STF

7/27/2019 PHILIPPINE REPORTS ANNOTATED VOLUME 075
1
(No. L-5. September 17, 1945)
Co KIM CHAM (alias Co CHAM), petitioner, vs. EUSEBIO

VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of
First Instance of Manila, respondents.
1. POLITICAL AND INTERNATIONAL LAW; VALIDITY

OF ACTS OF "DE FACTO" GOVERNMENT.—It is a legal
truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial
departments of a de facto government are good and valid.
2. ID.; KINDS OF "DE FACTO" GOVERNMENTS.—There

are several kinds of de facto governments. The first, or
government de facto in a proper legal sense, is that
government that gets possession and control of, or usurps,
by force or by the voice of the majority, the rightful legal
government and maintains itself against the will of the
latter, such as the government of England under the
Commonwealth, first by Parliament and later by
Cromwell as Protector. The second is that which is
established and maintained by military forces who invade
and occupy a territory of the enemy in the course of war,
and which is denominated a government of paramount
force, as the cases of Castine, in Maine, which was
reduced to British possession in the war of 1812, and of
Tampico, Mexico, occupied during the war with Mexico, by
the troops of the United States. And the third is that
established as an independent government by the
inhabitants of a country who rise in insurrection against
the parent state, such as the government of the Southern
Confederacy in revolt against the Union during the war of
secession.
3. ID.; ID.; DISTINGUISHING CHARACTERISTICS OF

SECOND KIND OF "DE FACTO" GOVERNMENT.—The
distinguishing characteristics of the second kind of de
facto government, more aptly denominated a government
of paramount force, are (1), that its existence is
maintained by active military power within the territories,
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1 Resolution on motion for reconsideration, see p. 371, post.
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114 PHILIPPINE REPORTS ANNOTATED
Co Kim Cham vs. Valdez Tan Keh and Dizon
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 by military
authority, but they may be administered, also, by civil
authority, supported more or less directly by military
force.
4. ID.; ID.; ID.; POWERS AND DUTIES OF GOVERNMENT

OF PARAMOUNT FORCE.—The powers and duties of de
facto governments of this description are regulated in
Section III of the Hague Conventions of 1907, which is a
revision of the provisions of the Hague Conventions of
1899 on the same subject of Military Authority over
Hostile Territory. Article 43 of said Section III provides
that "the authority of the legitimate power having actually
passed into the hands of the occupant, the latter shall take
all steps in his power to reestablish and issue, as far as
possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country."
5. ID. ; ID. ; ID.; ID. ; PHILIPPINE EXECUTIVE

COMMISSION, A "DE FACTO" GOVERNMENT OF THE
SECOND KIND.—It is evident that the Phil-ippine
Executive Commission, which was organized by Order No.
1, issued on January 23, 1942 by the Commander of the
Japanese forces, was a civil government established by the
military forces of occupation and therefore a de facto
government of the second kind. It was not different from
the government established by the British in Castine,
Maine, or by the United States in Tampico, Mexico. As
Halleck says, "the government established over an
enemy's territory during the military occupation may
exercise all the powers given by the laws of war to the

conqueror over the conquered, and is subject to an
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.
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VOL. 75, SEPTEMBER 17, 1945 115
6. ID.; ID.; ID.; ID.; SO-CALLED REPUBLIC OF THE

PHILIPPINES, OF SAME CHARACTER AS PHILIPPINE
EXECUTIVE COMMISSION.—The so-called Republic of
the Philippines, apparently established and organized as a
sovereign state independent from any other government
by the Filipino people, was, in truth and reality, a
government established by the belligerent 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. Japan had
no legal power to grant independence to the Philippines or
transfer the sovereignty of the United States to, or
recognize the latest sovereignty of, the Filipino people,
before its military occupation and possession of the
Islands had matured into an absolute and permanent
dominion or sovereignty by a treaty of peace or other
means recognized in the law of nations. For it is a well-
established doctrine in international law, recognized in
Article 45 of the Hague Conventions of 1907 (which
prohibits compulsion of the population of the occupied
territory to swear allegiance to the hostile power), that
belligerent occupation, being essentially provisional, does
not serve to transfer sovereignty over the territory
controlled although the de jure government is during the
period of occupancy deprived of the power to exercise its
rights as such. Even if the Republic of the Philippines had
been established by the free will of the Filipino people

who, taking advantage of the withdrawal of the American
forces from the Islands, had organized an independent
government under that name with the support and
backing of Japan, such government would have been
considered as one established by the Filipinos in
insurrection or rebellion against the parent state of the
United States. And, as such, it would have been a de facto
government similar to that organized by the confederate
states during the war of secession and recognized as such
by the Supreme Court of the United States in numerous
cases; and similar to the short-lived government
established by the Filipino insurgents in the Island of
Cebu during the Spanish-American war, recognised as a
de facto government by same court in the case of McCleod
vs. United States (229 U. S., 416).
7. lD.; ID.; ID.; ID.; VALIDITY OF JUDICIAL ACTS AND

PROCEEDINGS OF PHILIPPINE EXECUTIVE
COMMISSION AND REPUBLIC OF THE PHILIPPINES
AFTER REOCCUPATION OF THE PHILIPPINES.—The
governments of the Philippine Executive Commission and
the Republic of the Philippines during the Japanese
military oc
116
cupation being de facto governments, it necessarily follows

that the judicial acts and proceedings of the courts of
justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the
well-known principle of postliminy (postliminium) in
international law, remained good and valid after the
liberation or reoccupation of the Philippines by the
American and Filipino forces under the leadership of
General Douglas MacArthur.
8. ID. ; ID.; ID.; ID.; SCOPE OF PROCLAMATION OF

GENERAL DOUGLAS MACARTHUR ANNULLING ALL
'-PROCESSES OF ANY OTHER GOVERNMENT IN THE
PHILIPPINES."—The phrase "processes of any other
government" is broad and may refer not only to judicial
processes, but also to administrative or legislative, as well
as constitutional, processes of the Republic of the
Philippines or other governmental agencies established in

the Islands during the Japanese occupation. Taking into
consideration the fact that, according to the well-known
principles of international law all judgments and judicial
proceedings, which are not of a political complexion, of the
de facto governments during the Japanese military
occupation were good and valid before and remained so
after the occupied territory had come again into the power
of the titular sovereign, it should be presumed that it was
not, and could not have been, the intention of General
Douglas MacArthur, in using the phrase "processes of any
other government" in said proclamation, to refer to
judicial processes, in violation of said principles of
international law. The only reasonable construction of the
said phrase is that it refers to governmental processes
other than judicial processes or court proceedings, for
according to a well-known rule of statutory construction,
set forth in 25 R. C. L., p. 1028, "a statute ought never to
be construed to violate the law of nations if any other
possible construction remains."
9. ID.; ID.; ID.; ID.; JURISDICTION OF COURTS OF

COMMONWEALTH TO CONTINUE PROCEEDINGS IN
ACTIONS PENDING IN COURTS DURING JAPANESE
MILITARY OCCUPATION.—Although in theory the
authority of the local civil and judicial administration is
suspended as a matter of course as soon as military
occupation takes place, in practice the invader does not
usually take the administration of justice into his own
hands, but continues the ordinary courts or tribunals to
administer the laws of the country which he is enjoined,
unless absolutely prevented, to respect. Following this
practice and the precepts of the law of nations, the
Commander in Chief of the Japanese forces proclaimed on
January 3, 1943, when Manila was occupied,
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VOL. 75, SEPTEMBER 17, 1945 117
the military administration under martial law over the

territory occupied by the army, and ordered that "all the
laws now in force in the Commonwealth, as well as
executive and judicial institutions, shall continue to be
effective for the time being as in the past," and "all public
officials shall remain in their present posts and carry on
faithfully their duties as before." When the Philippine

Executive Commission was organized by Order No. 1 of
the Japanese Commander in Chief, on January 23, 1942,
the Chairman of the Executive Commission, by Executive
Orders Nos. 1 and 4 of January 30 and February 5,
respectively, continued the Supreme Court, Court of
Appeals, Courts of First Instance, and justices of the peace
courts, with the same jurisdiction, in conformity with the
instructions given by the Commander in Chief of the
Imperial Japanese army in Order No. 3 of February 20,
1942. And on October 14, 1943 when the so-called
Republic of the Philippines was inaugurated, the same
courts were continued with no substantial change in the
organization and jurisdiction thereof. If the proceedings
pending in the different courts of the Islands prior to the
Japanese military occupation had been continued during
the Japanese military administration, the Philippine
Executive Commission, and the so-called Republic of the
Philippines, it stands to reason the same courts, which
become reestablished and conceived of as having been in
continued existence upon the reoccupation and liberation
of the Philippines by virtue of the principle of postliminy
(Hall, International Law, 7th ed., p. 516), may continue
the proceedings in cases then pending in said courts,
without necessity of enacting a law conferring jurisdiction
upon them to continue said proceedings.
10. ID.; ID.; ID.; ID.; CONTINUITY OF LAW.—It is a legal

maxim that, excepting that of a political nature, "Law
once established continues until changed by some
competent legislative power. It is not changed merely by
change of sovereignty." (Joseph H. Beale, Cases on
Conflict of Laws, III, Summary section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same
author says, in his Treatise 011 the Conflict of Laws
(Cambridge, 1916, section 131): "There can be no break or
interregnum in law. From the time the law comes into
existence with the first-felt corporateness of a primitive
people it must last until the final disappearance of human
society. Once created, it persists until a change takes
place, and when changed it continues in such changed
condition until the next change, and so forever. Conquest
or colonization is impotent to bring
118
law to amend; in spite of change of constitution, the law

continues unchanged until the new sovereign by
legislative act creates a change." As courts are creatures of
statutes and their existence depends upon that of the laws
which create and confer upon them their jurisdiction, it is
evident that such laws, not being of a political nature, are
not abrogated by a change of sovereignty, and continue in
force "ex proprio vigore" unless and until repealed by
legislative acts. A proclamation that said laws and courts
are expressly continued is not necessary in order that they
may continue in force. Such proclamation, if made, is but a
declaration of the intention of respecting and not
repealing those laws. As a consequence, enabling laws or
acts providing that proceedings pending in one court be
continued by or transferred to another court, are not
required by the mere change of government or
sovereignty. They are necessary only in case the "f ormer
courts are abolished or their jurisdiction so changed that
they can no longer continue taking cognizance of the cases
and proceedings commenced therein, in order that the new
courts or the courts having jurisdiction over said cases
may continue the proceedings.
ORIGINAL ACTION in the Supreme Court. Mandamus.

The facts are stated in the opinion of the court.
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This is a petition "f or mandamus in which petitioner prays

that the respondent judge of the lower court be ordered to
continue the proceedings in civil case No. 3012 of said
court, which were initiated under the regime of the so-
called Republic of the Philippines established during the
Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and
continue the proceedings in said case on the ground that
the proclamation issued on October 23, 1944, by General
Douglas MacArthur had the effect of invalidating and
nullifying all judicial proceedings and judgments of the
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VOL. 75, SEPTEMBER 17, 1945 119
courts of the Philippines under the Philippine Executive

Commission and the Republic of the Philippines
established during the Japanese military occupation, and
that, "furthermore, the lower courts have no jurisdiction to
take cognizance of and continue judicial proceedings
pending in the courts of the defunct Republic of the
Philippines in the absence of an enabling law granting such
authority. And the same respondent, in his answer and
memorandum filed in this Court, contends that the
governments established in the Philippines during the
Japanese occupation were not de facto governments.
On January 2, 1942, the Imperial Japanese Forces
occupied the City of Manila, and on the next day their
Commander in Chief proclaimed "the Military
Administration under martial law over the districts
occupied by the Army." In said proclamation, it was also
provided that "so far as the Military Administration
permits, all the laws now in force in the Commonwealth, as
well as executive and judicial institutions, shall continue to
be effective for the time being as in the past," and "all
public officials shall remain in their present posts and
carry on faithfully their duties as before."
A civil government or central administrative
organization under the name of "Philippine Executive
Commission" was organized by Order No. 1 issued on
January 23, 1942, by the Commander in Chief of the
Japanese Forces in the Philippines, and Jorge B. Vargas,
who was appointed Chairman thereof, was instructed to
proceed to the immediate coordination of the existing
central administrative organs and of judicial courts, based
upon what had existed theretofore, with the approval of the
said Commander in Chief, who was to exercise jurisdiction
over judicial courts.
The Chairman of the Executive Commission, as head of
the central administrative organization, issued Executive
Orders Nos. 1 and 4, dated January 30 and February 5,
1942, respectively, in which the Supreme Court, Court of
Appeals, Courts of First Instance, and the justices of the
peace and municipal courts under the Commonwealth were
120

continued with the same jurisdiction, in conformity with

the instructions given to the said Chairman of the
Executive Commission by the Commander in Chief of
Japanese Forces in the Philippines in the latter's Order No.
3 of February 20, 1942, concerning basic principles to be
observed by the Philippine Executive Commission in
exercising legislative, executive and judicial powers.
Section 1 of said Order provided that "activities of the
administrative organs and judicial courts in the Philippines
shall be based upon the existing statutes, orders,
ordinances and customs * *. *."
On October 14, 1943, the so-called Republic of the
Philippines was inaugurated, but no substantial change
was effected thereby in the organization and jurisdiction of
the different courts that functioned during the Philippine
Executive Commission, and in the laws they administered
and enforced.
On October 23, 1944, a few days after the historic
landing in Leyte, General Douglas MacArthur issued a
proclamation to the People of the Philippines which
declared:
"1. That the Government of the Commonwealth of the

Philippines is, subject to the supreme authority of
the Government of the United States, the sole and
only government having legal and valid jurisdiction
over the people in areas of the Philippines free of
enemy occupation and control;
"2. That the laws now existing on the statute books of
the Commonwealth of the Philippines and the
regulations promulgated pursuant thereto are in
full force and effect and legally binding upon the
people in areas of the Philippines free of enemy
occupation and control; and
"3. That all laws, regulations and processes of any
other government in the Philippines than that of
the said Commonwealth are null and void and
without legal effect in areas of the Philippines free
of enemy occupation and control."
On February 3, 1945, the City of Manila was partially

liberated and on February 27, 1945, General MacArthur,
on behalf of the Government of the United States, solemnly
declared "the full powers and responsibilities under the
121
VOL. 75, SEPTEMBER 17, 1945 121
Constitution restored to the Commonwealth whose seat is

here reestablished as provided by law."
In the light of these facts and events of contemporary
history, the principal questions to be resolved in the
present case may be reduced to the following: (1) Whether
the judicial acts and proceedings of the courts existing in
the Philippines under the Philippine Executive
Commission and the Republic of the Philippines were good
and valid and remained so even after the liberation or
reoccupation of the Philippines by the United States and
Filipino forces; (2) Whether the proclamation issued on
October 23, 1944, by General Douglas MacArthur,
Commander in Chief of the United States Army, in which
he declared "that all laws, regulations and processes of any
other government in the Philippines than that of the said
Commonwealth are null and void and without legal effect
in areas of the Philippines free of enemy occupation and
control," has invalidated all judgments and judicial acts
and proceedings of the said courts; and (3) If the said
judicial acts and proceedings have not been invalidated by
said proclamation, whether the present courts of the
Commonwealth, which were the same courts existing prior
to, and continued during, the Japanese military occupation
of the Philippines, may continue those proceedings pending
in said courts at the time the Philippines were reoccupied
and liberated by the United States and Filipino forces, and
the Commonwealth of the Philippines was reestablished in
the Islands.
We shall now proceed to consider the first question, that
is, whether or not under the rules of international law the
judicial acts and proceedings of the courts established in
the Philippines under the Philippine Executive
Commission and the Republic of the Philippines were good
and valid and remained good and valid even after the
liberation or reoccupation of the Philippines by the United
States and Filipino forces.
122

1. It is a legal truism in political and international law that

all acts and proceedings of the legislative, executive, and
judicial departments of a de facto government are good and
valid. The question to be determined is whether or not the
governments established in these Islands under the names

of Philippine Executive Commission and Republic of the
Philippines during the Japanese military occupation or
regime were de facto governments. If they were, the
judicial acts and proceedings of those governments remain
good and valid even after the liberation or reoccupation of
the Philippines by the American and Filipino Forces.
There are several kinds of de facto governments. The
first, or government de facto in a proper legal sense, is that
government that gets possession and control of, or usurps,
by force or by the voice of the majority, the rightful legal
government and maintains itself against the will of the
latter, such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell
as Protector. The second is that which is established and
maintained by military forces who invade and occupy a
territory of the enemy in the course of war, and which is
denominated a government of paramount force, as the
cases of Castine, in Maine, which was reduced to British
possession in the war of 1812, and of Tampico, Mexico,
occupied during the war with Mexico, by the troops of the
United States. And the third is that established as an
independent government by the inhabitants of a country
who rise in insurrection against the parent state, such as
the government of the Southern Confederacy in revolt
against the Union during the war of secession. We are not
concerned in the present case with the first kind, but only
with the second and third kinds of de facto governments.
Speaking of government "de facto" of the second kind,
the Supreme Court of the United States, in the case of
Thorington vs. Smith (8 Wall., 1), said: "But there is
another description of government, called also by publicists
123
VOL. 75, SEPTEMBER 17, 1945 123

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 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 * * *. One example of this sort of government is found
in the case of Castine, in Maine, reduced to British
possession in the war of 1812 * * *. U. S. vs. Rice (4
Wheaton, 253). A like example is found in the case of
Tampico, occupied during the war with Mexico, by the
troops of the United States * * *. Fleming vs. Page (9
Howard, 614). These were cases of temporary possession of
territory by lawful and regular governments at war with
the country of which the territory so possessed was part."
The powers and duties of de facto governments of this
description are regulated in Section III of the Hague
Conventions of 1907, which is a revision of the provisions of
the Hague Conventions of 1899 on the same subject of
Military Authority over Hostile Territory. Article 43 of said
Section III provides that "the authority of the legitimate
power having actually passed into the hands of the
occupant, the latter shall take all steps in his power to
reestablish and insure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the
laws in force in the country."
124

According to these precepts of the Hague Conventions, as

the belligerent occupant has the right and is burdened with
the duty to insure public order and safety during his
military occupation, he possesses all the powers of a de
facto government, and he can suspend the old laws and
promulgate new ones and make such changes in the old as
he may see fit, but he is enjoined to respect, unless
absolutely prevented by the circumstances prevailing in the
occupied territory, the muncipal laws in force in the
country, that is, those laws which enforce public order and
regulate the social and commercial life of the country. On
the other hand, laws of a political nature or affecting
political relations, such as, among others, the right of
assembly, the right to bear arms, the freedom of the press,
and the right to travel freely in the territory occupied, are
considered as suspended or in abeyance during the military
occupation. Although the local and civil administration of
justice is suspended as a matter of course as soon as a

country is militarily occupied, it is not usual for the invader
to take the whole administration into his own hands. In
practice, the local ordinary tribunals are authorized to
continue administering justice; and the judges and other
judicial officers are kept in their posts if they accept the
authority of the belligerent occupant or are required to
continue in their positions under the supervision of the
military or civil authorities appointed by the Commander
in Chief of the occupant. These principles and practice have
the sanction of all publicists who have considered the
subject, and have been asserted by the Supreme Court and
applied by the Presidents of the United States.
The doctrine upon this subject is thus summed up by
Halleck, in his work on International Law (Vol. 2, p. 444) :
"The right of one belligerent to occupy and govern the
territory of the enemy while in its military possession, is
one of the incidents of war, and flows directly from the
right to conquer. We, therefore, do not look to the
Constitution or political institutions of the conqueror, for
125
VOL. 75, SEPTEMBER 17, 1945 125

authority to establish a government for the territory of the

enemy in his possession, during its military occupation, nor
for the rules by which the powers of such government are
regulated and limited. Such authority and such rules are
derived directly from the laws of war, as established by the
usage of the world, and confirmed by the writings of
publicists and decisions of courts—in fine, from the law of
nations * *. *. The municipal laws 01 a conquered territory,
or the laws which regulate private rights, continue in force
during military occupation, except so far as they are
suspended or changed by the acts of the conqueror * *. *.
He, nevertheless, has all the powers of a de facto
government, and can at his pleasure either change the
existing laws or make new ones."
And applying the principles for the exercise of military
authority in an occupied territory, which were later
embodied in the said Hague Conventions, President
McKinley, in his executive order to the Secretary of War of
May 19, 1898, relating to the occupation of the Philippines
by United States forces, said in part: "Though the powers of
the military occupant are absolute and supreme, and
immediately operate upon the political condition of the
inhabitants, the municipal laws of the conquered territory,

such as affect private rights of person and property and
provide for the punishment of crime, are considered as
continuing in force, so far as they are compatible with the
new order of things, until they are suspended or
superseded by the occupying belligerent; and in practice
they are not usually abrogated, but are allowed to remain
in force and to be administered by the ordinary tribunals,
substantially as they were before the occupation. This
enlightened practice is, so far as possible, to be adhered to
on the present occasion. The judges and the other officials
connected with the administration of justice may, if they
accept the authority of the United States, continue to
administer the ordinary law of the land as between man
and man under the supervision of the American
Commander in Chief."
126

(Richardson's Messages and Papers of President, X, p. 209.)

