PEOPLE VS PERFECTO

G.R. No. L-18463

October 4, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs. GREGORIO PERFECTOR, defendant-appellant.
Alfonso E. Mendoza and the appellant in behalf of the latter.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
The important question is here squarely presented of whether article 256 of the Spanish Penal Code, punishing "Any person who, by . .
. writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority . . .," is still in force.
About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that certain documents which
constituted the records of testimony given by witnesses in the investigation of oil companies, had disappeared from his office. Shortly
thereafter, the Philippine Senate, having been called into special session by the Governor-General, the Secretary for the Senate
informed that body of the loss of the documents and of the steps taken by him to discover the guilty party. The day following the
convening of the Senate, September 7, 1920, the newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article reading
as follows:
Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of records which were kept and preserved in
the iron safe of the Senate, yet up to this time there is not the slightest indication that the author or authors of the crime will ever be
discovered.
To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the persons in charge of the investigation of the case
would not have to display great skill in order to succeed in their undertaking, unless they should encounter the insuperable obstacle of
offical concealment.
In that case, every investigation to be made would be but a mere comedy and nothing more.
After all, the perpetration of the robbery, especially under the circumstances that have surrounded it, does not surprise us at all.
The execution of the crime was but the natural effect of the environment of the place in which it was committed.
How many of the present Senators can say without remorse in their conscience and with serenity of mind, that they do not owe their
victory to electoral robbery? How may?
The author or authors of the robbery of the records from the said iron safe of the Senate have, perhaps, but followed the example of
certain Senators who secured their election through fraud and robbery.
The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its committee on elections and privileges
to report as to the action which should be taken with reference to the article published in La Nacion. On September 15, 1920, the
Senate adopted a resolution authorizing the President of the Senate to indorse to the Attorney-General, for his study and
corresponding action, all the papers referring to the case of the newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a result,
an information was filed in the municipal court of the City of Manila by an assistant city fiscal, in which the editorial in question was set
out and in which it was alleged that the same constituted a violation of article 256 of the Penal Code. The defendant Gregorio Perfecto
was found guilty in the municipal court and again in the Court of First Instance of Manila.
During the course of the trial in the Court of First Instance, after the prosecution had rested, the defense moved for the dismissal of the
case. On the subject of whether or not article 256 of the Penal Code, under which the information was presented, is in force, the trial
judge, the Honorable George R. Harvey, said:

This antiquated provision was doubtless incorporated into the Penal Code of Spain for the protection of the Ministers of the Crown and
other representatives of the King against free speech and action by Spanish subjects. A severe punishment was prescribed because it
was doubtless considered a much more serious offense to insult the King's representative than to insult an ordinary individual. This
provision, with almost all the other articles of that Code, was extended to the Philippine Islands when under the dominion of Spain
because the King's subject in the Philippines might defame, abuse or insult the Ministers of the Crown or other representatives of His
Majesty. We now have no Ministers of the Crown or other persons in authority in the Philippines representing the King of Spain, and
said provision, with other articles of the Penal Code, had apparently passed into "innocuous desuetude," but the Supreme Corut of the
Philippine Islands has, by a majority decision, held that said article 256 is the law of the land to-day. . . .
The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court until otherwise determined by proper
authority.
In the decision rendered by the same judge, he concluded with the following language:
In the United States such publications are usually not punishable as criminal offense, and little importance is attached to them, because
they are generally the result of political controversy and are usually regarded as more or less colored or exaggerated. Attacks of this
character upon a legislative body are not punishable, under the Libel Law. Although such publications are reprehensible, yet this court
feels some aversion to the application of the provision of law under which this case was filed. Our Penal Code has come to us from the
Spanish regime. Article 256 of that Code prescribes punishment for persons who use insulting language about Ministers of the Crown
or other "authority." The King of Spain doubtless left the need of such protection to his ministers and others in authority in the
Philippines as well as in Spain. Hence, the article referred to was made applicable here. Notwithstanding the change of sovereignty, our
Supreme Court, in a majority decision, has held that this provision is still in force, and that one who made an insulting remark about the
President of the United States was punishable under it. (U.S. vs. Helbig, supra.) If it applicable in that case, it would appear to be
applicable in this case. Hence, said article 256 must be enforced, without fear or favor, until it shall be repealed or superseded by other
legislation, or until the Supreme Court shall otherwise determine.
In view of the foregoing considerations, the court finds the defendant guilty as charged in the information and under article 256 of their
Penal Code sentences him to suffer two months and one day of arresto mayor and the accessory penalties prescribed by law, and to
pay the costs of both instances.
The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and eloquent oral argument made in his
own behalf and by his learned counsel, all reduce themselves to the pertinent and decisive question which was announced in the
beginning of this decision.
It will be noted in the first place that the trial judge considered himself bound to follow the rule announced in the case of United States
vs. Helbig (R. G. No. 14705, 1 not published). In that case, the accused was charged with having said, "To hell with the President and
his proclamations, or words to that effect," in violation of article 256 of the Penal Code. He was found guilty in a judgment rendered by
the Court of First Instance of Manila and again on appeal to the Supreme Court, with the writer of the instant decision dissenting on two
principal grounds: (1) That the accused was deprived of the constitutional right of cross-examination, and (2) that article 256 of the
Spanish Penal Code is no longer in force. Subsequently, on a motion of reconsideration, the court, being of the opinion that the Court of
First Instance had committed a prejudicial error in depriving the accused of his right to cross-examine a principal witness, set aside the
judgment affirming the judgment appealed from and ordered the return of the record to the court of origin for the celebration of a new
trial. Whether such a trial was actually had, is not known, but at least, the record in the Helbig case has never again been elevated to
this court.
There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view of the circumstances above
described. This much, however, is certain: The facts of the Helbig case and the case before us, which we may term the Perfecto case,
are different, for in the first case there was an oral defamation, while in the second there is a written defamation. Not only this, but a

new point which, under the facts, could not have been considered in the Helbig case, is, in the Perfecto case, urged upon the court.
And, finally, as is apparent to all, the appellate court is not restrained, as was the trial court, by strict adherence to a former decision.
We much prefer to resolve the question before us unhindered by references to the Helbig decision.
This is one of those cases on which a variety of opinions all leading to the same result can be had. A majority of the court are of the
opinion that the Philippine Libel Law, Act No. 277, has had the effect of repealing so much of article 256 of the Penal Code as relates to
written defamation, abuse, or insult, and that under the information and the facts, the defendant is neither guilty of a violation of article
256 of the Penal Code, nor of the Libel Law. The view of the Chief Justice is that the accused should be acquitted for the reason that
the facts alleged in the information do not constitute a violation of article 156 of the Penal Code. Three members of the court believe
that article 256 was abrogated completely by the change from Spanish to American sovereignty over the Philippines and is inconsistent
with democratic principles of government.
Without prejudice to the right of any member of the court to explain his position, we will discuss the two main points just mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code. The Libel Law, Act No. 277, was enacted
by the Philippine Commission shortly after organization of this legislative body. Section 1 defines libel as a "malicious defamation,
expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of
one who is dead or to impeach the honesty, virtue, or reputation, or publish the alleged or natural deffects of one who is alive, and
thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws and parts of laws now in force, so far as
the same may be in conflict herewith, are hereby repealed. . . ."
That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that the Libel Law abrogated certain
portion of the Spanish Penal Code, cannot be gainsaid. Title X of Book II of the Penal Code, covering the subjects of calumny and
insults, must have been particularly affected by the Libel Law. Indeed, in the early case of Pardo de Tavera vs. Garcia Valdez ([1902],
1. Phil., 468), the Supreme Court spoke of the Libel Law as "reforming the preexisting Spanish law on the subject of calumnia and
injuria." Recently, specific attention was given to the effect of the Libel Law on the provisions of the Penal Code, dealing with calumny
and insults, and it was found that those provisions of the Penal Code on the subject of calumny and insults in which the elements of
writing an publicity entered, were abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.)
The Libel Law must have had the same result on other provisions of the Penal Code, as for instance article 256.
The facts here are that the editor of a newspaper published an article, naturally in writing, which may have had the tendency to
impeach the honesty, virtue, or reputation of members of the Philippine Senate, thereby possibly exposing them to public hatred,
contempt, or ridicule, which is exactly libel, as defined by the Libel Law. Sir J. F. Stephen is authority for the statement that a libel is
indictable when defaming a "body of persons definite and small enough for individual members to be recognized as such, in or by
means of anything capable of being a libel." (Digest of Criminal Law, art. 267.) But in the United States, while it may be proper to
prosecute criminally the author of a libel charging a legislator with corruption, criticisms, no matter how severe, on a legislature, are
within the range of the liberty of the press, unless the intention and effect be seditious. (3 Wharton's Criminal Law, p. 2131.) With these
facts and legal principles in mind, recall that article 256 begins: Any person who, by . . . writing, shall defame, abuse, or insult any
Minister of the Crown or other person in authority," etc.
The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of statutory construction is, that where
the later statute clearly covers the old subject-matter of antecedent acts, and it plainly appears to have been the purpose of the
legislature to give expression in it to the whole law on the subject, previous laws are held to be repealed by necessary implication. (1
Lewis' Sutherland Statutory Construction, p. 465.) For identical reasons, it is evident that Act No. 277 had the effect so much of this
article as punishes defamation, abuse, or insults by writing.
Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article 256, but as to this point, it is
not necessary to make a pronouncement.

2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article 256 of the Spanish Penal Code.
Appellant's main proposition in the lower court and again energetically pressed in the appellate court was that article 256 of the
Spanish Penal Code is not now in force because abrogated by the change from Spanish to American sovereignty over the Philippines
and because inconsistent with democratic principles of government. This view was indirectly favored by the trial judge, and, as before
stated, is the opinion of three members of this court.
Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of Book II punishes the crimes of treason,
crimes that endanger the peace or independence of the state, crimes against international law, and the crime of piracy. Title II of the
same book punishes the crimes of lese majeste, crimes against the Cortes and its members and against the council of ministers,
crimes against the form of government, and crimes committed on the occasion of the exercise of rights guaranteed by the fundamental
laws of the state, including crime against religion and worship. Title III of the same Book, in which article 256 is found, punishes the
crimes of rebellion, sedition, assaults upon persons in authority, and their agents, and contempts, insults, injurias, and threats against
persons in authority, and insults, injurias, and threats against their agents and other public officers, the last being the title to Chapter V.
The first two articles in Chapter V define and punish the offense of contempt committed by any one who shall be word or deed defame,
abuse, insult, or threathen a minister of the crown, or any person in authority. The with an article condemning challenges to fight duels
intervening, comes article 256, now being weighed in the balance. It reads as follows: "Any person who, by word, deed, or writing, shall
defame, abuse, or insult any Minister of the Crown or other person in authority, while engaged in the performance of official duties, or
by reason of such performance, provided that the offensive minister or person, or the offensive writing be not addressed to him, shall
suffer the penalty of arresto mayor," that is, the defamation, abuse, or insult of any Minister of the Crown of the Monarchy of Spain
(for there could not be a Minister of the Crown in the United States of America), or other person in authority in the Monarchy of Spain.
It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such subjects as treason, lese majeste,
religion and worship, rebellion, sedition, and contempts of ministers of the crown, are not longer in force. Our present task, therefore, is
a determination of whether article 256 has met the same fate, or, more specifically stated, whether it is in the nature of a municipal law
or political law, and is consistent with the Constitution and laws of the United States and the characteristics and institutions of the
American Government.
It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally
abrogated. "Political" is here used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign.
(American Insurance Co. vs. Canter [1828], 1 Pet., 511; Chicago, Rock Island and Pacific Railway Co. vs. McGlinn [1885], 114 U.S.,
542; Roa vs. Collector of Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United States Supreme Court stated the obvious when
in the course of his opinion in the case of Chicago, Rock Island and Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of
course, all laws, ordinances and regulations in conflict with the political character, institutions and Constitution of the new government
are at once displaced. Thus, upon a cession of political jurisdiction and legislative power and the latter is involved in the former to
the United States, the laws of the country in support of an established religion or abridging the freedom of the press, or authorizing
cruel and unusual punishments, and he like, would at once cease to be of obligatory force without any declaration to that effect." To
quote again from the United States Supreme Court: "It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to
the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to
exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the Constitution and laws of its own
government, and not according to those of the government ceding it." (Pollard vs. Hagan [1845], 3 Hos., 210.)
On American occupation of the Philippines, by instructions of the President to the Military Commander dated May 28, 1898, and by
proclamation of the latter, the municipal laws of the conquered territory affecting private rights of person and property and providing for
the punishment of crime were nominally continued in force in so far as they were compatible with the new order of things. But President
McKinley, in his instructions to General Merritt, was careful to say: "The first effect of the military occupation of the enemy's territory is
the severance of the former political relation of the inhabitants and the establishment of a new political power." From that day to this,
the ordinarily it has been taken for granted that the provisions under consideration were still effective. To paraphrase the language of
the United States Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there was not and could not be, except as

