other wise made life unbearable. The relative rampancy
of the crimes mentioned in said ordinance was but the effect of that cause. The cornering and
hoarding of foodstuffs would not for the scarcity produced by the Japanese army and the disruption
of our commerce and industries on account of the invasion. The possession of firearms was
rendered desirable to many person to defend themselves against or attack the invader. Robberies
and other crimes against property increased as a resulted of hunger and privation to which the
people were subjected by the rapacity of the Japanese. It was a delusion to expect peace and
normalcy to return without eliminating the cause of their disturbance or destruction of the Japanese
army in the Philippines — an objective to which the ordinance was not addressed. So, even from the
point of view of the Filipino people and not of the Japanese army of occupation, the ordinance in
question results untenable.

Having reached the conclusion that the enactment of the procedure embodied in said ordinance for
the special court therein created was beyond the competence of the occupant, inasmuch as that
procedure was inseparable from the first part of the ordinance which creates the special court and
prescribes the jurisdiction thereof, we are constrained to declare the whole ordinance null and
void ab initio. Consequently the proceedings in said court which resulted in the conviction and
sentence of the petitioner are also void.

PARAS, J., concurring in the result:

Charged with robbery, the petitioner herein was found guilty and sentence to suffer life
imprisonment. He commenced to serve the term on August 21, 1944. Inasmuch as he was a
member of the Metropolitan Constabulary, the basis of the information was Act No. 65, passed
during the Japanese — sponsored Republic of the Philippines and amending certain articles of the
Revised Penal Code. The trial was held by the then existing Court of Special and Exclusive Criminal
Jurisdiction which was authorized to conduct proceedings in a special manner. Ordinance No. 7 of
the "Republic.")

After General of the Army Douglas McArthur had issued the Proclamation dated October 23, 1944,
the Act under which the petitioner was charged and convicted stands nullified, and the original
provisions of the Revised Penal Code restored. By virtue of article 22 of the said Code, "Penal laws
shall have a retroactive effect in so far as they favor the person guilty of a felony, who is not a
habitual criminal, as this term is defined in rule 5 of article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is serving the same."

In the absence of other details, it may here be assumed that the offense committed is that defined in
article 294, paragraph 5, which provides as follows:

Any person guilty of robbery with the use of violence against or intimidation of any person
shall suffer:
 The penalty of prision correccional to prision mayor in its medium period in other cases.

In accordance with the provisions of the Indeterminate Sentence Law (Acts Nos. 4103 and 4225 ),
the maximum penalty that can be imposed is six months of arresto mayor.

This Court has already dismissed cases wherein the defendants were charge with the violation of
law in force at the time of the commission and trial of the crime, after said laws have been repealed
by subsequent legislation, People vs. Moran (Phil., 44 387); People vs. Tamayo (61 Phil., 226 ), and
also repeatedly released on writs of habeas corpus prisoners who, were given the benefit of
subsequent legislation either repealing statute under which they had been convicted or modifying the
same by imposing lesser penalties, Escalante vs. Santos (56 Phil., 483); Directo vs. Director of
Prisons (56 Phil., 692).

Prisoners who behave well are almost always liberated upon the expiration of the minimum penalty
fixed in the judgments of conviction or within a reasonable time thereafter. In the present case, there
being no information that the double the period of the minimum penalty that could be imposed upon
him, he should be released. As this is the effect of the decision of the majority, I concur in the result.

DE, JOYA, J., concurring:

The principal question involved in this case is the validity of the judicial proceeding held in criminal
case No. 66 of the Court of Special and Exclusive Criminal Jurisdiction, established in the City of
Manila, during Japanese occupation, under the authority of Ordinance No. 7, issued by the President
of the so-called Philippine Republic, and the effect on said proceeding of the proclamation of
General Douglas McArthur, dated October 23, 1944.

In said criminal case, herein petitioner was accused of the crime of robbery and sentenced to life
imprisonment, on August 21, 1944.

There can be doubt that the government established in this country by the Commander in Chief of
the Japanese Imperial Forces, under the name of the Philippine Executive Commission, was a de
facto government, as already held by this Court in civil case G.R. No. L-5 entitled Co Kim Cham vs.
Valdez Tan Keh and Dizon, decided on September 17, 1945 (p. 133, ante). Said government
possessed all the characteristics of a de facto government as defined by the Supreme Court of the
United States, in the following language:

But there is another description of government, called also by publicists a government de

facto, but which might, perhaps, be more aptly denominated a government of paramount
force. Its distinguishing characteristics are (1), that its existence is maintained by active
military power within the territories, and against the rightful authority of an established and
lawful government; and (2), that while it exist it must necessarily be obeyed in civil matters by
private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, as wrongdoers, for those acts, though not warranted by the laws of the
rightful government. Actual governments of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military authority,
but they may be administrated, also, by civil authority, supported more or less directly by
military force. (MacLeod vs. United States [1913,] 229 U. S., 416.)
Under a de facto government, the courts of the country, under military occupation, should be kept
open, and whenever practicable, the subordinate officers of the local administration should be
allowed to continue in their functions, supported by the military force of the invader, because the
responsibility of maintaining peace and public order, and of punishing crime, falls directly upon the
commander in chief of the occupying forces. And in the performance of this duty, he may proclaim
martial law (Davis, Elements of International Law [3d.], pp. 330-332).

In occupied territory, the conquering power has a right to displace the pre-existing authority, and to
assume to such extent as it may deem proper the exercise by itself of all the powers and functions of
government. It may appoint all the necessary officers and clothe them with designated powers,
according to its pleasure. It may prescribe the revenues to be paid, and apply them to its own use or
otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit
to the powers that may be exerted in such cases, save those which are found in the laws and
customs and usages of war (Cross vs. Harrison, 16 How., 164 ; Leitensdorfer vs. Webb, 20 Id., 176;
The Grapeshot, 9 Wall.[ U.S.], 129; New Orleans vs. Steamship Co., [1874], 20 Wall., [ U.S.], 287.

It is generally the better course for the inhabitants of the territory, under military occupation, that they
should continue to carry on the ordinary administration under the invader; but the latter has no right
to force them to do so. If they decline, his only rights, and it is also his duty, is to replace them by
appointees of his own, so far as necessary for maintaining order and the continuance of the daily life
of the territory: other purposes, as these of the superior judicial offices, can bide their time
(Westlake, International Law, Part II, War, 2d ed., pp. 121-123).

Though the fact of occupation imposes no duties upon the inhabitants of the occupied territory, the
invader himself is not left equally free. As it is a consequence of his acts that the regular government
of the country is suspended, he is bound to take whatever means are required for the security of
public order; and as his presence, so long as it is based upon occupation, is confessedly temporary,
and his rights of control spring only from the necessity of the case, he is also bound to alter or
override the existing laws as little as possible (Hall, International Law, 6th ed., 476).

The government established here under the Philippine Executive Commission was more in
consonance with the general practice among civilized nations, in establishing governments for the
maintenance of peace and order and the administration of justice, in territories of the enemy under
military occupation; because said government was of a temporary character.

The government subsequently established under the so-called Philippine Republic, with a new
constitution, was also of the nature of a de facto government, in accordance with International Law,
as it was established under the authority of the military occupant and supported by the armed forces
of the latter. But it was somewhat different from that established under the Philippine Executive
Commission, because the former apparently, at least, had the semblance of permanency, which
however, is unusual in the practices among civilized nations, under similar circumstances.

Under military occupation, the original national character of the soil and of the inhabitants of the
territory remains unaltered; and although the invader is invested with quasisovereignity, which give
him a claim as of right to the obedience of the conquered population, nevertheless, its exercise is
limited by the qualification which has gradually become established, that he must not, as a general
rule, modify the permanent institutions of the country (Hall, International Law, 6th ed., p. 460).

The Convention Concerning the Laws and Customs of War on Land, adopted at The Hague in 1899,
lays down (Arts. 42, 43) definite rules concerning military authority over the territory of a hostile
state. In addition to codifying the accepted law, it provides that the occupant must respect, unless
absolutely prevented, the laws in force in the country.
It will thus be readily seen that the municipal law of the invaded state continues in force, in so far as
it does not affect the hostile occupant unfavorably. The regular courts of the occupied territory
continue to act in cases not affecting the military occupation; and it is not customary for the invader
to take the whole administration into his own hands, as it is easier to preserve order through the
agency of the native officials, and also because the latter are more competent to administer the laws
of the territory; and the military occupant, therefore, generally keeps in their posts such of the judicial
officers as are willing to serve under him, subjecting them only to supervision by the military
authorities, or by superior civil authorities appointed by him (Young vs. United States, 97 U. S., 39;
24 Law. ed., 992; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118; MacLeod vs. United
States, 229 U. S., 416; 33 Sup. Ct., 955; 57; Law. ed., 1260; Taylor, International Law, secs. 576,
578; Wilson, International Law, pp. 331-337; Hall, International Law, 6th ed. (1909), pp. 464,
465,475,476; Lawrence, International Law, 7th ed., pp. 421-413; Davis, Elements of International
Law, 3rd ed., pp. 330-332, 335; Holland, International Law, pp. 356-57, 359; Westlake, International
Law, Part II, War 2d ed., pp. 121-123).

The judicial proceedings conducted, under the municipal law of the territory, before the court
established by the military occupant are general considered legal and valid, even after the
government established by the invader had been displaced by the legitimate government of said
territory.

Thus the judgment rendered by the Confederate courts, during the Civil War, merely settling the
rights of private parties actually within their jurisdiction, not tending to defeat the legal rights of
citizens of the United States, nor in furtherance of laws passed in aid of the rebellion, had been
declared legal, valid and binding (Coleman vs.Tennessee, 97 U. S 509., 24 Law. ed., 1118;
Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21 Law. ed., 660;
Sprott vs. United States, 20 Wall., 249; 22 Law. ed., 371)

When the military forces of the Confederate states were destroyed, their government perished, and
with it all its enactments. But the legislative acts of the several States forming the Confederacy stood
on a different ground, and so far as they did not impair or tend to impair the supremacy of the
national authority, or the just rights of citizens under the Federal constitution, they were considered
as legal, valid and binding (Williams vs. Bruffy, 96 U. S., 177; 24 Law. ed., 716; Ford vs. Surget, 97
U. S., 594; 24 Law. ed., 1018; United States vs. Ins. Co., 22 Wall. [ U. S.], 99; 22 Law. ed., 816;
Ketchum vs. Buckley [1878], 99 U. S.,188; Johnson vs. Atlantic G. & W. I. Transit Co., 156 U. S.,
618; 15 Sup. Ct., 520).

In the later case, the Supreme Court of the United States reaffirmed that the judicial and legislative
acts of the rebellious States, as de facto governments, should be respected by the courts, if they
were not hostile in their purpose or mode of enforcement to the authority of the national government,
and did not impair the rights of citizens under the Federal Constitution. (Baldy vs. Hunter, 171 U. S.,
388; 18 Sup. Ct., 890; Law. ed., 208.)

Under the proclamation of General Douglas MacArthur, dated October 23, 1944, declaring null and
void all laws, regulations and processes issued and promulgated by the Philippine Executive
Commission and the Philippine Republic, during Japanese occupation, said Ordinance No. 7
promulgated on March 8, 1944, creating the Court of Special and Exclusive Criminal Jurisdiction,
ostensibly for the speedy reestablishment of peace and order, and Executive Commission,
prescribing summary rules of procedure, and other allied laws, such as Act No. 65 of the puppet
republic, prescribing heavier penalties, became null and void, once the Japanese armies in the
Philippines had been defeated, as with them the de facto governments, successively established
under them, perished, and with them all their enactments and processes of a hostile character.
But there are other considerations equally important why judicial proceedings held and conducted
before the courts established by said de facto governments, under laws promulgated by them,
should be declared null and void, without violating, in the least, settled principles, judicial precedents
or public policy.

Said Ordinance No. 7 adopted as integral parts thereof said Executive Order No. 157, as well as
said Act No. 65 of the National Assembly of the puppet republic, prescribing exceptionally heavy
penalties for the crimes enumerated therein.

The principal crimes mentioned in said Ordinance No. 7 and Act No. 65 of the puppet republic and
the other allied laws are illegal possession of firearms, robbery, violations of food-control laws,
falsification malversation and bribery; and it was under said laws that herein petitioner was
prosecuted and sentenced to life imprisonment for the crime robbery.

The penalty of life imprisonment or death for robbery was aimed principally at the underground
forces resolute and determined to seize and remove stores of food provisions, whenever possible, to
prevent them from falling into the hands of the enemy.

The penalty of twelve years' imprisonment for illegal possession of firearms was directed mainly
against those underground forces, that had been receiving arms from the forces of liberation across
the seas.

Violation of food-control laws were included and used as a pretext and justification for the seizure
and confiscation of food provisions so badly needed by the invader.

And the inclusion under said Ordinance No. 7 of the crime of bribery and other was used as a cloak
to conceal its venom and make said law look innocent.

By the imposition of excessive penalties , by the denial of the remedy of habeas corpus, by
compelling the accused to testify against themselves, and by denying them the right of appeal to the
highest court of the land, except where the death penalty was imposed, and by its summary
procedure, said Ordinance No. 7 and the other allied laws impaired and defeated the just and legal
rights of Filipino citizens under the Commonwealth Constitution, and the supremacy of the authority
of the legitimate Government. Under said laws, the persons accused were deprived of liberty without
due process of law.

In the language of this Court, "the phrase 'due process of law' used in the Philippine Bill should
receive a comprehensive interpretation, and no procedure should be treated as unconstitutional
which makes due provision for the trial of alleged criminal before a court of competent jurisdiction,
for bringing the accused into court and notifying him of the cause he is required to meet, for giving
him an opportunity to be heard, for the deliberation and judgement of the court, and for an appeal
from such judgement to the highest tribunal" (United States vs. Kennedy, 18 Phil., 122).

In their conception, in their purpose and mode of enforcement and execution said laws were hostile
to the authority of the Commonwealth Government and that of the United States of America; as they
had been promulgated in furtherance of the war aims of the enemy, and they are, therefore, of
political character and complexion.