As to "de facto" government of the third kind, the
Supreme Court of the United States, in the same case of
Thorington vs. Smith, supra, recognized the government
set up by the Confederate States as a de facto government.
In that case, it was held that "the central government
established for the insurgent States differed from the
temporary governments at Castine and Tampico in the
circumstance that its authority did not originate in lawful
acts of regular war; but it was not, on that account, less
actual or less supreme. And we think that it must be
classed among the governments of which these are
examples * * *."
In the case of Williams vs. Bruffy (96 U. S., 176, 192),
the Supreme Court of the United States, discussing the
validity of the acts of the Confederate States, said: "The
same general form of government, the same general laws
for the administration of justice and the protection of
private rights, which had existed in the States prior to the
rebellion, remained during its continuance and afterwards.
As far as the Acts of the States do not impair or tend to
impair the supremacy of the national authority, or the just
rights of citizens under the Constitution, they are, in
general, to be treated as valid and binding. As we said in
Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657) : The
existence of a state of insurrection and war did not loosen
the bonds of society, or do away with civil government or

the regular administration of the laws. Order was to be
preserved, police regulations maintained, crime prosecuted,
property protected, contracts enforced, marriages
celebrated, estates settled, and the transfer and descent of
property regulated, precisely as in the time of peace. No
one, that we are aware of, seriously questions the validity of
judicial or legislative Acts in the insurrectionary States
touching these and kindred subjects, where they were not
hostile in their purpose or mode of enforce-
127
VOL. 75, SEPTEMBER 17, 1945 127

ment to the authority of the National Government, and did

not impair the rights of citizens under the Constitution'.
The same doctrine has been asserted in numerous other
cases."
And the same court, in the case of Baldy vs. Hunter (171
U. S., 388, 400), held: "That what occurred or was done in
respect of such matters under the authority of the laws of
these local de facto governments should not be disregarded
or held to be invalid merely because those governments
were organized in hostility to the Union established by the
national Constitution; this, because the existence of war
between the United States and the Confederate States did
not relieve those who were within the insurrectionary lines
from the necessity of civil obedience, nor destroy the bonds
of society nor do away with civil government or the regular
administration of the laws, and because transactions in the
ordinary course of civil society as organized within the
enemy's territory although they may have indirectly or
remotely promoted the ends of the de facto or unlawful
government organized to effect a dissolution of the Union,
were without blame 'except when proved to have been
entered into with actual intent to further invasion or
insurrection;' " and "That judicial and legislative acts in the
respective states composing the so-called Confederate
States should be respected by the courts if they were not
hostile in their purpose or mode of enforcement to the
authority of the National Government, and did not impair
the rights of citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine
Executive Commission, which was organized by Order No.
1, issued on January 23, 1942, by the Commander of the
Japanese forces, was a civil government established by the
military forces of occupation and therefore a de facto

government of the second kind. It was not different from
the government established by the British in Castine,
Maine, or by the United States in Tampico, Mexico. As
Halleck says, "The government established over an enemy's
128

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. In 1806, when Napoleon occupied the greater
part of Prussia, he retained the existing administration
under the general direction of a French official (Langfrey
History of Napoleon, I, IV, 25) ; and, in the same way, the
Duke of Wellington, on invading France, authorized the
local authorities to continue the exercise of their functions,
apparently without appointing an English superior.
(Wellington Despatches, XI, 307,) The Germans, on the
other hand, when they invaded France in 1870, appointed
their own officials, at least in Alsace and Lorraine, in every
department of administration and of every rank. (Calvo,
pars. 2186-93; Hall, International Law, 7th ed., p. 505, note
2.)
The so-called Republic of the Philippines, apparently
established and organized as a sovereign state independent
from any other government by the Filipino people, was, in
truth and reality, a government established by the
belligerent occupant or the Japanese forces of occupation.
It was of the same character as the Philippine Executive
Commission, and the ultimate source of its authority was
the same—the Japanese military authority and
government. As General MacArthur stated in his
proclamation of October 23, 1844, 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
129
VOL. 75, SEPTEMBER 17, 1945 129

14, 1943, based upon neither the free expression of the

people's will nor the sanction of the Government of the
United States." Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty
of the United States to, or recognize the latent sovereignty
of, the Filipino people, before its military occupation and
possession of the Islands had matured into an absolute and
permanent dominion or sovereignty by a treaty of peace or
other means recognized in the law of nations. For it is a
well-established doctrine in international law, recognized
in Article 45 of the Hague Conventions of 1907 (which
prohibits compulsion of the population of the occupied
territory to swear allegiance to the hostile power), that
belligerent occupation, being essentially provisional, does
not serve to transfer sovereignty over the territory
controlled although the de jure government is during the
period of occupancy deprived of the power to exercise its
rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9,
Cranch, 191; United States vs. Rice, 4 Wheat, 246; Fleming
vs. Page, 9, Howard, 603; Downes vs. Bidwell, 182 U. S.,
345.) The formation of the Republic of the Philippines was
a scheme contrived by Japan to delude the Filipino people
into believing in the apparent magnanimity of the
Japanese gesture of transferring or turning over the rights
of government into the hands of Filipinos. It was
established under the mistaken belief that, by doing so,
Japan would secure the cooperation or at least the
neutrality of the Filipino people in her war against the
United States and other allied nations.
Indeed, even if the Republic of the Philippines had been
established by the free will of the Filipino people who,
taking advantage of the withdrawal of the American forces
from the Islands, and the occupation thereof by the
Japanese forces of invasion, had organized an independent
government under that name with the support and backing
of Japan, such government would have been considered as
one established by the Filipinos in insurrection or re-
130

bellion against the parent state or the United States. And,

as such, it would have been a de facto government similar
to that organized by the confederate states during the war
of secession and recognized as such by the Supreme Court
of the United States in numerous cases, notably those of
Thorington vs. Smith, Williams vs. Bruffy, and Badly vs.
Hunter, above quoted; and similar to the short-lived
government established by the Filipino insurgents in the
Island of Cebu during the Spanish-American war,
recognized as a de facto government by the Supreme Court
of the United States in the case of McCleod vs. United
States (299 U. S., 416). According to the facts in the last-
named case, the Spanish forces evacuated the Island of
Cebu on December 25, 1898, having first appointed a
provisional government, and shortly afterwards, the
Filipinos, formerly in insurrection against Spain, took
possession of the Island and established a republic,
governing the Island until possession thereof was
surrendered to the United States on February 22, 1898.
And the said Supreme Court held in that case that "such
government was of the class of de facto governments
described in I Moore's International Law Digest, S 20, * * *
'called also by publicists a government de facto, but which
might, perhaps, be more aptly denominated a government
of paramount force * * *'." That is to say, that the
government of a country in possession of belligerent forces
in insurrection or rebellion against the parent state, rests
upon the same principles as that of a territory occupied by
the hostile army of an enemy at regular war with the
legitimate power.
The governments by the Philippine Executive
Commission and the Republic of the Philippines during the
Japanese military occupation being de facto governments,
it necessarily follows that the judicial acts and proceedings
of the courts of justice of those governments, which are not
of a political complexion, were good and valid, and, by
virtue of the well-known principle of postliminy
(postliminium) in international law, remained good and
valid after the
131
VOL. 75, SEPTEMBER 17, 1945 131

liberation or reoccupation of the Philippines by the

American and Filipino forces under the leadership of
General Douglas MacArthur. According to that well-known
principle in international law, the fact that a territory
which has been occupied by an enemy comes again into the
power of its legitimate government or sovereignty, "does
not, except in a very few cases, wipe out the effects of acts
done by an invader, which for one reason or another it is
within his competence to do. Thus judicial acts done under
his control, when they are not of a political complexion,
administrative acts so done, to the extent that they take eff
ect during the continuance of his control, and the various
acts done during the same time by private persons under
the sanction of municipal law, remain good. Were it
otherwise, the whole social life of a community would be
paralyzed by an invasion; and as between the state and
individuals the evil would be scarcely less,—it would be
hard for example that payment of taxes made under duress
should be ignored, and it would be contrary to the general
interest that sentences passed upon criminals should be
annulled by the disappearance of the intrusive
government." (Hall, International Law, 7th ed., p. 518.)
And when the occupation and the abandonment have been
each an incident of the same war as in the present case,
postliminy applies, even though the occupant has acted as
conqueror and for the time substituted his own sovereignty,
as the Japanese intended to do apparently in granting
independence to the Philippines and establishing the
socalled Republic of the Philippines. (Taylor, International
Law, p. 615.)
That not only judicial but also legislative acts of de facto
governments, which are not of a political complexion, are
and remain valid after reoccupation of a territory occupied
by a belligerent occupant, is confirmed by the Proclamation
issued by General Douglas MacArthur on October 23, 1944,
which declares null and void all laws, regulations and
processes of the governments established in the Philippines
132

during the Japanese occupation, for it would not have been

necessary for said proclamation to abrogate them if they
were invalid ab initio.
2. The second question hinges upon the interpretation of
the phrase "processes of any other government" as used in
the above-quoted proclamation of General Douglas

MacArthur of October 23, 1944—that is, whether it was the
intention of the Commander in Chief of the American
Forces to annul and avoid thereby all judgments and
judicial proceedings of the courts established in the
Philippines during the Japanese military occupation.
The phrase "processes of any other government" is broad
and may refer not only to judicial processes, but also to
administrative or legislative, as well as constitutional,
processes of the Republic of the Philippines or other
governmental agencies established in the Islands during
the Japanese occupation. Taking into consideration the fact
that, as above indicated, according to the well-known
principles of international law all judgments and judicial
proceedings, which are not of a political complexion, of the
de facto governments during the Japanese military
occupation were good and valid before and remained so
after the occupied territory had come again into the power
of the titular sovereign, it should be presumed that it was
not, and could not have been, the intention of General
Douglas MacArthur, in using the phrase "processes of any
other government" in said proclamation, to refer to judicial
processes, in violation of said principles of international
law. The only reasonable construction of the said phrase is
that it refers to governmental processes other than judicial
processes or court proceedings, for according to a well-
known rule of statutory construction, set forth in 25 R. C.
L., p. 1028, "a statute ought never to be construed to violate
the law of nations if any other possible construction
remains."
It is true that the commanding general of a belligerent
army of occupation, as an agent of his government, may not
unlawfully suspend existing laws and promulgate new
133
VOL. 75, SEPTEMBER 17, 1945 133

ones in the occupied territory, if and when the exigencies of

the military occupation demand such action. But even
assuming that, under the law of nations, the legislative
power of a commander in chief of military forces who
liberates or reoccupies his own territory which has been
occupied by an enemy, during the military and before the
restoration of the civil regime, is as broad as that of the
commander in chief of the military forces of invasion and
occupation (although the exigencies of military
reoccupation are evidently less than those of occupation), it

is to be presumed that General Douglas MacArthur, who
was acting as an agent or a representative of the
Government and the President of the United States,
constitutional commander in chief of the United States
Army, did not intend to act against the principles of the
law of nations asserted by the Supreme Court of the United
States from the early period of its existence, applied by the
Presidents of the United States, and later embodied in the
Hague Conventions of 1907, as above indicated. It is not to
be presumed that General Douglas MacArthur, who
enjoined in the same proclamation of October 23, 1944,
"upon the loyal citizens of the Philippines full respect and
obedience to the Constitution of the Commonwealth of the
Philippines," should not only reverse the international
policy and practice of his own government, but also
disregard in the same breath the provisions of section 3,
Article II, of our Constitution, which provides that "The
Philippines renounces war as an instrument of national
policy, and adopts the generally accepted principles of
international law as part of the law of the Nation."
Moreover, from a contrary construction great
inconvenience and public hardship would result, and great
public interests would be endangered and sacrificed, for
disputes or suits already adjudged would have to be again
settled, accrued or vested rights nullified, sentences passed
on criminals set aside, and criminals might easily become
immune for evidence against them may have already
disappeared or be no longer available, especially now that
134

almost all court records in the Philippines have been

destroyed by fire as a consequence of the war. And it is
another well-established rule of statutory construction that
where great inconvenience will result from a particular
construction, or great public interests would be endangered
or sacrificed, or great mischief done, such construction is to
be avoided, or the court ought to presume that such
construction was not intended by the makers of the law,
unless required by clear and unequivocal words. (25 R. C.
L., pp. 1025, 1027.)
The mere conception or thought of possibility that the
titular sovereign or his representatives who reoccupies a
territory occupied by an enemy, may set aside or annul all
the judicial acts or proceedings of the tribunals which the

belligerent occupant had the right and duty to establish in
order to insure public order and safety during military
occupation, would be sufficient to paralyze the social life of
the country or occupied territory, for it would have to be
expected that litigants would not willingly submit their
litigation to courts whose judgments or decisions may
afterwards be annulled, and criminals would not be
deterred from committing crimes or offenses in the
expectancy that they may escape the penalty if judgments
rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the
judgments and proceedings of the courts of justice during
the Japanese regime, is impliedly confirmed by Executive
Order No. 37, which has the force of law, issued by the
President of the Philippines on March 10, 1945, by virtue of
the emergency legislative power vested in him by the
Constitution and the laws of the Commonwealth of the
Philippines. Said Executive Order abolished the Court of
Appeals, and provided "that all cases which have heretofore
been duly appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final decision." This
provision impliedly recognizes that the judgments and
proceedings of the courts during the Japanese military
135
VOL. 75, SEPTEMBER 17, 1945 135

occupation have not been invalidated by the proclamation

of General MacArthur of October 23, because the said
Order does not say or refer to cases which had been duly
appealed to said court prior to the Japanese occupation, but
to cases which had theretofore, that is, up to March 10,
1945, been duly appealed to the Court of Appeals; and it is
to be presumed that almost all, if not all, appealed cases
pending in the Court of Appeals prior to the Japanese
military occupation of Manila on January 2, 1942, had been
disposed of by the latter before the restoration of the
Commonwealth Government in 1945; while almost all, if
not all, appealed cases pending on March 10, 1945 in the
Court of Appeals were from judgments rendered by the
Court of First Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's
International Law which says: "Moreover when it is said
that an occupier's acts are valid and under international
law should not be abrogated by the subsequent conqueror,
it must be remembered that no crucial instances exist to

show that if his acts should be reversed, any international
wrong would be committed. What does happen is that most
matters are allowed to stand by the restored government,
but the matter can hardly be put further than this."
(Wheaton, International Law, War, 7th English edition of
1944, p. 245.) And from this quotation the respondent judge
"draws the conclusion that whether the acts of the occupant
should be considered valid or not, is a question that is up to
the restored government to decide; that there is no rule of
international law that denies to the restored government
the right to exercise its discretion on the matter, imposing
upon it in its stead the obligation of recognizing and
enforcing the acts of the overthrown government."
There is no doubt that the subsequent conqueror has the
right to abrogate most of the acts of the occupier, such as
the laws, regulations and processes other than judicial of
the government established by the belligerent occupant.
136

But in view of the fact that the proclamation uses the

words "processes of any other government" and not
"judicial processes" precisely, it is not necessary to
determine whether or not General Douglas MacArthur had
power to annul and set aside all judgments and
proceedings of the courts during the Japanese occupation.
The question to be determined is whether or not it was his
intention, as representative of the President of the United
States, to avoid or nullify them. If the proclamation had,
expressly or by necessary implication, declared null and
void the judicial processes of any other government, it
would be necessary "f or this court to decide in the present
case whether or not General Douglas MacArthur had
authority to declare them null and void. But the
proclamation did not so provide, undoubtedly because the
author thereof was fully aware of the limitations of his
powers as Commander in Chief of the Military Forces of
liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles
of international law, as they result from the usages
established between civilized nations, the laws of humanity
and the requirements of the public conscience, constitute or
form the law of nations. (Preamble of the Hague
Conventions; Westlake, International Law, 2d ed., Part II,
p. 61.) Article 43, section III, of the Hague Regulations or

Conventions which we have already quoted in discussing
the first question, imposes upon the occupant the obligation
to establish courts; and Article 23 (h), section II, of the
same Conventions, which prohibits the belligerent
occupant "to declare * * * suspended * * * in a Court of Law
the rights and action of the nationals of the hostile party,"
forbids him to make any declaration preventing the
inhabitants "f rom using their courts to assert or enforce
their civil rights. (Decision of the Court of Appeals of
England in the case of Porter vs. Fruedenburg, L. R. [1915],
1 K. B., 857.) If a belligerent occupant is required to
establish courts of justice in the territory occu-
137
VOL. 75, SEPTEMBER 17, 1945 137

pied, and forbidden to prevent the nationals thereof from

asserting or enforcing therein their civil rights, by
necessary implication, the military commander of the
forces of liberation or the restored government is restrained
from nullifying or setting aside the judgments rendered by
said courts in their litigation during the period of
occupation. Otherwise, the purpose of these precepts of the
Hague Conventions would be thwarted, for to declare them
null and void would be tantamount to suspending in said
courts the rights and action of the nationals of the territory
during the military occupation thereof by the enemy. It
goes without saying that a law that enjoins a person to do
something will not at the same time empower another to
undo the same. Although the question whether the
President or commanding officer of the United States Army
has violated restraints imposed by the constitution and
laws of his country is obviously of a domestic nature, yet, in
construing and applying limitations imposed on the
executive authority, the Supreme Court of the United
States, in the case of Ochoa vs. Hernandez (230 U. S., 139),
has declared that they "arise from general rules of
international law and from fundamental principles known
wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U. S., 712), a
special order issued by the officer in command of the forces
of the United States in South Carolina after the end of the
Civil War, wholly annulling a decree rendered by a court of
chancery in that state in a case within its jurisdiction, was
declared void, and not warranted by the acts approved
respectively March 2, 1867 (14 Stat, 428), and July 19 of

the same year (15 id., 14), which defined the powers and
duties of military officers in command of the several states
then lately in rebellion. In the course of its decision the
court said: "We have looked carefully through the acts of
March 2, 1867 and July 19, 1867. They give very large
governmental powers to the military commanders
designated, within the States committed respec-
138

tively to their jurisdiction; but we have found nothing to

warrant the order here in question * * *. The clearest
language would be necessary to satisfy us that Congress
intended that the power given by these acts should be so
exercised * * *. It was an arbitrary stretch of authority,
needful to no good end that can be imagined. Whether
Congress could have conferred the power to do such an act
is a question we are not called upon to consider. It is an
unbending rule of law that the exercise of military power,
where the rights of the citizen are concerned, shall never be
pushed beyond what the exigency requires. (Mitchell vs.
Harmony,. 13 How., 115; Warden vs. Bailey, 4 Taunt., 67;
Fabrigas vs. Moysten, 1 Cowp., 161; s. c., 1 Smith's L. C.,
pt. 2, p. 934.) Viewing the subject before us from the
standpoint indicated, we hold that the order was void."
It is, therefore, evident that the proclamation of General
MacArthur of October 23, 1944, which declared that "all
laws, regulations and processes of any other government in
the Philippines than that of the said Commonwealth are
null and void without legal effect in areas of the
Philippines free of enemy occupation and control," has not
invalidated the judicial acts and proceedings, which are not
of a political complexion, of the courts of justice in the
Philippines that were continued by the Philippine
Executive Commission and the Republic of the Philippines
during the Japanese military occupation, and that said
judicial acts and proceedings were good and valid before
and are now good and valid after the reoccupation or
liberation of the Philippines by the American and Filipino
forces.
3. The third and last question is whether or not the
courts of the Commonwealth, which are the same as those
military occupation by the Philippine Executive
Commission and by the so-called Republic of the
Philippines, have jurisdiction to continue now the

proceedings in actions pending in said courts at the time
the Philippine Islands
139
VOL. 75, SEPTEMBER 17, 1945 139

were reoccupied or liberated by the American and Filipino

forces, and the Commonwealth Government was restored.
Although in theory the authority of the local civil and
judicial administration is suspended as a matter of course
as soon as military occupation takes place, in practice the
invader does not usually take the administration of justice
into his own hands, but continues the ordinary courts or
tribunals to administer the laws of the country which he is
enjoined, unless absolutely prevented, to respect. As stated
in the above-quoted Executive Order of President McKinley
to the Secretary of War on May 19, 1898, "in practice, they
(the municipal laws) are not usually abrogated but are
allowed to remain in "f orce and to be administered by the
ordinary tribunals substantially as they were before the
occupation. This enlightened practice is, so far as possible,
to be adhered to on the present occasion." And Taylor in
this connection says: "From a theoretical point of view it
may be said that the conqueror is armed with the right to
substitute his arbitrary will for all preexisting forms of
government, legislative, executive and judicial. From the
stand-point of actual practice such arbitrary will is
restrained by the provision of the law of nations which
compels the conqueror to continue local laws and
institutions so far as military necessity will permit. (Taylor
International Public Law, p. 596.) Undoubtedly, this
practice has been adopted in order that the ordinary
pursuits and business of society may not be unnecessarily
xv deranged, inasmuch as belligerent occupation is
essentially provisional, and the government established by
the occupant of transient character.
Following these practice and precepts of the law of
nations, the Commander in Chief of the Japanese Forces
proclaimed on January 3, 1942, when Manila was occupied,
the military administration under martial law over the
territory occupied by the army, and ordered that all the
laws now in force in the Commonwealth, as well as
executive and judicial institutions, shall continue to be
effective
140

for the time being as in the past," and "all public officials
shall remain in their present posts and carry on "f aithfully
their duties as before." When the Philippine Executive
Commission was organized by Order No. 1 of the Japanese
Commander in Chief, on January 23, 1942, the Chairman
of the Executive Commission, by Executive Orders Nos. 1
and 4 of January 30 and February 5, respectively,
continued the Supreme Court, Court of Appeals, Courts of
First Instance, and justices of the peace courts, with the
same jurisdiction, in conformity with the instructions given
by the Commander in Chief of the Imperial Japanese Army
in Order No. 3 of February 20, 1942. And on October 14,
1943 when the so-called Republic of the Philippines was
inaugurated, the same courts were continued with no
substantial change in the organization and jurisdiction
thereof.
If the proceedings pending in the different courts of the
Islands prior to the Japanese military occupation had been
continued during the Japanese military administration, the
Philippine Executive Commission, and the so-called
Republic of the Philippines, it stands to reason that the
same courts, which have become reestablished and
conceived of as having been in continued existence upon the
reoccupation and liberation of the Philippines by virtue of
the principle of postliminy (Hall, International Law, 7th
ed., p. 516), may continue the proceedings in cases then
pending in said courts, without necessity of enacting a law
conferring jurisdiction upon them to continue said
proceedings. As Taylor graphically points out in speaking
of said principle "a state or other governmental entity,
upon the removal of a foreign military force, resumes its
old place with its right and duties substantially unimpaired
* * *. Such political resurrection is the result of a law
analogous to that which enables elastic bodies to regain
their original shape upon the removal of the external force,
—and subject to the same exception in case of absolute
crushing of the whole fibre and content." (Taylor,
International Public Law, p. 615.)
141
VOL. 75, SEPTEMBER 17, 1945 141
The argument advanced by the respondent judge in his

resolution in support of his conclusion that the Court of
First Instance of Manila presided over by him "has no
authority to take cognizance of, and continue said
proceedings (of this case) to final judgment until and unless
the Government of the Commonwealth of the Philippines *
* * shall have provided for the transfer of the jurisdiction of
the courts of the now defunct Republic of the Philippines,
and the cases commenced and left pending therein," is
"that said courts were of a government alien to the
Commonwealth Government. The laws they enforced were,
true enough, laws of the Commonwealth prior to Japanese
occupation, but they had become the laws—and the courts
had become the institutions—of Japan by adoption (U. S.
vs. Reiter, 27 F. Cases, No. 16146), as they became later on
the laws and institutions of the Philippine Executive
Commission and the Republic of the Philippines."
The court in the said case of U. S. vs. Reiter did not and
could not say that the laws and institutions of the country
occupied, if continued by the conqueror or occupant, become
the laws and the courts, by adoption, of the sovereign
nation that is militarily occupying the territory. Because,
as already shown, belligerent or military occupation is
essentially provisional and does not serve to transfer the
sovereignty over the occupied territory to the occupant.
What the court said was that, if such laws and institutions
are continued in use by the occupant, they become his and
derive their force from him, in the sense that he may
continue or set them aside. The laws and institutions or
courts so continued remain the laws and institutions or
courts of the occupied territory- The laws and courts of the
Philippines, therefore, did not become, by being continued
as required by the law of nations, laws and courts of Japan.
The provision of Article 45, section III, of the Hague
Conventions of 1907 which prohibits
142

any compulsion of the population of occupied territory to

swear allegiance to the hostile power, "extends to prohibit
everything which would assert or imply a change made by
the invader in the legitimate sovereignty. This duty is
neither to innovate in the political life of the occupied
districts, nor needlessly to break the continuity of their

legal life. Hence, so far as the courts of justice are allowed
to continue administering the territorial laws, they must be
allowed to give their sentences in the name of the
legitimate sovereign" (Westlake, Int. Law, Part II, second
ed., p. 102). According to Wheaton, however, the victor
need not allow the use of that of the legitimate government.
When in 1870, the Germans in France attempted to violate
that rule by ordering, after the fall of the Emperor
Napoleon, the courts of Nancy to administer justice in the
name of the "High German Powers occupying Alsace and
Lorraine," upon the ground that the exercise of their
powers in the name of the French people and government
was at least an implied recognition of the Republic, the
courts refused to obey and suspended their sitting.
Germany originally ordered the use of the name of "High
German Powers occupying Alsace and Lorraine," but later
offered to allow the use of the name of the Emperor or a
compromise. (Wheaton, International Law, War, 7th
English ed. of 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of
a political nature, "Law once established continues until
changed by some competent legislative power. It is not
changed merely by change of sovereignty." (Joseph H.
Beale, Cases on Conflict of Laws, III, Summary Section 9,
citing Commonwealth vs. Chapman, 13 Met., 68.) As the
same author says, in his Treatise on the Conflict of Laws
(Cambridge, 1916, Section 131) : "There can be no break or
interregnum in law. From the time the law comes into
existence with the first-felt corporateness of a primitive
people it must last until the final disappearance of human
society. Once created, it persists until a change takes
143
VOL. 75, SEPTEMBER 17, 1945 143

place, and when changed it continues in such changed

condition until the next change, and so forever. Conquest or
colonization is impotent to bring law to an end; in spite of
change of constitution, the law continues unchanged until
the new sovereign by legislative act creates a change."
As courts are creatures of statutes and their existence
depends upon that of the laws which create and confer
upon them their jurisdiction, it is evident that such laws,
not being of a political nature, are not abrogated by a
change of sovereignty, and continue in force "ex proprio
vigore" unless and until repealed by legislative acts. A

proclamation that said laws and courts are expressly
continued is not necessary in order that they may continue
in force. Such proclamation, if made, is but a declaration of
the intention of respecting and not repealing those laws.
Therefore, even assuming that Japan had legally acquired
sovereignty over these Islands, which she had afterwards
transferred to the so-called Republic of the Philippines, and
that the laws and the courts of these Islands had become
the courts of Japan, as the said courts and the laws
creating and conferring jurisdiction upon them have
continued in force until now, it necessarily follows that the
same courts may continue exercising the same jurisdiction
over cases pending therein before the restoration of the
Commonwealth Government, unless and until they are
abolished or the laws creating and conf erring jurisdiction
upon them are repealed by the said government
As a consequence, enabling laws or acts providing that
proceedings pending in one court be continued by or trans-
"ferred to another court, are not required by the mere
change of government or sovereignty. They are necessary
only in case the former courts are abolished or their
jurisdiction so changed that they can no longer continue
taking cognizance of the cases and proceedings commenced
therein, in order that the new courts or the courts having
jurisdiction over said cases may continue the proceedings.
When the Spanish sovereignty in the Philippine Islands
ceased and the
144