precise questions were presented, a careful consideration of the codal provisions and a determination of the extent to which they
accorded with or were repugnant to the "'great principles of liberty and law' which had been 'made the basis of our governmental
system.' " But when the question has been squarely raised, the appellate court has been forced on occasion to hold certain portions of
the Spanish codes repugnant t democratic institutions and American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil., 18; U.S.
vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533; Weems vs. U.S., supra.)
The nature of the government which has been set up in the Philippines under American sovereignty was outlined by President
McKinley in that Magna Charta of Philippine liberty, his instructions to the Commission, of April 7, 1900. In part, the President said:
In all the forms of government and administrative provisions which they are authorized to prescribe, the Commission should bear in
mind that he government which they are establishing is designed not for our satisfaction or for the expression of our theoretical views,
but for the happiness, peace, and prosperity of the people of the Philippine Islands, and the measures adopted should be made to
conform to their customs, their habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the
indispensable requisites of just and effective government. At the same time the Commission should bear in mind, and the people of the
Islands should be made plainly to understand, that there are certain great principles of government which have been made the basis of
our governmental system, which we deem essential to the rule of law and the maintenance of individual freedom, and of which they
have, unfortunately, been denied the experience possessed by us; that there are also certain practical rules of government which we
have found to be essential to the preservation of these great principles of liberty and law, and that these principles and these rules of
government must be established and maintained in their islands for the sake of their liberty and happiness, however much they may
conflict with the customs or laws of procedure with which they are familiar. It is evident that the most enligthened thought of the
Philippine Islands fully appreciates the importance of these principles and rules, and they will inevitably within a short time command
universal assent.
The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme Court, in the case of United States vs. Bull
([1910], 15 Phil., 7), said: "The President and Congress framed the government on the model with which American are familiar, and
which has proven best adapted for the advancement of the public interests and the protection of individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear the statement made that the happiness, peace, and prosperity of the people
of the Philippine Islands and their customs, habits, and prejudices, to follow the language of President McKinley, demand obeisance to
authority, and royal protection for that authority.
According to our view, article 256 of the Spanish Penal Code was enacted by the Government of Spain to protect Spanish officials who
were the representatives of the King. With the change of sovereignty, a new government, and a new theory of government, as set up in
the Philippines. It was in no sense a continuation of the old, although merely for convenience certain of the existing institutions and
laws were continued. The demands which the new government made, and makes, on the individual citizen are likewise different. No
longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with
bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every
other man. We have no rank or station, except that of respectability and intelligence as opposed to indecency and ignorance, and the
door to this rank stands open to every man to freely enter and abide therein, if he is qualified, and whether he is qualified or not
depends upon the life and character and attainments and conduct of each person for himself. Every man may lawfully do what he will,
so long as it is not malum in se or malum prohibitum or does not infringe upon the qually sacred rights of others." (State vs. Shepherd
[1903], 177 Mo., 205; 99 A. S. R., 624.)
It is true that in England, from which so many of the laws and institutions of the United States are derived, there were once statutes of
scandalum magnatum, under which words which would not be actionable if spoken of an ordinary subject were made actionable if
spoken of a peer of the realm or of any of the great officers of the Crown, without proof of any special damage. The Crown of England,
unfortunately, took a view less tolerant that that of other sovereigns, as for instance, the Emperors Augustus, Caesar, and Tiberius.
These English statutes have, however, long since, become obsolete, while in the United States, the offense of scandalum magnatum is
not known. In the early days of the American Republic, a sedition law was enacted, making it an offense to libel the Government, the
Congress, or the President of the United States, but the law met with so much popular disapproval, that it was soon repealed. "In this

country no distinction as to persons is recognized, and in practice a person holding a high office is regarded as a target at whom any
person may let fly his poisonous words. High official position, instead of affording immunity from slanderous and libelous charges,
seems rather to be regarded as making his character free plunder for any one who desires to create a senation by attacking it."
(Newell, Slander and Libel, 3d ed., p. 245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)
Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American character and system of
government. The gulf which separates this article from the spirit which inspires all penal legislation of American origin, is as wide as that
which separates a monarchy from a democratic Republic like that of the United States. This article was crowded out by implication as
soon as the United States established its authority in the Philippine Islands. Penalties out of all proportion to the gravity of the offense,
grounded in a distorted monarchical conception of the nature of political authority, as opposed to the American conception of the
protection of the interests of the public, have been obliterated by the present system of government in the Islands. 1awph!l.net
From an entirely different point of view, it must be noted that this article punishes contempts against executive officials, although its
terms are broad enough to cover the entire official class. Punishment for contempt of non-judicial officers has no place in a government
based upon American principles. Our official class is not, as in monarchies, an agent of some authority greater than the people but it is
an agent and servant of the people themselves. These officials are only entitled to respect and obedience when they are acting within
the scope of their authority and jurisdiction. The American system of government is calculated to enforce respect and obedience where
such respect and obedience is due, but never does it place around the individual who happens to occupy an official position by
mandate of the people any official halo, which calls for drastic punishment for contemptuous remarks.
The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris. Ministers of the Crown have no
place under the American flag.
To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that the judgment should
be reversed and the defendant and appellant acquitted, with costs de officio. So ordered.
Ostrand and Johns, JJ., concur.
Separate Opinions
ARAULLO, C.J., concurring:
I concur with the dispositive part of the foregoing decision, that is, with the acquittal of the accused, for the sole reason that the facts
alleged in the information do not constitute a violation of article 256 of the Penal Code; for although that article is in force with respect
to calumny, injuria, or insult, by deed or word, against an authority in the performance of his duties or by reason thereof, outside of his
presence, it is repealed by the Libel Law in so far as it refers to calumny, injuria, or insult committed against an authority by writing or
printing, as was that inserted in the said information.
ROMUALDEZ, J., concurring:
I concur with the result. I believe that the responsibility of the accused has not been shown either under article 256 of the Penal Code
or under the Libel Law.
I am of the opinion that article 256 of the Penal Code is still in force, except as it refers to "Ministers of the Crown," whom we do not
have in our Government, and to calumny, injuria, or insult, by writing or printing, committed against an authority in the performance of
his duties or by reason thereof, which portion was repealed by the Libel Law.
Johnson, Street, Avancea and Villamor, JJ., concur.
CASE DIGEST
G.R. No. L-18463, October 4, 1922

"The important question is here squarely presented of whether article 256 of the Spanish Penal Code, punishing "Any person who,
by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority . . .," is still in force."
public law: It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are
totally abrogated -- "political" being used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign.
FACTS:
This is a case relating to the loss of some documents which constituted the records of testimony given by witnesses in the Senate
investigation of oil companies. The newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article about it to the effect
that "the author or authors of the robbery of the records from the iron safe of the Senate have, perhaps, but followed the example of
certain Senators who secured their election through fraud and robbery."
Consequently, the Attorney-General, through a resolution adopted by the Philippine Senate, filed an information alleging that the
editorial constituted a violation of article 256 of the Penal Code.
The defendant Gregorio Perfecto was found guilty in the municipal court and again in the Court of First Instance of Manila.
ISSUEs:
Whether or not article 256 of the Spanish Penal Code was abrogated with the change from Spanish to American sovereignty
Whether or not Perfecto is guilty of libel
HELD:
It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally
abrogated -- "political" being used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign.
On American occupation of the Philippines, by instructions of the President to the Military Commander, and by proclamation of the
latter, the municipal laws of the conquered territory affecting private rights of person and property and providing for the punishment of
crime (e.g. the Spanish Penal Code) were nominally continued in force in so far as they were compatible with the new order of things.
Article 256 was enacted by the Government of Spain to protect Spanish officials who were the representatives of the King. But with the
change of sovereignty, a new government, and a new theory of government, was set up in the Philippines. No longer is there a Minister
of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. Said article is
contrary to the genius and fundamental principles of the American character and system of
government. It was crowded out by implication as soon as the United States established its authority in the Philippine Islands.
"From an entirely different point of view, it must be noted that this article punishes contempts against executive officials, although its
terms are broad enough to cover the entire official class. Punishment for contempt of non-judicial officers has no place in a government
based upon American principles. Our official class is not, as in monarchies, an agent of some authority greater than the people but it is
an agent and servant of the people themselves. These officials are only entitled to respect and obedience when they are acting within
the scope of their authority and jurisdiction. The American system of government is calculated to enforce respect and obedience where
such respect and obedience is due, but never does it place around the individual who happens to occupy an official position by
mandate of the people any official halo, which calls for drastic punishment for contemptuous remarks."
DECISION:
To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that the judgment should
be reversed

and the defendant and appellant acquitted, with costs de officio. So ordered.

MACARIOLA VS ASUNCION
EN BANC
A.M. No. 133-J May 31, 1982
BERNARDITA
R.
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

MACARIOLA, complainant,

MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B. Asuncion of the Court of First
Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts unbecoming a judge."
The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia Muoz Palma of the Court of
Appeals now retired Associate Justice of the Supreme Court, to whom this case was referred on October 28, 1968 for investigation,
thus:
Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by Sinforosa R. Bales,
Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita
R. Macariola, defendant, concerning the properties left by the deceased Francisco Reyes, the common father of the
plaintiff and defendant.
In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that; a) plaintiff Sinforosa R.
Bales was not a daughter of the deceased Francisco Reyes; b) the only legal heirs of the deceased were defendant
Macariola, she being the only offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the
remaining plaintiffs who were the children of the deceased by his second marriage with Irene Ondez; c) the
properties left by the deceased were all the conjugal properties of the latter and his first wife, Felisa Espiras, and no
properties were acquired by the deceased during his second marriage; d) if there was any partition to be made, those
conjugal properties should first be partitioned into two parts, and one part is to be adjudicated solely to defendant it
being the share of the latter's deceased mother, Felisa Espiras, and the other half which is the share of the deceased
Francisco Reyes was to be divided equally among his children by his two marriages.
On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, the dispositive portion
of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of
evidence, finds and so holds, and hereby renders judgment (1) Declaring the plaintiffs Luz R.
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes as the only children
legitimated by the subsequent marriage of Francisco Reyes Diaz to Irene Ondez; (2) Declaring the
plaintiff Sinforosa R. Bales to have been an illegitimate child of Francisco Reyes Diaz; (3) Declaring
Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to the
conjugal partnership of the spouses Francisco Reyes Diaz and Felisa Espiras; (4) Declaring Lot
No. 2304 and 1/4 of Lot No. 3416 as belonging to the spouses Francisco Reyes Diaz and Irene
Ondez in common partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging exclusively to
the deceased Francisco Reyes Diaz; (6) Declaring the defendant Bernardita R. Macariola, being
the only legal and forced heir of her mother Felisa Espiras, as the exclusive owner of one-half of
each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the remaining one-half (1/2) of
each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth
(1/4) of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz; (7) Declaring Irene
Ondez to be the exclusive owner of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth
(1/4) of Lot No. 3416; the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of
one-fourth (1/4) of Lot No. 3416 as belonging to the estate of Francisco Reyes Diaz; (8) Directing
the division or partition of the estate of Francisco Reyes Diaz in such a manner as to give or grant
to Irene Ondez, as surviving widow of Francisco Reyes Diaz, a hereditary share of. one-twelfth
(1/12) of the whole estate of Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil
Code), and the remaining portion of the estate to be divided among the plaintiffs Sinforosa R.
Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and
defendant Bernardita R. Macariola, in such a way that the extent of the total share of plaintiff
Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of two-fifth (2/5) of the

total share of any or each of the other plaintiffs and the defendant (Art. 983, New Civil Code), each
of the latter to receive equal shares from the hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528;
Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days after
this judgment shall have become final to submit to this court, for approval a project of partition of
the hereditary estate in the proportion above indicated, and in such manner as the parties may, by
agreement, deemed convenient and equitable to them taking into consideration the location, kind,
quality, nature and value of the properties involved; (10) Directing the plaintiff Sinforosa R. Bales
and defendant Bernardita R. Macariola to pay the costs of this suit, in the proportion of one-third
(1/3) by the first named and two-thirds (2/3) by the second named; and (I 1) Dismissing all other
claims of the parties [pp 27-29 of Exh. ].
The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a project of partition was
submitted to Judge Asuncion which is marked Exh. A. Notwithstanding the fact that the project of partition was not
signed by the parties themselves but only by the respective counsel of plaintiffs and defendant, Judge Asuncion
approved it in his Order dated October 23, 1963, which for convenience is quoted hereunder in full:
The parties, through their respective counsels, presented to this Court for approval the following
project of partition:
COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Court
respectfully submit the following Project of Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita Reyes
Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lot
shall be awarded likewise to Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lot
shall likewise be awarded to Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions awarded under
item (2) and (4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto
Reyes, Adela Reyes and Priscilla Reyes in equal shares, provided, however that the remaining
portion of Lot No. 3416 shall belong exclusively to Priscilla Reyes.
WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made
in accordance with the decision of the Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City
(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City
While the Court thought it more desirable for all the parties to have signed this Project of Partition,
nevertheless, upon assurance of both counsels of the respective parties to this Court that the
Project of Partition, as above- quoted, had been made after a conference and agreement of the
plaintiffs and the defendant approving the above Project of Partition, and that both lawyers had
represented to the Court that they are given full authority to sign by themselves the Project of
Partition, the Court, therefore, finding the above-quoted Project of Partition to be in accordance
with law, hereby approves the same. The parties, therefore, are directed to execute such papers,
documents or instrument sufficient in form and substance for the vesting of the rights, interests and
participations which were adjudicated to the respective parties, as outlined in the Project of
Partition and the delivery of the respective properties adjudicated to each one in view of said
Project of Partition, and to perform such other acts as are legal and necessary to effectuate the
said Project of Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of giving authority
to the Register of Deeds of the Province of Leyte to issue the corresponding transfer certificates of title to the
respective adjudicatees in conformity with the project of partition (see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof with an area of
15,162.5 sq. meters. This lot, which according to the decision was the exclusive property of the deceased Francisco
Reyes, was adjudicated in said project of partition to the plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla all
surnamed Reyes in equal shares, and when the project of partition was approved by the trial court the adjudicatees
caused Lot 1184 to be subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs. F, F-1 and V-1),
while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon
(Exh. 2) who was issued transfer certificate of title No. 2338 of the Register of Deeds of the city of Tacloban (Exh.
12).
On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of around 1,306 sq.
meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which particular portion was declared by the
latter for taxation purposes (Exh. F).
On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and interest in Lot
1184-E to "The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the
stockholders of the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge
Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs. Asuncion as the
secretary (Exhs. E-4 to E-7). The Articles of Incorporation of "The Traders Manufacturing and Fishing Industries, Inc."
which we shall henceforth refer to as "TRADERS" were registered with the Securities and Exchange Commission
only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968 alleging four causes of action,
to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion
of Lot No. 1184-E which was one of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article
14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself
with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of
First Instance of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum by closely
fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney when in truth and
in fact his name does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable
defiance of the law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on October 16, 1968 by herein
complainant. In Our resolution of October 28, 1968, We referred this case to then Justice Cecilia Muoz Palma of the Court of Appeals,
for investigation, report and recommendation. After hearing, the said Investigating Justice submitted her report dated May 27, 1971
recommending that respondent Judge should be reprimanded or warned in connection with the first cause of action alleged in the
complaint, and for the second cause of action, respondent should be warned in case of a finding that he is prohibited under the law to
engage in business. On the third and fourth causes of action, Justice Palma recommended that respondent Judge be exonerated.
The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein instituted an action before the
Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants," which was
docketed as Civil Case No. 4235, seeking the annulment of the project of partition made pursuant to the decision in Civil Case No.
3010 and the two orders issued by respondent Judge approving the same, as well as the partition of the estate and the subsequent
conveyances with damages. It appears, however, that some defendants were dropped from the civil case. For one, the case against Dr.
Arcadio Galapon was dismissed because he was no longer a real party in interest when Civil Case No. 4234 was filed, having already
conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder was sold to the Traders
Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria Asuncion was dismissed on the ground that
she was no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by
her and respondent Judge from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing
industries, Inc. Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders
Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador
Anota and Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her
counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was directed and authorized on June
2, 1969 by the then Secretary (now Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear and decide
Civil Case No. 4234, rendered a decision, the dispositive portion of which reads as follows:
A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION
(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take cognizance of the
issue of the legality and validity of the Project of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"]
approving the partition;