Those repressive laws were aimed at the men and women who had kept the faith, and whose
heroes and martyrs now lie in graves still unknown and whose names remain unsung; but whose
heroic efforts and sacrifices have made immortal the legends of Filipino resistance, and made
possible our participation in the councils of free and liberty-loving peoples and nations.
Said laws are contrary to the principles of Democracy, championed by North America, whose
gigantic efforts and heroic sacrifices have vindicated human rights, human dignity and human
freedom, and consecrated them anew all over the earth with the generous blood of her children.
They violate the fundamental principles of Justice for which civilized Mankind stands, under the
benign leadership of Totalitarianism and given all the nations of the earth a new birth as well as a
new character of freedom, to enable each and everyone to live a nobler and more worthy life and
realize the justice and prosperity of the future.

For the foregoing reasons, I concur in the dispositive part of the opinion prepared by Mr. Justice
Feria.

PERFECTO, J., concurring:

On October 21, 1944, petitioner William F. Peralta began to serve, in the Muntinglupa Prison Camp,
a sentence of life imprisonment imposed by the Court of Special and Exclusive Criminal Jurisdiction,
created by Ordinance No. 7 issued by President Laurel of the Republic of the Philippines under the
Japanese regime, and now seeks a writ of habeas corpus in order that his liberty may be restored to
him, contending that said Ordinance No. 7 was null and void ab initio because it was of a political
complexion and its provisions are violative of the fundamental laws of the Commonwealth of the
Philippines.

Petitioner alleges that sometime in the month of September, 1943, he joined the Constabulary forces
as a private, against his will, and before joining it, he was for several times arrested and maltreated
as a guerrilla member, he being then a minor only 17 years old, and that he was prosecuted, not
because he committed any crime, but because he joined the guerrilla organization, deserted the
Constabulary forces, and followed political and military activities in open allegiance to the
Commonwealth Government and the United States of America.

The Solicitor General, appearing in behalf of respondent Director of Prisons, answered the petition
agreeing that the acts and proceedings taken and had before said Court of Special and Exclusive
Criminal Jurisdiction should be denied force and efficacy, and therefore, recommended that the writ
prayed for be granted.

At the hearing held on September 21, and 22, 1945, there appeared to argue the First Assistant
Solicitor General, impugning the validity of said Ordinance No. 7, and the City Fiscal of Manila,
as amicus curiae, who sustained the validity if the said Ordinance and the proceeding by virtue of
which petitioner was sentenced to life imprisonment.

I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY THE OCTOBER

PROCLAMATION OF GENERAL MACARTHUR

On October 23, 1944, General of the Army Douglas MacArthur, Commander in Chief of the
Philippine-American Forces, which fought in Bataan and later liberated the whole Philippines, as an
aftermath of the liberation, issued a proclamation declaring:

1. That the Government of the Commonwealth of the Philippines is, subject to the supreme
authority of the Government of the United States, the sole and only government having legal
 and valid jurisdiction over the people in areas of the Philippines free of enemy occupation
and control;

2. That the laws now existing on the statute books of the Commonwealth of the Philippines
and the regulations promulgated pursuant thereto are in full force and effect and legally
binding upon the people in areas of the Philippines free of enemy occupation and control;
and

3. That all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control.

It appears that Ordinance No. 7 in question has been issued under the Japanese regime and that
the judicial process under which petitioner has been sentenced to life imprisonment, having been
held in a court not belonging to the Commonwealth of the Philippines but organized and established
under the authority of the enemy, became null and void and without effect since October 23, 1944,
by virtue of the above-quoted October Proclamation of General MacArthur.

We have explained at length our position as to the effects of said October Proclamation in our
dissenting opinion in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5,
153, ante), and we deem it unnecessary to repeat what we stated in said opinion.

It is fortunate that all the members of the Supreme Court arrived at a unanimous conclusion as to the
absolute nullity of the process under which petitioner is now being held in prison.

The shocking character of the provisions of Ordinance No. 7 and the processes held under it show
once more how General MacArthur was absolutely right and justified in issuing the October
Proclamation.

There are indications that more processes held under the Japanese regime will come to our
knowledge, revealing strong grounds for their annulment, justifying, like the process here in
question, the wisdom of the decision of General MacArthur in nullifying in a sweeping manner all
judicial processes held during enemy occupation.

The October Proclamation is, in keeping with the following official statement of the President of the
United States:

On the fourteenth of this month, a puppet government was set up in the Philippine Islands
with Jose P. Laurel, formerly a justice of the Philippine Supreme Court as president. Jorge
Vargas, formerly a member of the Philippine Commonwealth Cabinet and Benigno Aquino,
also formerly a member of that cabinet, were closely associated with Laurel in this
movement. The first act of the new puppet regime was to sign a military alliance with Japan.
The second act was a hypocritical appeal for American sympathy which was made in fraud
and deceit, and was designed to confuse and mislead the Filipino people.

I wish to make it clear that neither the former collaborationist "Philippine Executive
Commission" nor the present Philippine Republic has the recognition or sympathy of the
Government of the United States. . . .
 Our sympathy goes out to those who remain loyal to the United States and the
Commonwealth — that great majority of the Filipino people who have not been deceived by
the promises of the enemy. . . .

October 23, 1943

FRANKLIN DELANO ROOSEVELT

President of the United States

(From U. S. Naval War College, International Law Documents, 1943, pp. 93, 94.)

Putting aside the October Proclamation, by a mere perusal of the ordinance in question, we will see
immediately how such law and the processes held under it are incompatible with the fundamental
principles and essential safeguards in criminal procedure, universally recognized in civilized modern
nations and how such ordinance and processes can only be justified by a retrogressive and
reactionary mentality developed under the social, cultural, and political atmosphere of the era of
darkness.

II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST UNREASONABLE

SEARCHES AND SEIZURES

Section 5 of Ordinance No. 7 provides that cases arising under it shall follow the summary
procedure provided in Act No. 65 of the Laurel Philippine Republic, which, in turn, is the same as
that established by Chapter II of Executive Order No. 157 of the Chairman of the Vargas Philippine
Executive Commission, dated May 18, 1943.

Under said procedure, "search warrants may be issued by the court or by any prosecuting officer,
authorizing peace officers to search for and seize any articles or objects described in the warrant,
including those which may be regarded as evidence of an offense under this order even if such
articles or objects are not included among those described in section 2, Rule 122, of the Rules of
Court." This provision is repugnant to the Filipino sense of right in the matter of warrants of search
and seizure, sense of right which has been clearly and definitely stereotyped in the following words
of our fundamental law:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizure shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complaint and witnesses he may produce, and particularly describing the
place to be searched, and the persons or things to be seized. (Art. III, sec. 1, No. 3,
Constitution of the Philippines.)

This constitutional provision is violated by the summary, unreasonable, and arbitrary procedure
provided under the authority of the ordinance in question:

(1) By authorizing "any prosecuting officer" to issue search warrants, when under our Constitution
such search warrants should be issued only by a judge;

(2) By trespassing the limits established by section 2, Rule 122, of the Rules of Court, considered as
a necessary element to make the warrant reasonable;
(3) By authorizing the search and seizure of articles or objects not described in warrant, which is the
real meaning of the words "including those which may be regarded as evidence of an offense under
this Ordinance."

III. DISCRIMINATORY AND INIQUITOUS SUSPENSION OF THE WRIT OF HABEAS

CORPUS

Section 7 of Ordinance No. 7 in question provides that "the privileges of the writ habeas corpus are
hereby suspended with respect to persons accused of, or under investigation for, any of the crimes
and offenses enumerated in sections 1 and 2 hereof."

This provision is also violative of one of the fundamental guarantees established in the Constitution
of the Philippines, which provides that the writ of habeas corpus may be suspended only in case of
"invasion, insurrection, or rebellion" and only "when the public safety requires it."

The privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion, insurrection, or rebellion, when the public safety requires it, in any of which events
the same may be suspended wherever during such period the necessity for such suspension
shall exist. (Art. III, sec. 1, No. 14, Constitution of the Philippines.)

Again, it is evident that the ordinance in question is repugnant to the deep sense of right of our
people. It is so, not only because it suspends the privilege of the writ of habeas corpus, without the
circumstances which can only justify said suspension, but because it flagrantly violates the
fundamental principle of equality before the law, by depriving the accused, in cases falling under the
ordinance in question, of the privilege of the writ of habeas corpus, which is not denied to the
accused in all other cases:

No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws. (Art. III, sec. 1, No. 1, Constitution of
the Philippines.)

IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST SELF-

INCRIMINATION

Under section 18 of Executive Order No. 157, above mentioned, "the accused or his
representative may be examined by the court, and with the permission of the court, by the fiscal or
other prosecuting officer as to any matters favorable or unfavorable to him of his principal."
(Emphasis ours.)

It is also provided that "statements made by the accused, his co-accused, or the representative of
the accused or a person acting in a similar capacity, irrespective of the circumstances under which
they were made shall be admissible in evidence if material to the issue." (Emphasis ours.)

Under section 21 of Executive Order No. 157, after arraignment and plea, "the judge shall
interrogate the accused . . . as to facts and circumstances of the case in order to clarify the points in
dispute and those which are admitted." In the same section it is also provided that "refusal of the
accused to answer any questions made or allowed by the court may be considered unfavorable to
him." (Emphasis ours.)

Under the same section the absence of an accused or of his representative "shall not be a ground
for interrupting the proceedings or attacking the validity of the judgment."
From the foregoing, it appears:

(1) That the accused may be examined by the court or any prosecuting officer as to any matters
favorable or unfavorable to him;

(2) That the refusal of the accused to answer may be considered unfavorable to him;

(3) That statements made by the accused, "irrespective of the circumstances under which they were
made" (that is, even under third degree procedure, or exacted through brutal kempei tortures), shall
be admissible in evidence;

(4) That not only the accused, but "his representative" (his lawyer, whose personal security was
jeopardized under the Japanese regime), may be examined by the court or by the fiscal or other
prosecuting officer, as if said representative or attorney is facing the same criminal prosecution
instituted against his client;

(5) That the statement made by said representative or attorney, although exacted under duress,
intimidation, or torture, shall be admissible in evidence;

(6) That statements made by any person acting in a similar capacity as a representative of the
accused which may be a relative or a friend or, even an impostor who might pose as a
representative to assure the doom of the accused, "irrespective of the circumstances under which
they were made (that is, even if made in the absence of the accused, or in the same circumstances
under which masked spies decreed the death of innocent citizens pointed by them during zoning
concentrations), shall be admissible in evidence;

(7) That trial shall proceed in the absence of the accused;

(8) That trial shall proceed in the absence of his attorney or other representative.

It is evident that the procedure established violates the following provisions of our fundamental code:

In all criminal prosecutions the accused shall be presumed to be innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and public trial, to meet
the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses in his behalf. (Art. III, sec. 1, No. 17, Constitution of the Philippines.)

No person shall be compelled to be a witness against himself. (Art. III, sec. 1, No. 18, Idem.)

The procedure is so revolving, so nauseating, and so opposed to human nature, that it takes a real
courage to keep our equanimity while we are compelled to analyze it.

It is beyond our comprehension how a man, endowed with reason, could devise such an execrable
system of judicial procedure, which is but a shameless mockery of the administration of justice.

We must be very careful to retain zealously the constitutional guarantee against self-incrimination.
We must not forget that that constitutional guarantee was acquired as a result of protest against all
inquisitorial and third degree procedures. We must not forget how, not very long ago, in the thirteen
colonies of America, alleged witches were burned at the stake, as a means of compelling them to
confess their fantastic compacts with the devil. We must not forget how an institution created in the
twelfth century was the cause of so much tortures and sufferings, and that the terroristic menace of
its rakes was abolished in Spain, and therefore in Philippines, only in 1834.

We must not forget that during normal times, under the twentieth century lights, just before the last
global war started, in the United States of America and in the Philippines, denunciations of third
degree procedures employed by agents the law were often heard. This very Supreme Court, not
only once, had to deal with cases where such tactics were conclusively proved. Even today, among
criminal cases we have under consideration, there is evidence of confessions exacted through cruel
and brutal means.

No matter what merits can be found, from the theoretical point of view, in the arguments of those
who are championing the suppression of the constitutional guarantee against self-incrimination, the
undeniable reality of human experience shows conclusively the absolute need of such guarantee if
justice must be served. Even with the existence of such guarantee, there are officers of the law who
cannot resist temptation of using their power to compel, through third degree methods, innocent or
guilty persons to admit involuntarily real or imaginary offenses. Let us allow changes tending to
nullify the protection against self-incrimination, and no man, however innocent he may be, shall be
secure in his person, in his liberty, in his honor, in his life.

V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON

In section 6 of Ordinance No. 7, it is provided that "the decision of the special courts herein created
shall be final except where the penalty imposed is death, in which case the records of the particular
case shall be elevated en consulta to a special division of the Supreme Court composed of three
members to be designated by the President of the Republic of the Philippines."

This provision is a clear violation of the fundamental right of appeal, constitutionally guaranteed to all
accused in the Philippines. Under the Constitution of the Philippines, all accused are entitled to
appeal to the Supreme Court:

(1) In all cases in which the constitutionality or validity of any treaty, law, ordinance, or executive
order or regulations is in question. (Art. VIII, sec. 2, No. 1, Constitution of the Philippines.)

(2) In all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed
in relation thereto. (Art. VIII, sec 2, No. 2, Idem.)

(3) In all cases in which the jurisdiction of any trial court is in issue. (Art. VIII, sec. 2, No. 3, Idem.)

(4) In all criminal cases in which the penalty imposed is death or life imprisonment. (Art. VIII, sec. 2,
No. 4, Idem.)

(5) In all cases in which an error or question of law is involved. (Art. VIII, sec. 2, No. 5, Idem.)

Before the adoption of the Constitution of the Philippines, it was the prevailing theory in judicial
decisions that the right of appeal is not a fundamental one, but it is a mere privilege or mere
statutory grant.