Islands came into the possession of the United States, the

"Audiencia" or Supreme Court was continued and did not
cease to exist, and proceeded to take cognizance of the
actions pending therein upon the cessation of the Spanish
sovereignty until the said "Audiencia" or Supreme Court
was abolished, and the Supreme Court created in Chapter
II of Act No. 136 was substituted in lieu thereof. And the
Courts of First Instance of the Islands during the Spanish
regime continued taking cognizance of cases pending
therein upon the change of sovereignty, until section 65 of
the same Act No. 136 abolished them and created in its
Chapter IV the present Courts of First Instance in
substitution of the former. Similarly, no enabling acts were
enacted during the Japanese occupation, but a mere
proclamation or order that the courts in the Islands were

continued.
On the other hand, during the American regime, when
section 78 of Act No. 136 was enacted abolishing the civil
jurisidiction of the provost courts created by the military
government of occupation in the Philippines during the
Spanish-American war of 1898, the same section 78
provided for the transfer of all civil actions then pending in
the said provost courts to the proper tribunals, that is, to
the justices of the peace courts, Courts of First Instance, or
Supreme Court having jurisdiction over them according to
law. And later on, when the criminal jurisdiction of provost
courts in the City of Manila was abolished by section 3 of
Act No. 186, the same section provided that criminal cases
pending therein within the jurisdiction of the municipal
courts created by Act No. 183 were transferred to the
latter.
That the present courts are the same courts which had
been functioning during the Japanese regime and,
therefore, can continue the proceedings in cases pending
therein prior to the restoration of the Commonwealth of the
Philippines, is confirmed by Executive Order No. 37 which
we have already quoted in support of our conclusion in
connection with the second question. Said Executive Order
provides
145
VOL. 75, SEPTEMBER 17, 1945 145

"(1) that the Court of Appeals, created and established

under Commonwealth Act No. 3, as amended, be abolished,
as it is hereby abolished," and " (2) that all cases which
have heretofore been duly appealed to the Court of Appeals
shall be transmitted to the Supreme Court for final
decision. * * *" In so providing, the said Order considers
that the Court of Appeals abolished was the same that
existed prior to, and continued after, the restoration of the
Commonwealth Government; for, as we have stated in
discussing the previous question, almost all, if not all, of
the cases pending therein, or which had theretofore (that
is, up to March 10, 1945) been duly appealed to said court,
must have been cases coming from the Courts of First
Instance during the so-called Republic of the Philippines. If
the Court of Appeals abolished by the said Executive Order
was not the same one which had been functioning during
the Republic, but that which had existed up to the time of
the Japanese occupation, it would have provided that all

the cases which had, prior to and up to that occupation on
January 2, 1942, been duly appealed to the said Court of
Appeals shall be transmitted to the Supreme Court for
final decision.
It is, therefore, obvious that the present courts have
jurisdiction to continue, to final judgment, the proceedings
in cases, not of political complexion, pending therein at the
time of the restoration of the Commonwealth Government,
Having arrived at the above conclusions, it follows that
the Court of First Instance of Manila has jurisdiction to
continue to final judgment the proceedings in civil case No.
3012, which involves civil rights of the parties under the
laws of the Commonwealth Government, pending in said
court at the time of the restoration of the said Government;
and that the respondent judge of that court, having refused
to act and continue the said proceedings, which the law
specifically enjoins him to do as a duty resulting from his
office as presiding judge of that court, mandamus is the
speedy and adequate remedy in the ordinary course of law,
146

especially taking into consideration the fact that the

question of jurisdiction herein involved does affect not only
this particular case, but many other cases now pending in
all the courts of these Islands.
In view of all the foregoing, it is adjudged and decreed
that a writ of mandamus issue, directed to the respondent
judge of the Court of First Instance of Manila, ordering him
to take cognizance of and continue to final judgment the
proceedings in civil case No. 3012 of said court. No
pronouncement as to costs. So ordered.
Moran, C. J., Ozaeta, Parás, Jaranilla, and Pablo,

JJ., concur.
DE JOYA, J., concurring:
The principal question involved in this case is the validity

of the proceedings held in civil case No. 3012, in the Court
of First Instance of the City of Manila, under the now
defunct Philippine Republic, during Japanese occupation;
and the effect on said proceedings of the proclamation of
General Douglas MacArthur, dated October 23, 1944. The
decision of this question requires the application of

principles of International Law, in connection with the
municipal law in force in this country, before and during
Japanese occupation.
Questions of International Law must be decided as
matters of general law (Juntington vs. Attril, 146 U. S.,
657; 13 Sup. Ct., 224; 36 Law. ed., 1123) ; and International
Law is no alien in this Tribunal, as, under the Constitution
of the Commonwealth of the Philippines, it is a part of the
fundamental law of the land (Article II, section 3).
As International Law is an integral part of our laws, it
must be ascertained and administered by this Court,
whenever questions of right depending upon it are
presented for our determination, sitting as an international
as well as a domestic Tribunal (Kansas vs. Colorado, 185 U.
S., 146; 22 Sup. Ct, 552; 46 Law. ed., 838).
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VOL. 75, SEPTEMBER 17, 1945 147

Since International Law is a body of rules actually accepted

by nations as regulating their mutual relations, the proof of
the existence of a given rule is to be found in the consent of
nations to abide by that rule; and this consent is evidenced
chiefly by the usages and customs of nations, and to
ascertain what these usages and customs are, the universal
practice is to turn to the writings of publicists and to the
decisions of the highest courts of the different countries of
the world (The Habana, 175 U. S., 677; 20 Sup. Cit., 290;
44 Law. ed., 320).
But while usage is the older and original source of
International Law, great international treaties are a later
source of increasing importance, such as The Hague
Conventions of 1899 and 1907.
The Hague Convention of 1899, respecting laws and
customs of war on land, expressly declares that:
"ARTICLE XLII. Territory is considered occupied when it is

actually placed under the authority of the hostile army.
"The occupation applies only to the territory where such
authority is established, and in a position to assert itself.
"ARTICLE XLIII. The authority of the legitimate power having
actually passed into the hands of the occupant, the latter shall
take all steps in his power to reestablish and insure, as far as
possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country." (32 Stat.

II, 1821.)
The above provisions of The Hague Convention have been

adopted by the nations giving adherence to them, among
which is the United States of America (32 Stat. II, 1821).
The commander in chief of the invading forces or
military occupant may exercise governmental authority,
but only when in actual possession of the enemy's territory,
and this authority will be exercised upon principles of
International Law (New Orleans vs. Steamship Co. [1874],
20 Wall., 387; Kelly vs. Sanders [1878], 99 U. S., 441;
MacLeod vs. U. S., 229 U. S., 416; 33 Sup. Ct, 955; 57 Law.
ed., 1260; II Oppenheim on International Law, section 167).
148

There can be no question that the Philippines was under

Japanese military occupation, from January, 1942, up to
the time of the reconquest by the armed forces of the
United States of the Island of Luzon, in February, 1945.
It will thus be readily seen that the civil laws of the
invaded State continue in force, in so far as they do not
affect the hostile occupant unfavorably. The regular
judicial Tribunals of the occupied territory continue to act
in cases not affecting the military occupation, and it is not
usual for the invader to take the whole administration into
his own hands, partly because it is easier to preserve order
through the agency of the native officials, and partly
because the latter are more competent to administer the
laws in force within the territory, and the military
occupant generally keeps in their posts such of the judicial
and administrative officers as are willing to serve under
him, subjecting them only to supervision by the military
authorities, or by superior civil authorities appointed by
him. (Young vs. U. S., 97 U. S., 39; 24 Law. ed., 992;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118;
MacLeod vs. U. S., 229 U. S., 416; 33 Sup. Ct, 955; 57 Law.
ed., 1260; Taylor on International Law, sections 576, 578;
Wilson on International Law, pp. 331-37; Hall on
International Law, 6th Edition [1909], pp. 464, 465, 475,
476; Lawrence on International Law, 7th ed., pp. 412, 413;
Davis, Elements of International Law, 3d ed., pp. 330-332,
335; Holland on International Law, pp. 356, 357, 359;
Westlake on International Law, 2d ed., pp. 121-23.)
It is, therefore, evident that the establishment of the

government under the so-called Philippine Republic,
during Japanese occupation, respecting the laws in force in
the country, and permitting the local courts to function and
administer such laws, as proclaimed in the City of Manila,
by the Commander in chief of the Japanese Imperial
Forces, on January 3, 1942, was in accordance with the
rules and principles of International Law.
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VOL. 75, SEPTEMBER 17, 1945 149

If the military occupant is thus in duty bound to establish

in the territory under military occupation governmental
agencies for the preservation of peace and order and for the
proper administration of justice, in accordance with the
laws in force within said territory, it must necessarily
follow that the judicial proceedings conducted before the
courts established by the military occupant must be
considered legal and valid, even after said government
established by the military occupant has been displaced by
the legitimate government of the territory.
Thus the judgments rendered by the Confederate
Courts, during the American Civil War, merely settling the
rights of private parties actually within their jurisdiction,
not tending to defeat the legal rights of citizens of the
United States, nor in furtherance of laws passed in aid of
the rebellion, had been declared valid and binding (Cock vs.
Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Coleman vs.
Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williams vs.
Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570;
Sprott vs. United States, 20 id., 459; Texas vs. White, 7. id.,
700; Ketchum vs. Buckley [1878], 99 U. S., 188); and the
judgment of a court of Georgia rendered in November,
1861, for the purchase money of slaves was held valid
judgment when entered, and enforceable in 1871 (French
vs. Tumlin, 10 Am. Law. Reg. [N. S.], 641; Fed. Case, No.
5104).
Said judgments rendered by the courts of the states
constituting the Confederate States of America were
considered legal and valid and enforceable, even after the
termination of the American Civil War, because they had
been rendered by the courts of a de facto government. The
Confederate States were a de facto government in the sense
that its citizens were bound to render the government
obedience in civil matters, and did not become responsible,
as wrong-doers, for such acts of obedience (Thorington vs.

Smith, 8. Wall. [U. S.], 9; 19 Law. ed., 361).
150

In the case of Ketchum vs. Buckley ([1878], 99 U. S., 188),

the Court held—"It is now settled law in this court that
during the late civil war the same general form of
government, the same general law for the administration of
justice and the protection of private rights, which had
existed in the States prior to the rebellion, remained during
its continuance and afterwards. As far as the acts of the
States did not impair or tend to impair the supremacy of
the national authority, or the just and legal rights of the
citizens, under the Constitution, they are in general to be
treated as valid and binding." (Williams vs. Bruffy, 96 U.
S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United
States, 20 id., 459; Texas vs. White, 7. id., 700.)
The government established in the Philippines, during
Japanese occupation, would seem to fall under the
following definition of de facto government given by the
Supreme Court of the United States:
"But there is another description of government, called also by

publicists, a government de facto, but which might, perhaps, be
more aptly 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 exists it must necessarily be
obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become
responsible, as wrongdoers, for those acts, though not warranted
by the laws of the rightful government. Actual governments of
this sort are established over districts differing greatly in extent
and conditions. They are usually administered directly by military
authority, but they may be administered, also, by civil authority,
supported more or less directly by military force." (Macleod vs.
United States [1913], 229 U. S., 416.)
The government established in the Philippines, under the

so-called Philippine Republic, during Japanese occupation,
was and should be considered as a de facto government;
and that the judicial proceedings conducted before the
courts which had been established in this country, during
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said Japanese occupation, are to be considered legal and

valid and enforceable, even after the liberation of this
country by the American forces, as long as the said judicial
proceedings had been conducted, under the laws of the
Commonwealth of the Philippines.
The judicial proceedings involved in the case under
consideration merely refer to the settlement of property
rights, under the provisions of the Civil Code, in force in
this country under the Commonwealth government, before
and during Japanese occupation.
Now, petitioner contends that the judicial proceedings in
question are null and void, under the provisions of the
proclamation issued by General Douglas MacArthur, dated
October 23, 1944; as said proclamation "nullifies all the
laws, regulations and processes of any other government in
the Philippines than that of the Commonwealth of the
Philippines."
In other words, petitioner demands a literal
interpretation of said proclamation issued by General
Douglas MacArthur, a contention which, in our opinion, is
untenable, as it would inevitably produce judicial chaos
and uncertainties.
When an act is susceptible of two or more constructions,
one of which will maintain and the others destroy it, the
courts will always adopt the former (U. S. vs. Coombs
[1838], 12 Pet., 72; 9, Law. ed., 1004; Board of Supervisors
of Granada 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.
General terms should be so limited
152

in their application as not to lead to injustice, oppression or

an absurd consequence. It will always, therefore, be
presumed that the legislature intended exceptions to its
language, which would avoid results of this character. The
reason of the law in such cases should prevail over its letter
(U. S. vs. Kirby, 7. Wall. [U. S.], 482; 19 Law. ed., 278;
Church of Holy Trinity vs. U. S., 143 U. S., 461; 12 Sup.
Ct., 511; 36 Law. ed., 226; Jacobson vs. 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 avoiding a
construction which raises grave and doubtful constitutional
questions, if it can be avoided (U. S. vs. Delaware &,
Hudson Co., 213 U. S., 366; 29 Sup. Ct, 527; 53 Law. ed.,
836).
According to the rules and principles of International
Law, and the legal doctrines cited above, the judicial
proceedings conducted before the courts of justice,
established here during Japanese military occupation,
merely applying the municipal law of the territory, such as
the provisions of our Civil Code, which have no political or
military significance, should be considered legal, valid and
binding.
It is to be presumed that General Douglas MacArthur is
familiar with said rules and principles, as International
Law is an integral part of the fundamental law of the land,
in accordance with the provisions of the Constitution of the
United States. And it is also to be presumed that General
MacArthur has acted, in accordance with said rules and
principles of International Law, which have been
sanctioned by the Supreme Court of the United States, as
the nullification of all judicial proceedings conducted before
our courts, during Japanese occupation, would lead to
injustice and absurd results, and would be highly
detrimental to public interests.
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For the foregoing reasons, I concur in the majority opinion.
PERFECTO, J., dissenting:
Law must be obeyed. To keep the bonds of society, it must

not be evaded. On its supremacy depends the stability of
states and nations. No government can prevail without it.
The preservation of the human race itself hinges on law.
Since time immemorial, man has relied on law as an
essential means of attaining his purposes, his objectives,
his mission in life. More than twenty-two centuries before
the Christian Era, on orders of the Assyrian King
Hammurabi, the first known code was engraved in black
diorite with cuneiform characters. Nine centuries later
Emperor Hung Wu, in the cradle of the most ancient
civilization, compiled the Code of the Great Ming. The laws
of Manu were written in the vedic India. Moses received at
Sinal the ten commandments. Draco, Lycurgus, Solon
made laws in Greece. Even ruthless Jengiskhan used laws
to keep discipline among the nomad hordes with which he
conquered the greater part of the European and Asiatic
continents.
Animal and plant species must follow the mendelian
heredity rules and other biological laws to survive. Thanks
to them, the chalk cliffs of the infusoria show the marvel of
an animal so tiny as to be imperceptible to the naked eye
creating a whole mountain. Even the inorganic world has
to conform to law. Planets and stars follow the laws
discovered by Kepler, known as the law-maker of heavens.
If, endowed with rebellious spirit, they should happen to
challenge the law of universal gravity, the immediate
result would be cosmic chaos. The tiny and twinkling
points of light set above us on the velvet darkness of the
night will cease to inspire us with dreams of more beautiful
and happier worlds.
154

Again we are called upon to do our duty. Here is a law that

we must apply. Shall we shrink? Shall we circumvent it?
Can we ignore it?
The laws enacted by the legislators shall be useless if
courts are not ready to apply them. It is actual application
to real issues which gives laws the breath of life.
In the varied and confused market of human endeavor
there are so many things that might induce us to forget the
elementals. There are so many events, so many problems,
so many preoccupations that are pushing among
themselves to attract our attention, and we might miss the
nearest and most familiar things, like the man who went
around his house to look for a pencil perched on one of his
ears.
THE OCTOBER PROCLAMATION
In October, 1944, the American Armed Forces of Liberation

landed successfully in Leyte.
When victory in the island was accomplished, after the
most amazing and spectacular war operations, General of
the Army Douglas MacArthur, as Commander in Chief of
the American Army, decided to reestablish, in behalf of the
United States, the Commonwealth Government.
Then he was confronted with the question as to what
policy to adopt in regards to the official acts of the
governments established in the Philippines by the
Japanese regime. He might have thought of recognizing the
validity of some of said acts, but, certainly, there were acts
which he should declare null and void, whether against the
policies of the American Government, whether inconsistent
with military strategy and operations, whether detrimental
to the interests of the American or Filipino peoples,
whether for any other strong or valid reasons.
But, which to recognize, and which not? He was not in a
position to gather enough information for a safe basis to
distinguish and classify which acts must be nullified, and
which must be validated. At the same time he had to take
immediate action. More pressing military matters
155
VOL. 75, SEPTEMBER 17, 1945 155

were requiring his immediate attention. He followed the

safer course: to nullify all the legislative, executive, and
judicial acts and processes under the Japanese regime.
After all, when the Commonwealth Government is already
functioning, with proper information, he will be in a
position to declare by law, through its Congress, which acts
and processes must be revived and validated in the public
interest.
So on October 23, 1944, the Commander in Chief issued
the following proclamation:
"GENERAL HEADQUARTERS
"SOUTHWEST PACIFIC AREA
"OFFICE OF THE COMMANDER IN CHIEF
"PROCLAMATION
"To the People of the Philippines:
"WHEREAS the military forces under my command have landed

in Philippine soil as a prelude to the liberation of the entire
territory of the Philippines; and
"WHEREAS the seat of the Government of the Commonwealth
of the Philippines has been re-established in the Philippines
under President Sergio Osmeña and the members of his cabinet;
and
"WHEREAS, under enemy duress, a so-called government
styled as the 'Republic of the Philippines' was established on
October 14, 1943, based upon neither the free expression of the
people's will nor the sanction of the Government of the United
States, and is purporting to exercise Executive, Judicial and
Legislative powers of government over the people;
"Now, therefore, I, Douglas MacArthur, General, United States
Army, as Commander in Chief of the military forces committed to
the liberation of the Philippines, do hereby proclaim and declare:
"1. That the Government of the Commonwealth of the

Philippines is, subject to the supreme authority of the
Government of the United States, the sole and only
government having legal and valid jurisdiction over the
people in areas of the Philippines free of enemy occupation
and control;
"2. That the laws now existing on the statute books of the
Commonwealth of the Philippines and the regulations
promulgated pursuant thereto are in full force and effect
and legally binding upon the people in areas of the
Philippines free of enemy occupation and control; and
156

"3. That all laws, regulations and processes of any other

government in the Philippines than that of the said
control; and
"I do hereby announce my purpose progressively to restore and

extend to the people of the Philippines the sacred right of
government by constitutional process under the regularly
constituted Commonwealth Government as rapidly as the several

occupied areas are liberated and the military situation will
otherwise permit;
"I do enjoin upon all loyal citizens of the Philippines full
respect for and obedience to the Constitution of the
Commonwealth of the Philippines and the laws, regulations and
other acts of their duly constituted government whose seat is now
firmly re-established on Philippine soil.
"October 23, 1944.
"DOUGLAS MACARTHUR
"General, U. S. Army
"Commander in Chief'
IS THE OCTOBER PROCLAMATION A LAW ?
In times of war the Commander in Chief of an army is

vested with extraordinary inherent powers, as a natural
result of the nature of the military operations aimed to
achieve the purposes of his country in the war, victory
being paramount among them.
Said Commander in Chief may establish in the occupied
or reoccupied territory, under his control, a complete
system of government; he may appoint officers and
employees to manage the affairs of said government; he
may issue proclamations, instructions, orders, all with the
full force of laws enacted by a duly constituted legislature;
he may set the policies that should be followed by the
public administration organized by him; he may abolish the
said agencies. In fact, he is the supreme ruler and law-
maker of the territory under his control, with powers
limited only by the receipts of the fundamental laws of his
country.
"California, or the port of San Francisco, had been conquered by

the arms of the United States as early as 1846. Shortly afterward
the United States had military possession of all upper California.
Early in 1847 the President, as constitutional commander in chief
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VOL. 75, SEPTEMBER 17, 1945 157

of the army and navy, authorized the military and naval

commander of our forces in California to exercise the belligerent
rights of a conqueror, and to form a civil government for the
conquered country, and to impose duties on imports and tonnage
as military contributions for the support of the government, and

of the army which has the conquest in possession. * * *" (Cross vs.
Harrison, 16 Howard, 164, 189.)
"In May, 1862, after the capture of New Orleans by the United
States Army, General Butler, then in command of the army at
that place, issued a general order appointing Major J. M. Bell,
volunteer aide-de-camp, of the division staff, provost judge of the
city, and directed that he should be obeyed and respected
accordingly. The same order appointed Capt. J. H. French provost
marshal of the city, and Capt. Stafford deputy provost marshal. A
few days after this order the Union Bank lent to the plaintiffs the
sum of $130,000, and subsequently, the loan not having been
repaid, brought suit before the provost judge to recover the debt.
The defense was taken that the judge had no jurisdiction over
civil cases, but judgment was given against the borrowers, and
they paid the money under protest. To recover it back is the object
of the present suit, and the contention of the plaintiffs is that the
judgment was illegal and void, because the Provost Court had no
jurisdiction of the case. The judgment of the District Court was
against the plaintiffs, and this judgment was affirmed by the
Supreme Court of the State. To this affirmance error is now
assigned.
"The argument of the plaintiffs in error is that the
establishment of the Provost Court, the appointment of the judge,
and his action as such in the case brought by the Union Bank
against them were invalid, because in violation of the
Constitution of the United States, which vests the judicial power
of the General government in one Supreme Court and in such
inferior courts as Congress may from time to time ordain and
establish, and that under this constitutional provision they were
entitled to immunity from any liability imposed by the judgment
of the Provost Court. Thus, it is claimed, a Federal question is
presented, and the highest court of the State having decided
against the immunity claimed, our jurisdiction is invoked.
"Assuming that the case is thus brought within our right to
review it, the controlling question is whether the commanding
general of the army which captured New Orleans and held it in
May, 1862, had authority after the capture of the city to establish
a court and appoint a judge with power to try and adjudicate civil
causes. Did the Constitution of the United States prevent the
creation of civil courts in captured districts during the war of the
rebellion, and their creation by military authority?
158