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

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion,
(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages;
(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary damages;
(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and
(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.
B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR
THE HEIRS OF THE DECEASED GERARDO VILLASIN
(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the deceased Gerardo Villasin;
(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo Villasin the cost of the suit.
C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE
PLAINTIFFS IN CIVIL CASE NO. 3010
(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz R.
Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.
D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO
(1) Dismissing the complaint against Bonifacio Ramo;
(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals upon perfection of the appeal on
February 22, 1971.
I
WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first cause of action, that respondent
Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E
which was one of those properties involved in Civil Case No. 3010. 'That Article provides:
Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either in person or
through the mediation of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees
connected with the administration of justice, the property and rights in litigation or levied upon an execution before
the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act
of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the
object of any litigation in which they may take part by virtue of their profession [emphasis supplied].
The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject of litigation to the
persons disqualified therein. WE have already ruled that "... for the prohibition to operate, the sale or assignment of the property must
take place during the pendency of the litigation involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519
[1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the decision in Civil Case No.
3010 which he rendered on June 8, 1963 was already final because none of the parties therein filed an appeal within the reglementary
period; hence, the lot in question was no longer subject of the litigation. Moreover, at the time of the sale on March 6, 1965,
respondent's order dated October 23, 1963 and the amended order dated November 11, 1963 approving the October 16, 1963 project
of partition made pursuant to the June 8, 1963 decision, had long become final for there was no appeal from said orders.
Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiffs in Civil Case No. 3010 but
from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela
Reyes, and Luz R. Bakunawa after the finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more
specifically one-half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and
Anacorita Reyes in the project of partition, and the same was subdivided into five lots denominated as Lot 1184-A to 1184-E. As
aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of Deeds of
Tacloban City, and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared the same for taxation
purposes only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their respective shares and
interest in said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the president and his
wife was the secretary, took place long after the finality of the decision in Civil Case No. 3010 and of the subsequent two aforesaid
orders therein approving the project of partition.
While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the Court of First Instance of Leyte
docketed as Civil Case No. 4234, seeking to annul the project of partition and the two orders approving the same, as well as the
partition of the estate and the subsequent conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after
the finality of the decision which he rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated October 23,
1963 and November 11, 1963. Therefore, the property was no longer subject of litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or affect the aforesaid facts
that the questioned sale to respondent Judge, now Court of Appeals Justice, was effected and consummated long after the finality of
the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year after the finality of the decision
in Civil Case No. 3010 as well as the two orders approving the project of partition, and not during the pendency of the litigation, there
was no violation of paragraph 5, Article 1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela
Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and unethical transfer of said lot to respondent Judge as a
consideration for the approval of the project of partition. In this connection, We agree with the findings of the Investigating Justice thus:
And so we are now confronted with this all-important question whether or not the acquisition by respondent of a
portion of Lot 1184-E and the subsequent transfer of the whole lot to "TRADERS" of which respondent was the
President and his wife the Secretary, was intimately related to the Order of respondent approving the project of
partition, Exh. A.
Respondent vehemently denies any interest or participation in the transactions between the Reyeses and the
Galapons concerning Lot 1184-E, and he insists that there is no evidence whatsoever to show that Dr. Galapon had
acted, in the purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of Respondent's Memorandum).
xxx xxx xxx
On this point, I agree with respondent that there is no evidence in the record showing that Dr. Arcadio Galapon acted
as a mere "dummy" of respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this
investigator as a respectable citizen, credible and sincere, and I believe him when he testified that he bought Lot
1184-E in good faith and for valuable consideration from the Reyeses without any intervention of, or previous
understanding with Judge Asuncion (pp. 391- 394, rec.).
On the contention of complainant herein that respondent Judge acted illegally in approving the project of partition although it was not
signed by the parties, We quote with approval the findings of the Investigating Justice, as follows:
1. I agree with complainant that respondent should have required the signature of the parties more particularly that of
Mrs. Macariola on the project of partition submitted to him for approval; however, whatever error was committed by
respondent in that respect was done in good faith as according to Judge Asuncion he was assured by Atty. Bonifacio
Ramo, the counsel of record of Mrs. Macariola, That he was authorized by his client to submit said project of
partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is true that such written authority if there was any,
was not presented by respondent in evidence, nor did Atty. Ramo appear to corroborate the statement of respondent,
his affidavit being the only one that was presented as respondent's Exh. 10, certain actuations of Mrs. Macariola lead
this investigator to believe that she knew the contents of the project of partition, Exh. A, and that she gave her
conformity thereto. I refer to the following documents:
1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral Survey in which the
deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate of title the Order dated November 11,
1963, (Exh. U) approving the project of partition was duly entered and registered on November 26, 1963 (Exh. 9-D);
2) Exh. 7 Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola onOctober 22, 1963,
conveying to Dr. Hector Decena the one-fourth share of the late Francisco Reyes-Diaz in Lot 1154. In this deed of
sale the vendee stated that she was the absolute owner of said one-fourth share, the same having been adjudicated
to her as her share in the estate of her father Francisco Reyes Diaz as per decision of the Court of First Instance of
Leyte under case No. 3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the back of OCT
19520 on December 3, 1963 (see Exh. 9-e).
In connection with the abovementioned documents it is to be noted that in the project of partition dated October 16,
1963, which was approved by respondent on October 23, 1963, followed by an amending Order on November 11,
1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which
complainant sold to Dr. Decena on October 22, 1963, several days after the preparation of the project of partition.
Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot 1154 by virtue of
the decision in Civil Case 3010 and not because of the project of partition, Exh. A. Such contention is absurd
because from the decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 belonged to the estate of
Francisco Reyes Diaz while the other half of said one-fourth was the share of complainant's mother, Felisa Espiras;
in other words, the decision did not adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see
Exhs. C-3 & C-4). Complainant became the owner of the entire one-fourth of Lot 1154 only by means of the project of
partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no other reason than that

she was wen aware of the distribution of the properties of her deceased father as per Exhs. A and B. It is also
significant at this point to state that Mrs. Macariola admitted during the cross-examination that she went to Tacloban
City in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can deduce
that she could not have been kept ignorant of the proceedings in civil case 3010 relative to the project of partition.
Complainant also assails the project of partition because according to her the properties adjudicated to her were
insignificant lots and the least valuable. Complainant, however, did not present any direct and positive evidence to
prove the alleged gross inequalities in the choice and distribution of the real properties when she could have easily
done so by presenting evidence on the area, location, kind, the assessed and market value of said properties.
Without such evidence there is nothing in the record to show that there were inequalities in the distribution of the
properties of complainant's father (pp. 386389, rec.).
Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code in acquiring by purchase a
portion of Lot 1184-E which was in litigation in his court, it was, however, improper for him to have acquired the same. He should be
reminded of Canon 3 of the Canons of Judicial Ethics which requires that: "A judge's official conduct should be free from the
appearance of impropriety, and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in his
everyday life, should be beyond reproach." And as aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the
part of respondent to have purchased or acquired a portion of a piece of property that was or had been in litigation in his court and
caused it to be transferred to a corporation of which he and his wife were ranking officers at the time of such transfer. One who
occupies an exalted position in the judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry in the
courts of justice, so that not only must he be truly honest and just, but his actuations must be such as not give cause for doubt and
mistrust in the uprightness of his administration of justice. In this particular case of respondent, he cannot deny that the transactions
over Lot 1184-E are damaging and render his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot
1184-E was no longer in litigation in his court and that he was purchasing it from a third person and not from the parties to the litigation,
he should nonetheless have refrained from buying it for himself and transferring it to a corporation in which he and his wife were
financially involved, to avoid possible suspicion that his acquisition was related in one way or another to his official actuations in civil
case 3010. The conduct of respondent gave cause for the litigants in civil case 3010, the lawyers practising in his court, and the public
in general to doubt the honesty and fairness of his actuations and the integrity of our courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant alleged that respondent Judge violated paragraphs 1 and 5, Article 14 of
the Code of Commerce when he associated himself with the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a
ranking officer, said corporation having been organized to engage in business. Said Article provides that:
Article 14 The following cannot engage in commerce, either in person or by proxy, nor can they hold any office or
have any direct, administrative, or financial intervention in commercial or industrial companies within the limits of the
districts, provinces, or towns in which they discharge their duties:
1. Justices of the Supreme Court, judges and officials of the department of public prosecution in active service. This
provision shall not be applicable to mayors, municipal judges, and municipal prosecuting attorneys nor to those who
by chance are temporarily discharging the functions of judge or prosecuting attorney.
xxx xxx xxx
5. Those who by virtue of laws or special provisions may not engage in commerce in a determinate territory.
It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce which is part of the
commercial laws of the Philippines, it, however, partakes of the nature of a political law as it regulates the relationship between the
government and certain public officers and employees, like justices and judges.
Political Law has been defined as that branch of public law which deals with the organization and operation of the governmental organs
of the State and define the relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It
may be recalled that political law embraces constitutional law, law of public corporations, administrative law including the law on public
officers and elections. Specifically, Article 14 of the Code of Commerce partakes more of the nature of an administrative law because it
regulates the conduct of certain public officers and employees with respect to engaging in business: hence, political in essence.
It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with some modifications made
by the "Commission de Codificacion de las Provincias de Ultramar," which was extended to the Philippines by the Royal Decree of
August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States and later on from the United States to the Republic of the Philippines,
Article 14 of this Code of Commerce must be deemed to have been abrogated because where there is change of sovereignty, the
political laws of the former sovereign, whether compatible or not with those of the new sovereign, are automatically abrogated, unless
they are expressly re-enacted by affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by one nation to another, either following a conquest or
otherwise, ... those laws which are political in their nature and pertain to the prerogatives of the former government
immediately cease upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).
While municipal laws of the newly acquired territory not in conflict with the, laws of the new sovereign continue in
force without the express assent or affirmative act of the conqueror, the political laws do not. (Halleck's Int. Law,
chap. 34, par. 14). However, such political laws of the prior sovereignty as are not in conflict with the constitution or
institutions of the new sovereign, may be continued in force if the conqueror shall so declare by affirmative act of the
commander-in-chief during the war, or by Congress in time of peace. (Ely's Administrator vs. United States, 171 U.S.
220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542,
7 L. Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants
with each other undergo any change. Their relations with their former sovereign are dissolved, and
new relations are created between them and the government which has acquired their territory. The
same act which transfers their country, transfers the allegiance of those who remain in it; and the
law which may be denominated political, is necessarily changed, although that which regulates the
intercourse and general conduct of individuals, remains in force, until altered by the newly- created
power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle of the public law that on
acquisition of territory the previous political relations of the ceded region are totally abrogated. "
There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of the Code of Commerce after
the change of sovereignty from Spain to the United States and then to the Republic of the Philippines. Consequently, Article 14 of the
Code of Commerce has no legal and binding effect and cannot apply to the respondent, then Judge of the Court of First Instance, now
Associate Justice of the Court of Appeals.
It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, which provides that:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be
unlawful:
xxx xxx xxx
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in which
he is prohibited by the Constitution or by any Iaw from having any interest.
Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing that respondent participated or
intervened in his official capacity in the business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at
bar, the business of the corporation in which respondent participated has obviously no relation or connection with his judicial office. The
business of said corporation is not that kind where respondent intervenes or takes part in his capacity as Judge of the Court of First
Instance. As was held in one case involving the application of Article 216 of the Revised Penal Code which has a similar prohibition on
public officers against directly or indirectly becoming interested in any contract or business in which it is his official duty to intervene,
"(I)t is not enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he has to intervene in said
contracts or transactions; and, hence, the official who intervenes in contracts or transactions which have no relation to his office cannot
commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p.
1174, Vol. 11 [1976]).
It does not appear also from the records that the aforesaid corporation gained any undue advantage in its business operations by
reason of respondent's financial involvement in it, or that the corporation benefited in one way or another in any case filed by or against
it in court. It is undisputed that there was no case filed in the different branches of the Court of First Instance of Leyte in which the
corporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus
Sinforosa O. Bales, et al.,"wherein the complainant herein sought to recover Lot 1184-E from the aforesaid corporation. It must be
noted, however, that Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge
Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having disposed of his interest therein on
January 31, 1967.
Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935 and 1973 Constitutions
of the Philippines, nor is there an existing law expressly prohibiting members of the Judiciary from engaging or having interest in any
lawful business.
It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does not contain any prohibition
to that effect. As a matter of fact, under Section 77 of said law, municipal judges may engage in teaching or other vocation not involving
the practice of law after office hours but with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as heretofore stated, deemed
abrogated automatically upon the transfer of sovereignty from Spain to America, because it is political in nature.
Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by judges of a property in litigation
before the court within whose jurisdiction they perform their duties, cannot apply to respondent Judge because the sale of the lot in
question to him took place after the finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of
partition; hence, the property was no longer subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act of 1959 prohibits an officer
or employee in the civil service from engaging in any private business, vocation, or profession or be connected with any commercial,
credit, agricultural or industrial undertaking without a written permission from the head of department, the same, however, may not fall
within the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last portion of said paragraph
speaks of a prohibition by the Constitution or law on any public officer from having any interest in any business and not by a mere
administrative rule or regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil service, that is, engaging
in private business without a written permission from the Department Head may not constitute graft and corrupt practice as defined by
law.
On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules, We hold that the
Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do
not apply to the members of the Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private business,
vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission
from the Head of Department ..."
It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by Republic Act No. 296, as
amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of the Philippines, not in the
Commissioner of Civil Service, and only on two grounds, namely, serious misconduct and inefficiency, and upon the recommendation of
the Supreme Court, which alone is authorized, upon its own motion, or upon information of the Secretary (now Minister) of Justice to
conduct the corresponding investigation. Clearly, the aforesaid section defines the grounds and prescribes the special procedure for the
discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline judges of inferior courts as
well as other personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of the existing Civil Service Law
and rules or of reasonable office regulations, or in the interest of the service, remove any subordinate officer or employee from the
service, demote him in rank, suspend him for not more than one year without pay or fine him in an amount not exceeding six months'
salary." Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers and employees.
However, judges cannot be considered as subordinate civil service officers or employees subject to the disciplinary authority of the
Commissioner of Civil Service; for, certainly, the Commissioner is not the head of the Judicial Department to which they belong. The
Revised Administrative Code (Section 89) and the Civil Service Law itself state that the Chief Justice is the department head of the
Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch of
the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for
disciplinary action against judges because to recognize the same as applicable to them, would be adding another ground for the
discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely, serious
misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who has original and exclusive
jurisdiction "(T)o decide, within one hundred twenty days, after submission to it, all administrative cases against permanent officers and
employees in the competitive service, and, except as provided by law, to have final authority to pass upon their removal, separation,
and suspension and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees; and prescribe
standards, guidelines and regulations governing the administration of discipline" (emphasis supplied). There is no question that a judge
belong to the non-competitive or unclassified service of the government as a Presidential appointee and is therefore not covered by the
aforesaid provision. WE have already ruled that "... in interpreting Section 16(i) of Republic Act No. 2260, we emphasized that only
permanent officers and employees who belong to the classified service come under the exclusive jurisdiction of the Commissioner of
Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).
Although the actuation of respondent Judge in engaging in private business by joining the Traders Manufacturing and Fishing
Industries, Inc. as a stockholder and a ranking officer, is not violative of the provissions of Article 14 of the Code of Commerce and
Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated
pursuant to the Civil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the Canons of
Judicial Ethics expressly declares that:
A judge should abstain from making personal investments in enterprises which are apt to be involved in litigation in
his court; and, after his accession to the bench, he should not retain such investments previously made, longer than