The drafters of our Constitution, taught by the unerring lessons of human experience, came to the
conclusion that mistake is one of the most irretrievable human weaknesses.
The drafters of our Constitution, therefore, considered it necessary to establish constitutional
guarantees to reduce to its minimum the effects of such innate human weakness by providing that
the appeal to the highest tribunal of the land may be enjoyed by any accused, who, under the
specific provisions of the Constitution, believed himself to be the victim of a wrong in any inferior
court.

The fact that the provisions of section 2, of Article VIII, of the Constitution, instead of stating that the
accused shall not be denied of the right of appeal in the cases mentioned therein, provide that the
Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on
appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and
decrees of inferior courts, in the specified cases, does not impair nor diminish the fundamental
character of the right of appeal of the accused to the Supreme Court.

The provisions of section 2, of Article VIII, of the Constitution, have been enacted by our
Constitutional Convention, not for the benefit and well-being of the people.

In fact, the Supreme Court is just one of the instrumentalities created by the Constitution in the
service of the people. The Supreme Court is not an entity or institution whose rights and privileges
must be constitutionally guaranteed. It is only a means. It is one of the means considered necessary
by our Constitution to better serve the supreme interest of the people.

As a matter of fact, the Supreme Court of the United States itself declared that the elimination of said
tribunal is not incompatible with the existence of a government of laws. In a case of denaturalization
wherein the Government of the United States sought to deprive a person of his American citizenship,
on the ground that the 1928 platform of the Communist Party of the United States, to which the
respondent belonged, advocated the abolition of the supreme Court, of the Senate and the veto
power of the President, and replacement of congressional districts with "councils of workers" in
which legislative and executive powers would be united, the Federal Supreme Court declared:

These would indeed be significant changes in our governmental structure — changes which
it is safe to say are not desired by the majority of the people in this country — but whatever
our personal views, as judges we cannot say that person who advocates their adoption
through peaceful and constitutional means is not in fact attached to the Constitution — those
institutions are not enumerated as necessary in the government's test of "general political
philosophy", and it is conceivable that "orderly liberty" could be maintained without them. The
Senate has not gone free of criticism and one object of the Seventeenth Amendment was to
make it more responsive to the popular will. The unicameral legislature is not unknown in the
country. It is that this Court has played a large in the unfolding of the constitutional plan
(sometimes too so in the opinion of some observers), but we be arrogant indeed if we
presume that a government of laws, with protection for minority groups would be impossible
without it. Like other agencies of government, this Court at various lines its existence has not
escaped the shafts of critics whose sincerity and attachment to the Constitution is beyond
question — critics who have accused it of assuming functions of judicial review not intended
to be conferred upon it, or of abusing those function to thwart the popular will, and who
advocated various remedies taking a wide range. (Schneiderman vs. United States of
America, June 21, 1943.)

VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION

OF THE LAWS

The constitutional guarantee of equal protection of the laws is evidently abridged in the summary
procedure in criminal cases under Ordinance No. 7:
(1) By the fact that the accused therein are victims of search warrants specially provided for them,
where the guarantees against unreasonableness in search warrants issued against other accused
are specially eliminated.

(2) By depriving the accused, under the Ordinance No. 7, the privilege of the writ of habeas
corpus enjoyed by the accused in other cases.

(3) By depriving the accused, under Ordinance No. 7 of the fundamental right of appeal in all cases,
except when sentenced of death is imposed.

(4) By discriminating against the accused, under Ordinance No. 7, where the right of appeal is
retained for them, that is, in cases where the sentenced imposed is death, by entrusting the power to
revised said sentence to small minority of the Supreme Court, under the Japanese regime, and a
minority of three justices to be specially called out by the President of the Laurel Philippine Republic,
undoubtedly with the evident purpose of the confirmation of the conviction of the accused, and to
make the appeal en consulta just an empty gesture to make the situation of the accused more pitiful
by lengthening is days of agony.

(5) By placing the accused, in the case in question, under the sword of Damocles of an unfavorable
presumptions, should he refuse to answer any question that the court or any prosecuting officer
might propound to him.

Under our constitution, no one shall be deprived of the "equal protection of the laws". (Art. III, sec. 1,
No. 1, Constitution of the Philippines.)

VII. THE PRESUMPTION OF INNOCENCE OF THE ACCUSED IN ALL CRIMINAL

PROSECUTIONS VIOLATED

Since the American flag began to fly over our soil, the fundamental guarantee that in all criminal
prosecution the accused shall be presumed innocent until the contrary is proved beyond all
reasonable doubt, has been implanted in our country to remain forever.

That guarantee was consecrated in our Constitution:

In all criminal prosecution the accused shall be presumed to be innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and a public trial, to meet
the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses in his behalf. (Art. III, sec. 1, No. 17, Constitution of the Philippines.)

This guarantee is undoubtedly violated when, in the summary procedure established by Ordinance
No. 7, it is provided that the refusal of the accused to answer any question, propounded by the court
or any officer, "may raise unfavorable presumption against him."

If we have to keep democracy in our country, we must be vigilant in upholding the constitutional
principle that all persons shall be presumed to be innocent until the contrary is proved beyond all
reasonable doubt.

This principle is the opposite of that prevailing under autocracies, or under facist or totalitarian
regimes. During the Japanese occupation all persons who might fall under the suspicion of any
Japanese or their spies and lackeys, were presumed to be guilty of any imaginary crime until they
were able to convince their victimizers of the contrary, beyond any reasonable doubt. Even then,
they were submitted to preventive tortures and long months of imprisonment, just in case they might
think later of committing any offense against the Japanese or their collaborators.

VIII. ORDINANCE NO. 7 VIOLATED THE HAGUE CONVENTION OF 1899

In the convention concerning the laws and customs of war on land, adopted by the Hague in 1899, it
is provided that the military occupant must respect the laws in force in the occupied country, unless
absolutely prevented. (Arts. 42 and 43.)

The provision of the Convention has been flagrantly violated when, under the enemy occupation the
Laurel Philippine Republic enacted Ordinance No. 7 which suspended our laws, including the
fundamental one, by substantially subverting the judicial procedures in the special criminal cases
instituted under said ordinance.

For this reason, said ordinance, being violative of international law, was null and void ab initio.

Under international law, under the most elemental principles of law, the legitimate government, once
restored to its own territory, after expelling the enemy invader, enjoys the absolute freedom of not
recognizing or of nullifying any and all acts of the invader, including those internationally legal ones.
The situation is exactly the same as that of the owner of the house who can do anything in it that
pleases him, after expelling the bandit who was able to usurp its possession for a while.

General McArthur exercised correctly that power by the sweeping nullification decreed in his October
Proclamation.

But even without the October Proclamation, the judicial process — maybe it is better to say injudicial
process — which resulted in the imprisonment of petitioner, must be shorn of all effects because it
had taken place under the authority of an ordinance which was null and void ab initio.

IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN RENDERED UNDER
FOREIGN AUTHORITY IS UNENFORCEABLE

The decision by which petitioner William F. Peralta was convicted and is being confined for life
having been rendered by a tribunal created, functioning, and acting under the authority of a foreign
State, the Emperor of the Imperial Government of Japan, is unenforceable.

It has, therefore, the nature of a foreign decision or judgment. For that reason, it is unenforceable
within the Philippines or under the Commonwealth, as we have shown in our opinion in the case
of Co Kim Cham vs. Valdez Tan Keh and Dizon (G.R. No. 5, p. 153, ante)

Said decision, having been rendered under Ordinance No. 7, which was null and void ab initio,
carries the same vice as the ordinance under which it was rendered.

But even admitting arguendo that said decision is valid, because it is so under international law, and
is not included in the nullification decreed by General Douglas MacArthur, still it cannot be enforced,
being a foreign decision. A foreign decision can only be enforced through the institution of an action
before our tribunals. Even decisions of a court of the United States or of any of its States or
territories can be enforced in the Philippines only by the institution of an action or special proceeding
before our own courts. This theory is confirmed by sections 47 and 48, Rule 39, of the Rules of
Court, which read:
 SEC. 47. Effect of record of a court of the United States. — The effect of a judicial record of
a court of the United States or of a court of one of the States or territories of the United
States, is the same in the Philippines as in the United States, or in the States or territory
where it was made, except that it can only be enforced here by an action or special
proceeding, and except, also, that the authority of a guardian, or executor, or administrator
does not extend beyond the jurisdiction of the Government under which he was invested with
his authority.

SEC. 48. Effect of foreign judgments. — The effect of a judgement of a tribunal of a foreign
country, having jurisdiction to pronounce the judgement, is as follows:

(a) In case of a judgement against a specific thing, the judgment is conclusive upon the title
to the thing;

(b) In case of a judgement against a person, the judgement is presumptive evidence of a

right as between the parties and their successors in interest by a subsequent title; but the
judgement may be repelled by evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.

X. THE STUNNING FACTS REVEALED IN THE REPORT OF THE DIRECTOR OF

PRISONS.

At the hearing of this case, respondent Director of Prisons was required to submit statistical data
concerning the number of prisoners and the various crimes for which they were convicted by the
Court of Special and Exclusive Criminal Jurisdiction.

In submitting said statistical data, the Solicitor General, as counsel for respondent, calls our attention
to the fact that, out of the 92 prisoners committed by said courts to the Bureau of Prisons for
confinement, fifty-five (55), that is more than one-half, were convicted of illegal possession of
firearms, and that only 3 are now actually in confinement serving sentences, among them the
petitioner in this proceeding, thus dissipating the unfounded fear entertained by the City Fiscal of
Manila, to the effect that a pronouncement by this Supreme Tribunal that the sentences of the courts
in question are null and void, will signify the release of hundreds of criminals, whose liberty and
mixing with society will endanger public peace and order.

Of the other two remaining prisoners serving sentence, one has been committed for evasion of
service of sentence, and the other for illegal possession of firearms.

Of the 55 prisoners convicted for illegal possession of firearms, 25 died, 23 were released, and 6
escaped, and this is the reason why only one remains in confinement.

It is striking that so many prisoners died, 25 of those convicted for illegal possession of firearms, that
is, almost 50% of them, 33 of the total of 94 prisoners committed, or more than one-third of them.
This unusual and shocking percentage of mortality is worth inquiring into and, certainly, cannot be
counted very favorably to judicial proceedings which eventually lead to such wholesale death, if not
outright massacre.

The fact that a big number of the prisoners, 21 of them, were able to escape, was not explained to
us. Is it reasonable to surmise, from the ruthless cruelty of the proceedings and of the penalties
imposed, which exacted from the mouth of the First Assistant Solicitor General, who appeared to
argue the case in behalf of the respondent, the adjective "ferocious", that the wardens themselves,
moved by pity, directly or indirectly helped the escape?
More than one-third of the prisoners committed by the said courts in confinement to the Bureau of
Prisons, that is, 33 of them died. May we ask if they died because they were executed? Of those
who died, one was convicted of profiteering in rice, one of robbery, one of kidnapping of minor, one
of violation of certain sections of Act No. 66, four of crimes against public order, and 25 of
possession of firearms. If all of them were executed by virtue of sentences rendered by the courts in
question, that fact does not speak very highly of their proceedings. If the accused died by natural
death, there must be something physically or morally fatal in said proceedings.

If a tree must be judged by the fruits it bears, how shall we judge proceedings so deadly, so fatal, so
wantonly inhuman as the proceedings had in the special courts in question?

The City Fiscal of Manila exerted great efforts to show that the fact that in the proceedings in
question "the refusal of the accused to answer any question made or allowed by the court may be
considered unfavorable to him," does not violate the constitutional guarantee against self-
incrimination. He even goes to the extent of maintaining the theory that such constitutional
guarantee is not essential for the protection of the substantial rights of an accused.

His argument centered on the alleged freedom of the accused to refuse to answer any question
made or allowed by the court, alleging that, if the accused chooses to refuse to answer, the court
cannot compel him to answer under menace of punishment for contempt or through any other
coercive or minatory measures.

The City Fiscal seems to labor under the belief that the fact that the silence of the accused "may be
considered unfavorable to him", is of no consequence at all.

Such belief can logically be entertained alone by ignoring completely the lessons of experience in
human conduct.

If the refusal to answer can be considered unfavorably to the accused, is not that the same as
placing him on the hard predicament of choosing between testifying self-incriminating and risking the
fatal effects of a legal presumption of guilt? Is not that the same as placing him between the two
steel cages of a dilemma: self-incrimination or presumption of guilt? Is not that the same as placing
him between Scylla and Charybdis, between a dagger and a wall? Either way, he will always find
himself under the inexorable sword of Damocles of sure punishment, whether he testifies or refuses
to testify. It is not impossible to open a debate upon the abstract question whether the constitutional
guarantee against self-incrimination should not remain. But the value of such a moot question, for
purposes of this case, is nil.

The constitutional guarantee had to be adopted as a protest against inquisitorial method of the past,
when accused and suspects were submitted to the most brutal torture to compel them to confess
real or imaginary crimes. That past is not far away. It seems that we are still smelling the stench of
human flesh burned in the stakes, where suspected witches suffered iniquitous death.

There is no doubt that the procedure in question shows the purpose of pandering to the most
flagitious doctrines in criminal proceedings. The transgressions of the bill of rights in all its phases
cannot be hidden even to a chela in constitutional law. It is the very negation of the administration of
justice. Such procedure has absolutely no place in the framework of our juridical system. We will feel
mere whifflers in our professed convictions, principles, and creed, if we should permit ourselves to
fall into the weakness of abetting it even for a moment, which could only happen once the flambeau
of reason has ceased completely to burn. No one but the truckling lackeys of the arrogant enemy
could have the servility of applauding the implantation of the criminal procedure in question.
All arguments and dissertations are useless to conceal the real fact. Behind and under said criminal
process stealthily crawls and trundles the Nippon psychosis, like a cobra with fangs overflowing with
venom. To ferret it out from the hole where it lurks, waiting for its victims, and crush its head with one
hammer blow, is an imperative measure of national self-defense.

XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE RIGHT, TO

IMMEDIATE RELEASE

After showing the absolute nullity of the judicial process under which petitioner has been convicted
to suffer the penalty of life imprisonment, the inevitable consequence is that he is entitled, as a
matter of absolute right, to be immediately released, so that he can once again enjoy a life of
freedom, which is the natural boon to law-abiding residents of our country, and of which he was
unjustly deprived through means most abhorrent to human conscience.

We must not hesitate for one moment to do our duty in this case. The sooner we comply with it, the
better. The process and judgement under which petitioner has been convicted and is now
undergoing an unjust imprisonment, is one of the hateful vestiges left in our country by the moral
savagery of a people spiritually perverted and debased. The seriousness of this matter cannot be
viewed with insouciance. We must not lose time to wipe out such vestiges if we must protect
ourselves against their poisonous effects in our political, social, and cultural patrimony.

We must erase those vestiges if we want to keep immune from all germs of decay the democratic
institutions which are the pride of our people and country, under which we are enjoying the blessings
of freedom and with which we hope to assure the well-being and happiness of the unending
generations who will succeed us in the enjoyment of the treasures accumulated by a bountiful nature
in this Pearl of the Orient.

If we allow such vestiges to remain we are afraid that some historian may write about Philippine
democracy, Philippine race, and Philippine culture, what, on ancient art, Hegel said in the
"Phenomenology of the Spirit", according to Kohler, the greatest work of genius that the nineteenth
century has produced:

The statues set up are corpses in stone, whence the animating soul has flown; while the
hymns of praise are words from which all belief has gone. The tables of the gods are bereft
of spiritual food and drink, and from his games and festivals, man no more receives the joyful
sense of his unity with the Divine Being. The works of the muse lack the force and energy of
the Spirit which derived the certainty and assurance of itself just from the crushing ruin of
goods and men. They are themselves now just what they are for us — beautiful fruit broken
off the tree, a kindly fate has passed on those works to us, as a maiden might offer such fruit
off tree. It is not their actual life as they exist, that is given us, not the tree that bore them, not
the earth and the elements, which constituted their substance, nor the climate that
determined their constitutive character, nor the change of seasons which controlled the
process of their growth. So, too, it is not their living world that fate preserves and gives us
with those works of ancient art, not the spring and summer of that ethical life in which they
bloomed and ripened, but the veiled remembrance alone of this reality.

Our sense of national self-preservation compels us, as an imperative duty, not only to restore
immediately the petitioner to his personal liberty, but, all possible means, to obliterate even the
memory of the inquisitorial summary procedure depicted in the present case.

Such procedure exhibits either inversion, retroversion, subversion, or perversion of elemental human
concepts. It ignores completely and debases the high purposes of a judicial procedure. It represents
a hylistic ideology which proclaims the supremacy of the state force over fundamental human rights.
We must never allow the neck of our people to be haltered by the lethal string of that ideology. It is a
virus that must be eliminated before it produces the logical disaster. Such ideology is a cancerous
excrescence that must be sheared, completely extirpated, from the live tissues of our body politic, if
the same must be saved.

We cannot understand how any one can justify the summary process in question under the
principles embodied in our Constitution. To profess attachment to those principles and, at the same
time, to accept and justify such kind of criminal miscarriage of justice, is just sheer hypocrisy. It is a
repetition of what Seneca did when, after preaching moral virtues, justified without any compunction
the act of Nero, the sanguinary Roman Emperor, of murdering in cold blood his own mother. It is
reproducing the crooked mentality of Torquemada, who, upon the pretext of combating and
persecuting heresy to save souls from hell, conceived the diabolical idea of condemning their victims
to an advanced version of hell in this life, and among those who suffered under the same spirit of
intolerance and bigotry which was its very essence are counted some of the greatest human
characters, such as Galileo, Giordano Bruno, and Girolamo Savonarola. That procedure might find
justification in the thick heads of the Avars, Huns, Vandals, and Teutons, or in the stratified mentality
of Japanese cullions, but not in a healthy mind of a cultured person of modern times. To allow any
vestige any vestige of such procedure to remain is tantamount to reviving the situation during which
our citizens endured sleepless nights in constant fear of the hobnail terror stalking in the darkness,
when their personal security and their life were hanging by the thin of chance.

We wish a way could be found to free completely our people of the sense of shame, which they
cannot help feeling, engendered by members of our race who justified such abhorrent summary
procedure and allowed themselves to become a party to the execution of a scheme only acceptable
to the undeveloped mentalities of the dark ages. It is a shame that makes our blood boil when we
think that countrymen of Father Gomez, of Rizal, of Mabini, could accept procedures representing
the brutal ideology which is the very opposite of the humane, lofty, and dignified ideology that placed
said heroes and martyrs among the purest and noblest specimens that humanity produced in all
countries, in all time, for all ones and light years to come.

It is with joy and pride that we agree with all our brethren in unanimously granting petitioner the
redress he seeks in his petition.

HILADO, J., concurring:

I concur in the result, as well as in the reasons stated in the majority opinion not inconsistent with the
views expressed in my dissenting opinion in G. R. No. L-5, Co Kim Cham vs. Valdez Tan Keh and
Dizon (p. 199, ante).

However, I would additionally base my conclusion upon broader grounds.

Firstly, I reiterate here by reference the arguments advanced in said dissenting opinion in additional
support of the conclusion that the writ of mandamus herein sought should be granted. Secondly, the
importance and transcendence of the legal principles involved justify further elaboration.

From the allegations of the petition herein, it can be deduced that the petitioner William F. Peralta
was a "guerrillero" when he was arrested, tried and convicted; and that he had never voluntarily
submitted to the Japanese forces in his civil capacity.
No attempt is made in the Solicitor General's answer to controvert the facts alleged in the petition
from which the foregoing deduction flows, and from the record nothing appears which may tend to
gainsay them. Even when he was forced temporarily to join the Constabulary, which had been
organized under orders of the Japanese Army in the Philippines, he did so against his will.

Even granting for the sake of argument, and laying aside for the moment the reasons to the contrary
set forth in my aforesaid dissenting opinion, that the rules of International Law regarding the power
of a belligerent army of occupation to establish a provisional government in an occupied enemy
territory, are still binding upon the United States and the Commonwealth of the Philippines, yet such
rules would not be any avail to bind the herein petitioner by the laws, regulations, process and other
acts of the so-called "Republic of the Philippines", under and by virtue of which said petitioner has
been convicted to life imprisonment by the Court of Special and Exclusive Criminal Jurisdiction of
Manila in Criminal Case No. 66 thereof.

If we analyze the different adjudications and treatises which have been cited in support of the validity
or binding force of the acts of such provisional governments, which have been variously called de
facto governments, or governments of paramount force, with a view to finding the real ground and
philosophical justification for the doctrine therein announced, we will see that reason and that
justification are made to consist in the submission of the inhabitants upon whom the said acts have
been held to be of obligatory or binding force, to the army of occupation. Thus, to cite just a few
typical examples, we quote the following excerpts from three leading cases decided by the Supreme
Court of the United States:

Excerpts from Thorington vs. Smith (8 Wall. [U. S.], 1; 19 Law. ed., 361)

That while it (government of paramount force) exists, it must necessarily be obeyed in civil
matters by private citizens who, by acts of obedience, rendered in submission to such force,
do not become responsible, as wrong-doers, for those acts, though not warranted by the
laws of the rightful government (p. 363; Emphasis ours).

The authority of the United States over the territory was suspended, and the laws of the
United States could no longer be rightfully enforced there, or be obligatory upon the
inhabitants who remained and submitted to the conqueror. (P. 364; Emphasis ours.).

Excerpts from Fleming vs. Page (9 Howard. [U. S.], 603; 13 Law. ed., 276):

While it (Tampico) was occupied by our troops, they were in an enemy's country, and not in
their own; the inhabitants were still foreigners and enemies, and owed to the United States
nothing more than the submission and obedience, sometimes called temporary allegiance,
which is due from a conquered enemy, when he surrenders to a force which he is unable to
resist. (P. 281; Emphasis ours.)

Excerpts from United States vs. Rice (4 Wheat. [U. S.], 246; 4 Law. ed., 562):

The sovereignty of the United States over the territory was, of course, suspended, and the
laws of the United States could no longer be rightfully enforced there, or be obligatory upon
the inhabitants who remained and submitted to the conquerors. (P. 564; Emphasis ours.)

It results from the above-quoted pronouncements of the Supreme Court of the United States that the
laws, regulations, processes and other acts of the government that the occupying belligerent
establishes are made binding only and precisely upon those inhabitants from whom obedience could
be effectively exacted, namely, those who remain within the effective reach of the occupying forces
and submit to them. This is plain common sense. Those who conceived and developed the doctrine
could not logically have thought of the army of occupation setting upon a civil government for those
who still continued resistance. As to them, further military operations would be necessary to reduce
them to submission, before one could think of civilly governing them.

In the Philippines, during the occupation by the Japanese of Manila and certain other portions of the
Archipelago, the overwhelming majority of the people never submitted to the Japanese invaders,
and never recognized any legality in the invasion of their country, and to the very date of liberation
refused to accept the alleged protection or benefits of the puppet governments of the "Philippine
Executive Commission" and the "Republic of the Philippines." The majority of our people lived in the
provinces, in the farms, hills and other places beyond the effective reach of the Japanese military
garrisons. Only a small minority submitted to the invaders for various reasons, such as their having
been caught in Manila or other parts of the Island occupying government positions, or residing
therein without adequate facilities for escaping from or evading said invaders, reasons of ill health,
disabling them from living the hard life of the mountains, hills, or country places, and the like.

To have bound those of our people who constituted the great majority who never submitted to the
Japanese oppressors, by the laws, regulations, processes and other acts of those two puppet
governments, would not only have been utterly unjust and downright illegal, but would have placed
them in the absurd and impossible condition of being simultaneously submitted to two mutually
hostile governments, with their respective constitutional and legislative enactments and institutions
— on the one hand bound to continue owing allegiance to the United States and the Commonwealth
Government, and, on the other, to owe allegiance, if only temporary, to Japan. Among them we find
the petitioner William F. Peralta. The surrender of the Fil-American forces in Bataan and Corregidor
did not matter so far as this was concerned. Much less did that surrender obligate all the civil
population to submit to the Japanese, and obey all their future dictations. If it did, President
Roosevelt and President Osmeña would not have so heartily commended the Philippine resistance
movement and so enthusiastically extolled the firm stand of those who participated therein, in the
former's message of October 23, 1943, and in the latter's speech of February 27, 1945, cited in the
writer's above mentioned dissenting opinion. If these historic utterances should seem incompatible
with any provision of the Hague Convention, we should understand from them that both Presidents
must have considered such provision as no longer applicable to, or binding upon, the United States
and the Philippines. Who knows but that their attitude was based upon the renunciation of war as an
instrument of national policy by their respective peoples, which renunciation necessarily includes all
the "rights" or "powers" which may be claimed to be delivered from war so employed? Or else, upon
the ground that such provisions does not support the wrongful acts of Japan in the Philippines?

Another reason advanced to justify the creation of a provisional civil government, with its courts and
other departments, in occupied enemy territory, is the alleged convenience of the civil population. It
can immediately be asserted in reply that the convenience of the above-mentioned overwhelming
majority of our people, far from requiring the establishment of such government, was in the very
nature of things positively opposed thereto. They not only did not need the supposed benefits of
such a government, but they actually reputed them as inimical to the larger interest of the very
ideology and cause for which they were continuing their resistance to those who would extend here
the brutal power and pernicious influence of the now exploded "Greater East Asia Co-Prosperity
Sphere." They suffered, yes, and suffered much — but they placed that ideology and that cause high
above their private comfort. Let us not penalize them for it. If this government is democratic, and
when it comes to a question of convenience, whose will and whose convenience should prevail, that
of the majority or that of the minority? Are we going to force those free citizens of this free country to
accept the alleged benefits and assume the burdens of a government they have never consented to
own?
I am furthermore, of opinion that there is another important consideration which argues against the
recognition of the said government as a de facto government or government of paramount force
during the Japanese occupation of the Philippine Islands. Japan, in starting and prosecuting this war
against the United States and her allies by breaking the most vital rules of civilized warfare as
prescribed by International Law, must be deemed to have forfeited the right to invoke that law in so
far as specific provisions thereof would favor her or her acts. Japan in treacherously attacking Pearl
Harbor and the Philippines, successively on December 7 and 8, 1941, violated the rule providing for
the necessity of declaring war as established at the Hague Conference of 1907 (Lawrence,
Principles of International Law, 7th ed., pp. 321-322, 325); she has infringed the rule requiring that
war prisoners be cared for and treated with humanity (Ibid, p. 377); the rule imposing the obligation
to properly tend the sick and wounded (Ibid, 384), the rule interdicting bombing of open and
defenseless cities (Ibid, 522, 523) when she bombed Manila after it had been declared an open city
and all its military defenses had been removed; the rule exempting noncombatants from personal
injury (Ibid, 397) — her violations of one or the other of which were matters of daily occurrence, one
might say, during her three and a half years of tyranny and oppression in this country, and were
climaxed by the ignominious and indescribable atrocities of the mass massacre of innocent civilians
during the battle for Manila. In the interpretation of doubtful provisions of International Law, Doctor
Lawrence, in his work cited above, has the following to say:

. . . If a point of Municipal Law is doubtful, men resort to supreme court for a decision, or to a
supreme legislature for an interpreting statute; but if a point of International Law is doubtful,
they can resort only to general reasoning for a convincing argument, unless, indeed, they
settle the question by blows. And International Law in many of its details is peculiarly liable to
disputes and doubts, because it is based on usage and opinion. He who in such a case
bases his reasoning on high considerations of morality may succeed in resolving the doubt in
accordance with humanity and justice. (Pp. 12, 13.).