"This cannot be said to be an open question. The subject came

under consideration by this court in The Grapeshot, where it was
decided that when, during the late civil war, portions of the
insurgent territory were occupied by the National forces, it was
within the constitutional authority of the President, as
commander in chief, to establish therein provisional courts for the
hearing and determination of all causes arising under the laws of
the States or of the United States, and it was ruled that a court
instituted by President Lincoln for the State of Louisiana, with
authority to hear, try, and determine civil causes, was lawfully
authorized to exercise such jurisdiction. Its establishment by
military authority was held to be no violation of the constitutional
provision that 'the judicial power of the United States shall be
vested in one Supreme Court and in such inferior courts as the
Congress may from time to time ordain and establish.' That
clause of the Constitution has no application to the abnormal
condition of conquered territory in the occupancy of the
conquering army. It refers only to courts of the United States,
which military courts are not. As was said in the opinion of the
court, delivered by Chief Justice Chase, in The Grapeshot, 'lt
became the duty of the National government, wherever the
insurgent power was overthrown, and the territory which had
been dominated by it was occupied by the National forces, to
provide, as far as possible, so long as the war continued, for the
security of persons and property and for the administration of
justice. The duty of the National government in this respect was
no other than that which devolves upon a regular belligerent,
occupying during war the territory of another belligerent. It was a
military duty, to be performed by the President, as Commander in
Chief, and intrusted as such with the direction of the military
force by which the occupation was held.'
"Thus it has been determined that the power to establish by
military authority courts for the administration of civil as well as
criminal justice in portions of the insurgent States occupied by
the National forces, is precisely the same as that which exists
when foreign territory has been conquered and is occupied by the
conquerors. What that power is has several times been
considered. In Leitensdorfer &, Houghton vs. Webb, may be found
a notable illustration. Upon the conquest of New Mexico, in 1846,
the commanding officer of the conquering army, in virtue of the
power of conquest and occupancy, and with the sanction and
authority of the President, ordained a provisional government for
the country. The ordinance created courts, with both civil and
criminal jurisdiction. It did not undertake to change the
municipal laws of the territory, but it established a judicial
system with a superior or appellate court, and with circuit courts,
159
VOL. 75, SEPTEMBER 17, 1945 159

the jurisdiction of which was declared to embrace, first, all

criminal causes that should not otherwise be provided for by law;
and secondly, original and exclusive cognizance of all civil cases
not cognizable before the prefects and alcaldes. But though these
courts and this judicial system were established by the military
authority of the United States, without any legislation of
Congress, this court ruled that they were lawfully established.
And there was no express order for their establishment
emanating from the President or the Commander in Chief. The
ordinance was the act of General Kearney, the commanding
officer of the army occupying the conquered territory
"In view of these decisions it is not to be questioned that the
Constitution did not prohibit the creation by military authority of
courts for the trial of civil causes during the civil war in
conquered portions of the insurgent States. The establishment of
such courts is but the exercise of the ordinary rights of conquest.
The plaintiffs in error, therefore, had no constitutional immunity
against subjection to the judgments of such courts. They argue,
however, that if this be conceded, still General Butler had no
authority to establish such a court; that the President alone, as
Commander in Chief, had such authority. We do not concur in
this view. General Butler was in command of the conquering and
occupying army. He was commissioned to carry on the war in
Louisiana. He was, therefore, invested with all the powers of
making war, except so far as they were denied to him by the
Commander in Chief, and among these powers, as we have seen,
was that of establishing courts in conquered territory. It must be
presumed that he acted under the orders of his superior officer,
the President, and that his acts, in the prosecution of the war,
were the acts of his commander in chief." (Mechanics' etc. Bank
vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)
There is no question, therefore, that when General of the

Army Douglas MacArthur issued the October
Proclamation, he did it in the legitimate exercise of his
powers. He did it as the official representative of the
supreme authority of the United States of America.
Consequently, said proclamation is legal, valid, and
binding.
Said proclamation has the full force of a law. In fact, of a
paramount law. Having been issued in the exercise of the
American sovereignty, in case of conflict, it can even
supersede, not only the ordinary laws of the
Commonwealth of the Philippines, but also our
Constitution itself while we remain under the American
flag.
160

"PROCESSES" IN THE OCTOBER PROCLAMATION
In the third section of the dispositive part of the October

Proclamation, it is declared that all laws, regulations, and
processes of any other government in the Philippines than
that of the Commonwealth, are null and void.
Does the word "processes" used in the proclamation
include judicial processes?
In its broadest sense, process is synonymous with
proceedings or procedures and embraces all the steps and
proceedings in a judicial cause from its commencement to
its conclusion.
"PROCESS. In Practice.—The means of compelling a defendant to

appear in court after suing out the original writ, in civil, and after
indictment, in criminal cases.
"The method taken by law to compel a compliance with the
original writ or command as of the court.
"A writ, warrant, subpœna, or other formal writing issued by
authority of law; also the means of accomplishing an end,
including judicial proceedings; Gollobitch vs. Rainbow, 84 Ia., 567;
51 N. W., 48; the means or method pointed out by a statute, or
used to acquire jurisdiction of the defendants, whether by writ or
notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St.
Rep., 624)." (3 Bouvier's Law Dictionary, p. 2731.)
"A. Process generally. 1. Definition.—As a legal term, process is
a generic word of very comprehensive signification and many
meanings. In its broadest sense it is equivalent to, or synonymous
with, 'proceedings' or 'procedure,' and embraces all the steps and
proceedings in a cause from its commencement to its conclusion.
Sometimes the term is also broadly defined as the means whereby
a court compels a compliance with its demands. 'Process' and
'writ' or 'writs' are synonymous in the sense that every writ is a
process, and in a narrow sense of the term 'process' is limited to
judicial writs in an action, or at least to writs or writings issued
from or out of a court, under the seal thereof, and returnable
thereto; but it is not always necessary to construe the term so
strictly as to limit it to a writ issued by a court in the exercise of
its ordinary jurisdiction; the term is sometimes defined as a writ
or other formal writing issued by authority of law or by some
court, body, or official having authority to issue it; and it is
frequently used to designate a means, by writ or otherwise, of

acquiring jurisdiction of defendant or his property, or of bringing
defendant into, or compelling him to appear in, court to answer.
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VOL. 75, SEPTEMBER 17, 1945 161

"As employed in statutes the legal meaning of the word 'process'

varies according to the context, subject matter, and spirit of the
statute in which it occurs. In some jurisdictions codes or statutes
variously define 'process' as signifying or including: A writ or
summons issued in the course of judicial proceedings; all writs,
warrants, summonses, and orders of courts of justice or judicial
officers; or any writ, declaration, summons, order, or subpœna
whereby any action, suit, or proceeding shall be commenced, or
which shall be issued in or upon any action, suit or proceeding.
(50 C. J., pp. 441, 442.)
"The definition of 'process' given by Lord Coke comprehends
any lawful warrant, authority, or proceeding by which a man may
be arrested. He says: Process of law is twofold, namely, by the
King's writ, or by due proceeding and warrant, either in deed or in
law, without writ.' (People vs. Nevins [N. Y.], 1 Hill, 154, 169, 170;
State vs. Shaw, 50 A., 863, 869; 73 Vt., 149.)
"Baron Comyn says that process, in a large acceptance,
comprehends the whole proceedings after the original and before
judgment; but generally it imports the writs which issue out of
any court to bring the party to answer, or for doing execution, and
all process out of the King's courts ought to be in the name of the
King. It is called 'process' because it proceeds or goes out upon
former matter, either original or judicial. Gilmer vs. Bird, 15 Fla.,
410, 421." (34 Words and Phrases, permanent edition, 1940
edition, p. 147.)
"In a broad sense the word 'process' includes the means
whereby a court compels the appearance of the defendant before
it, or a compliance with its demands, and any and every writ,
rule, order, notice, or decree, including any process of execution
that may issue in or upon any action. suit, or legal proceedings,
and is not restricted to mesne process. In a narrow or restricted
sense it means those mandates of the court intending to bring
parties into court or to require them to answer proceedings there
pending. Colquitt Nat. Bank vs. Poitivint, 83 S. E., 198, 199; 15
Ga. App., 329." (34 Words and Phrases, permanent edition, 1940
edition, p. 148.)
"A 'process' is an instrument in an epistolary form running in
the name of the sovereign of a state and issued out of a court of
justice, or by a judge thereof, at the commencement of an action or
at any time during its progress or incident thereto, usually under

seal of the court, duly attested and directed to some municipal
officer or to the party to be bound by it, commanding the
commission of some act at or within a specified time, or
prohibiting the doing of some act. The cardinal requisites are that
the instrument issue from a court of justice, or a judge thereof;
that it run in the name of the sovereign of the state; that it be
duly attested, but not necessarily by the judge, though usually,
but not always, under seal; and that
162

it be directed to some one commanding or prohibiting the

commission of an act. Watson vs. Keystone Ironworks Co., 74 P.,
272, 273; 70 Kan., 43." (34 Words and Phrases, permanent
edition, 1940 edition, p. 148.)
"Jacobs in his Law Dictionary says: 'Process' has two
qualifications: First, it is largely taken for all the proceedings in
any action or prosecution, real or personal, civil or criminal, from
the beginning to the end; secondly, that is termed the 'process' by
which a man is called into any temporal court, because the
beginning or principal part thereof, by which the rest is directed
or taken. Strictly, it is the proceeding after the original, before
judgment. A policy of fire insurance contained the condition that
if the property shall be sold or transferred, or any change takes
place in the title or possession, whether by legal process or
judicial decree or voluntary transfer or convenience, then and in
every such case the policy shall be void. The term 'legal process,'
as used in the policy, means what is known as a writ; and, as
attachment or execution on the writs are usually employed to
effect a change of title to property, they are or are amongst the
processes contemplated by the policy. The words 'legal process'
mean all the proceedings in an action or proceeding. They would
necessarily embrace the decree, which ordinarily includes the
proceedings. Perry vs. Lorillard Fire Ins. Co., N. Y., 6, Lans., 201,
204. See, also, Tipton vs. Cordova, 1 N. M., 383, 385." (34 Words
and Phrases, permanent edition, 1940 edition, p. 148.)
" 'Process' in a large acceptation, is nearly synonymous with
'proceedings,' and means the entire proceedings in an action, from
the beginning to the end. In a stricter sense, it is applied to the
several judicial writs issued in an action. Hanna vs. Russell, 12
Minn., 80, 86 (Gil., 43, 45)." (34 Words and Phrases, permanent
edition, 1940 edition, 149.)
"The term 'process' as commonly applied, intends that
proceeding by which a party is called into court, but it has a more
enlarged signification, and covers all the proceedings in a court,

from the beginning to the end of the suit; and, in this view, all
proceedings Which may be had to bring testimony into court,
whether viva voce or in writing, may be considered the process of
the court. Rich vs. Trimble, Vt., 2 Tyler, 349, 350." Id.
" 'Process' in its broadest sense comprehends all proceedings to
the accomplishment of an end, including judicial proceedings.
Frequently its signification is limited to the means of bringing a
party into court. In the Constitution process which at the common
law would have run in the name of the king is intended. In the
Code process issued from a court is meant. McKenna vs. Cooper,
101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12
Minn., 80. (Gil., 43); Black Com.
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VOL. 75, SEPTEMBER 17, 1945 163

279; Bouv. Law Dict." (34 Words and Phrases, permanent edition,
1940 edition, p. 149.)
" 'Judicial process' includes the mandate of a court to its
officers, and a means whereby courts compel the appearance of
parties, or compliance with its commands, and includes a
summons. Ex parte Hill, 51 So., 786, 787; 165 Ala., 365.
" 'Judicial process' comprehends all the acts of the court from
the beginning of the proceeding to its end, and in a narrower
sense is the means of compelling a defendant to appear in court
after suing out the original writ in civil cases and after the
indictment in criminal cases, and in every sense is the act of the
court and includes any means of acquiring jurisdiction and
includes attachment, garnishment, or execution, and also a writ.
Blair vs. Maxbass Security Bank of Maxbass, 176 N. W., 98, 100;
44 N. D. 12." (23 Words and Phrases, permanent edition, 1940
edition, p. 328.) ,
There is no question that the word process, as used in the

October Proclamation, includes all judicial processes or
proceedings.
The intention of the author of the proclamation of
including judicial processes appears clearly in the preamble
of the document.
The second "Whereas," states that a so-called
government styled as the "Republic of the Philippines,"
based upon neither the "f ree expression of the people's will
nor the sanction of the Government of the United States,
and is "purporting to exercise Executive, Judicial, and
Legislative powers of government over the people."
It is evident from the above-mentioned words that it was

the purpose of General MacArthur to declare null and void
all acts of government under the Japanese regime, and he
used, in section 3 of the dispositive part, the word laws, as
pertaining to the legislative branch, the word regulations,
as pertaining to the executive branch, and lastly, the word
processes, as pertaining to the judicial branch of the
government which functioned under the Japanese regime.
It is reasonable to assume that he might include in the
word "processes," besides those of judicial character, those
of executive or administrative character. At any rate,
judicial processes cannot be excluded.
164

THE WORDS OF THE PROCLAMATION EXPRESS

UNMISTAKABLY THE INTENTION OF THE
AUTHOR
The October Proclamation is written in such a way that it

is impossible to make a mistake as to the intention of its
author.
Oliver Wendell Holmes, perhaps the wisest man who
had ever sat in the Supreme Court of the United States,
stated the following:
"When the words in their literal sense have a plain meaning,

courts must be very cautious in allowing their imagination to give
them a different one." Guild vs. Walter, 182 Mass., 225, 226
(1902). Upon questions of construction when arbitrary rule is
involved, it is always more important to consider the words and
the circumstances than even strong analogies in earlier decisions.
The successive neglect of a series of small distinctions, in the
effort to follow precedent, is very liable to end in perverting
instruments from their plain meaning. In no other branch of the
law (trusts) is so much discretion required in dealing with
authority. * * * There is a strong presumption in "f avor of, giving
them words their natural meaning, and against reading them as
if they said something else, which they are not fitted to express."
Merrill vs. Preston, 135 Mass., 451, 455 (1883).
When the words of an instrument are "f ree "f rom

ambiguity and doubt, and express plainly, clearly and
distinctly the sense of the framer, there is no occasion to
resort to other means of interpretation. It is not allowable

to interpret what needs no interpretation.
Very strong expressions have been used by the courts to
emphasize the principle that they are to derive their
knowledge of the legislative intention from the words or
language of the statute itself which the legislature has
used to express it. The language of a statute is its most
natural guide. We are not at liberty to imagine an intent
and bind the letter to that intent.
The Supreme Court of the United States said: "The
primary and general rule of statutory construction is that
the intent of the law-maker is to be "f ound in the language
that he has used. He is presumed to know the meaning of
words
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VOL. 75, SEPTEMBER 17, 1945 165

and the rules of grammar. The courts have no function of

legislation, and simply seek to ascertain the will of the
legislator. It is true that there are cases in which the letter
of the statute is not deemed controlling, but the cases are
few and exceptional, and only arise where there are cogent
reasons for believing that the letter does not fully and
accurately disclose the intent. No mere omission, no mere "f
ailure to provide "f or contingencies, which it may seem
wise should have specifically provided for will justify any
judicial addition to the language of the statute." (United
states vs. Goldenberg, 168 U. S., 95, 102 103; 18 S C. Rep.,
3; 42 Law. ed., 394.)
That the Government of the Commonwealth of the
Philippines shall be the sole and only government in our
country; that our laws are in full force and effect and
legally binding; that "all laws, regulations and processes of
any other government are null and void and without legal
effect", are provisions clearly, distinctly, unmistakably
expressed in the October Proclamation, as to which there is
no possibility of error, and there is absolutely no reason in
trying to find different meanings of the plain words
employed in the document.
As we have already seen, the annulled processes are
precisely judicial processes, procedures and proceedings,
including the one which is under our consideration.
THE OCTOBER PROCLAMATION ESTABLISHES A

CLEAR POLICY
Although, as we have already stated, there is no possible

mistakes as to the meaning of the words employed in the
October Proclamation, and the text of the document
expresses, in clear-cut sentences, the true purposes of its
author, it might not be amiss to state here what was the
policy intended to be established by said proclamation.
It is a matter of judicial knowledge that in the global
war just ended on September 2, 1945, by the signatures on
the document of unconditional surrender affixed by
representatives of the Japanese government, the
belligerents
166

on both sides resorted to what we may call war weapons of

psychological character.
So Japan, since its military forces occupied Manila, had
waged an intensive campaign of propaganda, intended to
destroy the faith of the Filipino people in America, to wipe
out all manifestations of American or occidental
civilization, to create interest in all things Japanese, which
the imperial officers tried to present as the acme of oriental
culture, and to arouse racial prejudice among orientals and
occidentals, to induce the Filipinos to rally to the cause of
Japan, which she tried to make us believe is the cause of
the inhabitants of all East Asia.
It is, then, natural that General MacArthur should take
counter-measures to neutralize or annul completely all
vestiges of Japanese influence, specially those which might
jeopardize in any way his military operations and his
means of achieving the main objective of the campaign of
liberation, that is, to restore in our country constitutional
processes and the high ideals which constitute the very
essence of democracy.
It was necessary to free, not only our territory, but also
our spiritual patrimony. It was necessary, not only to
restore to us the opportunity of enjoying the physical
treasures which a beneficent Providence accumulated on
this bountiful land, the true paradise in the western
Pacific, but to restore the full play of our ideology, that
wonderful admixture of sensible principles of human
conduct, bequeathed to us by our Malayan ancestors, the

moral principles of Christianity assimilated by our people
from teachers of Spain, and the common-sense rules of the
American democratic way of life.
It was necessary to "f ree that ideology "f rom any
Japanese impurity.
Undoubtedly, the author of the proclamation thought
that the laws, regulations, and processes of all the
branches of the governments established under the
Japanese regime, if allowed to continue and to have effect,
might be a means
167
VOL. 75, SEPTEMBER 17, 1945 167

of keeping and spreading in our country the Japanese

influence, with the same deadly effect as the mines planted
by the retreating enemy.
The government offices and agencies which functioned
during the Japanese occupation represented a sovereignty
and ideology antagonistic to the sovereignty and ideology
which MacArthur's forces sought to restore in our country.
Under Chapter I of the Japanese Constitution, it is
declared that Japan shall be reigned and governed by a line
of Emperors unbroken for ages eternal (Article 1) ; that the
Emperor is sacred and inviolable (Article 3); that he is the
head of the Empire, combining in himself the rights of
sovereignty (Article 4) ; that he exercises the legislative
power (Article 5) ; that he gives sanction to laws, and
orders to be promulgated and executed (Article 6); that he
has the supreme command of the Army and Navy (Article
11) ; that he declares war, makes peace, and concludes
treaties (Article 13).
There is no reason for allowing to remain any vestige of
Japanese ideology, the ideology of a people which, as
confessed in a book we have at our desk, written by a
Japanese, insists in doing many things precisely in a way
opposite to that followed by the rest of the world.
It is the ideology of a people which insists in adopting
the policy of self-delusion; that believes that their Emperor
is a direct descendant of gods and he himself is a god, and
that the typhoon which occurred on August 14, 1281, which
destroyed the fleet with which Kublai Khan tried to invade
Japan was the divine wind of Ise; that defies the heinous
crime of the ronin, the 47 assassins who, in order to avenge
the death of their master Asano Naganori, on February 3,
1703, entered stealthily into the house of Yoshinaka Kiro

and killed him treacherously.
It is an ideology which dignifies harakiri or sepukku, the
most bloody and repugnant form of suicide, and on
September 13, 1912, on the occasion of the funeral of
Emperor Meiji, induced General Maresuke Nogi and his
168

wife to practice the abhorrent "junshi", and example of

which is offered to us in the "f following words of an
historian:
"When the Emperor's brother Yamato Hiko, died in 2 B. C., we

are told that, following the occasion, his attendants were
assembled to form the hito-bashira (pillar-men) to gird the grave.
They were buried alive in a circle up to the neck around the tomb
and 'for several days they died not, but wept and wailed day and
night, At last they died and rotted. Dogs and cows gathered and
ate them.' " (Gowen, an Outline of History of Japan, p. 50.)
The practice shows that the Japanese are the spiritual

descendants of the Sumerians, the ferocious inhabitants of
Babylonia who, 3500 years B. C., appeared in history as the
first human beings to honor their patesis by killing and
entombing with him his widow, his ministers, and notable
men and women of his kingdom, selected by the priests to
partake of such abominable honor. (Brodeur, The Pageant
of Civilization, pp. 62-66.)
General MacArthur sought to annul completely the
official acts of the governments under the Japanese
occupation, because they were done at the shadow of the
Japanese dictatorship, the same which destroyed the
independence of Korea, the "Empire of Morning
Freshness"; they violated the territorial integrity of China,
invaded Manchuria, and initiated therein the deceitful
system of puppet governments, by designating
irresponsible Pu Yi as Emperor of Manchukuo; they
violated the trusteeship granted by the Treaty of Versailles
by usurping the mandated islands in the Pacific; they
initiated what they call China Incident, without war
declaration, and, therefore, in complete disregard of an
elemental international duty; they attacked Pearl Harbor
treacherously, and committed a long series of flagrant
violations of international law that have logically bestowed

on Japan the title of the bandit nation in the social world.
The conduct of the Japanese during the occupation
shows a shocking anachronism of a modern world power
which seems to be the re-incarnation of one of those
primitive social types of pre-history, whose proper place
must be
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VOL. 75, SEPTEMBER 17, 1945 169

found in an archeological collection. It represents a

backward jump in the evolution of ethical and juridical
concepts, a reversion that, more than a simple pathological
state, represents a characteristic and well defined case of
sociological teratology.
Since they entered the threshold of our capital, the
Japanese had announced that for every one of them killed
they would kill ten prominent Filipinos. They promised to
respect our rights by submitting us to wholesale and
indiscriminate slapping, tortures, and atrocious massacres.
Driving nails in the cranium, extraction of teeth and eyes,
burning of organs, hangings, diabolical zonings, looting of
properties, establishment of redlight districts,
machinegunning of women and children, interment of alive
persons, they are just mere preludes of the promised
paradise that they called "Greater East Asia Co-Prosperity
Sphere."
They promised religious liberty by compelling all
protestant sects to unite, against the religious scruples and
convictions of their members, in one group, and by
profaning convents, seminaries, churches, and other cult
centers of the Catholics, utilizing them as military
barracks, munition dumps, artillery bases, deposits of
bombs and gasoline, torture chambers and zones, and by
compelling the government officials and employees to face
and to bow in adoration before that caricature of divinity in
the imperial palace of Tokyo.
The Japanese offered themselves to be our cultural
mentors by depriving us of the use of our schools and
colleges, by destroying our books and other means of
culture, by falsifying the contents of school texts, by
eliminating free press, the radio, all elemental principles of
civilized conduct, by establishing classes of rudimentary
Japanese so as to reduce the Filipinos to the mental level of
the rude Japanese guards, and by disseminating all kinds

of historical, political, and cultural falsehoods.
Invoking our geographical propinquity and race affinity,
they had the insolence of calling us their brothers, without
170

the prejudice of placing us in the category of slaves,

treating the most prominent Filipinos in a much lower
social and political category than that of the most ignorant
and brutal subject of the Emperor.
The civil liberties of the citizens were annulled.
Witnesses and litigants were slapped and tortured during
investigations. In the prosecuting attorney's offices, no one
was safe. When the Japanese arrested a person, the lawyer
who dared to intercede was also placed under arrest. Even
courts were not free from their despotic members. There
were judges who had to trample laws and shock their
conscience in order not to disgust a Nipponese.
The most noble of all professions, so much so that the
universities of the world could not conceive of a higher
honor that may be conferred than that of Doctor of Laws,
became the most despised. It was dangerous to practice the
profession by which faith in the effectiveness of law is
maintained; citizens feel confident in the protection of their
liberties, honor, and dignity; the weak may face the
powerful; the lowest citizen is not afraid of the highest
official; civil equality becomes a reality; justice is
administered with more efficiency; and democracy becomes
the best system of government and the best guaranty for
the welfare and happiness of the individual human being.
In fact, the profession of law was annulled, and the best
lawyers for the unfortunate prisoners in Fort Santiago and
other centers of torture were the military police,
concubines, procurers, and spies, the providers of war
materials and shameful pleasures, and the accomplices in
fraudulent transactions, which were the specialty of many
naval and military Japanese officers.
The courts and the Filipino government officials were
completely helpless in the question of protecting the
constitutional liberties and fundamental rights of the
citizens who happen to be unfortunate enough to fall under
the dragnet of the hated kempei. Even the highest
government officials were not safe from arrest and
imprisonment
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VOL. 75, SEPTEMBER 17, 1945 171

in the dreaded military dungeons, where torture or horrible

death were always awaiting the defenseless victim of
Japanese brutality.
May any one be surprised if General MacArthur decided
to annul all the judicial processes?
The evident policy of the author of the October
Proclamation can be seen if we take into consideration the
following provisions of the Japanese Constitution:
"ART. 57. The Judicature shall be exercised by the Courts of Law

according to law, in the name of the Emperor.
"ART. 61. No suit at law, which relates to rights alleged to
have been infringed by the illegal measures of the executive
authority * * * shall be taken cognizance of by a Court of Law."
INTERNATIONAL LAW
Nobody dared challenge the validity of the October