a period sufficient to enable him to dispose of them without serious loss. It is desirable that he should, so far as
reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that such relations
warp or bias his judgment, or prevent his impartial attitude of mind in the administration of his judicial duties. ...
WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January 31, 1967 from the aforesaid
corporation and sold their respective shares to third parties, and it appears also that the aforesaid corporation did not in anyway benefit
in any case filed by or against it in court as there was no case filed in the different branches of the Court of First Instance of Leyte from
the time of the drafting of the Articles of Incorporation of the corporation on March 12, 1966, up to its incorporation on January 9, 1967,
and the eventual withdrawal of respondent on January 31, 1967 from said corporation. Such disposal or sale by respondent and his
wife of their shares in the corporation only 22 days after the incorporation of the corporation, indicates that respondent realized that
early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife therefore deserve the
commendation for their immediate withdrawal from the firm after its incorporation and before it became involved in any court litigation
III
With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of coddling an impostor and acted
in disregard of judicial decorum, and that there was culpable defiance of the law and utter disregard for ethics. WE agree, however, with
the recommendation of the Investigating Justice that respondent Judge be exonerated because the aforesaid causes of action are
groundless, and WE quote the pertinent portion of her report which reads as follows:
The basis for complainant's third cause of action is the claim that respondent associated and closely fraternized with
Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney (see Exhs. I, I-1 and J)
when in truth and in fact said Dominador Arigpa Tan does not appear in the Roll of Attorneys and is not a member of
the Philippine Bar as certified to in Exh. K.
The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and claims that all the time he
believed that the latter was a bona fide member of the bar. I see no reason for disbelieving this assertion of
respondent. It has been shown by complainant that Dominador Arigpa Tan represented himself publicly as an
attorney-at-law to the extent of putting up a signboard with his name and the words "Attorney-at Law" (Exh. I and 11) to indicate his office, and it was but natural for respondent and any person for that matter to have accepted that
statement on its face value. "Now with respect to the allegation of complainant that respondent is guilty of fraternizing
with Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M
& M-1), that fact even if true did not render respondent guilty of violating any canon of judicial ethics as long as his
friendly relations with Dominador A. Tan and family did not influence his official actuations as a judge where said
persons were concerned. There is no tangible convincing proof that herein respondent gave any undue privileges in
his court to Dominador Arigpa Tan or that the latter benefitted in his practice of law from his personal relations with
respondent, or that he used his influence, if he had any, on the Judges of the other branches of the Court to favor
said Dominador Tan.
Of course it is highly desirable for a member of the judiciary to refrain as much as possible from maintaining close
friendly relations with practising attorneys and litigants in his court so as to avoid suspicion 'that his social or business
relations or friendship constitute an element in determining his judicial course" (par. 30, Canons of Judicial Ethics),
but if a Judge does have social relations, that in itself would not constitute a ground for disciplinary action unless it be
clearly shown that his social relations be clouded his official actuations with bias and partiality in favor of his friends
(pp. 403-405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not violate any law in acquiring by
purchase a parcel of land which was in litigation in his court and in engaging in business by joining a private corporation during his
incumbency as judge of the Court of First Instance of Leyte, he should be reminded to be more discreet in his private and business
activities, because his conduct as a member of the Judiciary must not only be characterized with propriety but must always be above
suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY REMINDED TO BE MORE
DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.
SO ORDERED.
Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ., concur.
Concepcion Jr., J., is on leave.
Fernando, C.J., Abad Santos and Esolin JJ., took no part.
Separate Opinions
AQUINO, J., concurring and dissenting:
I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.
Separate Opinions
AQUINO, J., concurring and dissenting:
I vote for respondent's unqualified exoneration.
BARREDO, J., concurring and dissenting:
I vote with Justice Aquino.

CASE DIGEST
Macariola v. Asuncion Case Digest
Macariola v. Asuncion, 114 SCRA 77, May 31, 1982
(En Banc), J. Makasiar

Facts: When the decision in Civil Case No. 3010 rendered by respondent Hon. Judge Elias B. Asuncion of Court of First Instance of
Leyte became final on June 8, 1863 for lack of an appeal, a project of partition was submitted to him which he later approved in an
Order dated October 23, 1963. Among the parties thereto was complainant Bernardita R. Macariola.
One of the properties mentioned in the project of partition was Lot 1184. This lot according to the decision rendered by Judge Asuncion
was adjudicated to the plaintiffs Reyes in equal shares subdividing Lot 1184 into five lots denominated as Lot 1184-A to 1184-E.
On July 31, 1964 Lot 1184-E was sold to Dr. Arcadio Galapon who later sold a portion of Lot 1184-E to Judge Asuncion and his wife
Victoria Asuncion. Thereafter spouses Asuncion and spouses Galapon conveyed their respective shares and interests in Lot 1184-E to
the Traders Manufacturing and Fishing Industries Inc. wherein Judge Asuncion was the president.
Macariola then filed an instant complaint on August 9, 1968 docketed as Civil Case No. 4234 in the CFI of Leyte against Judge
Asuncion with "acts unbecoming a judge" alleging that Judge Asuncion in acquiring by purchase a portion of Lot 1184-E violated Article
1491 par. 5 of the New Civil Code, Art. 14, pars. 1 and 5 of the Code of Commerce, Sec. 3 par. H of R.A. 3019, Sec. 12 Rule XVIII of
the Civil Service Rules and Canon 25 of the Canons of Judicial Ethics.
On November 2, 1970, Judge Jose Nepomuceno of the CFI of Leyte rendered a decision dismissing the complaints against Judge
Asuncion.
After the investigation, report and recommendation conducted by Justice Cecilia Munoz Palma of the Court of Appeals, she
recommended on her decision dated March 27, 1971 that Judge Asuncion be exonerated.
Issue: Does Judge Asuncion, now Associate Justice of Court of Appeals violated any law in acquiring by purchase a parcel of Lot 1184E which he previously decided in a Civil Case No. 3010 and his engagement in business by joining a private corporation during his
incumbency as a judge of the CFI of Leyte constitute an "act unbecoming of a judge"?
Ruling: No. The respondent Judge Asuncion's actuation does not constitute of an "act unbecoming of a judge." But he is reminded to
be more discreet in his private and business activities.
SC ruled that the prohibition in Article 1491 par. 5 of the New Civil Code applies only to operate, the sale or assignment of the property
during the pendency of the litigation involving the property. Respondent judge purchased a portion of Lot 1184-E on March 6, 1965, the
in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the parties therein filed an appeal within
the reglementary period. Hence, the lot in question was no longer subject to litigation. Furthermore, Judge Asuncion did not buy the lot
in question directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased Lot1184-E from the
plaintiffs Reyes after the finality of the decision in Civil Case No. 3010.

SC stated that upon the transfer of sovereignty from Spain to the US and later on from the US to the Republic of the Philippines, Article
14 of Code of Commerce must be deemed to have been abrogated because where there is change of sovereignty, the political laws of
the former sovereign, whether compatible or not with those of the new sovereign, are automatically abrogated, unless they are
expressly re-enacted by affirmative act of the new sovereign. There appears no enabling or affirmative act that continued the effectivity
of the aforestated provision of the Code of Commerce, consequently, Art. 14 of the Code of Commerce has no legal and binding effect
and cannot apply to the respondent Judge Asuncion.
Respondent Judge cannot also be held liable to par. H, Section 3 of R.A. 3019 because the business of the corporation in which
respondent participated had obviously no relation or connection with his judicial office.
SC stated that respondent judge and his wife deserve the commendation for their immediate withdrawal from the firm 22 days after its
incorporation realizing that their interest contravenes the Canon 25 of the Canons of Judicial Ethics.

JAVELLANA vs EXECUTIVE SEC

Case Digest
The Facts:
Sequence of events that lead to the filing of the Plebiscite then Ratification Cases.
The Plebiscite Case
On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body,
adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines.
Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the
provisions of which the election of delegates to the said Convention was held on November 10, 1970, and the 1971 Constitutional
Convention began to perform its functions on June 1, 1971.

While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law.
On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November
30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds
therefor," as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973.
On December 7, 1972, Charito Planas filed a case against the Commission on Elections, the Treasurer of the Philippines and the
Auditor General, to enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further
orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no force and effect as law because the calling ... of
such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be
answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in
Congress ...," and "there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no
freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof."
On December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the
purpose of free and open debate on the Proposed Constitution.
On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the
plebiscite scheduled to be held on January 15, 1978, be postponed until further notice." Said General Order No. 20, moreover,
"suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for
purposes of free and open debate on the proposed Constitution."
Because of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time
being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were
known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on
January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative
authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President reportedly after consultation with, among others, the leaders of Congress and the
Commission on Elections the Court deemed it more imperative to defer its final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion," praying that said case be
decided "as soon as possible, preferably not later than January 15, 1973."
The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents in said three (3) cases
to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto, or on January
15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 riled a "supplemental motion for issuance of restraining
order and inclusion of additional respondents," praying:
"... that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the Department of
Local Governments and its head, Secretary Jose Roo; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella;
the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes,
and all other officials and persons who may be assigned such task, from collecting, certifying, and announcing and reporting to the
President or other officials concerned, the so-called Citizens' Assemblies referendum results allegedly obtained when they were
supposed to have met during the period comprised between January 10 and January 15, 1973, on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion."
On the same date January 15, 1973 the Court passed a resolution requiring the respondents in said case G.R. No. L-35948 to file "file
an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing "on January 17,
1973, at 9:30 a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the
writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a
copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and
announced to the Court, the parties in G.R. No. L-35948 inasmuch as the hearing in connection therewith was still going on and the
public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation
No. 1102, earlier that morning.

Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:
____________________________
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the
Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at
least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members
kept by the barrio, district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic
process and to afford ample opportunity for the citizenry to express their views on important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the
following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still
want a plebiscite to be called to ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen
(14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be
considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS"President of the Philippines
"By the President:
"ALEJANDRO MELCHOR"Executive Secretary"
_________________________________
The Ratification Case
On January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents from implementing any of the provisions
of the propose Constitution not found in the present Constitution" referring to that of 1935. The petition therein, filed by Josue
Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a class suit, for himself, and in behalf of all citizens and
voters similarly situated," was amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in
the plebiscite cases, Javellana alleged that the President had announced "the immediate implementation of the New Constitution, thru
his Cabinet, respondents including," and that the latter "are acting without, or in excess of jurisdiction in implementing the said
proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is without
authority to create the Citizens Assemblies"; that the same "are without power to approve the proposed Constitution ..."; "that the
President is without power to proclaim the ratification by the Filipino people of the proposed Constitution"; and "that the election held to
ratify the proposed Constitution was not a free election, hence null and void."
The Issue:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance)
conformably to the applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people? (acquiesced "permission" given by silence or passiveness. Acceptance or agreement by keeping quiet or by not making objections.)
4. Are petitioners entitled to relief?
5. Is the aforementioned proposed Constitution in force?
The Resolution:
Summary:
The court was severely divided on the following issues raised in the petition: but when the crucial question of whether the petitioners
are entitled to relief, six members of the court (Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra) voted to dismiss
the petition. Concepcion, together Justices Zaldivar, Fernando and Teehankee, voted to grant the relief being sought, thus upholding
the 1973 Constitution.
Details:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?
On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six
(6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question.
Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second question.
Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has been approval by the people, the Court may inquire
into the question of whether or not there has actually been such an approval, and, in the affirmative, the Court should keep hands-off
out of respect to the people's will, but, in negative, the Court may determine from both factual and legal angles whether or not Article
XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court hold that the
issue is political and "beyond the ambit of judicial inquiry."
2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance)
conformably to the applicable constitutional and statutory provisions?
On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6)
members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified in
accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an election or
plebiscite held in accordance with law and participated in only by qualified and duly registered voters.
Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly ratified pursuant to Article
XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article, the referendum in the
Citizens' Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls short of the requirements
thereof. In view, however, of the fact that I have no means of refusing to recognize as a judge that factually there was voting and that
the majority of the votes were for considering as approved the 1973 Constitution without the necessity of the usual form of plebiscite
followed in past ratifications, I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be
deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be
said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the
1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has been in effect
substantial compliance with the constitutional requirements for valid ratification.
3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?
On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been
reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have already accepted the
1973 Constitution."

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and there has even been
no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution
under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions to the effect that
independently of the validity of the ratification, a new Constitution once accepted acquiesced in by the people must be accorded
recognition by the Court, I am not at this stage prepared to state that such doctrine calls for application in view of the shortness of time
that has elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the freedom of debate that is a
concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices Makalintal and
Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free expression of opinions
through the usual media vehicle restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have
accepted the Constitution."
4. Are petitioners entitled to relief?
On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of their view that "(T)he effectivity of
the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases to resolve which considerations
other than judicial, an therefore beyond the competence of this Court, 90 are relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents' motion to
dismiss and to give due course to the petitions.
5. Is the aforementioned proposed Constitution in force?
On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of the
people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise
stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not
accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by the 1971 Constitutional
Convention is not in force; with the result that there are not enough votes to declare that the new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with
the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are
hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in
force and effect.
It is so ordered.

DE LEON VS ESGUERRA
EN BANC
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE
M.
RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C. DE LEON, in his
capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z.
LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from their respective
positions as Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and the other petitioners
Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of
Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but signed by respondent
OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay
Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating respondents
Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay
Council of the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent portions of which
read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;

That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among others,
have signed as I did sign the unnumbered memorandum ordering the replacement of all the barangay officials of all
the barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986 was signed by me personally on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that respondents be
prohibited from taking over their positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners maintain that
pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall
commence on June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up to June 7,
1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC Governor no longer has the authority to
replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986, which
provided:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office
until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification
of their successors, if such appointment is made within a period of one year from February 25,1986.
By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials were abolished
and that petitioners continued in office by virtue of the aforequoted provision and not because their term of six years had not yet
expired; and that the provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be
deemed to have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as elective officials under the 1973 Constitution, may
continue in office but should vacate their positions upon the occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order terminating the term of
elective Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to replace petitioners was
validly made during the one-year period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered as the effective
date of replacement and not December 1,1986 to which it was ante dated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional Constitution
must be deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be
deemed to have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III,
thereof to designate respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election Act of 1982 declares
it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure their fullest development as self-reliant
communities. 2 Similarly, the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which the
barangays form a part, 3 and limits the President's power to "general supervision" over local governments. 4 Relevantly, Section 8,
Article X of the same 1987 Constitution further provides in part:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall
be three years ...
Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years provided for in the
Barangay Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective Barangay officials and
the 1987 Constitution, and the same should, therefore, be considered as still operative, pursuant to Section 3, Article XVIII of the 1987
Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other executive
issuances not inconsistent, with this Constitution shall remain operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating respondents as the
Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force
and effect; and (2) the Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over of
petitioners' positions subject of this Petition. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the
plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed per
Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of
the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the
purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been
ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional
Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will
be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the
clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none
against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting
by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical
confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date
of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as
indicated in Section 12, unless there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND
THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional
sentence, the committee would suggest that we take up first his amendment to the first sentence as originally
formulated. We are now ready to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be:
After the word "constitutions," add the words" AND THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we cannot accept the second
proposed amendment after the word "constitutions" because the committee feels that when we talk of all previous
Constitutions, necessarily it includes "AND THEIR AMENDMENTS."

MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be
allowed to read the second amendment so the Commission would be able to appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS
FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS
OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second
proposed amendment in the form of a new sentence would not be exactly necessary and the committee feels that it
would be too much for us to impose a time frame on the President to make the proclamation. As we would recall,
Madam President, in the approved Article on the Executive, there is a provision which says that the President shall
make certain that all laws shall be faithfully complied. When we approve this first sentence, and it says that there will
be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the
law in accordance with the provisions in the Article on the Executive which we have cited. It would be too much to
impose on the President a time frame within which she will make that declaration. It would be assumed that the
President would immediately do that after the results shall have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing,
Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of
the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity
of the new Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should
commence on the date of the ratification, not on the date of the proclamation of the President. What is confusing, I
think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the
amendments of 1976 were effective upon the proclamation of the President was that the draft presented to the
people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion
that was put in there precisely to give the President some kind of leeway on whether to announce the ratification or
not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of
the act of the people to be done under the supervision of the COMELECand it should be the COMELEC who should
make the announcement that, in fact, the votes show that the Constitution was ratified and there should be no need
to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is
supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have
been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to
a plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If
we delete the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN
RATIFIED," what would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as
the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be
held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19,
1987.

MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on
Elections which will be doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts
his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent,
Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of
Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That
cannot be the date of reckoning because it is a plebiscite all over the country. We do not split the moment of casting
by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of
the results of the canvass conducted by the COMELEC or the results of the plebiscite held all over the country. But it
is necessary that there be a body which will make the formal announcement of the results of the plebiscite. So it is
either the President or the COMELEC itself upon the completion of the canvass of the results of the plebiscite, and I
opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the stand of
Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification
of the Constitution The announcement merely confirms the ratification even if the results are released two or three
days after. I think it is a fundamental principle in political law, even in civil law, because an announcement is a mere
confirmation The act of ratification is the act of voting by the people. So that is the date of the ratification. If there
should be any need for presidential proclamation, that proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner Bernas,
because the canvass thereafter is merely the mathematical confirmation of what was done during the date of the
plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was
actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the
plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of the
Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations
and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore,
in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission on Elections
to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of
the results.
MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the
results of the canvass, will there be a necessity for the President to make a proclamation of the results of the canvass
as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution
has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under the law,
the administration of all election laws is under an independent Commission on Elections. It is the Commission on
Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections says, it
would have no effect. I would only add that when we say that the date of effectivity is on the day of the casting of the
votes, what we mean is that the Constitution takes effect on every single minute and every single second of that day,
because the Civil Code says a day has 24 hours.So that even if the votes are cast in the morning, the Constitution is
really effective from the previous midnight.
So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on the date of
effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day
or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass
by the COMELEC retroacts to the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of
Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would
be no definite date if we depend upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would
announce that a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when
the Constitution takes effect, apart from the fact that the provision on the drafting or amendment of the Constitution
provides that a constitution becomes effective upon ratification by a majority of the votes cast, although I would not
say from the very beginning of the date of election because as of that time it is impossible to determine whether there
is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-the majority of
the votes cast in a plebiscite held on such and such a date. So that is the time when the new Constitution will be
considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the
view of Commissioner Bernas and the others because the ratification of the Constitution is on the date the people, by
a majority vote, have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between
an agent and a third person and that contract is confirmed or ratified by the principal, the validity does not begin on
the date of ratification but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their
affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very
day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office
of the President or the COMELEC will make the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee.

MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as
Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called
for the purpose and shall supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved. 2
The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the
plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have
been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent
any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the
power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners
by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect.
While the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the power of replacement
could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Constitution. Had the
intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they
provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent
President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of
legislative powers by the incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71
provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions,"
in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial
and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February
2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court of Appeals Justices were
transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records of the
Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President
in completion of the reorganization of the prosecution service were made on January 31, 1987 and transmitted to the Department on
February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have been extended by
the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has likewise considered
February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has
written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora,
Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of
tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the
deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I
yield to that better view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of
government functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office
until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification
of their successors, if such appointment is made within a period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February
2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987,

the date the same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2,
1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the
time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a
plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the
Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some
seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2,
1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the
Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex
oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list
of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no
confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date
it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation
No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was
issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our
decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973
Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteenhundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments
submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the
Filipino people in the referendum- plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified
by a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the
Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation
provides:
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together
with the election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect
immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the
incumbent President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments
to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The
Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the
date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third
Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the same:
. . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be
held pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to
the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions
Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using
the certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the
Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have
been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from
the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an
election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the
Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a
view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73
and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947
Resolution makes no mention of a retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986,
including the Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and
in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987,
does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a
categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987
were valid, the 1987 Constitution not being then as yet in force.

Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the
plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed per
Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of
the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the
purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date.

The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been
ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional
Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will
be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the
clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none
against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting
by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical
confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date
of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as
indicated in Section 12, unless there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND
THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional
sentence, the committee would suggest that we take up first his amendment to the first sentence as originally
formulated. We are now ready to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be:
After the word "constitutions," add the words" AND THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we cannot accept the second
proposed amendment after the word "constitutions" because the committee feels that when we talk of all previous
Constitutions, necessarily it includes "AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be
allowed to read the second amendment so the Commission would be able to appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS
FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS
OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second
proposed amendment in the form of a new sentence would not be exactly necessary and the committee feels that it
would be too much for us to impose a time frame on the President to make the proclamation. As we would recall,
Madam President, in the approved Article on the Executive, there is a provision which says that the President shall
make certain that all laws shall be faithfully complied. When we approve this first sentence, and it says that there will
be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the
law in accordance with the provisions in the Article on the Executive which we have cited. It would be too much to
impose on the President a time frame within which she will make that declaration. It would be assumed that the
President would immediately do that after the results shall have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing,
Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of
the results by the President.
MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity
of the new Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should
commence on the date of the ratification, not on the date of the proclamation of the President. What is confusing, I
think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the
amendments of 1976 were effective upon the proclamation of the President was that the draft presented to the
people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion
that was put in there precisely to give the President some kind of leeway on whether to announce the ratification or
not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of
the act of the people to be done under the supervision of the COMELECand it should be the COMELEC who should
make the announcement that, in fact, the votes show that the Constitution was ratified and there should be no need
to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is
supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have
been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to
a plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If
we delete the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN
RATIFIED," what would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as
the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be
held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19,
1987.
MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on
Elections which will be doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts
his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent,
Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of
Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That
cannot be the date of reckoning because it is a plebiscite all over the country. We do not split the moment of casting
by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of
the results of the canvass conducted by the COMELEC or the results of the plebiscite held all over the country. But it
is necessary that there be a body which will make the formal announcement of the results of the plebiscite. So it is
either the President or the COMELEC itself upon the completion of the canvass of the results of the plebiscite, and I
opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the stand of
Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification

of the Constitution The announcement merely confirms the ratification even if the results are released two or three
days after. I think it is a fundamental principle in political law, even in civil law, because an announcement is a mere
confirmation The act of ratification is the act of voting by the people. So that is the date of the ratification. If there
should be any need for presidential proclamation, that proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner Bernas,
because the canvass thereafter is merely the mathematical confirmation of what was done during the date of the
plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was
actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the
plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of the
Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations
and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore,
in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission on Elections
to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of
the results.
MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the
results of the canvass, will there be a necessity for the President to make a proclamation of the results of the canvass
as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution
has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under the law,
the administration of all election laws is under an independent Commission on Elections. It is the Commission on
Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections says, it
would have no effect. I would only add that when we say that the date of effectivity is on the day of the casting of the
votes, what we mean is that the Constitution takes effect on every single minute and every single second of that day,
because the Civil Code says a day has 24 hours.
So that even if the votes are cast in the morning, the Constitution is really effective from the previous midnight. So
that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on the date of
effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day
or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass
by the COMELEC retroacts to the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of
Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would
be no definite date if we depend upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would
announce that a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when
the Constitution takes effect, apart from the fact that the provision on the drafting or amendment of the Constitution
provides that a constitution becomes effective upon ratification by a majority of the votes cast, although I would not
say from the very beginning of the date of election because as of that time it is impossible to determine whether there
is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-the majority of
the votes cast in a plebiscite held on such and such a date. So that is the time when the new Constitution will be
considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the
view of Commissioner Bernas and the others because the ratification of the Constitution is on the date the people, by
a majority vote, have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between
an agent and a third person and that contract is confirmed or ratified by the principal, the validity does not begin on
the date of ratification but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their
affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very
day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office
of the President or the COMELEC will make the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as
Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called
for the purpose and shall supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved. 2
The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the
plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have
been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent
any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the
power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners
by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect.
While the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the power of replacement
could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Constitution. Had the
intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they
provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent

President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of
legislative powers by the incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71
provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions,"
in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial
and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February
2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court of Appeals Justices were
transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records of the
Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President
in completion of the reorganization of the prosecution service were made on January 31, 1987 and transmitted to the Department on
February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have been extended by
the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has likewise considered
February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has
written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora,
Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of
tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the
deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I
yield to that better view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of
government functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office
until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification
of their successors, if such appointment is made within a period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February
2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987,
the date the same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2,
1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose and shall supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the
time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a
plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the
Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some
seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2,
1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the
Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex
oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.
xxx xxx xxx

2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a
list of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need
no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date
it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation
No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was
issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our
decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973
Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteenhundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments
submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the
Filipino people in the referendum plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this
date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified
by a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the
Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation
provides:
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together
with the election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect
immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the
incumbent President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments
to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The
Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the
date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third
Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the same:
... shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be
held pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to
the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions
Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using
the certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the
Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that:

The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have
been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from
the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an election/plebiscite at
which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a
view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73
and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947
Resolution makes no mention of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino)
proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986,
including the Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and
in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987,
does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a
categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987
were valid, the 1987 Constitution not being then as yet in force.
Footnotes
1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.
2 Section 2, BP Blg. 222.
3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.
4 Article X, Section 4.
5 Section 3, BP Blg. 222.
Teehankee, C.J., concurring:
1 Volume Five, Record of the Constitutional Commission Proceedings and Debates, pages 620-623; emphasis
supplied.
2 The entire draft Constitution was approved on October 12, 1986 forty forty-five votes in favor and two against.
3 The seven Court of Appeals Justices referred to are Justices Alfredo L. Benipayo, Minerva G. Reyes, Magdangal B.
Elma, Cecilio PE, Jesus Elbinias, Nicolas Lapena Jr. and Justo P. Torres, Jr., and their appointments bear various
dates from January 9, 1987 to January 31, 1987.
Sarmiento, J., dissenting:
1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer, Feb. 3,1987, p. 1, cot 1; Malaya, Feb. 3, 1987,
p. 1, col. 1.
2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).
3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).
4 Proclamation No. 58 (1987).
5 G.R. No. 72301.

Case Digest
ALFREDO M. DE LEON VS. HON. GOVERNOR BENJAMIN ESGUERRA
G.R. NO. 78059
AUGUST 31, 1987

FACTS: An original action of prohibition was instituted by Alfredo M. De Leon, as Barangay Captain of Dolores Rizal with other
baranggay councilmen for the memorandum ordered by Governer Benjamin Esguerra in replacing the petitioners.
On February 9. 1987, Alfredo M. De Leon received a memorandum antedated December 1, 1986 designating new officers barangay
captain and barangay councilmen by authority of the Minister of Local Government granted by the 1986 provisional constitution.
The Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six
(6) years which shall commence on June 7, 1982 and shall continue until their successors shall have elected and shall have qualified,"
or up to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC Governor no longer has
the authority to replace them and to designate their successors.
However, the respondents contend that the terms of office of elective and appointive officials were abolished and that petitioners
continued in office by virtue of the following provision:
All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by
proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is
made within a period of one year from February 25, 1986.
... and not because their term of six years had not yet expired; and that the provision in the Barangay Election Act fixing the term of
office of Barangay officials to six (6) years must be deemed to have been repealed for being inconsistent with
the aforementioned provision of the Provisional Constitution.
ISSUES: Whether or not the 1986 provisional constitution may be validly recognized? Whether or not the 1987 constitution was already
in effect on February 2, 1987 the day of the actual plebiscite or February 8, 1987, its announcement?
HELD: The court held that since the promulgation of the Provisional Constitution, there has been no proclamation or executive order
terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to
replace petitioners was validly made during the one-year period which ended on February 25, 1987. Considering the candid Affidavit of
respondent OIC Governor, we hold that February 8, 1977, should be considered as the effective date of replacement and not
December 1, 1986 to which it was antedated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one year deadline, the aforementioned provision in the Provisional Constitution
must be deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading:
"Sec. 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be
deemed to have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III,
thereof to designate respondents to the elective positions occupied by petitioners.
Further, the record of the proceedings of the Constitutional Commission further shows the clear, unequivocal and express intent of the
Constitutional Commission that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that
"the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the date of the plebiscite and
the proclamation of the President is merely the of facial confirmatory declaration of an act which was actually done by the Filipino
people in adopting the Constitution when they cast their votes on the date of the plebiscite."
Therefor, the 1987 Constitution is deemed ratified on February 2, 1987, the actual date of the voting and not February 8, 1987, the
announcement of the resolution.

REAGAN VS CIR
G.R. No. L-26379

December 27, 1969

WILLIAM C. REAGAN, ETC., petitioner,

vs.
COMMISSIONER OF INTERNAL REVENUE, respondent.
Quasha, Asperilla, Blanco, Zafra and Tayag for petitioner.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete, Solicitor Lolita O. Gal-lang and
Special Attorney Gamaliel H. Mantolino for respondent.
FERNANDO, J.:
A question novel in character, the answer to which has far-reaching implications, is raised by petitioner William C. Reagan, at one time
a civilian employee of an American corporation providing technical assistance to the United States Air Force in the Philippines. He
would dispute the payment of the income tax assessed on him by respondent Commissioner of Internal Revenue on an amount
realized by him on a sale of his automobile to a member of the United States Marine Corps, the transaction having taken place at the
Clark Field Air Base at Pampanga. It is his contention, seriously and earnestly expressed, that in legal contemplation the sale was
made outside Philippine territory and therefore beyond our jurisdictional power to tax.
Such a plea, far-fetched and implausible, on its face betraying no kinship with reality, he would justify by invoking, mistakenly as will
hereafter be more fully shown an observation to that effect in a 1951 opinion, 1 petitioner ignoring that such utterance was made purely
as a flourish of rhetoric and by way of emphasizing the decision reached, that the trading firm as purchaser of army goods must
respond for the sales taxes due from an importer, as the American armed forces being exempt could not be taxed as such under the
National Internal Revenue Code.2 Such an assumption, inspired by the commendable aim to render unavailing any attempt at tax
evasion on the part of such vendee, found expression anew in a 1962 decision,3 coupled with the reminder however, to render the truth
unmistakable, that "the areas covered by the United States Military Bases are not foreign territories both in the political and
geographical sense."
As thus clarified, it is manifest that such a view amounts at most to a legal fiction and is moreover obiter. It certainly cannot control the
resolution of the specific question that confronts us. We declare our stand in an unequivocal manner. The sale having taken place on
what indisputably is Philippine territory, petitioner's liability for the income tax due as a result thereof was unavoidable. As the Court of
Tax Appeals reached a similar conclusion, we sustain its decision now before us on appeal.
In the decision appealed from, the Court of Tax Appeals, after stating the nature of the case, started the recital of facts thus: "It appears
that petitioner, a citizen of the United States and an employee of Bendix Radio, Division of Bendix Aviation Corporation, which provides
technical assistance to the United States Air Force, was assigned at Clark Air Base, Philippines, on or about July 7, 1959 ... . Nine (9)
months thereafter and before his tour of duty expired, petitioner imported on April 22, 1960 a tax-free 1960 Cadillac car with
accessories valued at $6,443.83, including freight, insurance and other charges."4 Then came the following: "On July 11, 1960, more
than two (2) months after the 1960 Cadillac car was imported into the Philippines, petitioner requested the Base Commander, Clark Air
Base, for a permit to sell the car, which was granted provided that the sale was made to a member of the United States Armed Forces
or a citizen of the United States employed in the U.S. military bases in the Philippines. On the same date, July 11, 1960, petitioner sold
his car for $6,600.00 to a certain Willie Johnson, Jr. (Private first class), United States Marine Corps, Sangley Point, Cavite, Philippines,
as shown by a Bill of Sale . . . executed at Clark Air Base. On the same date, Pfc. Willie (William) Johnson, Jr. sold the car to Fred
Meneses for P32,000.00 as evidenced by a deed of sale executed in Manila."5

As a result of the transaction thus made, respondent Commissioner of Internal Revenue, after deducting the landed cost of the car as
well as the personal exemption to which petitioner was entitled, fixed as his net taxable income arising from such transaction the
amount of P17,912.34, rendering him liable for income tax in the sum of P2,979.00. After paying the sum, he sought a refund from
respondent claiming that he was exempt, but pending action on his request for refund, he filed the case with the Court of Tax Appeals
seeking recovery of the sum of P2,979.00 plus the legal rate of interest.
As noted in the appealed decision: "The only issue submitted for our resolution is whether or not the said income tax of P2,979.00 was
legally collected by respondent for petitioner."6 After discussing the legal issues raised, primarily the contention that the Clark Air Base
"in legal contemplation, is a base outside the Philippines" the sale therefore having taken place on "foreign soil", the Court of Tax
Appeals found nothing objectionable in the assessment and thereafter the payment of P2,979.00 as income tax and denied the refund
on the same. Hence, this appeal predicated on a legal theory we cannot accept. Petitioner cannot make out a case for reversal.
1.
Resort to fundamentals is unavoidable to place things in their proper perspective, petitioner apparently feeling justified in his
refusal to defer to basic postulates of constitutional and international law, induced no doubt by the weight he would accord to the
observation made by this Court in the two opinions earlier referred to. To repeat, scant comfort, if at all is to be derived from such an
obiter dictum, one which is likewise far from reflecting the fact as it is.
Nothing is better settled than that the Philippines being independent and sovereign, its authority may be exercised over its entire
domain. There is no portion thereof that is beyond its power. Within its limits, its decrees are supreme, its commands paramount. Its
laws govern therein, and everyone to whom it applies must submit to its terms. That is the extent of its jurisdiction, both territorial and
personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution of its sovereignty.
It is to be admitted that any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus
be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as auto-limitation, which, in the
succinct language of Jellinek, "is the property of a state-force due to which it has the exclusive capacity of legal self-determination and
self-restriction."7 A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence.
Its laws may as to some persons found within its territory no longer control. Nor does the matter end there. It is not precluded from
allowing another power to participate in the exercise of jurisdictional right over certain portions of its territory. If it does so, it by no
means follows that such areas become impressed with an alien character. They retain their status as native soil. They are still subject
to its authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease to the American armed
forces by virtue of the military bases agreement of 1947. They are not and cannot be foreign territory.
Decisions coming from petitioner's native land, penned by jurists of repute, speak to that effect with impressive unanimity. We start with
the citation from Chief Justice Marshall, announced in the leading case of Schooner Exchange v. M'Faddon,8 an 1812 decision: "The
jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by
itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the
restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction." After which
came this paragraph: "All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up
to the consent of the nation itself. They can flow from no other legitimate source."
Chief Justice Taney, in an 1857 decision,9 affirmed the fundamental principle of everyone within the territorial domain of a state being
subject to its commands: "For undoubtedly every person who is found within the limits of a government, whether the temporary
purposes or as a resident, is bound by its laws." It is no exaggeration then for Justice Brewer to stress that the United States
government "is one having jurisdiction over every foot of soil within its territory, and acting directly upon each [individual found therein]; .
. ."10
Not too long ago, there was a reiteration of such a view, this time from the pen of Justice Van Devanter. Thus: "It now is settled in the
United States and recognized elsewhere that the territory subject to its jurisdiction includes the land areas under its dominion and
control the ports, harbors, bays, and other in closed arms of the sea along its coast, and a marginal belt of the sea extending from the
coast line outward a marine league, or 3 geographic miles."11 He could cite moreover, in addition to many American decisions, such
eminent treatise-writers as Kent, Moore, Hyde, Wilson, Westlake, Wheaton and Oppenheim.
As a matter of fact, the eminent commentator Hyde in his three-volume work on International Law, as interpreted and applied by the
United States, made clear that not even the embassy premises of a foreign power are to be considered outside the territorial domain of