It would seem that to deny Japan benefits, because she has refused to carry the burdens of the law,
is to base our reasoning "on high considerations of morality", and to resolve any doubt, there be, as
to the point in question, "in accordance with humanity and justice." In other words (even if we applied
said rules to the instant case), Japan, under the circumstances of this case, could not be heard to
say that the government which she established here was a de facto government, or a government of
paramount force, as in the cases where such a government was deemed to exist.

In additional to what has been said above, let us see if the Japanese-sponsored "Republic of the
Philippines" did not introduces such fundamental and drastic changes in the political organization of
this country, as it existed upon the date of the Japanese invasion, as to vitiate with invalidity the acts
of all its department, executive, judicial, and legislative. To begin with, the Commonwealth
Constitution was completely overthrown. It was replaced by the so-called constitution of the
"Republic." A casual comparison of these two instruments cannot fail to reveal a most revolutionary
transformation of the political organization of the country. While under the Commonwealth
Constitution the retention of American sovereignty over the Philippines is expressly recognized, for
the purposes specified in the ordinance appended thereto, in the very preamble of the constitution of
the "Republic" the independence " of the Philippines is proclaim. While under the Commonwealth
Constitution the President and Vice-President are elected "by direct vote of the people "Art. VII, sec.
2), under the constitution of the "Republic" the President (no Vice-President is provided for) was
elected "by majority of all the members of the Assembly" (Art. II, sec. 2). While under
Commonwealth Constitution the legislative power is vested in a bicameral Congress with a Senate
and a House of Representatives (Art. VI, sec. 1), under the constitution of the "Republic" that power
was vested in a unicameral National Assembly (Art. III, sec. 1). While under the Commonwealth
Constitution the Senators are chosen at large by the qualified electors of the Philippines (Art. VI, sec.
2) and the Representatives by the qualified electors in the respective districts (Art. VI, sec. 2) and
the Representative by the qualified electors in the respective districts (Art. VI, 5), under the
constitution of the "Republic" the National Assembly was composed of the provincial governors and
city mayors as members ex-oficio, and of delegate elected every three years, one from each and
every province and chartered city (Art. III, sec. 2), While under the Commonwealth Constitution,
respecting the Judicial Department, the members of Supreme Court and all judges of inferior courts
are appointed by the President with the consent of the Commission on Appointments of the
Congress (Art. VII, sec.), under the constitution of the "Republic" the members of the Supreme Court
were appointed by the President with the advice of the Cabinet, and all judges of interior courts, by
the President with the advice of the Supreme Court (Art. IV, sec. 4).

These changes and innovations can be multiplied many times, but the foregoing will suffice for our
purpose.

It has been said constantly in this discussion that political acts, or acts of a political complexion of
a de factogovernment of paramount force, are the only ones vitiated with nullity. Of course, I
disagree with those who so hold. But even by this test the "Republic" — or, which is the same, the
Imperial Japanese Forces which gave it birth — in thus introducing such positive changes in the
organization of this country or suspending the working of that already in existence, executed a
political act so fundamental and basic in nature and operation that all subsequent acts of the new
government which of course had to be based thereon, inevitably had to be contaminated by the
same vitiating defect.

Thus judicial acts done under his control, when they are not of a political complexion,
administrative acts so done, to the extent that they take effect during the continuance of his
control, and various acts done during the same time by private persons under the sanction of
municipal law, remain good.. Political acts on the other hand fall through as of course,
whether they introduce any positive change into the organization of the country, or whether
they only suspend the working of that already in existence. . . . (Hall, International Law, 6th
ed., p. 483; Emphasis ours.)

Finally, upon closed scrutiny, we will find that all of the de facto governments or governments of
paramount force which have been cited in all this discussion were at the same time bona
fide governments. The British established such a government in Castine, and ran it is a purely British
organization. The Americans established another such government in Tampico, and ran it as an
American organization. The Confederate States established a like government in the seceding
States, and ran it as the Government of the Confederacy. They were all frank, sincere, and honest in
their deeds as well as in their words. But what happened in this country during the Japanese
occupation? When the "Republic of the Philippines" was established on October 14, 1943, under
duress exerted by the Japanese Army, did the Japanese openly, frankly, and sincerely say that
government was being established under their orders and was to be run subject to their direction
and control? Far from it! They employed all the means they could conceive to deceive the Filipino
people and the outside world that they had given the Filipinos their independence, and that
"Republic" thereunder. But behind the curtain, from beginning to end, there was the Imperial
Japanese Army giving orders and instructions and otherwise directing and controlling the activities of
what really was their creature for the furtherance of their war aims. I cannot believe that those who
conceived and developed the doctrine of de facto government or government of paramount force,
ever intended to include therein such a counterfeit organization as the Japanese contrived here —
an organization which, like its counterparts in Manchukuo, Nanking, Burma, and Vichy, has been
appropriately called "puppet" by the civilized government of the world.
BRIONES, M., concurrente:

El mandamiento de habeas corpus que se solicita debe concederse.

La proclama del General McArthur de 23 de Octubre de 1944, lanzada cuatro dias despues de su
desembarco en Leyte con las fuerzas libertadoras, reza en parte lo siguiente:

3. Que todas las leyes, regulaciones y procesos de cualquier otro gobierno en Filipinas que
no fuera el del Commonwealth son nulos e invalidos y carecen de efecto legal en areas de
Filipinas liberadas de la ocupacion y control del enemigo.

Recientemente se ha discutido mucho en esta jurisdiccion sobre si la anulacion de que trata dicha
proclama puede referirse tambien a actuaciones judiciales ( judicial processes). En el asunto de Co
Kim Cham contra Valdez Tan Keh y Dizon, R.G. No. L-5 (pag, 133, ante), he opinado
afirmativamente, esto es, que el alcance de esa proclama puede extenderse a veces a ciertos actos
o procesos judiciales. Reafirmo ahora mi opinion y con mayor vigor y enfasis si cabe. Porque, a mi
juicio, la sentencia de reclusion perpetua impuesta al recurrente bajo la ocupacion militar japonesa
es de aquellos actos judiciales del passado regimen que por su naturaleza y circunstancias
reclaman una decidida y pronta accion de parte nuestra en el sentido de anularla y dejarla sin
efecto. Mis razones se exponen a continuacion.

Parece innegable que la ley procesal bajo la cual fue enjuiciado y convicto el recurrente durante la
ocupacion japonesa era absolutamente incompatible con las salvaguardias y garantias de un
proceso justo, imparcial y ordenado que la constitucion y legislacion procesal del Commonwealth de
Filipinas otorgan a todo acusado en una causa criminal. Hay en dicha ley ciertos aspectos
decididamente repulsivos para una conciencia disciplinada en las normas y pricipios de una
democracia constitucional.

Bajo nuestro sistema procesal el acusado tiene derecho a que no se le ponga en situacion de
acriminarse. Tiene a derecho a callarse sin que esto pueda astribuirsele cargo inculpatorio alguno.
Este es un derecho fundamental, garantido por la constitucion.

Empero bajo el sistema procesal que se discute, "la negativa del acusado a constestar cualqueira
pregunta formulada por el tribunal o permitida por el mismo, puede ser considerada en contra de
dicho acusado." (Seccion 21, Orden Ejecutiva No. 157.) Bajo este mismo sistema el caracter
sumarisimo del proceso llega a tal extremo que "una sentencia condenatoria puede dictarse
inmediatemente contra el acusado siempre que los hechos discubiertos en el interrogatorio
preliminar demuestren que el acusado es culpable."

Bajo el sistema procesal del Commonwealth, cualquier acusado convicto ante el Juzgado de
Primera Instancia tiene el derecho de apelar de la sentencia para ante el Tribunal superior de
revision; y en los casos de condena a reclusion perpetua o a muerte, el Tribunal Supremo es el
llamado a revisar la causa, siendo compulsoria la revision en el caso de condena a muerte. Esta
jurisdiccion del Tribunal Supremo en los casos de condena a reclusion perpetua y a muerte no se
halla estatuida simplemente por una ley ordinaria, sino que esta proveida en la misma constitucion
del Commonwealth. Asi que el derecho del condenado a reclusion perpetua o a muerte para que se
revise su cuasa por el Tribunal Supremo es constitucional y, por ende, no puede ser abolido por un
simple fiat legislativo.

En cambio, bajo el sistema procesal en controversia las sentencias de los tribunales o sumarias
eran de caracter final, excepto cuando la pena impuesta fuera la de muerte, en cuyo caso los autos
se elevaban en consulta a una division especial del Tribunal Supremo compuesta de tres miembros
(Ordenanza No. 7 de la llamada Republica de Filipinas por la que se crearon las tribunales
especiales o sumarios). De modo que en esta ordenanza no solo se suprimia de una plumada el
derecho de apelar reconocido y establecido por la legislacion procesal del Commonwealth aun en
los casos de delitos y penas ordinarios, sino que inclusive quedaba abolido el derecho de apelar
otorgado por la constitucion del Commonwealth al acusado condenado a reclusion perpetua. Por
este motivo el recurrente, a quien se le habia impuesto esta pena por el alergado delito de robo, no
pudo apelar de al sentencia para ante el Tribunal Supremo.

La cuestion que ahora tenemos que determinar y resolver es si debemos reconocer validez y
eficacia en la sentencia por la cual el recurrente se halla extinguiendo su condena de reclusion
perpetua, o debemos anularla ahora que esta en nuestras manos el poder hacerlo, restablecida
como esta enteramente la normalidad juridica y constitucional en nuestro pais.

En favor de la validez de dicha sentencia se arguye que fue dictada por un tribunal creado por un
gobierno de jure; que aun admitiendo el caracter inquisitorial, anti democratico de la ley procesal
bajo la cual fue enjuiciado el acusado, el gobierno de facto era dueño de establecer los
procedimientos legales que quisiera; y que, segun las reglas y doctrinas conocidas de derecho
international, las sentencias por "crimenes de guerra" o delitos politicos" generalmente validas aun
despues de restablecido el gobierno de jure. Se alega que en estos casos el derecho no tiene mas
remedio que ceder a la fuerza, aceptando la realidad de los hechos consumados.

Se admite, sin embargo, que la regla tiene sus excepciones. Una de allas esque "los actos del
ocupante militar que rebasen su poder a tenor del criterio establecido en el articulo 43 de las
Regulaciones de La Haya, son nulos y sin efecto con relacion al gobierno legitimo." (Wheaton's
International Law, 7th ed. [1944], p. 245.) Segun esto, las sentencias por "crimenes de guerra" o
"delitos politicos" cometidos durante la ocupacion son, por razones pecfetamente comprensibles,
nulas e invalidas al restablecerse la soberania legitima. Tambien quedan comprendidos bajo esta
excepcion los denominados actos de caracter o complexion politica.

Otra limitacion a los poderes de un gobierno de ocupacion militar es que elejercicio de tales poderes
debe extenderse tan solo hasta donde fuese necesario para su seguridad y el exito de sus
operaciones, teniendo particularmente en cuental el caracter transeunte de su occupacion. Como
regla general, al invasor se le prohibe alterar o suspender las leyes referentes a la propiedad y a las
relaciones personales privadas, o las leyes que regulan el orden moral de la comunidad. (Hall,
Treatise on International Law, 7th ed., 498,499). Lo que se hace fuera de estas limitaciones es en
exceso de su competencia y es generalmente nulo al rstaurarse la soberania legitima.

Otra excepcion es la que se refiere a los actos de un gobierno de facto resultante de una
insurreccion, rebelion, revolucion o guerra civil. A esteefecto se ha declarado, peo ejemplo. que los
actos en fomento o apoyo de unarebelion contra los Estados Unidos, o encaminados a anular los
justos derechos de los ciudadanos, y otros actos de igual indole, deben ser considerados, por lo
general, invalidos y nulos (Texas vs. White, 74 U. S.,733; 19 Law, ed., 240). En otro caso se ha
declaro la validez de ciertos actos judiciales o legislativos en estados insurreccionados, siempre que
su proposito o modo de operacion no fuerte hostil a la autoridad del gobierno nacional, o no
conculcaren derechos de los ciudadanos bajo la Constitucion. — Horn vs. Lockhart, 17 Well, 570-
581; 2 Law. ed., 660.)

Visto el caso que nos ocupa a la luz de estas doctrinas, ¿cual de ellas debemos adoptar para
determinar si es o no valida la sentencia por la la cual el recurrente sufre ahora pena de reclusion
perpetua y pide ser liberado mediante peticion de habeas corpus?
Se aservera que no procede aplicar al presente caso la doctrina establecida en la jurisprudencia
americana sobre gobiernos de facto resultantes de una insureccion, revolucion o guerra civil porque
evidentemente la llamada Republica de Filipinas instaurada durante la ocupacion militar japonesa
no tenia este caracter, sino que era mas bien un gobierno establecido mediantefuerza y coaccion
por los mismos invasores para promover ciertos designios politicos relacionados con sus fines de
guerra. En otras palabras, era el mismo gobierno militar de ocupacion con fachada filipina arreglada
y arbitrada coercitivamente.

Mientras estoy conforme con una parte de la asercion, esto es, que la aludida republica no tenia
caracter insurreccional ni revolucionario, en disfrute de plena autonomia, sino que era simple
producto de la coaccion y estaba mediatizada continuamente por el invasor, difiero de la otra parte,
aquella que declara inaplicable la conocida doctrina americana mencionada arriba sobre
gobiernos de facto establecidos en el curso de una insurreccion, revolucion o guerra civil. Y la razon
es sencilla. Si a un gobierno de factode este ultimo tipo — gobierno establecido, despues de todo,
por compatriotas,por conciudadanos — se le coarta con la restriccion de que sus actos legislativos o
judiciales, en tanto son validos, al restaurarse el regimende jure, en cuanto no conculcaren los
derechos justos de los ciudadanos, a los derechos garantidos por la constitucion, parece que no
existe ninguna razon por que no se ha de aplicar la misma restriccion al gobierno de
facto establecido como incidente de una guerra entre dos naciones independientes y enemigas. En
realidad, la razon de nulidad es mucho mas poderosa y fuertecuando, en su caso como el de
Filipinas, el enemigo invasor incio la agresion de una manera inicua y traicionera y la ejecuto luego
con vesania y sadismo que llegaron a extremos inconcebibles de barbarie. En este caso
la conculcacion de los justos derechos de los ciudadanos, o de los derechos garantidos por la
constitucion cobra proporciones de mucha mayor gravedad porque viene a ser tan solo parte de un
vasto plan de rapiña, devastacion y atrocidades de todo genero cometidas contra la humanidad y
contra las leyes y usos de la guerra entre naciones civilizadas. El invasor, en este caso, es como el
foragido que se coloca fuera de toda ley. Por tanto, no hay absolutamente ninguna razon para no
aplicarle una restriccion que se estimabuena para el insurrecto o revolucionario.