Proclamation.
Nobody dared challenge the authority of the military
Commander in Chief who issued it.
Certainly not because of the awe aroused by the looming
figure of General of the Army Douglas MacArthur, the
Allied Supreme Commander, the military hero, the
greatest American general, the Liberator of the
Philippines, the conqueror of Japan, the gallant soldier
under whose authority the Emperor of Japan, who is
supposed to rule supreme for ages as a descendant of gods,
is receiving orders with the humility of a prisoner of war.
No challenge has been hurled against the proclamation
or the authority of the author to issue it, because everybody
acknowledges the full legality of its issuance.
But because the proclamation will affect the interest and
rights of a group of individuals, and to protect the same, a
way is being sought to neutralize the effect of the
proclamation.
The way found is to invoke international law. The big
and resounding word is considered as a shibboleth powerful
enough to shield the affected persons from the annulling
impact.
172

Even then, international law is not invoked to challenge

the legality or authority of the proclamation, but only to
construe it in a convenient way so that judicial processes
during the Japanese occupation, through an exceptional
effort of the imagination, might be segregated from the
processes mentioned in the proclamation.
An author said that the law of nations, the "jus gentiun",
is not a fixed nor immutable science. On the contrary, it is
developing incessantly, it is perpetually changing in forms.
In each turn it advances or recedes, according to the
vicissitudes of history, and following the monotonous rythm
of the ebb and rise of the tide of the sea.
"Le droit des gens, en effet, n'est point une science fixe est
immuable: bien au contraire, il se developpe sans cesse, il change
eternellement de formes; tour a tour il avance et il recule, selon
less vicissitudes de Thistoire et suivan un rhythme monotone qui
est comme le flux et le reflux d'un mer." (M. Revon, De l'existence
du droit international sous la republique romain.)
Another author has this to say:
"International law, if it is or can be a science at all, or can be, at

most, a regulative science, dealing with the conduct of States, that
is, human beings in a certain capacity; and its principles and
prescriptions are not, like those of science proper, final and
unchanging. The substance of science proper is already made for
man; the substance of international is actually made by man,—
and different ages make differently." (Coleman Philippson, The
International Law and Custom of Ancient Greece and Rome, Vol.
I, p. 50.)
"Law must be stable, and yet it cannot stand still." (Pound,

Interpretations of Legal History, p. 1.) Justice Cardozo
adds: "Here is the great antinomy confronting us at every
turn. Rest and motion, unrelieved and unchecked, are
equally destructive. The law, like human kind, if life is to
continue, must find some path of compromise." (The
Growth of Law, p. 2.) Law is just one of the manifestations
of human life, and "Life has relations not capable of
division into inflexible compartments. The moulds expand
and shrink." (Glanzer vs. Shepard, 233 N. Y., 236, 241.)
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VOL. 75, SEPTEMBER 17, 1945 173

The characteristic plasticity of law is very noticeable, much

more than in any other department, in international law.
"In certain matters it is clear we have made substantial progress,

but in other points, he (M. Revon) maintains, we have
retrograded; for example, in the middle ages the oath was not
always respected as faithfully as in ancient Rome; and nearer our
own times, in the seventeenth century, Grotius proclaims the
unquestioned right of belligerents to massacre the women and
children of the enemy; and in our more modern age the due
declaration of war which Roman always conformed to has not
been invariably observed." (Coleman Philippson, The
International Law and Custom of Ancient Greece and Rome, Vol.
I, p. 209.)
Now let us see if any principle of international law may

affect the enforcement of the October Proclamation.
In this study we should be cautioned not to allow
ourselves to be deluded by generalities and vagueness
which are likely to lead us easily to error, in view of the
absence of codification and statutory provisions.
Our Constitution provides:
"The Philippines renounces war as an instrument of national

policy, and adopts the generally accepted principles of
international law as part of the law of the Nation." (Sec. 3, Art.
II.)
There being no codified principles of international law, or

enactments of its rules, we cannot rely on merely legal
precepts.
With the exception of international conventions and
treaties and, just recently, the Charter of the United
Nations, adopted in the San Francisco Conference on June
26, 1945, we have to rely on unsystematized judicial
pronouncements and reasonings and on theories, theses,
and propositions that we may find in the works of authors
and publicists.
Due to that characteristic pliability and imprecision of
international law, the drafters of our Constitution had to
content themselves with "generally accepted principles."
We must insist, therefore, that the principles should be
specific and unmistakably defined, and that there is
definite and conclusive evidence to the effect that they are
generally
174

accepted among the civilized nations of the world and that

they belong to the current era and no other epochs of
history.
The temptation of assuming the rôle of a legislator is
greater in international law than in any other department
of law, since there are no parliaments, congresses,
legislative assemblies which can enact laws and specific
statutes on the subject. It must be our concern to avoid
falling in so a great temptation, as its dangers are
incalculable. It would be like building castles in the thin
air, or trying to find an exit in the thick dark forest where
we are irretrievably lost. We must also be very careful in
our logic. In so vast a field as international law, the fanciful
wanderings of the imagination often impair the course of
dialectics.
THE OCTOBER PROCLAMATION AND

INTERNATIONAL LAW
Is there any principle of international law that may affect

the October Proclamation ?
We tried in vain to find out in the majority opinion
anything as to the existence of any principle of
international law under which the authority of General
MacArthur to issue the proclamation can effectively be
challenged.
No principle of international law has been, or could be,
invoked as a basis for denying the author of the document
legal authority to issue the same or any part thereof.
We awaited in vain for any one to dare deny General
MacArthur the authority, under international law, to
declare null and void and without effect, not only the laws
and regulations of the governments under the Japanese
regime, but all the processes of said governments, including
judicial processes.
If General MacArthur, as Commander in Chief of the
American Armed Forces of Liberation, had authority, full
and legal, to issue the proclamation, the inescapable result
will be the complete voidance and nullity of all judicial
processes, procedures, and proceedings of all courts under
the Japanese regime.
175
VOL. 75, SEPTEMBER 17, 1945 175

But those who are sponsoring the cause of said judicial

processes try to achieve their aim, not by direct means, but
by following a tortuous side-road.
They accept and recognize the "f ull authority of the
author of the proclamation to issue it and all its parts, but
they maintain that General MacArthur did not and could
not have in mind the idea of nullifying the judicial
processes during the Japanese occupation, because that
will be in violation of the principles of international law.
If we follow the reasoning of the majority opinion we will
have to reach the conclusion that the word "processes" does
not appear at all in the October Proclamation.
It is stated more than once, and reiterated with
dogmatic emphasis, that under the principles of
international law the judicial processes under an army of
occupation cannot be invalidated.
But we waited in vain for the specific principle of
international law, only one of those alluded to, to be
pointed out to us.
If the law exists, it can be pointed out. If the principle
exists, it can be stated specifically. The word is being used
very often in plural, principles, but we need only one to be
convinced.
The imagined principles are so shrouded in a thick maze
of strained analogies and reasoning, that we confess our
inability even to have a fleeting glimpse at them through
their thick and invulnerable wrappers.
At every turn international law, the blatant words, are
haunting us with the deafening bray of a trumpet, but after
the transient sound has fled away, absorbed by the
resiliency of the vast atmosphere, the announced
principles, which are the very soul of international law,
would disappear too with the lightning speed of a vanishing
dream.
WEAKNESS OF THE MAJORITY POSITION
In the majority opinion three questions are propounded:

first, whether judicial acts and proceedings during the Jap-
176

anese occupation are valid even after liberation; second,

whether the October Proclamation has invalidated all
judgments and judicial proceedings under the Japanese
regime; and third, whether the present courts of the
Commonwealth may continue the judicial proceedings
pending at the time of liberation.
As regards the first question, it is stated that it is a legal
truism in political and international law that all acts of a
de facto government are good and valid, that the
governments established during the Japanese occupation,
that is, the Philippine Executive Commission and the
Republic of the Philippines, were de facto governments, and
that it necessarily follows that the judicial acts and
proceedings of the courts of those governments, "which are
not of a political complexion," were good and valid, and, by
virtue of the principle of postliminum, remain good and
valid after the liberation.
In the above reasoning we will see right away how the
alleged legal truism in political and international law,
stated as a premise in a sweeping way, as an absolute rule,
is immediately qualified by the exception as to judicial acts
and proceedings which are of a "political complexion."
So it is the majority itself which destroys the validity of
what it maintains as a legal truism in political and
international law, by stating from the beginning the
absolute proposition that all acts and proceedings of the
legislative, executive, and judicial departments of a de facto
government are good and valid.
It is to be noted that no authority, absolutely no
authority, has been cited to support the absolute and
sweeping character of the majority proposition as stated in
their opinion.
No authority could be cited, because the majority itself
loses faith in the validity of such absolute and sweeping
proposition, by establishing an unexplained exception as
regards the judicial acts and proceedings of a "political
complexion."
177
VOL. 75, SEPTEMBER 17, 1945 177

Besides, it is useless to try to find in the arguments of the

majority anything that may challenge the power, the
authority of a de jure government to annul the official acts
of a de facto government, or the legal and indisputable
authority of the restored legitimate government to refuse to
recognize the official acts, legislative, executive and

judicial, of the usurping government, once the same is
ousted.
As to the second question, the majority argues that, the
judicial proceedings and judgments of the de facto
governments under the Japanese regime being good and
valid, "it should be presumed that it was not, and could not
have been, the intention of General Douglas MacArthur to
refer to judicial processes, when he used the last word in
the October Proclamation, and that it only refers to
governmental processes other than judicial processes or
court proceedings."
The weakness and absolute ineffectiveness of the
argument are self-evident.
It is maintained that when General MacArthur declared
the processes of the governments under the Japanese
regime null and void, he could not refer to judicial
processes, because the same are valid and remained so
under the legal truism announced by the majority to the
effect that, under political and international law, all official
acts of a de facto government, legislative, executive or
judicial. are valid.
But we have seen already how the majority excepted
from said legal truism the judicial processes of "political
complexion."
And now it is stated that in annulling the processes of
the governments under Japanese occupation, General
MacArthur referred to "processes other than judicial
processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and
proceedings of legislative and executive departments of a
de facto government are good and valid? Did it not main-
178

tain that they are so as a "legal truism in political and

international law?"
Now, if the reasoning of the majority to the effect that
General MacArthur could not refer to judicial processes
because they are good and valid in accordance with
international law, why should the same reasoning not
apply to legislative and executive processes?
Why does the majority maintain that, notwithstanding;
the fact that, according to said legal truism, legislative and
executive official acts of de facto governments are good and'

valid, General MacArthur referred to the latter in his
annulling proclamation, but not to judicial processes?
If the argument is good so as to exclude judicial
processes from the effect of the October Proclamation, we
can see no logic in considering it bad with respect to
legislative and executive processes.
If the argument is bad with respect to legislative and
executive processes, there is no logic in holding that it is
not good with respect to judicial processes.
Therefore, if the argument of the majority opinion is
good, the inevitable conclusion is that General MacArthur
did not declare null and void any processes at all, whether
legislative processes, executive processes, or judicial
processes, and that the word "processes" used by him in the
October Proclamation is a mere surplusage or an
ornamental literary appendix.
The absurdity of the conclusion unmasks the utter
"futility of the position of the majority, which is but a mere
legal pretense that can not stand the least analysis or the
test of logic.
A great legal luminary admonished that we must have
courage to unmask pretense if we are to reach a peace that
will abide beyond the fleeting hour.
It is admitted that the commanding general of a
belligerent army of occupation as an agent of his
government, "may not unlawfully suspend existing laws
and promulgate new ones in the occupied territory if and
when exigencies
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VOL. 75, SEPTEMBER 17, 1945 179

of the military occupation demand such action," but it is

doubted whether the commanding general of the army of
the restored legitimate government can exercise the same
broad legislative powers.
We beg to disagree with a theory so unreasonable and
subversive.
We cannot accept that the commanding general of an
army of occupation, of a rebellious army, of an invading
army, or of a usurping army, should enjoy greater legal
authority during the illegal, and in the case of the
Japanese, iniquitous and bestial occupation, than the
official representative of the legitimate government, once
restored in the territory wrested from the brutal invaders

and aggressors. We cannot agree with such legal travesty.
Broad and unlimited powers are granted and recognized
in the commanding general of an army of invasion, but the
shadow of the vanishing alleged principle of international
law is being brandished to gag, manacle, and make
completely powerless the commander of an army of
liberation to wipe out the official acts of the government of
usurpation, although said acts might impair the military
operation or neutralize the public policies of the restored
legitimate government.
We are not unmindful of the interests of the persons who
might be adversely affected by the annulment of the
judicial processes of the governments under the Japanese
regime, but we can not help smiling when we hear that
chaos will reign or that the world will sink.
It is possible that some criminals will be let loose
unpunished, but nobody has ever been alarmed that the
President, in the exercise of his constitutional powers of
pardon and amnesty, had in the past released many
criminals from imprisonment. And let us not forget that,
due to human limitations, in all countries, under all
governments, in peace or in war, there were, there are, and
there will always be unpunished criminals, and that
situation never caused despair to any one.
180

We can conceive of inconveniences and hardships, but they

are necessary contributions to great and noble purposes.
Untold sacrifices were always offered to attain high ideals
and in behalf of worthy causes.
We can not refrain from feeling a paternal emotion for
those who are trembling with all sincerity because of the
belief that the avoidance of judicial proceedings of the
governments under the Japanese regime "would paralyze
the social life of the country." To allay such fear we must
remind them that the country that produced many great
heroes and martyrs; that contributed some of the highest
moral figures that humanity has ever produced in all
history; which is inhabited by a race which was able to
traverse in immemorial times the vast expanses of the
Indian Ocean and the Pacific with inadequate means of
navigation, and to inhabit in many islands so distantly
located, from Madagascar to the eastern Pacific; which
made possible the wonderful resistance of Bataan and

Corregidor, can not have a social life so frail as to be easily
paralyzed by the annulment of some judicial proceedings.
The Japanese vandalisms during the last three years of
nightmares and bestial oppression, during the long period
of our national slavery, and the wholesale massacres and
destructions in Manila and many other cities and munic
ipalities and populated areas, were not able to paralyze the
social life of our people. Let us not lose faith so easily in the
inherent vitality of the social life of the people and country
of Rizal and Mabini.
It is insinuated that because of the thought that the
representative of the restored sovereign power may set
aside all judicial processes of the army of occupation, in the
case of a future invasion, litigants will not submit their
cases to courts whose judgment may afterwards be
annulled, and criminals would not be deterred from
committing offenses in the expectancy that they may
escape penalty upon liberation of the country. We hope that
Providence will never allow the Philippines to fall again
under the arms
181
VOL. 75, SEPTEMBER 17, 1945 181

of an invading army, but if such misfortune will happen, let

the October Proclamation serve as a notice to the ruthless
invaders that the official acts of the government of
occupation will not merit any recognition from the
legitimate government, specially if they should not conduct
themselves, as exemplified by the Japanese, in accordance
with the rules of action of a civilized state.
One conclusive evidence of the untenableness of the
majority position is the fact that it had to resort to
Executive Order No. 37, issued on March 10, 1945,
providing "that all cases that have heretofore been
appealed to the Court of Appeals shall be transmitted to
the Supreme Court for final decision." The far-fetched
theory is advanced that this provision impliedly recognizes
the court processes during the Japanese military
occupation, on the false assumption that it refers to the
Court of Appeals existing during the Japanese regime. It is
self-evident that the Executive Order could have referred
only to the Commonwealth Court of Appeals, which is the
one declared abolished in said order. Certainly no one will
entertain the absurd idea that the President of the
Philippines could have thought of abolishing the Court of

Appeals under the government during the Japanese
occupation. Said Court of Appeals disappeared with the
ouster of the Japanese military administration from which
it derived its existence and powers. The Court of Appeals
existing on March 10, 1945, at the time of the issuance of
Executive Order No. 37, was the Commonwealth Court of
Appeals and it was the only one that could be abolished.
Without discussing the correctness of the principle
stated, the majority opinion quotes from Wheaton the "f
ollowing: "Moreover when it is said that an occupier's acts
are valid and under international law should not be
abrogated by the subsequent conqueror, it must be
remembered that no crucial instances exist to show that if
his acts should be reversed, any international wrong would
be committed.
182

What does happen is that most matters are allowed to

stand by the restored government, but the matter can
hardly be put further than this." (Wheaton, International
Law, War, 7th English edition of 1944, p. 245.)
Then it says that there is no doubt that the subsequent
conqueror has the right to abrogate most of the acts of the
occupier, such as the laws, regulations and processes other
than judicial of the government established by the
belligerent occupant.
It is evident that the statement just quoted is a complete
diversion from the principle stated in an unmistakable way
by Wheaton, who says in definite terms that "it must be
remembered that no crucial instances exist to show that if
his acts (the occupant's) should be reversed, any
international wrong would be committed."
It can be clearly seen that Wheaton does not make any
distinction or point out any exception.
But in the majority opinion the principle is qualified,
without stating any reason therefor, by limiting the right of
the restored government to annul "most of the acts of the
occupier" and "processes other than judicial."
The statement made by the respondent judge after
quoting the above-mentioned principle, as stated by
Wheaton, to the effect that whether the acts of the military
occupant should be considered valid or not, is a question
that is up to the restored government to decide, and that
there is no rule of international law that denies to the

restored government the right to exercise its discretion on
the matter, is quoted without discussion in the majority
opinion.
As the statement is not disputed, we are entitled to
presume that it is concurred in and, therefore, the
qualifications made in the statement in the majority
opinion seem to be completely groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE

NOT LIMITATIONS TO THE RIGHTS OF THE
LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show

the many duties imposed by international law on the
military occupant of an invaded country.
183
VOL. 75, SEPTEMBER 17, 1945 183

And from said duties it is deduced that the legitimate

government, once restored in his own territory, is bound to
respect all the official acts of the government established
by the usurping army, except judicial processes of political
complexion,
The reasoning calls for immediate opposition. It is
absolutely contrary to all principles of logic.
Between the duties imposed on the military occupant
and the legal prerogatives of the legitimate government
there are no logical relationship or connection that might
bind the ones with the others.
The military occupant is duty bound to protect the civil
rights of the inhabitants, but why should the legitimate
government necessarily validate the measures adopted by
said occupant in the performance of this duty, if the
legitimate government believes his duty to annul them for
weighty reasons?
The military occupant is duty bound to establish courts
of justice. Why should the legitimate government validate
the acts of said courts, if it is convinced that said courts
were absolutely powerless, as was the case during the
Japanese occupation, to stop the horrible abuses 01 the
military police, to give relief to the victims of zoning and
Fort Santiago tortures, to protect the fundamental human
rights of the Filipinos—life, property, and personal
freedom?
The majority opinion recognizes in the military occupant

the power to annul the official acts of the ousted and
supplanted legitimate government, a privilege which is
inversely denied to the last. This preference and
predilection in favor of the military occupant, that is in
favor of the invader and usurper, and against the
legitimate government, is simply disconcerting, if we have
to say the least.
PRESUMPTIONS AND SUPPOSITIONS AGAINST

TRUTH AND FACTS
The invading military occupant is duty bound to establish

and maintain courts of justice in the invaded territory, for
the protection of the inhabitants thereof. It is presumed
184

that the restored legitimate government will respect the

acts of said courts of the army of occupation. Therefore, it is
a principle of international law that said acts are valid and
should be respected by the legitimate government. It is
presumed that General MacArthur is acquainted with such
principle, discovered or revealed through presumptive
operations, and it is presumed that he had not the
intention of declaring null and void the judicial processes of
the government during the Japanese regime. Therefore, his
October Proclamation, declaring null and void and without
effect "all processes" of said governments, in fact, did not
annul the Japanese regime judicial processes.
So runs the logic of the majority.
They don't mind that General MacArthur speaks in the
October Proclamation as follows:
"Now, THEREFORE, I, Douglas MacArthur. General,
United States Army, as Commander-in-Chief of the
military forces committed to the liberation of the
Philippines, do hereby proclaim and declare:
* * * * * * *

control." (Italics supplied.)
General MacArthur says categorically "all processes",

but the majority insists on reading differently, that is:
"NOT ALL processes."
The majority presume, suppose, against the unequivocal
meaning of simple and well known words, that when
General MacArthur said "all processes", in fact, he said
"not all processes", because it is necessary, by presumption,
by supposition, to exclude judicial processes.
If where General MacArthur says "all", the majority
shall insist on reading "not all", it is impossible to foresee
the consequences of such so stubborn attitude, but it is
possible to understand how they reached the unacceptable
conclusion which we cannot avoid opposing and exposing.
185
VOL. 75, SEPTEMBER 17, 1945 185