the host state. Thus: "The ground occupied by an embassy is not in fact the territory of the foreign State to which the premises belong
through possession or ownership. The lawfulness or unlawfulness of acts there committed is determined by the territorial sovereign. If
an attache commits an offense within the precincts of an embassy, his immunity from prosecution is not because he has not violated
the local law, but rather for the reason that the individual is exempt from prosecution. If a person not so exempt, or whose immunity is
waived, similarly commits a crime therein, the territorial sovereign, if it secures custody of the offender, may subject him to prosecution,
even though its criminal code normally does not contemplate the punishment of one who commits an offense outside of the national
domain. It is not believed, therefore, that an ambassador himself possesses the right to exercise jurisdiction, contrary to the will of the
State of his sojourn, even within his embassy with respect to acts there committed. Nor is there apparent at the present time any
tendency on the part of States to acquiesce in his exercise of it."12
2.
In the light of the above, the first and crucial error imputed to the Court of Tax Appeals to the effect that it should have held that
the Clark Air Force is foreign soil or territory for purposes of income tax legislation is clearly without support in law. As thus correctly
viewed, petitioner's hope for the reversal of the decision completely fades away. There is nothing in the Military Bases Agreement that
lends support to such an assertion. It has not become foreign soil or territory. This country's jurisdictional rights therein, certainly not
excluding the power to tax, have been preserved. As to certain tax matters, an appropriate exemption was provided for.
Petitioner could not have been unaware that to maintain the contrary would be to defy reality and would be an affront to the law. While
his first assigned error is thus worded, he would seek to impart plausibility to his claim by the ostensible invocation of the exemption
clause in the Agreement by virtue of which a "national of the United States serving in or employed in the Philippines in connection with
the construction, maintenance, operation or defense of the bases and residing in the Philippines only by reason of such employment" is
not to be taxed on his income unless "derived from Philippine source or sources other than the United States sources."13 The reliance,
to repeat, is more apparent than real for as noted at the outset of this opinion, petitioner places more faith not on the language of the
provision on exemption but on a sentiment given expression in a 1951 opinion of this Court, which would be made to yield such an
unwarranted interpretation at war with the controlling constitutional and international law principles. At any rate, even if such a
contention were more adequately pressed and insisted upon, it is on its face devoid of merit as the source clearly was Philippine.
In Saura Import and Export Co. v. Meer,14 the case above referred to, this Court affirmed a decision rendered about seven months
previously,15 holding liable as an importer, within the contemplation of the National Internal Revenue Code provision, the trading firm
that purchased army goods from a United States government agency in the Philippines. It is easily understandable why. If it were not
thus, tax evasion would have been facilitated. The United States forces that brought in such equipment later disposed of as surplus,
when no longer needed for military purposes, was beyond the reach of our tax statutes.
Justice Tuason, who spoke for the Court, adhered to such a rationale, quoting extensively from the earlier opinion. He could have
stopped there. He chose not to do so. The transaction having occurred in 1946, not so long after the liberation of the Philippines, he
proceeded to discuss the role of the American military contingent in the Philippines as a belligerent occupant. In the course of such a
dissertion, drawing on his well-known gift for rhetoric and cognizant that he was making an as if statement, he did say: "While in army
bases or installations within the Philippines those goods were in contemplation of law on foreign soil."
It is thus evident that the first, and thereafter the controlling, decision as to the liability for sales taxes as an importer by the purchaser,
could have been reached without any need for such expression as that given utterance by Justice Tuason. Its value then as an
authoritative doctrine cannot be as much as petitioner would mistakenly attach to it. It was clearly obiter not being necessary for the
resolution of the issue before this Court.16 It was an opinion "uttered by the way."17 It could not then be controlling on the question
before us now, the liability of the petitioner for income tax which, as announced at the opening of this opinion, is squarely raised for the
first time.18
On this point, Chief Justice Marshall could again be listened to with profit. Thus: "It is a maxim, not to be disregarded, that general
expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the
case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for
decision."19
Nor did the fact that such utterance of Justice Tuason was cited in Co Po v. Collector of Internal Revenue,20 a 1962 decision relied
upon by petitioner, put a different complexion on the matter. Again, it was by way of pure embellishment, there being no need to repeat
it, to reach the conclusion that it was the purchaser of army goods, this time from military bases, that must respond for the advance
sales taxes as importer. Again, the purpose that animated the reiteration of such a view was clearly to emphasize that through the
employment of such a fiction, tax evasion is precluded. What is more, how far divorced from the truth was such statement was

emphasized by Justice Barrera, who penned the Co Po opinion, thus: "It is true that the areas covered by the United States Military
Bases are not foreign territories both in the political and geographical sense."21
Justice Tuason moreover made explicit that rather than corresponding with reality, what was said by him was in the way of a legal
fiction. Note his stress on "in contemplation of law." To lend further support to a conclusion already announced, being at that a
confirmation of what had been arrived at in the earlier case, distinguished by its sound appreciation of the issue then before this Court
and to preclude any tax evasion, an observation certainly not to be taken literally was thus given utterance.
This is not to say that it should have been ignored altogether afterwards. It could be utilized again, as it undoubtedly was, especially so
for the purpose intended, namely to stigmatize as without support in law any attempt on the part of a taxpayer to escape an obligation
incumbent upon him. So it was quoted with that end in view in the Co Po case. It certainly does not justify any effort to render futile the
collection of a tax legally due, as here. That was farthest from the thought of Justice Tuason.
What is more, the statement on its face is, to repeat, a legal fiction. This is not to discount the uses of a fictio juris in the science of the
law. It was Cardozo who pointed out its value as a device "to advance the ends of justice" although at times it could be "clumsy" and
even "offensive".22 Certainly, then, while far from objectionable as thus enunciated, this observation of Justice Tuason could be
misused or misconstrued in a clumsy manner to reach an offensive result. To repeat, properly used, a legal fiction could be relied upon
by the law, as Frankfurter noted, in the pursuit of legitimate ends.23 Petitioner then would be well-advised to take to heart such counsel
of care and circumspection before invoking not a legal fiction that would avoid a mockery of the law by avoiding tax evasion but what
clearly is a misinterpretation thereof, leading to results that would have shocked its originator.
The conclusion is thus irresistible that the crucial error assigned, the only one that calls for discussion to the effect that for income tax
purposes the Clark Air Force Base is outside Philippine territory, is utterly without merit. So we have said earlier.
3. To impute then to the statement of Justice Tuason the meaning that petitioner would fasten on it is, to paraphrase Frankfurter, to be
guilty of succumbing to the vice of literalness. To so conclude is, whether by design or inadvertence, to misread it. It certainly is not
susceptible of the mischievous consequences now sought to be fastened on it by petitioner.
That it would be fraught with such peril to the enforcement of our tax statutes on the military bases under lease to the American armed
forces could not have been within the contemplation of Justice Tuason. To so attribute such a bizarre consequence is to be guilty of a
grave disservice to the memory of a great jurist. For his real and genuine sentiment on the matter in consonance with the imperative
mandate of controlling constitutional and international law concepts was categorically set forth by him, not as an obiter but as the
rationale of the decision, in People v. Acierto24 thus: "By the [Military Bases] Agreement, it should be noted, the Philippine Government
merely consents that the United States exercise jurisdiction in certain cases. The consent was given purely as a matter of comity,
courtesy, or expediency over the bases as part of the Philippine territory or divested itself completely of jurisdiction over offenses
committed therein."
Nor did he stop there. He did stress further the full extent of our territorial jurisdiction in words that do not admit of doubt. Thus: "This
provision is not and can not on principle or authority be construed as a limitation upon the rights of the Philippine Government. If
anything, it is an emphatic recognition and reaffirmation of Philippine sovereignty over the bases and of the truth that all jurisdictional
rights granted to the United States and not exercised by the latter are reserved by the Philippines for itself."25
It is in the same spirit that we approach the specific question confronting us in this litigation. We hold, as announced at the outset, that
petitioner was liable for the income tax arising from a sale of his automobile in the Clark Field Air Base, which clearly is and cannot
otherwise be other than, within our territorial jurisdiction to tax.
4. With the mist thus lifted from the situation as it truly presents itself, there is nothing that stands in the way of an affirmance of the
Court of Tax Appeals decision. No useful purpose would be served by discussing the other assigned errors, petitioner himself being
fully aware that if the Clark Air Force Base is to be considered, as it ought to be and as it is, Philippine soil or territory, his claim for
exemption from the income tax due was distinguished only by its futility.
There is further satisfaction in finding ourselves unable to indulge petitioner in his plea for reversal. We thus manifest fealty to a
pronouncement made time and time again that the law does not look with favor on tax exemptions and that he who would seek to be
thus privileged must justify it by words too plain to be mistaken and too categorical to be misinterpreted.26 Petitioner had not done so.
Petitioner cannot do so.

WHEREFORE, the decision of the Court of Tax Appeals of May 12, 1966 denying the refund of P2,979.00 as the income tax paid by
petitioner is affirmed. With costs against petitioner.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Teehankee, JJ., concur.
Reyes, J.B.L., J., concurs in the result.
Barredo, J., took no part.
Case Digest
Facts: William Reagan imported a tax-free 1960 Cadillac car with accessories valued at US $ 6,443.83, including freight, insurance and
other charges. After acquiring a permit to sell the car from the base commander of Clark Air Base, Reagan sold the car to a certain
Willie Johnson Jr. of the US Marine Corps stationed in Sangley Point, Cavite for US$ 6,600. Johnson sold the same, on the same day
to Fred Meneses, a Filipino. As a result of the transaction, the Commissioner rendered Reagan liable for income tax in the sum of
P2,970. Reagan claimed that he was exempt as the transaction occurred in Clark Air Base, which as he contends is a base outside the
Philippines.
Issue: Whether or not petitioner Reagan was covered by the tax exemption.
Held: The court ruled in the negative. The Philippines, as an independent and sovereign country, exercises its authority over its entire
domain. Any state may, however, by its consent, express or implied, submit to a restriction of its sovereign rights. It may allow another
power to participate in the exercise of jurisdictional right over certain portions of its territory. By doing so, it by no means follows that
such areas become impressed with an alien character. The areas retain their status as native soil. Clark Air Base is within Philippine
territorial jurisdiction to tax, and thus, Reagan was liable for the income tax arising from the sale of his automobile in Clark. The law
does not look with favor on tax exemptions and that he who would seek to be thus privileged must justify it by words too plain to be
mistaken and too categorical to be misinterpreted. Reagan has not done so, and cannot do so.

BACANI VS NACOCO
[G.R. No. L-9657. November 29, 1956.]
LEOPOLDO T. BACANI and MATEO A. MATOTO, Plaintiffs-Appellees, vs. NATIONAL COCONUT CORPORATION, ET AL.,
Defendants, NATIONAL COCONUT CORPORATION and BOARD OF LIQUIDATORS, Defendants-Appellants.
DECISION
BAUTISTA ANGELO, J.:

Plaintiffs herein are court stenographers assigned in Branch VI of the Court of First Instance of Manila. During the pendency of Civil
Case No. 2293 of said court, entitled Francisco Sycip vs. National Coconut Corporation, Assistant Corporate Counsel Federico
Alikpala, counsel for Defendant, requested said stenographers for copies of the transcript of the stenographic notes taken by them
during the hearing. Plaintiffs complied with the request by delivering to Counsel Alikpala the needed transcript containing 714 pages
and thereafter submitted to him their bills for the payment of their fees. The National Coconut Corporation paid the amount of P564 to
Leopoldo T. Bacani and P150 to Mateo A. Matoto for said transcript at the rate of P1 per page.
Upon inspecting the books of this corporation, the Auditor General disallowed the payment of these fees and sought the recovery of the
amounts paid. On January 19, 1953, the Auditor General required the Plaintiffs to reimburse said amounts on the strength of a circular
of the Department of Justice wherein the opinion was expressed that the National Coconut Corporation, being a government entity, was
exempt from the payment of the fees in question. On February 6, 1954, the Auditor General issued an order directing the Cashier of the
Department of Justice to deduct from the salary of Leopoldo T. Bacani the amount of P25 every payday and from the salary of Mateo A.
Matoto the amount of P10 every payday beginning March 30, 1954. To prevent deduction of these fees from their salaries and secure a
judicial ruling that the National Coconut Corporation is not a government entity within the purview of section 16, Rule 130 of the Rules
of Court, this action was instituted in the Court of First Instance of Manila.
Defendants set up as a defense that the National Coconut Corporation is a government entity within the purview of section 2 of the
Revised Administrative Code of 1917 and, hence, it is exempt from paying the stenographers fees under Rule 130 of the Rules of
Court. After trial, the court found for the Plaintiffs declaring (1) that Defendant National Coconut Corporation is not a government entity
within the purview of section 16, Rule 130 of the Rules of Court; chan roblesvirtualawlibrary(2) that the payments already made by said
Defendant to Plaintiffs herein and received by the latter from the former in the total amount of P714, for copies of the stenographic
transcripts in question, are valid, just and legal; chan roblesvirtualawlibraryand (3) that Plaintiffs are under no obligation whatsoever to
make a refund of these payments already received by them. This is an appeal from said decision.
Under section 16, Rule 130 of the Rules of Court, the Government of the Philippines is exempt from paying the legal fees provided for
therein, and among these fees are those which stenographers may charge for the transcript of notes taken by them that may be
requested by any interested person (section 8). The fees in question are for the transcript of notes taken during the hearing of a case in
which the National Coconut Corporation is interested, and the transcript was requested by its assistant corporate counsel for the use of
said corporation.
On the other hand, section 2 of the Revised Administrative Code defines the scope of the term Government of the Republic of the
Philippines as follows:chanroblesvirtuallawlibrary
The Government of the Philippine Islands is a term which refers to the corporate governmental entity through which the functions of
government are exercised throughout the Philippine Islands, including, save as the contrary appears from the context, the various arms
through which political authority is made effective in said Islands, whether pertaining to the central Government or to the provincial or
municipal branches or other form of local government.
The question now to be determined is whether the National Coconut Corporation may be considered as included in the term
Government of the Republic of the Philippines for the purposes of the exemption of the legal fees provided for in Rule 130 of the
Rules of Court.
As may be noted, the term Government of the Republic of the Philippines refers to a government entity through which the functions of
government are exercised, including the various arms through which political authority is made effective in the Philippines, whether
pertaining to the central government or to the provincial or municipal branches or other form of local government. This requires a little
digression on the nature and functions of our government as instituted in our Constitution.
To begin with, we state that the term Government may be defined as that institution or aggregate of institutions by which an
independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which
are imposed upon the people forming that society by those who possess the power or authority of prescribing them (U.S. vs. Dorr, 2
Phil., 332). This institution, when referring to the national government, has reference to what our Constitution has established
composed of three great departments, the legislative, executive, and the judicial, through which the powers and functions of
government are exercised. These functions are twofold:chanroblesvirtuallawlibrary constitute and ministrant. The former are those
which constitute the very bonds of society and are compulsory in nature; chan roblesvirtualawlibrarythe latter are those that are