La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de facto resultantes de una
insurreccion, rebelion o guerra civil a gobiernos de facto establecidos como incidente en el curso de
una guerra entre dos naciones independeientes enemigas es que, frente a casos de conculcacion
de los justos derechos de los ciudadanos, o de los garantidos por laconstitucion para los efectos de
declararlos validos o nulos al restablecerse el gobierno de jure, ya no se hace preciso examinar si
los actos conculcatorios fueron motivados por razones o exigencias de las seguridad y exito de las
operaciones del ocupante militar, sino que la piedra de toque de la validez o nulidad viene a ser tan
solo el acto positivo mismo de la conculcacion.

Esta forma de racioncinio no solo no es heterodoxa a la luz de los pincipiosestablecidos de derecho

internacional, sino parece ser una logica inferenciade los mismos. Ya hemos visto que al ocupante
militar en el curso de unaguerra internacional se le prohibe, como regla general, alterar o
suspenderlas leyes referentes a la propiedad y a las relaciones personales privadas, olas leyes que
regulan el orden moral de la comunidad. (Hall, Treatise on International Law, supra.) Ahora cabe
preguntar: ¿Son los justos derechos de los ciudadanos, o los fundamentales garantidos por la
constitucion inferiores en categoria a la propiedad, o las relaciones personales privadas, o al
ordenmoral de la comunidad? ¿No son en cierto sentido hasta superiores? Por tanto,a nadie debe
chocar que la prohibicion se extienda a estas materias. Es unainclusion y perfectamente natural,
mas que justificada por los avances y conquistas del moderno derecho internacional. Notese que en
las fraguas de esta ultima guerra se han forjado unas modalidades juridicas harto originalesque
denotan el esfuerzo supremo y gigante dela humanidad por superar la barbarie y por dar al traste
con las formulas arcaicas, reaccionarias. Para citar solamente algunos ejemplos los mas destados,
tenemos el enjuiciamento de los llamados criminales de la guerra, y la responsabilidad que se exige
a los jefes militares por las atricidades cometidas por las tropas bajo su mando.
Mi conclusion, por tanto, es que desde cualquier angulo que se mire la sentencia impuesta al
recurrente por el tribunal sumario de la llamada republica de Filipinas debe ser declarada nula,
acotando las palabras delProcurador General, "no solo por razones fundadas en principios de
derecho internacional, sino tambien por la mas apremiante y poderosa de las razones,la de
preservar y salvaguardar a nuestros ciudadanos de los actos del enemigo."

Dar validez a esa sentencia ahora, en plena atmosfera de libertad que respiran a pulmon lleno de
resto de nuestros conciudadanos menos el recurrente y otras que corrieron su suerte durante la
ocupacion japonesa,equivaldria tanto como prolongar el regimen de opresion bajo el cual se tramito
y se dicto la referida sentencia. Es mas, equivaldria a sancionar laideologia totalitaria, despotica,
medieval contra la cual nuestro pueblo lucho tan heroicamente jugandose todo; vida libertad y
bienes materiales.

Ciertamente no nos hemos librado de la opresion para llegar a tan irrisorioresultado.

Concedase el remedio pedido.

 epublic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of
Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside
the Orders dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61,
Makati, Metro Manila in Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case
No. 90-183, while the Order dated September 19, 1991 denied the motion for reconsideration of the
June 20,1991 Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real
estate business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-
A, Transfer Certificate of Title No. 390440) located in the Municipality of Parañaque, Metro Manila
and registered in the name of petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title
Nos. 271108 and 265388 respectively and registered in the name of the Philippine Realty
Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to
the sellers. Later, Licup assigned his rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose
as to who of the parties has the responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties
and Development Corporation (Tropicana).

On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance
and damages against petitioner, represented by the Papal Nuncio, and three other defendants:
namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).

The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the
PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square
meters; (2) the agreement to sell was made on the condition that earnest money of P100,000.00 be
paid by Licup to the sellers, and that the sellers clear the said lots of squatters who were then
occupying the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup
assigned his rights over the property to private respondent and informed the sellers of the said
assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that the sellers fulfill
their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private
respondent of the squatters' refusal to vacate the lots, proposing instead either that private
respondent undertake the eviction or that the earnest money be returned to the latter; (6) private
respondent counterproposed that if it would undertake the eviction of the squatters, the purchase
price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos
returned the earnest money of P100,000.00 and wrote private respondent giving it seven days from
receipt of the letter to pay the original purchase price in cash; (8) private respondent sent the earnest
money back to the sellers, but later discovered that on March 30, 1989, petitioner and the PRC,
without notice to private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds
of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate
of title over the lots were cancelled, transferred and registered in the name of Tropicana; (9)
Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at the expense
of private respondent; (10) private respondent demanded the rescission of the sale to Tropicana and
the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply
with the terms of the contract to sell and has actually made plans to develop the lots into a
townhouse project, but in view of the sellers' breach, it lost profits of not less than P30,000.000.00.

Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and
the PRC on the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question;
(3) specific performance of the agreement to sell between it and the owners of the lots; and (4)
damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint —
petitioner for lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being
an improper party. An opposition to the motion was filed by private respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to
dismiss after finding that petitioner "shed off [its] sovereign immunity by entering into the business
contract in question" (Rollo, pp. 20-21).

On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner
filed a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of
Immunity as a Jurisdictional Defense." So as to facilitate the determination of its defense of
sovereign immunity, petitioner prayed that a hearing be conducted to allow it to establish certain
facts upon which the said defense is based. Private respondent opposed this motion as well as the
motion for reconsideration.

On October 1, 1991, the trial court issued an order deferring the resolution on the motion for
reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).

Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of
sovereign immunity only on its own behalf and on behalf of its official representative, the Papal
Nuncio.

On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign
Affairs, claiming that it has a legal interest in the outcome of the case as regards the diplomatic
immunity of petitioner, and that it "adopts by reference, the allegations contained in the petition of the
Holy See insofar as they refer to arguments relative to its claim of sovereign immunity from suit"
(Rollo, p. 87).

Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance
with the resolution of this Court, both parties and the Department of Foreign Affairs submitted their
respective memoranda.

II

A preliminary matter to be threshed out is the procedural issue of whether the petition
for certiorari under Rule 65 of the Revised Rules of Court can be availed of to question the order
denying petitioner's motion to dismiss. The general rule is that an order denying a motion to dismiss
is not reviewable by the appellate courts, the remedy of the movant being to file his answer and to
proceed with the hearing before the trial court. But the general rule admits of exceptions, and one of
these is when it is very clear in the records that the trial court has no alternative but to dismiss the
complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service
Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to
require the parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion," where the foreign state
or the international organization sued in an American court requests the Secretary of State to make
a determination as to whether it is entitled to immunity. If the Secretary of State finds that the
defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a
"suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed,
only the Foreign Office issues a certification to that effect instead of submitting a "suggestion"
(O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign
Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a
letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-
employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v.
Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that
effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs
to request the Solicitor General to make, in behalf of the Commander of the United States Naval
Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General
embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved
with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said
Department to file its memorandum in support of petitioner's claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA
644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the
courts can inquire into the facts and make their own determination as to the nature of the acts and
transactions involved.

III

The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a
foreign state enjoying sovereign immunity. On the other hand, private respondent insists that the
doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a
cloak when, of its own free will, it entered into a commercial transaction for the sale of a parcel of
land located in the Philippines.

A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign
state is in order.

Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as
the Holy See, was considered a subject of International Law. With the loss of the Papal States and
the limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy
See in International Law became controversial (Salonga and Yap, Public International Law 36-37
[1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right
of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to
enter into treaties according to International Law (Garcia, Questions and Problems In International
Law, Public and Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the
Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also
in the field of international relations" (O'Connell, I International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is
vested in the Holy See or in the Vatican City. Some writers even suggested that the treaty created
two international persons — the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from that in which it is applied to other states
(Fenwick, International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of
national states, the Vatican City represents an entity organized not for political but for ecclesiastical
purposes and international objects. Despite its size and object, the Vatican City has an independent
government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy
See or Head of State, in conformity with its traditions, and the demands of its mission in the world.
Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense
an "international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant implication —
that it is possible for any entity pursuing objects essentially different from those pursued by states to
be invested with international personality (Kunz, The Status of the Holy See in International Law, 46
The American Journal of International Law 308 [1952]).

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy
See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the
Holy See that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The
Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the
Philippine government since 1957 (Rollo, p. 87). This appears to be the universal practice in
international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally
accepted principles of International Law. Even without this affirmation, such principles of
International Law are deemed incorporated as part of the law of the land as a condition and
consequence of our admission in the society of nations (United States of America v. Guinto, 182
SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial determination
when an act may be considered as jure gestionis. The United States passed the Foreign Sovereign
Immunities Act of 1976, which defines a commercial activity as "either a regular course of
commercial conduct or a particular commercial transaction or act." Furthermore, the law declared
that the "commercial character of the activity shall be determined by reference to the nature of the
course of conduct or particular transaction or act, rather than by reference to its purpose." The
Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. The
Act defines a "commercial activity" as any particular transaction, act or conduct or any regular course
of conduct that by reason of its nature, is of a "commercial character."

The restrictive theory, which is intended to be a solution to the host of problems involving the issue
of sovereign immunity, has created problems of its own. Legal treatises and the decisions in
countries which follow the restrictive theory have difficulty in characterizing whether a contract of a
sovereign state with a private party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true
with respect to the Communist states which took control of nationalized business activities and
international trading.

This Court has considered the following transactions by a foreign state with private parties as
acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military
officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a
wharf at a United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change
of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with
private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of
three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air
Station in Baguio City, to cater to American servicemen and the general public (United States of
America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in
Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The
operation of the restaurants and other facilities open to the general public is undoubtedly for profit as
a commercial and not a governmental activity. By entering into the employment contract with the
cook in the discharge of its proprietary function, the United States government impliedly divested
itself of its sovereign immunity from suit.

In the absence of legislation defining what activities and transactions shall be considered
"commercial" and as constituting acts jure gestionis, we have to come out with our own guidelines,
tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the
foreign state is engaged in the activity in the regular course of business. If the foreign state is not
engaged regularly in a business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States of America, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract in
its proprietary or private capacity. It is only when the contract involves its sovereign
or governmental capacity that no such waiver may be implied.

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate
business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner
has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed
that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines.
Private respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was
made not for commercial purpose, but for the use of petitioner to construct thereon the official place
of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or
personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission,
is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was
concurred in by the Philippine Senate and entered into force in the Philippines on November 15,
1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the envoy holds on behalf of the sending
state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the
more reason should immunity be recognized as regards the sovereign itself, which in this case is the
Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon
made it almost impossible for petitioner to use it for the purpose of the donation. The fact that
squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the
premises, has been admitted by private respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the
light of the pleadings, particularly the admission of private respondent. Besides, the privilege of
sovereign immunity in this case was sufficiently established by the Memorandum and Certification of
the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines'
foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign
Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is
a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction
and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this
country (Rollo, pp. 156-157). The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive
upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]).
Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the
courts to accept this claim so as not to embarrass the executive arm of the government in
conducting the country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242
[1972]). As in International Catholic Migration Commission and in World Health Organization, we
abide by the certification of the Department of Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing
to establish the facts alleged by petitioner in its motion. In view of said certification, such procedure
would however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso
Velasco, G.R. No. 109645, July 25, 1994).

IV

Private respondent is not left without any legal remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a person who feels aggrieved by the acts of a
foreign sovereign can ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its
claims against the Holy See. Its first task is to persuade the Philippine government to take up with
the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination
of the impact of its espousal on the relations between the Philippine government and the Holy See
(Young, Remedies of Private Claimants Against Foreign States, Selected Readings on Protection by
Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine government decides to
espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court
of Justice:

By taking up the case of one of its subjects and by reporting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
rights — its right to ensure, in the person of its subjects, respect for the rules of
international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court
Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183
against petitioner is DISMISSED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and
Mendoza, JJ., concur.

Padilla, J., took no part.

Feliciano, J., is on leave.

 8. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 76607 February 26, 1990

UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND YVONNE REEVES, petitioners,

vs.
HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional Trial Court, Angeles
City, ROBERTO T. VALENCIA, EMERENCIANA C. TANGLAO, AND PABLO C. DEL
PILAR, respondents.

G.R. No. 79470 February 26, 1990

UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/SGT. USAF, WILFREDO BELSA,

PETER ORASCION AND ROSE CARTALLA, petitioners,
vs.
HON. RODOLFO D. RODRIGO, as Presiding Judge of Branch 7, Regional Trial Court (BAGUIO
CITY), La Trinidad, Benguet and FABIAN GENOVE, respondents.

G.R. No. 80018 February 26, 1990

UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and STEVEN F.

BOSTICK, petitioners,
vs.
HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial Court, Branch 66, Capas,
Tarlac, and LUIS BAUTISTA, respondents.

G.R. No. 80258 February 26, 1990

UNITED STATES OF AMERICA, MAJOR GENERAL MICHAEL P. C. CARNS, AIC ERNEST E.