Are we to adopt and follow the policy of deciding cases

submitted to our consideration, by presumptions and
suppositions putting aside truths and facts? Are we to place
in the documents presented to us, such as the October
Proclamation, different words than what are written
therein? Are we to read "not all", where it is written "all"?
We are afraid that such procedure is not precisely the
most appropriate to keep public confidence in the
effectiveness of the administration of justice.
That is why we must insist that in the October
Proclamation should be read what General MacArthur has
written in it, that is, that, besides laws and regulations, he
declared and proclaimed null and void "ALL PROCESSES",
including naturally judicial processes, of the governments
under the Japanese regime.
THE COMMONWEALTH COURTS HAVE NO

JURISDICTION TO CONTINUE JAPANESE REGIME
JUDICIAL PROCESSES
Now we come to the third and last question propounded in

the majority opinion.
The jurisdiction of the Commonwealth tribunals is
defined, prescribed, and apportioned by legislative act.
It is provided so in our Constitution. (Section 2, Article
VIII.)
The Commonwealth courts of justice are continuations
of the courts established before the inauguration of the
Commonwealth and before the Constitution took effect on
November 15, 1935. And their jurisdiction is the same as

provided by existing laws at the time of the inauguration of
the Commonwealth Government.
Act No. 136 of the Philippine Commission, known as the
Organic Act of the courts of justice of the Philippines, is the
one that defines the jurisdiction of justice of the peace and
municipal courts, Courts of First Instance, and the
Supreme Court. It is not necessary to mention here the
jurisdiction of the Court of Appeals, because the same has
been abolished by Executive Order No. 37.
186

No provision may be found in Act No. 136, nor in any other

law of the Philippines, conferring on the Commonwealth
tribunals jurisdiction to continue the judicial processes or
proceedings of tribunals belonging to other governments,
such as the governments established during the Japanese
occupation.
The jurisdiction of our justice of the peace and municipal
courts is provided in section 68, Chapter V, of Act No. 136.
The original and appellate jurisdiction of the Courts of
First Instance is provided in sections 56 and 57, Chapter
IV, of Act No. 136. The original and appellate jurisdiction of
the Supreme Court is provided in sections 17 and 18,
Chapter II, of the same Act. The provisions of the
abovecited sections do not authorize, even implicitly, any of
the said tribunals to execute or order the execution of the
decisions and judgments of tribunals of other governments,
nor to continue the processes or proceedings of said
tribunals.
NECESSITY OF ENABLING ACT UNDER THE

LEGAL DOCTRINE PREVAILING IN THE
PHILIPPINES AND IN THE UNITED STATES
Taking aside the question as to whether the judicial

processes of the government established during the
Japanese occupation should be considered valid or not, in
order that said processes could be continued and the
Commonwealth tribunals could exercise proper jurisdiction
to continue them, under a well-established legal doctrine,
prevailing not only in the Philippines, but also in the
United States, it is necessary to that effect to enact the
proper enabling law.
Almost half a century ago, in the instructions given by

President McKinley on April 7, 1900, for the guidance of
the Philippine Commission, it was stated that, in all the
forms of the government and administrative provisions
which they were authorized to prescribe, the Commission
should bear in mind that the government which they were
187
VOL. 75, SEPTEMBER 17, 1945 187

establishing was designed not for the satisfaction of the

Americans or for the expression of their theoretical views,
but for the happiness, peace, and prosperity of the people of
the Philippines, and the measures adopted should be made
to conform to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and
effective government.
Notwithstanding the policy so outlined, it was not
enough for the Philippine Commission to create and
establish the courts of justice provided in Act No. 136, in
order that said tribunals could take cognizance and
continue the judicial proceedings of the tribunals existing
in the Philippines at the time of the American occupation.
It needed specific enabling provisions in order that the
new tribunals might continue the processes pending in the
tribunals established by the Spaniards, and which
continued to function until they were substituted by the
courts created by the Philippine Commission.
So it was done in regards to the transfer of the cases
pending before the Spanish Audiencia to the newly created
Supreme Court, in sections 38 and 39 of Act No. 136,
quoted as follows:
"SEC. 38. Disposition of causes, actions, proceedings, appeals,

records, papers, and so forth, pending in the existing Supreme
Court and in the Contencioso Administrativo.'—All records, books,
papers, causes, actions, proceedings, and appeals lodged,
deposited, or pending in the existing Audiencia or Supreme Court,
or pending by appeal before the Spanish tribunal called
Contencioso Administrativo,' are transferred to the Supreme
Court above provided for, which has the same power and
jurisdiction over them as if they had been in the first instance
lodged, filed, or pending- therein, or, in case of appeal, appealed
thereto.
"SEC. 39. Abolition of existing Supreme Court.—The existing

Audiencia or Supreme Court is hereby abolished, and the
Supreme Court provided by this Act is substituted in place
thereof."
Sections 64 and 65 of the same Act followed the same

procedure as regards the transfer of cases and processes
188

pending in the abolished Spanish Courts of First Instance

to the tribunals of the same name established by the
Philippine Commission.
"SEC. 64. Disposition of records, papers, causes, and appeals, now

pending in the existing Courts of First Instance.—All records,
books, papers, actions, proceedings, and appeals lodged.
deposited, or pending in the Court of First Instance as now
constituted of or in any province, are transferred to the Court of
First Instance of such province hereby established, which shall
have the same power and jurisdiction over them as if they had
been primarily lodged, deposited, filed, or commenced therein, or
in cases of appeal, appealed thereto.
"SEC. 65. Abolition of existing Courts of First Instance.—The
existing Courts of First Instance are hereby abolished, and the
Courts of First Instance provided by this Act are substituted in
place thereof."
The same procedure has been followed by the Philippine

Commission even though the courts of origin of the judicial
processes to be transferred and continued belonged to the
same government and sovereignty of the courts which are
empowered to continue said processes.
So section 78 of Act No. 136, after the repeal of all acts
conferring upon American provost courts in the Philippines
jurisdiction over civil actions, expressly provided that said
civil actions shall be transferred to the newly created
tribunals.
And it provided specifically that "the Supreme Court,
Courts of the First Instance, and courts of the justices of
the peace established by this Act (No. 136) are authorized
to try and determine the actions so transferred to them re
spectively from the provost courts, in the same manner and
with the same legal effect as though such actions had
originally been commenced in the courts created" by virtue
of said Act.
MUNICIPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission enacted the

Organic Act of the City of Manila, No. 183.
189
VOL. 75, SEPTEMBER 17, 1945 189

Two municipal courts for the city were created by section

40 of said Act, one for the northern side of Pasig River and
the other for the southern side.
They were courts with criminal jurisdiction on identical
cases under the jurisdiction of the justices of the peace then
existing in Manila. Although both courts were of the same
jurisdiction, in order that the criminal cases belonging to
the justice of the peace courts may be transferred to the
municipal courts just created, and the proceedings may be
continued by the same, the Philippine Commission
considered it necessary to pass the proper enabling act.
So on August 5, 1901, it enacted Act No. 186, section 2 of
which provides that all criminal cases and proceedings
pending in the justices of the peace of Manila are
transferred to the municipal courts, which are conferred
the jurisdiction to continue said cases and proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was convicted of

murder by a military commission. (Cabantag vs. Wolfe, 6,
Phil., 273.) The decision was confirmed on December 10,
1901, and his execution by hanging was set for January 12,
1902.
On December 26, 1901, he fled, but surrendered to the
authorities on July 18, 1902. The Civil Governor on
December 2, 1903, commuted the death penalty to 20 years
imprisonment. The commutation was approved by the
Secretary of War, following instructions of the President
Cabantag filed later a writ of habeas corpus on the
theory that, with the abolition of the military commission
which convicted him, there was no existing tribunal which
could order the execution of the penalty of imprisonment.
The Supreme Court denied the writ, but stated that, if
the petitioner had filed the writ before the enactment of
Act No. 865, the question presented to the Supreme Court

would have been different.
190

Act No. 865, enacted on September 3, 1903, is an enabling

law, wherein it is provided that decisions rendered by
provost courts and military commissions shall be ordered
executed by Courts of First Instance in accordance with the
procedure outlined in said Act.
It is evident from the foregoing that this Supreme Court
has accepted and confirmed the doctrine of the necessity of
an enabling act in order that our Courts of First Instance
could exercise jurisdiction to execute the decisions of the
abolished provost courts and military commission.
It is evident that the doctrine is applicable, with more
force, to the judicial processes coming from governments
deriving their authority from a foreign enemy state.
THE DOCTRINE IN THE UNITED STATES
It is also evident that the Congress of the United States, by

enacting the Bill of the Philippines on July 1, 1902,
confirmed also the same doctrine.
In effect, in section 9, of said Act, the Congress approved
what the Philippine Commission did as to the jurisdiction
of the courts established and transfer of cases and judicial
processes, as provided in Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United States
government as part of its international policy, as could be
seen in Article XII of the Treaty concluded with Spain on
December 10, 1898, in Paris.
Even in 1866 the Congress of the United States followed
the same doctrine.
"The suit, shown by the record, was originally instituted in the

District Court of the United States for the District of Louisiana,
where a decree was rendered for the libellant. From the decree an
appeal was taken to the Circuit Court, where the case was
pending, when, in 1861, the proceedings of the court were
interrupted by the civil war. Louisiana had become involved in
the rebellion, and the courts and officers of the United States
were excluded from its limits. In 1862, however, the National
authority had been partially reestablished in the State, though
still liable to be overthrown by the
191
VOL. 75, SEPTEMBER 17, 1945 191

vicissitudes of war. The troops of the Union occupied New

Orleans. and held military possession of the city and such other
portions of the State as had submitted to the General
Government. The nature of this occupation and possession was
fully explained in the case of The Venice.
"Whilst it continued, on the 20th of October, 1862, President
Lincoln, by proclamation, instituted a Provisional Court of the
State of Louisiana, with authority, among other powers, to hear,
try, and determine all causes in admiralty. Subsequently, by
consent of parties, this cause was transferred into the Provisional
Court thus constituted, and was heard, and a decree was again
rendered in favor of the libellants. Upon the restoration of civil
authority in the State, the Provisional Court, limited in duration,
according to the terms of the proclamation, by that event, ceased
to exist.
"On the 28th of July, 1866, Congress enacted that all suits,
causes, and proceedings in the Provisional Court, proper for the
jurisdiction of the Circuit Court of the United States for the
Eastern District of Louisiana, should be transferred to that court,
and heard and determined therein; and that all judgments,
orders, and decrees of the Provisional Court in causes transferred
to the Circuit Court should at once become the orders, judgments,
and decrees of that court. and might be enforced, pleaded, and
proved accordingly.
"It is questioned upon these facts whether the establishment
by the President of a Provisional Court was warranted by the
Constitution.
* * * * * * *
"We have no doubt that the Provisional Court of Louisiana was

properly established by the President in the exercise of this
constitutional authority during war; or that Congress had power,
upon the close of the war, and the dissolution of the Provisional
Court, to provide for the transfer of cases pending in that court,
and of its judgments and decrees, to the proper courts of the
United States." (U. S. Reports, Wallace, Vol. 9, The Grapeshot,
131-133.)
JUDGMENTS OF REBEL COURTS IN LOUISIANA

WERE VALIDATED BY CONSTITUTIONAL
PROVISION
During the civil war in 1861, the prevailing rebel forces

established their own government in Louisiana.
When the rebel forces were overpowered by the Union
Forces and the de facto government was replaced by the de
jure government, to give effect to the judgments and other
judicial acts of the rebel government, from January 26,
1861, up to the date of the adoption of the State Constitu-
192

tion, a provision to said effect was inserted in said

document.
Section 149 of the Louisiana Constitution reads as
follows:
"All rights, actions, prosecutions, claims, contracts, and all laws

in force at the time of the adoption of this constitution, and not
inconsistent therewith, shall continue as if it had not been
adopted; all judgments and judicial sales, marriages, and
executed contracts made in good faith and in accordance with
existing laws in this State rendered, made, or entered into,
between the 26th day of January, 1861, and the date when this
constitution shall be adopted, are hereby declared to be valid," etc.
(U. S. Reports, Wallace, Vol. 22, Mechanics' etc. Bank vs. Union
Bank, 281.)
EVEN AMONG SISTER STATES OF THE UNITED

STATES JUDGMENTS ARE NOT EXECUTORY
The member states of the United States of America belong

to the same nation, to the same country, and are under the
same sovereignty.
But judgments rendered in one state are not executory
in other states,
To give them effect in other states it is necessary to
initiate an original judicial proceedings, and therein the
defendants in the domestic suit may plead in bar the sister
state judgment puis darrien continuance. (Wharton, on the
Conflict of Laws, Vol. II, p. 1411.)
"Under the Constitution of the United States, when a judgment of

one state in the Union is offered in a court of a sister state as the
basis of a suit nil debet cannot be pleaded. The only proper plea is
nul tiel record." (Id., p. 1413.)
"It is competent for the defendant, however, to an action on a

judgment of a sister state, as to an action on a foreign judgment,
to set up as a defense, want of jurisdiction of the court rendering
the judgment; and, as indicating such want of jurisdiction, to aver
by plea that the defendant was not an inhabitant of the state
rendering the judgment, and had not been served with process,
and did not enter his appearance; or that the attorney was
without authority to appear." (Id., pp. 1414-1415.)
193
VOL. 75, SEPTEMBER 17, 1945 193

The inevitable consequence is that the courts of the

Commonwealth of the Philippines, in the absence of an
enabling act or of an express legislative grant, have no
jurisdiction to take cognizance and continue the judicial
processes, procedures, and proceedings of the tribunals
which were created by the Japanese Military
Administration and functioned under the Vargas
Philippine Executive Commission or the Laurel Republic of
the Philippines, deriving their authority from the Emperor,
the absolute ruler of Japan, the invading enemy, and not
from the Filipino people in whom, according to the
Constitution, sovereignty resides, and from whom all
powers of government emanate.
The position of Honorable Arsenio P. Dizon, the
respondent judge of the Court of First Instance of Manila,
in declaring himself without jurisdiction nor authority to
continue the proceedings which provoked the present
controversy, being a judicial process of a Japanese
sponsored government, is absolutely correct, under the
legal doctrines established by the United States and the
Philippine Government, and consistently, invariably, and
without exception, followed by the same.
If we accept, for the sake of argument, the false
hypothesis that the Commonwealth tribunals have
jurisdiction to continue the judicial processes left pending
by the courts of the governments established under the
Japanese regime, the courts which disappeared and,
automatically, ceased to function with the ouster of the
enemy, the position of Judge Dizon, in declining to continue
the case, is still unassailable, because, for all legal
purposes, it is the same as if the judicial processes in said
case were not taken at all, as an inevitable result of the
sweeping and absolute annulment declared by General
MacArthur in the October Proclamation.
In said proclamation it is declared in unmistakable and

definite terms that "ALL PROCESSES" of the Japanese
sponsored governments "ARE NULL AND VOID AND
WITHOUT
194

LEGAL EFFECT", and they shall remain so until the

Commonwealth, through its legislative power, decides
otherwise in a proper validating act.
The fact that the Japanese invaders, under
international law, were in duty bound to establish courts of
justice during the occupation, although they made them
completely powerless to safeguard the constitutional rights
of the citizens, and mere figureheads as regards the
fundamental liberties of the helpless men, women and
children of our people, so much so that said courts could
not offer even the semblance of protection when the life, the
liberty, the honor and dignity of our individual citizens
were wantonly trampled by any Japanese, military or
civilian, does not change the situation. "ALL PROCESSES"
of said court are declared "NULL AND VOID AND
WITHOUT LEGAL EFFECT" in the October Proclamation,
and we do not have any other alternative but to accept the
law, as said proclamation has the full force of a law.
The fact that in the past, the legitimate governments,
once restored in their own territory, condescended in many
cases to recognize and to give effect to judgments rendered
by courts under the governments set up by an invading
military occupant or by a rebel army, does not elevate such
condescension to the category of a principle of international
law. It cannot be a principle, when Wheaton declares that
no international wrong is done if the acts of the invader are
reversed.
Many irrelevant authorities were cited to us as to the
duties imposed by international law on military occupants,
but no authority has been cited to the effect that the
representative of the restored legitimate government is
bound to recognize and accept as valid the acts and
processes of said occupants. On the contrary, Wheaton says
that if the occupant's acts are reversed "no international
wrong would be committed."
Following the authority of Wheaton, undisputed by the
majority, General MacArthur thought, as the wisest course,
195
VOL. 75, SEPTEMBER 17, 1945 195

of declaring "NULL AND VOID AND WITHOUT

EFFECT," by official proclamation, "ALL PROCESSES"
under the Japanese regime, that is, legislative, executive
and judicial processes, which fall under the absolute
adjective "ALL".
That declaration is a law. It is a law that everybody is
bound to accept and respect, as all laws must be accepted
and respected. It is a law that the tribunals are duty bound
to give effect and apply.
We are not unmindful of the adverse consequences to
some individuals of the annulment of all the judicial
processes under the Japanese regime, as provided in the
October Proclamation, but the tribunals are not the
guardians of the legislative authorities, either an army
commander in chief, during war, or a normal legislature, in
peace time. The tribunals are not called upon to guide the
legislative authorities as to the wisdom of the laws to be
enacted. That is the legislative responsibility. Our duty and
our responsibility is to see to it that the law, once enacted,
be applied and complied with.
No matter the consequences, no matter who might be
adversely affected, a judge must have the firm resolve and
the courage to do his duty, as, in the present case, Judge
Dizon did, without fear nor favor. We cannot see any
reason why we should not uphold him in his stand in
upholding the law.
It is our official duty, national and international duty.
Yes. Because this Supreme Court is sitting, not only as a
national court, but as an international court, as is correctly
stated in the concurring opinion of Justice De Joya, and we
should "f eel the "f ull weight of the corresponding
responsibility, as the American courts with admiralty
jurisdiction and the Prize Courts of England did feel. In
fact, it is in the judiciary where, more than in any other
department of the government, the international point of
view is more pressing, more imperative, more unavoidable.
Justice has no country. It is of all countries. The horizon of
justice cannot be limited by the scene where our tribunals
are
196

functioning and moving. That horizon is boundless. That is

why in our Constitution the bill of rights has been written
not for Filipinos, but for all persons. They are rights that
belong to men, not as Filipinos, Americans, Russians,
Chinese, or Malayan, but as members of humanity. The
international character of our duty to administer justice
has become more specific by the membership of our country
in the United Nations. And let us not forget, as an
elemental thing, that our primary duty is to uphold and
apply the law, as it is; that we must not replace the words
of the law with what we might be inclined to surmise; that
what is clearly and definitely provided should not be
substituted with conjectures and suppositions; that we
should not try to deduce a contrary intention to that which
is unequivocally stated in the law; that we should not hold
valid what is conclusively declared null and void.
The October Proclamation declared "ALL PROCESSES"
under the Japanese regime "NULL AND VOID AND
WITHOUT EFFECT", so they must stand. There is no
possible way of evasion. "ALL PROCESSES", in view of the
meaning of the absolute adjective "ALL", include
"JUDICIAL PROCESSES". Allegatio contra factum non est
admittenda.
CONCLUSION
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal authority to

issue the October Proclamation, and that no
principle of international law is violated by said
proclamation, no international wrong being
committed by the reversal by the legitimate
government of the acts of the military invader.
2. That said proclamation was issued in full
conformity with the official policies to which the
United States and Philippine Governments were
committed, and the annulment of all the acts of the
governments under the Japanese regime,
legislative, executive, and judicial, is legal, and
justified by the wrongs committed by the Japanese.
197
VOL. 75, SEPTEMBER 17, 1945 197