RIVENBURGH, AIC ROBIN BLEVINS, SGT. NOEL A. GONZALES, SGT. THOMAS MITCHELL,
SGT. WAYNE L. BENJAMIN, ET AL., petitioners,
vs.
HON. CONCEPCION S. ALARCON VERGARA, as Presiding Judge, Branch 62 REGIONAL
TRIAL COURT, Angeles City, and RICKY SANCHEZ, FREDDIE SANCHEZ AKA FREDDIE
RIVERA, EDWIN MARIANO, AKA JESSIE DOLORES SANGALANG, ET AL., respondents.

Luna, Sison & Manas Law Office for petitioners.

CRUZ, J.:

These cases have been consolidated because they all involve the doctrine of state immunity.
The United States of America was not impleaded in the complaints below but has moved to
dismiss on the ground that they are in effect suits against it to which it has not consented. It
is now contesting the denial of its motions by the respondent judges.

In G.R. No. 76607, the private respondents are suing several officers of the U.S. Air Force
stationed in Clark Air Base in connection with the bidding conducted by them for contracts
for barber services in the said base.

On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area Exchange, U.S.
Air Force, solicited bids for such contracts through its contracting officer, James F. Shaw.
Among those who submitted their bids were private respondents Roberto T. Valencia,
Emerenciana C. Tanglao, and Pablo C. del Pilar. Valencia had been a concessionaire inside
Clark for 34 years; del Pilar for 12 years; and Tanglao for 50 years.

The bidding was won by Ramon Dizon, over the objection of the private respondents, who
claimed that he had made a bid for four facilities, including the Civil Engineering Area, which
was not included in the invitation to bid.

The private respondents complained to the Philippine Area Exchange (PHAX). The latter,
through its representatives, petitioners Yvonne Reeves and Frederic M. Smouse explained
that the Civil Engineering concession had not been awarded to Dizon as a result of the
February 24, 1986 solicitation. Dizon was already operating this concession, then known as
the NCO club concession, and the expiration of the contract had been extended from June
30, 1986 to August 31, 1986. They further explained that the solicitation of the CE barbershop
would be available only by the end of June and the private respondents would be notified.

On June 30, 1986, the private respondents filed a complaint in the court below to compel
PHAX and the individual petitioners to cancel the award to defendant Dizon, to conduct a
rebidding for the barbershop concessions and to allow the private respondents by a writ of
preliminary injunction to continue operating the concessions pending litigation. 1

Upon the filing of the complaint, the respondent court issued an ex parte order directing the
individual petitioners to maintain the status quo.

On July 22, 1986, the petitioners filed a motion to dismiss and opposition to the petition for
preliminary injunction on the ground that the action was in effect a suit against the United
States of America, which had not waived its non-suability. The individual defendants, as
official employees of the U.S. Air Force, were also immune from suit.

On the same date, July 22, 1986, the trial court denied the application for a writ of preliminary
injunction.

On October 10, 1988, the trial court denied the petitioners' motion to dismiss, holding in part
as follows:

From the pleadings thus far presented to this Court by the parties, the Court's
attention is called by the relationship between the plaintiffs as well as the
defendants, including the US Government, in that prior to the bidding or
solicitation in question, there was a binding contract between the plaintiffs as
well as the defendants, including the US Government. By virtue of said
contract of concession it is the Court's understanding that neither the US
Government nor the herein principal defendants would become the employer/s
of the plaintiffs but that the latter are the employers themselves of the barbers,
 etc. with the employer, the plaintiffs herein, remitting the stipulated percentage
of commissions to the Philippine Area Exchange. The same circumstance
would become in effect when the Philippine Area Exchange opened for bidding
or solicitation the questioned barber shop concessions. To this extent,
therefore, indeed a commercial transaction has been entered, and for purposes
of the said solicitation, would necessarily be entered between the plaintiffs as
well as the defendants.

The Court, further, is of the view that Article XVIII of the RP-US Bases
Agreement does not cover such kind of services falling under the
concessionaireship, such as a barber shop concession. 2

On December 11, 1986, following the filing of the herein petition for certiorari and prohibition
with preliminary injunction, we issued a temporary restraining order against further
proceedings in the court below. 3

In G.R. No. 79470, Fabian Genove filed a complaint for damages against petitioners Anthony
Lamachia, Wilfredo Belsa, Rose Cartalla and Peter Orascion for his dismissal as cook in the
U.S. Air Force Recreation Center at the John Hay Air Station in Baguio City. It had been
ascertained after investigation, from the testimony of Belsa Cartalla and Orascion, that
Genove had poured urine into the soup stock used in cooking the vegetables served to the
club customers. Lamachia, as club manager, suspended him and thereafter referred the case
to a board of arbitrators conformably to the collective bargaining agreement between the
Center and its employees. The board unanimously found him guilty and recommended his
dismissal. This was effected on March 5, 1986, by Col. David C. Kimball, Commander of the
3rd Combat Support Group, PACAF Clark Air Force Base. Genove's reaction was to file Ms
complaint in the Regional Trial Court of Baguio City against the individual petitioners. 4

On March 13, 1987, the defendants, joined by the United States of America, moved to dismiss
the complaint, alleging that Lamachia, as an officer of the U.S. Air Force stationed at John
Hay Air Station, was immune from suit for the acts done by him in his official capacity. They
argued that the suit was in effect against the United States, which had not given its consent
to be sued.

This motion was denied by the respondent judge on June 4, 1987, in an order which read in
part:

It is the understanding of the Court, based on the allegations of the complaint

— which have been hypothetically admitted by defendants upon the filing of
their motion to dismiss — that although defendants acted initially in their
official capacities, their going beyond what their functions called for brought
them out of the protective mantle of whatever immunities they may have had in
the beginning. Thus, the allegation that the acts complained of were illegal,
done. with extreme bad faith and with pre-conceived sinister plan to harass
and finally dismiss the plaintiff, gains significance. 5

The petitioners then came to this Court seeking certiorari and prohibition with preliminary
injunction.

In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in Camp O' Donnell,
an extension of Clark Air Base, was arrested following a buy-bust operation conducted by the
individual petitioners herein, namely, Tomi J. King, Darrel D. Dye and Stephen F. Bostick,
officers of the U.S. Air Force and special agents of the Air Force Office of Special
Investigators (AFOSI). On the basis of the sworn statements made by them, an information
for violation of R.A. 6425, otherwise known as the Dangerous Drugs Act, was filed against
Bautista in the Regional Trial Court of Tarlac. The above-named officers testified against him
at his trial. As a result of the filing of the charge, Bautista was dismissed from his
employment. He then filed a complaint for damages against the individual petitioners herein
claiming that it was because of their acts that he was removed. 6

During the period for filing of the answer, Mariano Y. Navarro a special counsel assigned to
the International Law Division, Office of the Staff Judge Advocate of Clark Air Base, entered a
special appearance for the defendants and moved for an extension within which to file an
"answer and/or other pleadings." His reason was that the Attorney General of the United
States had not yet designated counsel to represent the defendants, who were being sued for
their official acts. Within the extended period, the defendants, without the assistance of
counsel or authority from the U.S. Department of Justice, filed their answer. They alleged
therein as affirmative defenses that they had only done their duty in the enforcement of the
laws of the Philippines inside the American bases pursuant to the RP-US Military Bases
Agreement.

On May 7, 1987, the law firm of Luna, Sison and Manas, having been retained to represent the
defendants, filed with leave of court a motion to withdraw the answer and dismiss the
complaint. The ground invoked was that the defendants were acting in their official capacity
when they did the acts complained of and that the complaint against them was in effect a suit
against the United States without its consent.

The motion was denied by the respondent judge in his order dated September 11, 1987,
which held that the claimed immunity under the Military Bases Agreement covered only
criminal and not civil cases. Moreover, the defendants had come under the jurisdiction of the
court when they submitted their answer. 7

Following the filing of the herein petition for certiorari and prohibition with preliminary
injunction, we issued on October 14, 1987, a temporary restraining order. 8

In G.R. No. 80258, a complaint for damages was filed by the private respondents against the
herein petitioners (except the United States of America), for injuries allegedly sustained by
the plaintiffs as a result of the acts of the defendants. 9 There is a conflict of factual allegations
here. According to the plaintiffs, the defendants beat them up, handcuffed them and unleashed
dogs on them which bit them in several parts of their bodies and caused extensive injuries to
them. The defendants deny this and claim the plaintiffs were arrested for theft and were bitten by
the dogs because they were struggling and resisting arrest, The defendants stress that the dogs
were called off and the plaintiffs were immediately taken to the medical center for treatment of
their wounds.

In a motion to dismiss the complaint, the United States of America and the individually
named defendants argued that the suit was in effect a suit against the United States, which
had not given its consent to be sued. The defendants were also immune from suit under the
RP-US Bases Treaty for acts done by them in the performance of their official functions.

The motion to dismiss was denied by the trial court in its order dated August 10, 1987,
reading in part as follows:
 The defendants certainly cannot correctly argue that they are immune from
suit. The allegations, of the complaint which is sought to be dismissed, had to
be hypothetically admitted and whatever ground the defendants may have, had
to be ventilated during the trial of the case on the merits. The complaint
alleged criminal acts against the individually-named defendants and from the
nature of said acts it could not be said that they are Acts of State, for which
immunity should be invoked. If the Filipinos themselves are duty bound to
respect, obey and submit themselves to the laws of the country, with more
reason, the members of the United States Armed Forces who are being treated
as guests of this country should respect, obey and submit themselves to its
laws. 10

and so was the motion for reconsideration. The defendants submitted their answer as
required but subsequently filed their petition for certiorari and prohibition with preliminary
injunction with this Court. We issued a temporary restraining order on October 27, 1987. 11

II

The rule that a state may not be sued without its consent, now expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II, Section
2. This latter provision merely reiterates a policy earlier embodied in the 1935 and 1973
Constitutions and also intended to manifest our resolve to abide by the rules of the
international community.

Even without such affirmation, we would still be bound by the generally accepted principles
of international law under the doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed incorporated in the law of every civilized
state as a condition and consequence of its membership in the society of nations. Upon its
admission to such society, the state is automatically obligated to comply with these
principles in its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the justification given
by Justice Holmes that "there can be no legal right against the authority which makes the law
on which the right depends." 12 There are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the
added inhibition is expressed in the maxim par in parem, non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would,
in the language of a celebrated case, "unduly vex the peace of nations." 13

While the doctrine appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. The rule is that if the judgment against such officials
will require the state itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against them, the suit must
be regarded as against the state itself although it has not been formally impleaded. 14 In such
a situation, the state may move to dismiss the complaint on the ground that it has been filed
without its consent.

The doctrine is sometimes derisively called "the royal prerogative of dishonesty" because of
the privilege it grants the state to defeat any legitimate claim against it by simply invoking its
non-suability. That is hardly fair, at least in democratic societies, for the state is not an
unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the doctrine is not
absolute and does not say the state may not be sued under any circumstance. On the
contrary, the rule says that the state may not be sued without its consent, which clearly
imports that it may be sued if it consents.

The consent of the state to be sued may be manifested expressly or impliedly. Express
consent may be embodied in a general law or a special law. Consent is implied when the
state enters into a contract or it itself commences litigation.

The general law waiving the immunity of the state from suit is found in Act No. 3083, under
which the Philippine government "consents and submits to be sued upon any moneyed claim
involving liability arising from contract, express or implied, which could serve as a basis of
civil action between private parties." In Merritt v. Government of the Philippine Islands, 15 a
special law was passed to enable a person to sue the government for an alleged tort. When the
government enters into a contract, it is deemed to have descended to the level of the other
contracting party and divested of its sovereign immunity from suit with its implied
consent. 16 Waiver is also implied when the government files a complaint, thus opening itself to a
counterclaim. 17

The above rules are subject to qualification. Express consent is effected only by the will of
the legislature through the medium of a duly enacted statute. 18 We have held that not all
contracts entered into by the government will operate as a waiver of its non-suability; distinction
must be made between its sovereign and proprietary acts. 19 As for the filing of a complaint by the
government, suability will result only where the government is claiming affirmative relief from the
defendant. 20

In the case of the United States of America, the customary rule of international law on state
immunity is expressed with more specificity in the RP-US Bases Treaty. Article III thereof
provides as follows:

It is mutually agreed that the United States shall have the rights, power and
authority within the bases which are necessary for the establishment, use,
operation and defense thereof or appropriate for the control thereof and all the
rights, power and authority within the limits of the territorial waters and air
space adjacent to, or in the vicinity of, the bases which are necessary to
provide access to them or appropriate for their control.