3. That when General MacArthur proclaimed and

declared in the October Proclamation "That all
laws, regulations and processes" of the Japanese
sponsored governments, during enemy occupation,
"are null and void and without effect", he meant
exactly what he said.
4. That where General MacArthur said "all processes",
we must read and understand precisely and exactly
"all processes", and not "some processes". "All" and
"some" have incompatible meanings and are not
interchangeable.
5. That the word "processes" includes judicial
procedures, proceedings, processes, and cases.
Therefore, "all processes" must include "all judicial
processes."
6. That we have no right to attribute to General
MacArthur an intention different from what he has
plainly, clearly, unmistakably expressed in
unambiguous words with familiar meaning
generally understood by the common man.
7. That the judicial proceedings here in question are
included among those adversely affected by the
October Proclamation.
8. That the Commonwealth tribunals have no
jurisdiction to take cognizance of nor to continue
the judicial proceedings under the Japanese regime.
9. That to exercise said jurisdiction an enabling act of
Congress is necessary.
10. That respondent Judge Dizon did not commit the
error complained of in the petition, and that the
petition has no merits at all.
We refuse to follow the course of action taken by the

majority in the present case. It is a course based on a
mistaken conception of the principles of international law
and of their interpretation and application, and on a
pinchbeck and self-contradicting logic in support of a
baseless surmise. It is a course based on misconstruction or
misunderstanding of the October Proclamation, in utter
disregard of the most elemental principles of legal
hermeneutics. It is a course that leads to nowhere, except
to the
198

brink of disaster, because it is following the dangerous path

of ignoring or disobeying the law.
Let us not allow ourselves to be deceived. The issue
confronting us is not of passing importance. It is an issue of
awesome magnitude and transcendency. It goes to and
reaches the very bottom. It is simple. Lacking in
complexities. But it may shake the very foundation of
society, the cornerstone of the state, the primary pillar of
the nation. It may dry the very foundation of social life, the
source of the vitalizing sap that nurtures the body politic.
The issue is between the validity of one or more
Japaneserégime processes and the sanctity of the law.
That is the question, reduced to its ultimate terms. It is
a simple dilemma that is facing us. It is the alpha and
omega of the whole issue. Either the processes, or the law,
We have to select between two, which to uphold. It is a
dilemma that does not admit of middle terms, or of middle
ways where we can loiter with happy unconcern. We are in
the crossroad: which way shall we follow? The processes
and the law are placed in the opposite ends of the balance.
Shall we incline the balance of justice to uphold the
processes and defeat law, or vice versa?
We feel jittery because some judicial processes might be
rescinded or annulled, but we do not tremble with sincere
alarm at the thought of putting the law under the axe, of
sentencing law to be executed by the guillotine. We feel
uneasy, fancying chaos and paralyzation of social life,
because some litigants in cases during the Japanese regime
will be affected in their private interests, with the
annulment of some judicial processes, but we adopt an
attitude of complete nonchalance in throwing law
overboard. This baffling attitude is a judicial puzzle that
nobody will understand. So it is better that we should shift
to a more understandable way, that which is conformable
to the standard that the world expects in judicial action.
No amount of arguments and elucubrations, no amount
of speculative gymnastics, no amount of juggling of imma-
199
VOL. 75, SEPTEMBER 17, 1945 199

terial principles of international law, no amount of

presumptions and suppositions, surmises and conjectures,
no amount of dexterity in juridical exegesis can divert our
attention from the real, simple, looming hypostasis of the
issue before us: Law. It is Law with all its majestic
grandeur which we are defying and intending to overthrow
from the sacred pedestal where the ages had placed her as
a goddess, to be enshrined, obeyed, and venerated by men,
forever. Let us not dare to lay our profaning hands on her
vestal virginity, lest the oracle should fling at us the
thunder of his prophetic anathema.
We cannot therefore vote except for the denial of the
petition.
HILADO, J., dissenting:
I dissent from the opinion of the majority and, pursuant to

the Constitution, proceed to state the reason for my
dissent.
The proceedings involved in the case at bar were
commenced by a complaint filed by the instant petitioner,
as plaintiff, on November 18, 1944, in civil case No. 3012 of
the so-called Court of First Instance of Manila, the
complaint bearing this heading and title: '"The Republic of
the Philippines—In the Court of First Instance of Manila"
(Annex X of Exhibit A of petition for mandamus). The
farthest that said proceedings had gone before the record
was burned or destroyed during the battle for Manila, was
the filing by counsel for plaintiff therein of their opposition
to a motion for dismissal filed by opposing counsel.
It is, therefore, plain that the case had not been heard
on the merits when the record was burned or destroyed.
The respondent judge, in his order dated June 6, 1945,
disposing of the petition dated May 25, 1945 filed by
petitioner, as plaintiff in said case, and of the petition filed
by respondent Eusebio Valdez Tan Keh, as defendant
therein, on May 31, 1945, held: "first, that by virtue of the
proclamation of General MacArthur quoted above, all laws,
regulations and processes of any other government in the
Phil-
200

ippines than that of the Commonwealth became null and

void and without legal effect in Manila on February 3, 1945
or, at the latest, on February 27 of the same year; second,

that the proceedings and processes had in the present case
having been before a court of the Republic of the
Philippines and in accordance with the laws and
regulations of said Republic, the same are now void and
without legal effect; third, that this Court, as one of the
different courts of general jurisdiction of the
Commonwealth of the Philippines, has no authority to take
cognizance of and continue said proceedings to final
judgment, until and unless the Government of the
Commonwealth of the Philippines, in the manner and form
provided by law, shall have provided for the transfer of the
jurisdiction of the courts of the now defunct Republic of the
Philippines, and the causes commenced and left pending
therein, to the courts created and organized by virtue of the
provisions of Act No. 4007, as revived by Executive Order
No. 36, or for the validation of all proceedings had in said
courts."
Petitioner prays that this Court declare that the
respondent judge should not have ordered the suspension
of the proceedings in civil case No. 3012 and should
continue and dispose of all the incidents in said case till its
complete termination. In my opinion, the petition should be
denied.
In stating the reasons for this dissent, we may divide the
arguments under the "f ollowing propositions:
1. The proceedings in said civil case No. 3012 are null

and void under General of the Army MacArthur's
proclamation of October 23, 1944 (41 Off. Gaz., 147,
148) ;
2. (a) The government styled as, first, the "Philippine
Executive Commission" and later as the "Republic
of the Philippines", established here by the
Commander in Chief of the Imperial Japanese
Forces or by his order was not a de facto
government—the so-called Court of First Instance
of Manila was not a de facto court, and the judge
who presided it was not a de facto judge; (b) the
rules of International Law regarding the
establishment of a de facto gov
201
VOL. 75, SEPTEMBER 17, 1945 201

ernment in territory belonging to a belligerent but

occupied or controlled by an opposing belligerent
are inapplicable to the governments thus
established here by Japan;
3. The courts of those governments were entirely
different from our Commonwealth courts before and
after the Japanese occupation;
4. The question boils down to whether the
Commonwealth Government, as now restored, is to
be bound by the acts of either or both of those
Japanese-sponsored governments;
5. Even considerations of policy or practical
convenience militate against petitioner's
contention.
The proceedings in said civil case No. 3012 are null and
void under General of the Army MacArthur's proclamation
of October 23, 1944 (41 Off. Gaz., 147, 148).
In this proclamation, after reciting certain now historic
facts, acts, among which was that the so-called government
styled as the "Republic of the Philippines" was established
on October 14, 1943 "under enemy duress, * * * based upon
neither the free expression of the people's will nor the
sanction of the Government of the United States," the great
Commander-in-Chief proclaimed and declared:
* * * * * * *

Commonwealth are null and void and without legal effect in areas
of the Philippines free of enemy occupation and control; and
* * * * * * *
''I do enjoin upon all loyal citizens of the Philippines full

respect for and obedience to the Constitution of the
Commonwealth of the Philippines and the laws, regulations and
other acts of their duly constituted government whose seat is now
firmly re-established on Philippine soil."
The evident meaning and effect of the 3rd paragraph above

quoted is, I think, that as the different areas of the
Philippines were progressively liberated, the declaration of
nullity therein contained shall attach to the laws,
regulations and processes thus condemned in so far as said
202

areas were concerned. Mark that the proclamation did not

provide that such laws, regulations and processes shall be
or are annulled, but that they are null and void.
Annulment implies some degree of effectiveness in the act
annulled previous to the annulment, but a declaration of
nullity denotes that the act is null and void ab initio—the
nullity precedes the declaration. The proclamation speaks
in the present tense, not in the future. If so, the fact that
the declaration of nullity as to the condemned laws,
regulations and processes in areas not yet free from enemy
occupation and control upon the date of the proclamation,
would attach thereto at a later date, is no argument for
giving them validity or effectiveness in the interregnum. By
the very terms of the proclamation itself, that nullity had
to date back from the inception of such laws, regulations
and processes; and to dispel any shadow of doubt which
may still remain, we need only consider the concluding
paragraph of the proclamation wherein the Commander in
Chief of the army of liberation solemnly enjoined upon all
loyal citizens of the Philippines full respect for and
obedience to the Constitution of the Commonwealth of the
Philippines and the laws, regulations and other acts of
their duly constituted government. This is all-inclusive—it
comprises not only the loyal citizens in the liberated areas
but also those in areas still under enemy occupation and
control. It will be noticed that the complaint in said civil
case No. 8012 was filed twenty-six days after the above-
quoted proclamation of General of the Army MacArthur. If
the parties to said case were to consider the proceedings
therein up to the date of the liberation of Manila valid and
binding, they would hardly be complying with the severe
injunction to render full respect for and obedience to our
Constitution and the laws, regulations and other acts of our
duly constituted government from October 23, 1944,
onwards. Indeed, to my mind, in choosing between these
two courses of action, they would be dangerously standing
on the dividing line between loyalty and disloyalty to this
country and its government.
203
VOL. 75, SEPTEMBER 17, 1945 203
The proceedings in question, having been had before the

liberation of Manila, were unquestionably "processes" of
the Japanese-sponsored government in the Philippines
within the meaning of the aforesaid proclamation of
General of the Army MacArthur and, consequently, fall
within the condemnation of that proclamation. Being
processes of a branch of a government which had been
established in hostility to the Commonwealth Government,
as well as the United States Government, they could not
very well be considered by the parties to be valid and
binding, at least after October 23, 1944, without said
parties incurring in disobedience and contempt of the
proclamation which enjoins them to render "f ull respect "f
or and obedience to our Constitution and the laws,
regulations and other acts of our duly constituted
government. Nine days after the inauguration of the so-
called "Republic of the Philippines," President Franklin
Delano Roosevelt of the United States declared in one of his
most memorable pronouncements about the activities of
the enemy in the Philippines, as follows:
"On the fourteenth of this month, a puppet government was set

up in the Philippine Islands with Jose P. Laurel, formerly a
justice of the Philippine Supreme Court, as 'president.' Jorge
Vargas, formerly a member of the Philippine Commonwealth
Cabinet and Benigno Aquino, also "formerly a member of that
cabinet, were closely associated with Laurel in this movement.
The 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"
204
(From U. S. Naval War College International Law Documents,

1943, pp. 93, 94.)
It is a fact of contemporary history that while President

Manuel L. Quezon of the Philippines was in Washington,
D. C., with his exiled government, he also repeatedly
condemned both the "Philippine Executive Commission"
and the "Philippine Republic," as they had been established
by or under orders of the Commander in Chief of the
Imperial Japanese Forces. With these two heads of the
Governments of the United States and the Commonwealth
of the Philippines condemning the "puppet regime" from its
very inception, it is beyond my comprehension to see how
the proceedings in question could be considered valid and
binding without adopting an attitude incompatible with
theirs. As President Roosevelt said in his above quoted
message, "Our sympathy goes out to those who remain
loyal to the United States and the Commonwealth—that
great majority of the Filipino people who have not been
deceived by the promises of the enemy."
The most that I can concede is that while the Japanese
Army of occupation was in control in the Islands and their
paramount military strength gave those of our people who
were within their reach no other alternative, these had to
obey their orders and decrees, but the only reason for such
obedience would be that paramount military strength and
not any intrinsic legal validity in the enemy's orders and
decrees. And once that paramount military strength
disappeared, the reason for the obedience vanished, and
obedience should likewise cease.
As was stated by the Supreme Court of the United
States in the case of Williams vs. Bruffy (96 U. S., 176; 24
Law. ed., 719), "In the face of an overwhelming force,
obedience in such matters may often be a necessity and, in
the interest of order, a duty. No concession is thus made to
the rightfulness of the authority exercised." (Italics ours.)
The court there refers to its own former decision in
Thoring-
205
VOL. 75, SEPTEMBER 17, 1945 205

ton vs. Smith, and makes it clear that the doctrine in the
Thorington case, so far as the effects of the acts of the
provisional government maintained by the British in

Castine, from September, 1814 to the Treaty of Peace in
1815, and the consideration of Tampico as United States
territory, were concerned, was limited to the period during
which the British, in the first case, retained possession of
Castine, and the United States, in the second, retained
possession of Tampico. In referring to the Confederate
Government during the Civil War, as mentioned in the
Thorington case, the court again says in effect that the
actual supremacy of the Confederate Government over a
portion of the territory of the Union was the only reason for
holding that its inhabitants could not but obey its
authority. But the court was careful to limit this to the
time when that actual supremacy existed, when it said: "* *
* individual resistance to its authority then would have
been futile and, therefore, unjustifiable." (Italics ours.)
Because of its pertinence, we beg leave to quote the
following paragraph from that leading decision:
"There is nothing in the language used in Thorington vs. Smith

(supra), which conflicts with these views. In that case, the
Confederate Government is characterized as one of paramount
force, and classed among the governments of which the one
maintained by Great Britain in Castine, from September, 1814, to
the Treaty of Peace in 1815, and the one maintained by the
United States in Tampico, during our War with Mexico, are
examples. Whilst the British retained possession of Castine, the
inhabitants were held to be subject to such laws as the British
Government chose to recognize and impose. Whilst the United
States retained possession of Tampico, it was held that it must be
regarded and respected as their territory. The Confederate
Government, the court observed, differed from these temporary
governments in the circumstance that its authority did not
originate in lawful acts of regular war; but it was not, on that
account, less actual or less supreme; and its supremacy, while not
justifying acts of hostility to the United States, 'Made obedience to
its authority in civil and local matters not only a necessity, but a
duty.' All that was meant by this language -was, that as the
actual supremacy of the Confederate Government existed over
certain territory, individual resistance to its authority then would
have
206

been futile and, therefore, unjustifiable. In the face of an

overwhelming force, obedience in such matters may often be a
necessity and, in the interest of order, a duty. No concession is
thus made to the rightfulness of the authority exercised." (Williams
vs. Bruffy, 24 Law ed., 719; italics ours.)
The majority opinion, in considering valid the proceedings

in question, invokes the rule that when a belligerent army
occupies a territory belonging to the enemy, the former,
through its Commander in Chief, has the power to
establish thereon what the decisions and treatises have
variously denominated provisional or military government,
and the majority holds that the Japanese-sponsored
government in the Philippines was such a government.
Without prejudice to later discussing the eff ects which the
renunciation of war as an instrument of national policy
contained in our Commonwealth Constitution, as well as in
the Briand-Kellog Pact, must have produced in this rule in
so far as the Philippines is concerned, let us set forth some
considerations apropos of this conclusion of the majority. If
the power to establish here such a provisional government
is recognized in the Commander in Chief of the invasion
army, why should we not recognize at least an equal power
in the Commander in Chief of the liberation army to
overthrow that government with all of its acts, at least
those of an executory nature upon the time of liberation ?
Considering the theory maintained by the majority, it
would seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the
Commonwealth Government, and all of its acts and
institutions if he had chosen to. Why should at least an
equal power be denied the Commander in Chief of the
United States Army to overthrow the substitute
government thus erected by the enemy with all of its acts
and institutions which are still not beyond retrieve?
Hereafter we shall have occasion to discuss the aspects of
this question from the point of view of policy or the
practical convenience of the inhabitants. If the Japanese
Commander in Chief represented the sovereignty of Japan,
the American Commander in Chief represented the
sovereignty
207
VOL. 75, SEPTEMBER 17, 1945 207

of the United States, as well as the Government of the

Commonwealth. If Japan had won this war, her paramount
military supremacy would have continued to be exerted
upon the Filipino people, and out of sheer physical
compulsion this country would have had to bow to the
continuance of the puppet regime that she had set up here
for an indefinite time. In such a case, we admit that, not
because the acts of that government would have
intrinsically been legal and valid, but simply because of the
paramount military force to which our people would then
have continued to be subjected, they would have had to
recognize as binding and obligatory the acts of the different
departments of that government. But fortunately for the
"Filipinos and for the entire civilized world, Japan was
defeated. And I now ask: Now that Japan has been
defeated, why should the Filipinos be still bound to respect
or recognize validity in the acts of that Japanese-sponsored
government which has been so severely condemned by both
the heads of the United States and our Commonwealth
Government throughout the duration of the war? If we
were to draw a parallel between that government and that
which was established by the Confederate States during
the American Civil War, we will find that both met with
ultimate failure. And, in my opinion, the conclusion to be
drawn should be the same in both cases.
As held by the United States Supreme Court in Williams
vs. Bruffy (supra), referring to the Confederate
Government, its failure carried with it the dissipation of its
pretentions and the breaking down in pieces of the whole
fabric of its government. The Court said among other
things:
"The immense power exercised by the government of the

Confederate States for nearly four years, the territory over which
it extended, the vast resources it wielded, and the millions who
acknowledged its authority, present an imposing spectacle well
fitted to mislead the mind in considering the legal character of
that organization. It claimed to represent an independent nation
and to possess sovereign powers; and as such to displace the
jurisdiction
208

and authority of the United States from nearly half of their

territory and, instead of their laws, to. substitute and enforce
those of its own enactment. Its pretensions being resisted, they

were submitted to the arbitrament of war. In that contest the
Confederacy failed; and in its failure its pretensions were
dissipated, its armies scattered, and the whole fabric of its
government broken in pieces." (24 Law. ed., 719; italics ours.)
By analogy, if the Japanese invasion and occupation of the

Philippines had been lawful—which, however, is not the
case—and if Japan had succeeded in permanently
maintaining the government that she established in the
Philippines, which would have been the case had victory
been hers, there would be more reason for holding the acts
of that government valid, but because Japan has lost the
war and, therefore, failed in giving permanence to that
government, the contrary conclusion should legitimately
follow,
The validity of legislation exercised by either contestant
"depends not upon the existence of hostilities but upon the
ultimate success of the party by which it is adopted" (italics
ours). And, referring to the overthrow of the Confederacy,
the Court said, "when its military forces were overthrown,
it utterly perished, and with it all its enactments" (italics
ours).
The majority cite on pages 9-10 of their opinion a
passage from the same case of Williams vs. Bruffy, supra,
which is a mere obiter dictum. The majority opinion says
that in this passage the Court was "discussing the validity
of the acts of the Confederate States". In the first place, an
examination of the decision will reveal that the controversy
dealt with an act of the Confederate Government, not of the
Confederate States individually; and in the second place,
the quoted passage refers to something which was not in
issue in the case, namely, the acts of the individual States
composing the Confederacy. But even this passage clearly
places the case at bar apart from the Court's
pronouncement therein. The quoted passage commences by
stating that "The same general form of government, the
same general laws for the administration of justice and
209
VOL. 75, SEPTEMBER 17, 1945 209

the protection of private rights, which has existed in the

States prior to the rebellion, remained during the (its)
continuance and afterwards." In the case at' bar, the same
general form of the Commonwealth Government did not
continue under the Japanese, for the simple reason that

one of the first acts of the invaders was to overthrow the
Commonwealth Constitution and, therefore, the
constitutional government which existed thereunder, as an
effect of the following acts and decrees of the Commander
in Chief of the Imperial Japanese Forces:
1. Order No. 3, dated February 20, 1942 of the

Commander in Chief of the Imperial Japanese
Forces to the Chairman of the Philippine Executive
Commission directed that, in the exercise of
legislative, executive and judicial powers in the
Philippines, the "activities" of the "administrative
organs and judicial courts in the Philippines shall
be based upon the existing statutes, orders,
ordinances and customs until further orders," etc.,
significantly omitting the Commonwealth
Constitution (1 Official Journal of the Japanese
Military Administration, page 34). Under the frame
of government existing in this Commonwealth upon
the date of the Japanese invasion, the Constitution
was the very fountain-head of the validity and
effects of all the "statutes, orders, and ordinances"
mentioned by the Japanese Commander in Chief,
and in overthrowing the Constitution he, in effect,
overthrew all of them.
2. Instruction No. 6, of the Japanese Military
Administration (Vol. 1, pages 36 et seq., Official
Gazette, edited at the Office of the Executive
Commission) gave the "Detailed Instructions Based
on Guiding Principles of Administration," and
among other things required "The entire personnel
shall be required to pledge their loyalty to the
Imperial Japanese Forces * *. *." (This, of course,
was repugnant to the frame of government existing
here under the Commonwealth Constitution upon
the date of invasion.)
3. Proclamation dated January' 3, 1942 of the
Japanese Commander in Chief provided in
paragraph 3 that "The Authorities and the People
of the Commonwealth should
210

sever their relations with the U. S. A. * *' *" (This

is, likewise, repugnant to the Commonwealth
Constitution and to the Government of that
Commonwealth which was expressly made subject
to the supreme sovereignty of the United States
until complete independence is granted, not by the
mere will of the United States, but by virtue of an
agreement between that Government and ours,
under the Tydings-McDuffie Act.)
The individual States of the Confederacy and their

governments existed prior to the Civil War and had
received the sanction and recognition of the Union
Government, for which the Federal Supreme Court was
speaking in the Williams-Bruffy case; while the Japanese-
sponsored governments of the "Philippine Executive
Commission" and the "Republic of the Philippines" neither
existed here before the war nor had received the
recognition or sanction of either the United States or the
Commonwealth Government—nay, they had received the
most vigorous condemnation of both.
The Court further says in Williams vs. Bruffy (supra) :
"No case has been cited in argument, and we think none can be
found, in which the Acts of a portion of a State unsuccessfully
attempting to establish a separate revolutionary government have
been sustained as a matter of legal right. As justly observed by
the late Chief Justice in the case of Shortridge vs. Macon, 1 Abb.
U. S., 58, decided at the circuit, and, in all material respects like
the one at bar, 'Those who engage in rebellion must consider the
consequences. If they succeed, rebellion becomes revolution, and
the new government will justify its founders. If they fail, all their
acts hostile to the rightful government are violations of law, and
originate no rights which can be recognized by the courts of the
nation whose authority and existence have been alike assailed.' S.
C., Chase, Dec., 136." ' (Williams vs. Bruffy, 96 U. S., 176; 24 Law.
ed., 716, 718.) (Italics ours.)
I am of opinion that the principles thus enunciated for the

case of an unsuccessful rebellion should be applied with
greater force to the case of a belligerent who loses the war.
And since the founding of the Japanese-sponsored
government in the Philippines was designed to supplant
and did
211
VOL. 75, SEPTEMBER 17, 1945 211

actually supplant the rightful government and since all its

acts could not but be hostile to the latter (however
blameless the officials who acted under enemy duress
might be), and since Japan failed, all said acts, particularly
those of the Japanese-sponsored court in said civil case No.
3012, "are violations of law, and originate no rights which
can be recognized by the courts of the nation whose
authority and existence have been alike assailed", quoting
the language of the court in Shortridge vs. Macon, cited by
Mr. Justice Field in Williams vs. Bruffy, supra (24 Law.
ed., 718).
II
(a) The government styled as, first, the "Philippine Executive

Commission" and later as the "Republic of the Philippines",
established here by the Commander in Chief of the Imperial
Japanese Forces or by his order was not a de facto government—
the so-called Court of First Instance of Manila was not a de facto
court, and the judge who presided it was not a de facto judge;
(b) The rules of International Law regarding the establishment
of a de facto government in territory belonging to a belligerent but
occupied or controlled by an opposing belligerent are inapplicable
to the governments thus established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the

pertinent cases therein cited, the short-lived provisional
government thus established by the Japanese in the
Philippines should be classified, at best, as a government of
paramount force. But this is not all. The Constitution of
this Commonwealth which has been expressly approved by
the United States Government, in Article II, section 3,
under the heading "Declaration of Principles", renounces
war as an instrument of national policy. This renunciation
of war as an instrument of national policy follows an equal
renunciation in the Briand-Kellog Pact. The rules of
International Law, cited in support of the power or right of
a belligerent army of occupation to set up a provisional
government on occupied enemy territory, were evolved
prior to the first World War, but the horrors and
devastations of that war convinced, at least the
governments of the United States and France, that they
should thereafter renounce war as an instrument of
national policy, and they
212

consequently subscribed the Briand-Kellog Pact. Those

horrors and devastations were increased a hundredfold, if
not more, in this second World War, but even before this
war occurred, our own people, through our Constitutional
delegates, who framed the Commonwealth Constitution
also adopted the same doctrine, and embodied an express
renunciation of war as an instrument of national policy in
the instrument that they drafted. It is true that in section
3, Article II, above-cited, our Constitution adopts the
generally accepted principles of International Law as a
part of the law of the Nation. But, of course, this adoption
is exclusive of those principles of International Law which
might involve recognition of war as an instrument of
national policy. It is plain that on the side of the Allies, the
present war is purely defensive. When Japan started said
war, treacherously and without previous declaration, and
attacked Pearl Harbor and the Philippines on those two
fateful days of December 7. and 8, 1941, she employed war
as an instrument of her national policy. Under the Briand-
Kellog Pact and our Commonwealth Constitution, the
United States and the Commonwealth Government could
not possibly have recognized in Japan any right, as against
them, to employ that war as an instrument of her national
policy, and, consequently, they could not have recognized in
Japan the power to set up in the Philippines the puppet
government that she later set up, because such power
would be a mere incident or consequence of the war itself.
The authorities agree that such a power, under the cited
rules, is said to be a right derived from war. (67 C. J., p.
421, sec. 171.) There can be no question that the United
States and the Commonwealth Governments were free to
refuse to be bound by those rules when they made their
respective renunciations above referred to. Indeed, all the
United Nations have exercised this free right in their
Charter recently signed at San Francisco.
As a necessary consequence of this, those rules of
International Law were no longer applicable to the
Philippines and to the United States at the time of the
Japanese
213
VOL. 75, SEPTEMBER 17, 1945 213

invasion and as a corollary, it follows that we have no legal

foundation on which to base the proposition that the acts of
that Japanese-sponsored government in the Philippines
were valid and binding. Moreover, I am of opinion, that
although at the time of the Japanese invasion and up to the
present, the United States retains over the Philippines, a
certain measure of sovereignty, it is only for certain
specified purposes enumerated in the TydingsMcDuffie Act
and the Commonwealth Constitution. (Ordinance appended
to the Constitution.) And our territory was at the time of
the Japanese invasion not a territory of the United States,
within the meaning of the laws of war governing war-like
operations on enemy territory. Our territory is significantly
called "The National Territory" in Article I of our
Constitution and this bears the stamp of express approval
of the United States Government. The Philippines has been
recognized and admitted as a member of the United
Nations. We, therefore, had our own national and
territorial identity previous to that invasion. Our nation
was not at war with Japan and has never been. The
Japanese, themselves, were proclaiming to the world that
they were not at war with the Filipinos. And in line with
this, the Japanese army, in time, released Filipino war
prisoners captured in Bataan. Lt, Gen. Maeda, Chief of
Staff, Imperial Japanese Forces, in his speech of January 2,
1942, said:
"* * * we had not the slightest intentions to make your people our
enemy; rather we considered them as our friends who will join us
hand-in-hand in the establishment of an orderly Greater East
Asia * * *." (Official Gazette, edited at the Office of the Executive
Commission, Vol. I, p. 55.)
If the Philippines was a neutral territory when invaded by

the Japanese, the following principles from Lawrence,
International Law (7th ed.), p. 603, are pertinent:
"The Duties of Belligerent States Towards Neutral States.—* * *

To refrain from carrying on hostilities within neutral territory.—
We have already seen that, though this obligation was recog-
214

nized in theory during the infancy of International law, it was

often very imperfectly observed in practice. But in modern times
it has been strictly enforced, and any State which knowingly
ordered warlike operations to be carried on in neutral territory, *

* * would bring down upon itself the reprobation of civilized
mankind. Hostilities may be carried on in the territory of either
belligerent, on the high seas, and in territory belonging to no one.
Neutral land and neutral territorial waters are sacred. No acts of
warfare may lawfully take place within them. * * *" (Italics ours.)
In all the cases and authorities supporting the power or

right to set up a provisional government, the belligerent
had the right to invade or occupy the territory in the first
instance. Such was not the case with the Philippines.
President Roosevelt, in his message to the Filipino people,
soon after the landing of American Forces in Leyte, on
October 20, 1944, characterized Japan's invasion and
occupation of the Philippines as "the barbarous,
unprovoked and treacherous attack upon the Philippines,"
and he announced the American people's "firm
determination to punish the guilty." (41 Off. Gaz., 149.)
(Italic ours.) The illustrious leader of the United Nations
could not have declared in more unmistakable terms the
utter illegality of that invasion and occupation. If the
establishment of a provisional government in occupied
territory by a belligerent is "a mere application or
extension of the force by which the invasion or occupation
was effected" (67 C. J., p. 421, sec. 171), the illegality of the
invasion, would necessarily permeate that government,
which was its mere application or extension.
The fact that shortly before December 8, 1941, the date
of the "barbarous, unprovoked and treacherous attack," the
meager and almost untrained forces of the Philippine Army
had been inducted into the American Army, did not change
the neutral status of the Philippines. That military
measure had been adopted for purely defensive purposes.
Nothing could be farther from the minds of the government
and military leaders of the United States and the
Philippines in adopting it than to embark upon any
aggressive or warlike enterprise against any other nation.
It is an
215
VOL. 75, SEPTEMBER 17, 1945 215

old and honored rule dating as far back as the 18th century
that even solemn promises of assistance made before the
war by a neutral to a nation which later becomes a
belligerent, would not change the status of the neutral even
if such promises were carried out, so long as they were

made for purely defensive purposes. In the words of Vattel
"when a sovereign furnishes the succor due in virtue of a
former defensive alliance, he does not associate himself in
the war. Therefore he may fulfill his engagements and yet
preserve an exact neutrality." (Lawrence, Principles of
International Law [7th ed.], pp. 585, 586.)
If the Filipinos had, from contemptible cowardice and
fear, allowed their shores to be invaded, and their territory
occupied by the Japanese without resistance, such invasion
and occupation would undoubtedly have been considered in
violation of International Law. Should the Filipinos be
punished for having had the patriotism, bravery, and
heroism to fight in defense of the sacredness of their land,
the sanctity of their homes, and the honor and dignity of
their government, by giving validity, in whatever limited
measure, to the lawless acts of the ruthless enemy who
thus overran their country, and robbed them of the
tranquility and happiness of their daily lives? And yet, to
my mind, to give any measure of validity or binding effect
to the proceedings of the Japanese-sponsored Court of First
Instance of Manila, involved herein, would be to give that
much validity or effect to the acts of those same invaders.
To equalize the consequences of a lawful and a wrongful
invasion of occupation, would be to equalize right and
wrong, uphold the creed that might makes right, and adopt
"the law of the jungle."
If said Japanese-sponsored government was not a de
facto government, it would seem clearly to follow that its
"Court of First Instance of Manila" was not a de facto court.
But it should additionally be stated that for it to be a de
facto court, its judge had to be a de facto judge, which he
could not be, as presently demonstrated.
216

As said by President Osmeña, in replying to the speech of

General of the Army MacArthur when the latter turned
over to him the "f ull powers and responsibilities of the
Commonwealth Government, on February 27, 1945:
* * * * * * *
"The time has come when the world should know that when our
forces surrendered in Bataan and Corregidor, resistance to the
enemy was taken up by the people itself—resistance which was

inarticulate and disorganized in its inception but which grew from
day to day and from island to island, until it broke out into an
open warfare against the enemy.
"The fight against the enemy was truly a people's war because
it counted with the wholehearted support of the masses. From the
humble peasant to the barrio school teacher, from the volunteer
guard to the women's auxiliary service units, from the loyal local
official to the barrio folk—each and every one of those contributed
his share in the great crusade for liberation.
"The guerrillas knew that without the support of the civilian
population, they could not survive. Whole towns and villages
dared enemy reprisal to oppose the hated invader openly or give
assistance to the underground movement * * *" (41 Off. Gaz., 88,
89.)
Under these facts, taken together with General of the Army

MacArthur's accurate statement that the "Republic of the
Philippines" had been established under enemy duress, it
must be presumed—to say the least—that the judge who
presided over the proceedings in question during the
Japanese occupation, firstly, accepted his appointment
under duress; and secondly, acted by virtue of that
appointment under the same duress. In such circumstances
he could not have acted in the bona fide belief that the new
"courts" created by or under the orders of the Japanese
Military Commander in Chief had been legally created—
among them the "Court of First Instance of Manila,"—that
the Chairman of the "Philippine Executive Commission" or
the President of the "Republic of the Philippines", whoever
appointed him, had conferred upon him a valid title to his
office and a legitimate jurisdiction to act as such judge.
Good faith is essential for the existence of a de facto judge
(Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of
enemy duress would necessarily imply that but for the
217
VOL. 75, SEPTEMBER 17, 1945 217

duress exerted upon him by the enemy he would have

refused to accept the appointment and to act thereunder.
And why? Because he must be presumed to know that the
office to which he was thus appointed had been created by
the enemy in open defiance of the Commonwealth
Constitution and the laws and regulations promulgated by
our Commonwealth Government, and that his acceptance
of said office and his acting therein, if willfully done, would

have been no less than an open hostility to the very
sovereignty of the United States and to the Commonwealth
Government, and a renunciation of his allegiance to both.
There is no middle ground here. Either the judge acted
purely under duress, in which case his acts would be null
and void; or maliciously in defiance of said governments, in
which case his acts would be null and void for more serious
reasons.
The courts created here by the Japanese government
had to look for the source of their supposed authority to the
orders of the Japanese Military Commander in Chief and
the so-called Constitution of the "Republic of the
Philippines," which had been adopted in a manner which
would shock the conscience of democratic peoples, and
which was designed to supplant the Constitution which
had been duly adopted by the Filipino people in a
Constitutional Convention of their duly elected
Constitutional Delegates. And it was decreed that the
Commander in Chief of the Imperial Japanese Forces
"shall exercise jurisdiction over judicial courts." (Vol. 1, p.
7, Official Journal of the Japanese Military Administration,
cited on pp. 2, 3, of the order of the respondent judge
complained of and marked Exhibit H of the petition for
mandamus.) How can our present courts legitimately
recognize any efficacy in the proceedings of such an exotic
judicial system, wherein the Commander in Chief of the
Imperial Japanese Forces possessed the highest judicial
jurisdiction?
III
The courts of those governments were entirely different

from our Commonwealth courts before and after the
Japanese occupation.
218

Executive Order No. 36 of the President of the Philippines,

dated March 10, 1945, in its very first paragraph, states
the prime concern of the government "to re-establish the
courts as fast as provinces are liberated from the Japanese
occupation." If the courts under the Japanese-sponsored
government of the "Republic of the Philippines" were the
same Commonwealth courts that existed here under the
Constitution at the time of the Japanese invasion,

President Osmeña would not be speaking of re-establishing
those courts in his aforesaid Executive Order. Forsooth,
how could those courts under the "Republic of the
Philippines'' be the courts of the Commonwealth of the
Philippines when they were not functioning under the
Constitution of the Commonwealth and the laws enacted in
pursuance of said Constitution ? The jurisdiction of the
Commonwealth courts was defined and conferred under the
Commonwealth Constitution and the pertinent legislation
enacted thereunder, that of the Japanese-sponsored courts
was defined and conferred by the orders and decrees of the
Japanese Commander in Chief, and, perhaps, the decrees
of the "Philippine Executive Commission" and the laws of
the so-called Legislature under the Republic, which was
not composed of the elected representatives of the people.
The Justices and Judges of the Commonwealth courts had
to be appointed by the President of the Commonwealth
with confirmation by the Commission on Appointments,
pursuant to the Commonwealth Constitution. The Chief
Justice of the Supreme Court, under the "Philippine
Executive Commission" was appointed by the Commander
in Chief of the Imperial Japanese Forces, and the Associate
Justices of the Supreme Court, the Presiding Justice and
Associate Justices of the Court of Appeals, the Judges of
First Instance and of all inferior courts were appointed by
the Chairman of the Executive Commission, at first, and
later, by the President of the Republic, of course, without
confirmation by the Commission on Appointments under
the Commonwealth Constitution. The Chief Justice and
Associate Justices of the
219
VOL. 75, SEPTEMBER 17, 1945 219

Supreme Court, the Presiding and Associate Justices of the

Court of Appeals, and the Judges of First Instance and of
all inferior courts in the Commonwealth judicial system,
had to swear to support and defend the Commonwealth
Constitution, while this was impossible under that
Japanesesponsored government. In the Commonwealth
judicial system, if a Justice or Judge should die or be
incapacitated to continue in the discharge of his official
duties, his successor was appointed by the Commonwealth
President with confirmation by the Commission on
Appointments, and said successor had to swear to support
and defend the Commonwealth Constitution; in the exotic

judicial system implanted here by the Japanese, if a Justice
or Judge should die or be so incapacitated, his successor
would be appointed by the Japanese Commander in Chief,
if the dead or incapacitated incumbent should be the Chief
Justice of the Supreme Court, or otherwise, by the
Chairman of the "Executive Commission" or the President
of the "Republic", of course without confirmation by the
Commission on Appointments of the Commonwealth
Congress, and, of course, without the successor swearing to
support and defend the Commonwealth Constitution.
If, as we believe having conclusively shown, the
Japanesesponsored courts were not the same
Commonwealth courts, the conclusion is unavoidable that
any jurisdiction possessed by the former and any cases left
pending therein, were not and could not be automatically
transferred to the Commonwealth courts which were re-
established under Executive Order No. 36. For this
purpose, a special legislation was necessary.
Executive Order No. 37, in my humble opinion, does not,
as held by the majority, imply that the President
recognized as valid the proceedings in all cases appealed to
the Court of Appeals. Section 2 of that order simply
provides that all cases which have been duly appealed to
the Court of Appeals shall be transmitted to the Supreme
Court "f or final decision. The adverb "duly" would indicate
that the Pres-
220

ident foresaw the possibility of appeals not having been

duly taken. All cases appealed to the Court of Appeals
before the war and otherwise duly appealed, would come
under the phrase "duly appealed" in this section of the
Executive Order. But considering the determined and firm
attitude of the Commonwealth Government towards those
Japanese-sponsored governments since the beginning, it
would seem inconceivable that President Osmeña, in
section 2 of Executive Order No. 37, intended to include
therein appeals taken to the Japanese-sponsored Court of
Appeals, or from the Japanese-sponsored inferior courts. It
should be remembered that in the Executive Order
immediately preceding and issued on the same date, the
said President speaks of re-establishing the courts as fast
as provinces were liberated from the Japanese occupation.
IV
The question boils down to whether the Commonwealth

Government, as now restored, is to be bound by the acts of either
or both of those Japanese-sponsored governments.
In the last analysis, in deciding the question of validity or

nullity of the proceedings involved herein, we are
confronted with the necessity to decide whether the Court
of First Instance of Manila and this Supreme Court, as
reestablished under the Commonwealth Constitution, and
the entire Commonwealth Government, are to be bound by
the acts of the said Japanese-sponsored court and
government. To propound this question is, to my mind, to
answer it most decidedly in the negative, not only upon the
ground of legal principles but also for reasons of national
dignity and international decency. To answer the question
in the affirmative would be nothing short of legalizing the
Japanese invasion and occupation of the Philippines.
Indeed, it would be virtual submission to the dictation of an
invader our people's just hatred of whom gave rise to the
epic Philippine resistance movement, which has won the
admiration of the entire civilized world.
221
VOL. 75, SEPTEMBER 17, 1945 221

Even considerations of policy or practical convenience militate

against petitioner's contention.
In this connection, the respondent judge, in his order of

June 6, 1945, complained of, has the following to say:
"It is contended, however, that the judicial system implanted by

the Philippine Executive Commission and the Republic was the-
same as that of the Commonwealth prior to Japanese occupation;
that the laws administered and enforced by said courts during the
existence of said regime were the same laws on the statute books
of the Commonwealth before Japanese occupation, and that even
the judges who presided them were, in many instances, the same
persons who held the position prior to Japanese occupation. All
this may be true, but other facts are just as stubborn and pitiless.
One of them is that said courts were of a government alien to the
Commonwealth Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to Japanese occupation,
but they had become the laws—and the Courts had become the
institutions—of Japan by adoption (U. S. vs. Reiter, 27 F. Case
No. 16, 146), as they became later on the laws and institutions of
the Philippine Executive Commission and the Republic of the
Philippines. No amount of argument or legal fiction can obliterate
this fact."
Besides, I am of the opinion that the validity of the acts of

the courts in the "judicial system implanted by the
Philippine Executive Commission and the Republic" would
not depend upon the laws that they "administered and
enforced", but upon the authority by virtue of which they
acted. If the members of this Court were to decide the
instant case in strict accordance with the Constitution and
laws of the Commonwealth but not by the authority that
they possess in their official capacity as the Supreme Court
of the Philippines, but merely as lawyers, their decision
would surely be null and void. And yet, I am firmly of
opinion that whoever was the "judge" of the Japanese-
sponsored Court of First Instance of Manila who presided
over the said court when the proceedings and processes in
dispute were had, in acting by virtue of the supposed
authority which he was supposed to have received from
222

that government, did so with no more legal power than if

he had acted as a mere lawyer applying the same laws to
the case. If duplication of work or effort, or even if
confusion, should be alleged to possibly arise from a
declaration of nullity of judicial proceedings had before
those Japanese-sponsored courts, it should suffice to
answer that the party so complaining in voluntarily
resorting to such courts should be prepared to assume the
consequences of his voluntary act. On the other hand, his
convenience should not be allowed to visit upon the
majority of the inhabitants of this country, the dire
consequences of a sweeping and wholesale validation of
judicial proceedings in those courts. Let us set forth a few
considerations apropos of this assertion. It is a fact of
general knowledge that during the Japanese occupation of
the Philippines, the overwhelming majority of our people

and other resident inhabitants were literally afraid to go to
any place where there were Japanese sentries, soldiers or
even civilians, and that these sentries were posted at the
entrance into cities and towns and at government offices;
that the feared Japanese "M.P.'s" or "Kempeitai's" were a
constant terror to them; and lastly, that the greater
number who lived or had evacuated to places far from the
Japanese, were also afraid of the fifth columnists who,
unfortunately, were found precisely in the cities and towns
where the courts were located; and as a consequence, the
great majority of the people were very strongly averse to
traveling any considerable distance from their homes and
were, one might say, in constant hiding. Add to these
circumstances, the fact; of the practical absence of
transportation facilities and the no less important fact of
the economic structure having been so dislocated as to have
impoverished the many in exchange for the enrichment of
the few—and we shall have a fair picture of the practical
difficulties which the ordinary litigant would in those days
have encountered in defending his rights against anyone of
the favored few who would bring him to court. It should be
easy to realize how hard
223
VOL. 75, SEPTEMBER 17, 1945 223

it was for instance, to procure the attendance of witnesses,

principally because of the fact that most of them were in
hiding or, at least, afraid to enter the cities and towns, and
also because of the generally difficult and abnormal
conditions prevailing. Under such conditions, cases of
denial of a party's day in court, as known in our
constitutional government, were to be expected. Such
denial might arise from many a cause. It might be the
party's "f ear to appear before the court because in doing so,
he would have had to get near the feared Japanese. It
might be because he did not recognize any legal authority
in that court, or it might be his down-right repugnance of
the hated enemy. And I dare say that among such people
would be "f ound more than seventeen million of the
eighteen million Filipinos. These are but a few of countless
causes. So that if some form of validation of such judicial
proceedings were to be attempted, all necessary safeguards
should be provided to avoid that in any particular case the
validation should violate any litigant's constitutional right
to his day in court, within the full meaning of the phrase,

or any other constitutional or statutory right of his. More
people, I am afraid, would be prejudiced than would be
benefited by a wholesale validation of said proceedings.
Much concern has been shown for the possible confusion
which might result from a decision declaring null and void
the acts and processes of the Japanese-sponsored
governments in the Philippines. I think, this aspect of the
question has been unduly stressed. The situation is not
without remedy, but the remedy lies with the legislature
and not with the courts. As the courts cannot create a new
or special jurisdiction for themselves, which is a legislative
function, and as the situation demands such new or special
jurisdiction, let the legislature act in the premises. For
instance, the Congress may enact a law conferring a special
jurisdiction upon the courts of its selection, whereby said
courts may, after hearing all the parties interested, and
taking all the necessary safeguards, so that, a party's day
224

in court or other constitutional or statutory right under the

Commonwealth Government should not be prejudiced by
any of said acts, processes or proceedings, particularly,
those in the Japanese-sponsored courts, and subject to such
other conditions as the special law may provide, validate
the corresponding acts, processes or proceedings. This, to
my mind, would be more conducive to a maximum of
benefit and a minimum of prejudice to the inhabitants of
this country, rather than the procedure favored by the
majority.
Finally, let us not equalize the conditions then
prevailing in Manila to that prevailing in the provinces,
where the greater number of the people were then living
outside the towns, in the farms and the hills. These people
constitute the great majority of the eighteen million
Filipinos. To them the semblance of an administration of
justice which the Japanese allowed, was practically
unknown. But they constituted the majority of loyal
citizens to whom President Roosevelt's message of October
23, 1943 refers. They—the majority of our people—had an
unshaken faith in the arrival of American aid here and the
final triumph of the Allied cause. They were willing to wait
for the restoration of their rightful government, with its
courts and other institutions, for the settlement of their
differences. Nay, in their common hardships and sufferings

under the yoke of foreign oppression, they had not much
time to think 01 such differences, if they did not utterly
forget them. Their undoubted hatred of the invader was
enough to keep them away from the judicial system that
said invader allowed them to have. Those who voluntarily
went to the courts in those tragic days belong to the small
minority.
As to public order—why! any public order which then
existed was not due to the courts or other departments of
the puppet government. It was maintained at the point of
the bayonet by the Japanese army, and in their own unique
fashion.
Writ granted.
225
VOL. 75, SEPTEMBER 27, 1945 225

Reyes vs. Crisologo
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7/27/2019 PHILIPPINE REPORTS ANNOTATED VOLUME 075

Co KIM CHAM (alias Co CHAM), petitioner, vs. EUSEBIO

1. POLITICAL AND INTERNATIONAL LAW; VALIDITY

2. ID.; KINDS OF "DE FACTO" GOVERNMENTS.—There

3. ID.; ID.; DISTINGUISHING CHARACTERISTICS OF

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

114 PHILIPPINE REPORTS ANNOTATED

Co Kim Cham vs. Valdez Tan Keh and Dizon

and against the rightful authority of an established and

4. ID.; ID.; ID.; POWERS AND DUTIES OF GOVERNMENT

5. ID. ; ID. ; ID.; ID. ; PHILIPPINE EXECUTIVE

exercise all the powers given by the laws of war to the

VOL. 75, SEPTEMBER 17, 1945 115

Co Kim Cham vs. Valdez Tan Keh and Dizon

6. ID.; ID.; ID.; ID.; SO-CALLED REPUBLIC OF THE

been established by the free will of the Filipino people

7. lD.; ID.; ID.; ID.; VALIDITY OF JUDICIAL ACTS AND

116 PHILIPPINE REPORTS ANNOTATED

Co Kim Cham vs. Valdez Tan Keh and Dizon

cupation being de facto governments, it necessarily follows

8. ID. ; ID.; ID.; ID.; SCOPE OF PROCLAMATION OF

Philippines or other governmental agencies established in

9. ID.; ID.; ID.; ID.; JURISDICTION OF COURTS OF

VOL. 75, SEPTEMBER 17, 1945 117

Co Kim Cham vs. Valdez Tan Keh and Dizon

the military administration under martial law over the

faithfully their duties as before." When the Philippine

10. ID.; ID.; ID.; ID.; CONTINUITY OF LAW.—It is a legal

118 PHILIPPINE REPORTS ANNOTATED

Co Kim Cham vs. Valdez Tan Keh and Dizon

law to amend; in spite of change of constitution, the law

ORIGINAL ACTION in the Supreme Court. Mandamus.

This is a petition "f or mandamus in which petitioner prays

VOL. 75, SEPTEMBER 17, 1945 119

Co Kim Cham vs. Valdez Tan Keh and Dizon

courts of the Philippines under the Philippine Executive

120 PHILIPPINE REPORTS ANNOTATED

continued with the same jurisdiction, in conformity with

"1. That the Government of the Commonwealth of the

On February 3, 1945, the City of Manila was partially

VOL. 75, SEPTEMBER 17, 1945 121

Co Kim Cham vs. Valdez Tan Keh and Dizon

Constitution restored to the Commonwealth whose seat is

122 PHILIPPINE REPORTS ANNOTATED

1. It is a legal truism in political and international law that

governments established in these Islands under the names

VOL. 75, SEPTEMBER 17, 1945 123

a government de facto, but which might, perhaps, be more

government. Actual governments of this sort are

124 PHILIPPINE REPORTS ANNOTATED

According to these precepts of the Hague Conventions, as

justice is suspended as a matter of course as soon as a

VOL. 75, SEPTEMBER 17, 1945 125

authority to establish a government for the territory of the

inhabitants, the municipal laws of the conquered territory,

126 PHILIPPINE REPORTS ANNOTATED

(Richardson's Messages and Papers of President, X, p. 209.)

the bonds of society, or do away with civil government or

VOL. 75, SEPTEMBER 17, 1945 127