The petitioners also rely heavily on Baer v. Tizon, 21 along with several other decisions, to
support their position that they are not suable in the cases below, the United States not having
waived its sovereign immunity from suit. It is emphasized that in Baer, the Court held:

The invocation of the doctrine of immunity from suit of a foreign state without
its consent is appropriate. More specifically, insofar as alien armed forces is
concerned, the starting point isRaquiza v. Bradford, a 1945 decision. In
dismissing a habeas corpus petition for the release of petitioners confined by
American army authorities, Justice Hilado speaking for the Court,
cited Coleman v. Tennessee, where it was explicitly declared: 'It is well settled
that a foreign army, permitted to march through a friendly country or to be
stationed in it, by permission of its government or sovereign, is exempt from
the civil and criminal jurisdiction of the place.' Two years later, in Tubb and
Tedrow v. Griess, this Court relied on the ruling in Raquiza v. Bradford and
cited in support thereof excerpts from the works of the following authoritative
writers: Vattel, Wheaton, Hall, Lawrence, Oppenheim, Westlake, Hyde, and
 McNair and Lauterpacht. Accuracy demands the clarification that after the
conclusion of the Philippine-American Military Bases Agreement, the treaty
provisions should control on such matter, the assumption being that there was
a manifestation of the submission to jurisdiction on the part of the foreign
power whenever appropriate. More to the point is Syquia v. Almeda Lopez,
where plaintiffs as lessors sued the Commanding General of the United States
Army in the Philippines, seeking the restoration to them of the apartment
buildings they owned leased to the United States armed forces stationed in the
Manila area. A motion to dismiss on the ground of non-suability was filed and
upheld by respondent Judge. The matter was taken to this Court in a
mandamus proceeding. It failed. It was the ruling that respondent Judge acted
correctly considering that the 4 action must be considered as one against the
U.S. Government. The opinion of Justice Montemayor continued: 'It is clear
that the courts of the Philippines including the Municipal Court of Manila have
no jurisdiction over the present case for unlawful detainer. The question of
lack of jurisdiction was raised and interposed at the very beginning of the
action. The U.S. Government has not given its consent to the filing of this suit
which is essentially against her, though not in name. Moreover, this is not only
a case of a citizen filing a suit against his own Government without the latter's
consent but it is of a citizen firing an action against a foreign government
without said government's consent, which renders more obvious the lack of
jurisdiction of the courts of his country. The principles of law behind this rule
are so elementary and of such general acceptance that we deem it
unnecessary to cite authorities in support thereof then came Marvel Building
Corporation v. Philippine War Damage Commission, where respondent, a
United States Agency established to compensate damages suffered by the
Philippines during World War II was held as falling within the above doctrine as
the suit against it would eventually be a charge against or financial liability of
the United States Government because ... , the Commission has no funds of its
own for the purpose of paying money judgments.' The Syquia ruling was again
explicitly relied upon in Marquez Lim v. Nelson, involving a complaint for the
recovery of a motor launch, plus damages, the special defense interposed
being 'that the vessel belonged to the United States Government, that the
defendants merely acted as agents of said Government, and that the United
States Government is therefore the real party in interest.' So it was
in Philippine Alien Property Administration v. Castelo, where it was held that a
suit against Alien Property Custodian and the Attorney General of the United
States involving vested property under the Trading with the Enemy Act is in
substance a suit against the United States. To the same effect is Parreno v.
McGranery, as the following excerpt from the opinion of justice Tuazon clearly
shows: 'It is a widely accepted principle of international law, which is made a
part of the law of the land (Article II, Section 3 of the Constitution), that a
foreign state may not be brought to suit before the courts of another state or
its own courts without its consent.' Finally, there is Johnson v. Turner, an
appeal by the defendant, then Commanding General, Philippine Command (Air
Force, with office at Clark Field) from a decision ordering the return to plaintiff
of the confiscated military payment certificates known as scrip money. In
reversing the lower court decision, this Tribunal, through Justice Montemayor,
relied on Syquia v. Almeda Lopez, explaining why it could not be sustained.

It bears stressing at this point that the above observations do not confer on the United States
of America a blanket immunity for all acts done by it or its agents in the Philippines. Neither
may the other petitioners claim that they are also insulated from suit in this country merely
because they have acted as agents of the United States in the discharge of their official
functions.

There is no question that the United States of America, like any other state, will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign or governmental capacity
that no such waiver may be implied. This was our ruling in United States of America v.
Ruiz, 22 where the transaction in question dealt with the improvement of the wharves in the naval
installation at Subic Bay. As this was a clearly governmental function, we held that the contract
did not operate to divest the United States of its sovereign immunity from suit. In the words of
Justice Vicente Abad Santos:

The traditional rule of immunity exempts a State from being sued in the courts
of another State without its consent or waiver. This rule is a necessary
consequence of the principles of independence and equality of States.
However, the rules of International Law are not petrified; they are constantly
developing and evolving. And because the activities of states have multiplied,
it has been necessary to distinguish them — between sovereign and
governmental acts (jure imperii) and private, commercial and proprietary acts
(jure gestionis). The result is that State immunity now extends only to acts jure
imperii The restrictive application of State immunity is now the rule in the
United States, the United kingdom and other states in Western Europe.

xxx xxx xxx

The restrictive application of State immunity is proper only when the

proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs. Stated differently, a State may be
said to have descended to the level of an individual and can thus be deemed to
have tacitly given its consent to be sued only when it enters into business
contracts. It does not apply where the contract relates to the exercise of its
sovereign functions. In this case the projects are an integral part of the naval
base which is devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of the highest order;
they are not utilized for nor dedicated to commercial or business purposes.

The other petitioners in the cases before us all aver they have acted in the discharge of their
official functions as officers or agents of the United States. However, this is a matter of
evidence. The charges against them may not be summarily dismissed on their mere assertion
that their acts are imputable to the United States of America, which has not given its consent
to be sued. In fact, the defendants are sought to be held answerable for personal torts in
which the United States itself is not involved. If found liable, they and they alone must satisfy
the judgment.

In Festejo v. Fernando, 23 a bureau director, acting without any authority whatsoever,

appropriated private land and converted it into public irrigation ditches. Sued for the value of the
lots invalidly taken by him, he moved to dismiss the complaint on the ground that the suit was in
effect against the Philippine government, which had not given its consent to be sued. This Court
sustained the denial of the motion and held that the doctrine of state immunity was not applicable.
The director was being sued in his private capacity for a personal tort.

With these considerations in mind, we now proceed to resolve the cases at hand.
III

It is clear from a study of the records of G.R. No. 80018 that the individually-named
petitioners therein were acting in the exercise of their official functions when they conducted
the buy-bust operation against the complainant and thereafter testified against him at his
trial. The said petitioners were in fact connected with the Air Force Office of Special
Investigators and were charged precisely with the function of preventing the distribution,
possession and use of prohibited drugs and prosecuting those guilty of such acts. It cannot
for a moment be imagined that they were acting in their private or unofficial capacity when
they apprehended and later testified against the complainant. It follows that for discharging
their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued. As we observed
in Sanders v. Veridiano: 24

Given the official character of the above-described letters, we have to conclude

that the petitioners were, legally speaking, being sued as officers of the United
States government. As they have acted on behalf of that government, and
within the scope of their authority, it is that government, and not the
petitioners personally, that is responsible for their acts.

The private respondent invokes Article 2180 of the Civil Code which holds the government
liable if it acts through a special agent. The argument, it would seem, is premised on the
ground that since the officers are designated "special agents," the United States government
should be liable for their torts.

There seems to be a failure to distinguish between suability and liability and a misconception
that the two terms are synonymous. Suability depends on the consent of the state to be sued,
liability on the applicable law and the established facts. The circumstance that a state is
suable does not necessarily mean that it is liable; on the other hand, it can never be held
liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the
state has allowed itself to be sued. When the state does waive its sovereign immunity, it is
only giving the plaintiff the chance to prove, if it can, that the defendant is liable.

The said article establishes a rule of liability, not suability. The government may be held liable
under this rule only if it first allows itself to be sued through any of the accepted forms of
consent.

Moreover, the agent performing his regular functions is not a special agent even if he is so
denominated, as in the case at bar. No less important, the said provision appears to regulate
only the relations of the local state with its inhabitants and, hence, applies only to the
Philippine government and not to foreign governments impleaded in our courts.

We reject the conclusion of the trial court that the answer filed by the special counsel of the
Office of the Sheriff Judge Advocate of Clark Air Base was a submission by the United States
government to its jurisdiction. As we noted in Republic v. Purisima, 25 express waiver of
immunity cannot be made by a mere counsel of the government but must be effected through a
duly-enacted statute. Neither does such answer come under the implied forms of consent as
earlier discussed.

But even as we are certain that the individual petitioners in G.R. No. 80018 were acting in the
discharge of their official functions, we hesitate to make the same conclusion in G.R. No.
80258. The contradictory factual allegations in this case deserve in our view a closer study of
what actually happened to the plaintiffs. The record is too meager to indicate if the
defendants were really discharging their official duties or had actually exceeded their
authority when the incident in question occurred. Lacking this information, this Court cannot
directly decide this case. The needed inquiry must first be made by the lower court so it may
assess and resolve the conflicting claims of the parties on the basis of the evidence that has
yet to be presented at the trial. Only after it shall have determined in what capacity the
petitioners were acting at the time of the incident in question will this Court determine, if still
necessary, if the doctrine of state immunity is applicable.

In G.R. No. 79470, private respondent Genove was employed as a cook in the Main Club
located at the U.S. Air Force Recreation Center, also known as the Open Mess Complex, at
John Hay Air Station. As manager of this complex, petitioner Lamachia is responsible for
eleven diversified activities generating an annual income of $2 million. Under his executive
management are three service restaurants, a cafeteria, a bakery, a Class VI store, a coffee
and pantry shop, a main cashier cage, an administrative office, and a decentralized
warehouse which maintains a stock level of $200,000.00 per month in resale items. He
supervises 167 employees, one of whom was Genove, with whom the United States
government has concluded a collective bargaining agreement.

From these circumstances, the Court can assume that the restaurant services offered at the
John Hay Air Station partake of the nature of a business enterprise undertaken by the United
States government in its proprietary capacity. Such services are not extended to the
American servicemen for free as a perquisite of membership in the Armed Forces of the
United States. Neither does it appear that they are exclusively offered to these servicemen;
on the contrary, it is well known that they are available to the general public as well, including
the tourists in Baguio City, many of whom make it a point to visit John Hay for this reason.
All persons availing themselves of this facility pay for the privilege like all other customers as
in ordinary restaurants. Although the prices are concededly reasonable and relatively low,
such services are undoubtedly operated for profit, as a commercial and not a governmental
activity.

The consequence of this finding is that the petitioners cannot invoke the doctrine of state
immunity to justify the dismissal of the damage suit against them by Genove. Such defense
will not prosper even if it be established that they were acting as agents of the United States
when they investigated and later dismissed Genove. For that matter, not even the United
States government itself can claim such immunity. The reason is that by entering into the
employment contract with Genove in the discharge of its proprietary functions, it impliedly
divested itself of its sovereign immunity from suit.

But these considerations notwithstanding, we hold that the complaint against the petitioners
in the court below must still be dismissed. While suable, the petitioners are nevertheless not
liable. It is obvious that the claim for damages cannot be allowed on the strength of the
evidence before us, which we have carefully examined.

The dismissal of the private respondent was decided upon only after a thorough investigation
where it was established beyond doubt that he had polluted the soup stock with urine. The
investigation, in fact, did not stop there. Despite the definitive finding of Genove's guilt, the
case was still referred to the board of arbitrators provided for in the collective bargaining
agreement. This board unanimously affirmed the findings of the investigators and
recommended Genove's dismissal. There was nothing arbitrary about the proceedings. The
petitioners acted quite properly in terminating the private respondent's employment for his
unbelievably nauseating act. It is surprising that he should still have the temerity to file his
complaint for damages after committing his utterly disgusting offense.

Concerning G.R. No. 76607, we also find that the barbershops subject of the concessions
granted by the United States government are commercial enterprises operated by private
person's. They are not agencies of the United States Armed Forces nor are their facilities
demandable as a matter of right by the American servicemen. These establishments provide
for the grooming needs of their customers and offer not only the basic haircut and shave (as
required in most military organizations) but such other amenities as shampoo, massage,
manicure and other similar indulgences. And all for a fee. Interestingly, one of the
concessionaires, private respondent Valencia, was even sent abroad to improve his tonsorial
business, presumably for the benefit of his customers. No less significantly, if not more so,
all the barbershop concessionaires are under the terms of their contracts, required to remit to
the United States government fixed commissions in consideration of the exclusive
concessions granted to them in their respective areas.

This being the case, the petitioners cannot plead any immunity from the complaint filed by
the private respondents in the court below. The contracts in question being decidedly
commercial, the conclusion reached in the United States of America v. Ruiz case cannot be
applied here.

The Court would have directly resolved the claims against the defendants as we have done in
G.R. No. 79470, except for the paucity of the record in the case at hand. The evidence of the
alleged irregularity in the grant of the barbershop concessions is not before us. This means
that, as in G.R. No. 80258, the respondent court will have to receive that evidence first, so it
can later determine on the basis thereof if the plaintiffs are entitled to the relief they seek.
Accordingly, this case must also be remanded to the court below for further proceedings.

IV

There are a number of other cases now pending before us which also involve the question of
the immunity of the United States from the jurisdiction of the Philippines. This is cause for
regret, indeed, as they mar the traditional friendship between two countries long allied in the
cause of democracy. It is hoped that the so-called "irritants" in their relations will be resolved
in a spirit of mutual accommodation and respect, without the inconvenience and asperity of
litigation and always with justice to both parties.

WHEREFORE, after considering all the above premises, the Court hereby renders judgment
as follows:

1. In G.R. No. 76607, the petition is DISMISSED and the respondent judge is
directed to proceed with the hearing and decision of Civil Case No. 4772. The
temporary restraining order dated December 11, 1986, is LIFTED.

2. In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829-R(298) is
DISMISSED.

3. In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115-C-87 is
DISMISSED. The temporary restraining order dated October 14, 1987, is made
permanent.
 4. In G.R. No. 80258, the petition is DISMISSED and the respondent court is
directed to proceed with the hearing and decision of Civil Case No. 4996. The
temporary restraining order dated October 27, 1987, is LIFTED.

All without any pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes

1 Civil Case No. 4772.

2 Annex "B", Rollo, pp. 36-38.

3 Rollo, p. 88.

4 Civil Case No. 829-R(298).

5 Annex "A", Rollo, p. 38.

6 Civil Case No. 115-C-87.

7 Annex "A," Rollo, p. 33.

8 Rollo, p. 69.

9 Civil Case No. 4996.

10 Annex "A," Rollo, p. 58.

11 Rollo, p. 181.

12 Kawanakoa v. Polybank, 205 U.S. 349.

13 De Haber v. Queen of Portugal, 17 Q.B. 171.

14 Garcia v. Chief of Staff, 16 SCRA 120.

15 4 Phil. 311.

16 Santos v. Santos, 92 Phil. 281; Lyons v. United States of America, 104 Phil.
593.

17 Froilan v. Pan Oriental Shipping Co., G.R. No. 6060, September 30, 1950.
18 Republic v. Purisima, 78 SCRA 470.

19 United States of America v. Ruiz, 136 SCRA 487.

20 Lim v. Brownell, 107 Phil. 345.

21 57 SCRA 1.

22 136 SCRA 487.

23 50 O.G. 1556.

24 162 SCRA 88.

25 Supra.