undertaken only by way of advancing the general interests of society, and are merely optional. President Wilson enumerates the
constituent functions as follows:chanroblesvirtuallawlibrary
(1) The keeping of order and providing for the protection of persons and property from violence and robbery.
(2) The fixing of the legal relations between man and wife and between parents and children.
(3) The regulation of the holding, transmission, and interchange of property, and the determination of its liabilities for debt or for crime.
(4) The determination of contract rights between individuals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil cases.
(7) The determination of the political duties, privileges, and relations of citizens.
(8) Dealings of the state with foreign powers:chanroblesvirtuallawlibrary the preservation of the state from external danger or
encroachment and the advancement of its international interests. (Malcolm, The Government of the Philippine Islands, p. 19.)
The most important of the ministrant functions are:chanroblesvirtuallawlibrary public works, public education, public charity, health and
safety regulations, and regulations of trade and industry. The principles deter mining whether or not a government shall exercise certain
of these optional functions are:chanroblesvirtuallawlibrary (1) that a government should do for the public welfare those things which
private capital would not naturally undertake and (2) that a government should do these things which by its very nature it is better
equipped to administer for the public welfare than is any private individual or group of individuals. (Malcolm, The Government of the
Philippine Islands, pp. 19-20.)
From the above we may infer that, strictly speaking, there are functions which our government is required to exercise to promote its
objectives as expressed in our Constitution and which are exercised by it as an attribute of sovereignty, and those which it may
exercise to promote merely the welfare, progress and prosperity of the people. To this latter class belongs the organization of those
corporations owned or controlled by the government to promote certain aspects of the economic life of our people such as the National
Coconut Corporation. These are what we call government-owned or controlled corporations which may take on the form of a private
enterprise or one organized with powers and formal characteristics of a private corporations under the Corporation Law.
The question that now arises is:chanroblesvirtuallawlibrary Does the fact that these corporation perform certain functions of
government make them a part of the Government of the Philippines?
The answer is simple:chanroblesvirtuallawlibrary they do not acquire that status for the simple reason that they do not come under the
classification of municipal or public corporation. Take for instance the National Coconut Corporation. While it was organized with the
purpose of adjusting the coconut industry to a position independent of trade preferences in the United States and of providing
Facilities for the better curing of copra products and the proper utilization of coconut by-products, a function which our government
has chosen to exercise to promote the coconut industry, however, it was given a corporate power separate and distinct from our
government, for it was made subject to the provisions of our Corporation Law in so far as its corporate existence and the powers that it
may exercise are concerned (sections 2 and 4, Commonwealth Act No. 518). It may sue and be sued in the same manner as any other
private corporations, and in this sense it is an entity different from our government. As this Court has aptly said, The mere fact that the
Government happens to be a majority stockholder does not make it a public corporation (National Coal Co. vs. Collector of Internal
Revenue, 46 Phil., 586-587). By becoming a stockholder in the National Coal Company, the Government divested itself of its
sovereign character so far as respects the transactions of the corporation cralaw . Unlike the Government, the corporation may be sued
without its consent, and is subject to taxation. Yet the National Coal Company remains an agency or instrumentality of government.
(Government of the Philippine Islands vs. Springer, 50 Phil., 288.)
To recapitulate, we may mention that the term Government of the Republic of the Philippines used in section 2 of the Revised
Administrative Code refers only to that government entity through which the functions of the government are exercised as an attribute
of sovereignty, and in this are included those arms through which political authority is made effective whether they be provincial,
municipal or other form of local government. These are what we call municipal corporations. They do not include government entities
which are given a corporate personality separate and distinct from the government and which are governed by the Corporation Law.

Their powers, duties and liabilities have to be determined in the light of that law and of their corporate charters. They do not therefore
come within the exemption clause prescribed in section 16, Rule 130 of our Rules of Court.
Public corporations are those formed or organized for the government of a portion of the State. (Section 3, Republic Act No. 1459,
Corporation Law).
The generally accepted definition of a municipal corporation would only include organized cities and towns, and like organizations,
with political and legislative powers for the local, civil government and police regulations of the inhabitants of the particular district
included in the boundaries of the corporation. Heller vs. Stremmel, 52 Mo. 309, 312.
In its more general sense the phrase municipal corporation may include both towns and counties, and other public corporations
created by government for political purposes. In its more common and limited signification, it embraces only incorporated villages,
towns and cities. Dunn vs. Court of County Revenues, 85 Ala. 144, 146, 4 So. 661. (McQuillin, Municipal Corporations, 2nd ed., Vol. 1,
p. 385.)
We may, therefore, define a municipal corporation in its historical and strict sense to be the incorporation, by the authority of the
government, of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate
specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the
distinctive purpose and the distinguishing feature of a municipal corporation proper. (Dillon, Municipal Corporations, 5th ed., Vol. I, p.
59.)
It is true that under section 8, Rule 130, stenographers may only charge as fees P0.30 for each page of transcript of not less than 200
words before the appeal is taken and P0.15 for each page after the filing of the appeal, but in this case the National Coconut
Corporation has agreed and in fact has paid P1.00 per page for the services rendered by the Plaintiffs and has not raised any objection
to the amount paid until its propriety was disputed by the Auditor General. The payment of the fees in question became therefore
contractual and as such is valid even if it goes beyond the limit prescribed in section 8, Rule 130 of the Rules of Court.
As regards the question of procedure raised by Appellants, suffice it to say that the same is insubstantial, considering that this case
refers not to a money claim disapproved by the Auditor General but to an action of prohibition the purpose of which is to restrain the
officials concerned from deducting from Plaintiffs salaries the amount paid to them as stenographers fees. This case does not come
under section 1, Rule 45 of the Rules of Court relative to appeals from a decision of the Auditor General.
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.

Case Digest
G.R. No. L-9657 Nov. 29, 1956
Two-fold Function of the Government
FACTS:
1. Bacani and Matoto are court stenographers both assigned in the CFI of Manila. During the pendency of another civil case (Civil
Case No. 2293 entitled 'Francisco Sycip vs. NACOCO'), Alikpala, counsel for NACOCO(Natl Coconut Corporation) , requested the said
stenographers for copies of the transcript of the stenographic notes taken by them during the hearing. Plaintiffs complied with the
request by delivering to Counsel Alikpala the needed transcript containing 714 pages and thereafter submitted to him their bills for the
payment of their fees. The NACOCO paid the amount of P564 to Bacani and P150 to Matoto for said transcript at the rate of P1 per
page.
3.
Subsequently, the Auditor General required the plaintiffs to reimburse said amounts by virtue of a DOJ circular which stated that
NACOCO, being a government entity, was exempt from the payment of the fees in question.
4.
Petitioners countered that NACOCO is not a government entity within the purview of section 16, Rule 130 of the Rules of Court
while the defendants set up as a defense that the NACOCO is a government entity within the purview of section 2 of the Revised
Administrative Code of 1917 hence, exempt from paying the stenographers fees under Rule 130 of the Rules of Court.

ISSUE: Whether or not NACOCO is a government entity.

No, it is not.
1. GOCCs do not acquire that status for the simple reason that they do not come under the classification of municipal or public
corporation. While NACOCO was organized for the purpose of adjusting the coconut industry to a position independent of trade
preferences in the United States and of providing Facilities for the better curing of copra products and the proper utilization of coconut
by-products, a function which our government has chosen to exercise to promote the coconut industry. It was given a corporate power
separate and distinct from the government, as it was made subject to the provisions of the Corporation Law in so far as its corporate
existence and the powers that it may exercise are concerned (sections 2 and 4, Commonwealth Act No. 518). It may sue and be sued
in the same manner as any other private corporations, and in this sense it is an entity different from our government.
2. There are functions which our government is required to exercise to promote its objectives as expressed in our Constitution and
which are exercised by it as an attribute of sovereignty, and those which it may exercise to promote merely the welfare, progress and
prosperity of the people.
3. President Wilson enumerates the constituent functions as follows:
(1) The keeping of order and providing for the protection of persons and property from violence and robbery.
(2) The fixing of the legal relations between man and wife and between parents and children.
(3) The regulation of the holding, transmission, and interchange of property, and the determination of its liabilities for debt or for crime.
(4) The determination of contract rights between individuals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil cases.
(7) The determination of the political duties, privileges, and relations of citizens.
(8) Dealings of the state with foreign powers: the preservation of the state from external danger or encroachment and the advancement
of its international interests.
4. The most important of the ministrant functions are: public works, public education, public charity, health and safety regulations, and
regulations of trade and industry. The principles deter mining whether or not a government shall exercise certain of these optional
functions are: (1) that a government should do for the public welfare those things which private capital would not naturally undertake
and (2) that a government should do these things which by its very nature it is better equipped to administer for the public welfare than
is any private individual or group of individuals.

ACCFA vs CUGCO
G.R. No. L-21484
November 29, 1969
THE AGRICULTURAL CREDIT and COOPERATIVE FINANCING ADMINISTRATION (ACCFA), petitioner,
vs.
ACCFA SUPERVISORS' ASSOCIATION, ACCFA WORKERS' ASSOCIATION, and THE COURT OF INDUSTRIAL RELATIONS,
respondents.
Deogracias E. Lerma and Esmeraldo U. Guloy for petitioner Agricultural Credit and Cooperative Financing Administration.
Office of the Agrarian Counsel, Department of Justice for petitioner Agricultural Credit Administration
J. C. Espinas and Associates for respendents Confederation of Unions in Government Corporations Offices, et al. Mariano B. Tuason
for respondent Court of Industrial Relations.
MAKALINTAL, J.:
These are two separate appeals by certiorari from the decision dated March 25, 1963 (G.R. No. L-21484) and the order dated May 21,
1964 (G.R. No. L-23605) as affirmed by the resolutions en banc, of the Court of Industrial Relations, in Cases Nos. 3450-ULP and
1327-MC, respectively. The parties, except the Confederation of Unions in Government Corporations and Offices (CUGCO), being
practically the same and the principal issues involved related, only one decision is now rendered in these two cases.
The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a government agency created under Republic Act No.
821, as amended. Its administrative machinery was reorganized and its name changed to Agricultural Credit Administration (ACA)
under the Land Reform Code (Republic Act No. 3844). On the other hand, the ACCFA Supervisors' Association (ASA) and the ACCFA
Workers' Association (AWA), hereinafter referred to as the Unions, are labor organizations composed of the supervisors and the rankand-file employees, respectively, in the ACCFA (now ACA).
G.R. No. L-21484
On September 4, 1961 a collective bargaining agreement, which was to be effective for a period of one (1) year from July 1, 1961, was
entered into by and between the Unions and the ACCFA. A few months thereafter, the Unions started protesting against alleged
violations and non-implementation of said agreement. Finally, on October 25, 1962 the Unions declared a strike, which was ended
when the strikers voluntarily returned to work on November 26, 1962.

On October 30, 1962 the Unions, together with its mother union, the Confederation of Unions in Government Corporations and Offices
(CUGCO), filed a complaint with the Court of Industrial Relations against the ACCFA (Case No. 3450-ULP) for having allegedly
committed acts of unfair labor practice, namely: violation of the collective bargaining agreement in order to discourage the members of
the Unions in the exercise of their right to self-organization, discrimination against said members in the matter of promotions, and
refusal to bargain. The ACCFA denied the charges and interposed as affirmative and special defenses lack of jurisdiction of the CIR
over the case, illegality of the bargaining contract, expiration of said contract and lack of approval by the office of the President of the
fringe benefits provided for therein. Brushing aside the foregoing defenses, the CIR in its decision dated March 25, 1963 ordered the
ACCFA:
1. To cease and desist from committing further acts tending to discourage the members of complainant unions in the exercise of their
right to self-organization;
2. To comply with and implement the provision of the collective bargaining contract executed on September 4, 1961, including the
payment of P30.00 a month living allowance;
3. To bargain in good faith and expeditiously with the herein complainants.
The ACCFA moved to reconsider but was turned down in a resolution dated April 25, 1963 of the CIR en banc. Thereupon it brought
this appeal by certiorari.
The ACCFA raises the following issues in its petition, to wit:
1. Whether or not the respondent court has jurisdiction over this case, which in turn depends on whether or not ACCFA exercised
governmental or proprietary functions.
2. Whether or not the collective bargaining agreement between the petitioner and the respondent union is valid; if valid, whether or not
it has already lapsed; and if not, whether or not its (sic) fringe benefits are already enforceable.
3. Whether or not there is a legal and/or factual basis for the finding of the respondent court that the petitioner had committed acts of
unfair labor practice.
4. Whether or not it is within the competence of the court to enforce the collective bargaining agreement between the petitioner and the
respondent unions, the same having already expired.
G.R. No. L-23605
During the pendency of the above mentioned case (G.R. No. L-21484), specifically on August 8, 1963, the President of the Philippines
signed into law the Agricultural Land Reform Code (Republic Act No. 3844), which among other things required the reorganization of
the administrative machinery of the Agricultural Credit and Cooperative Financing Administration (ACCFA) and changed its name to
Agricultural Credit Administration (ACA). On March 17, 1964 the ACCFA Supervisors' Association and the ACCFA Workers' Association
filed a petition for certification election with the Court of Industrial Relations (Case No. 1327-MC) praying that they be certified as the
exclusive bargaining agents for the supervisors and rank-and-file employees, respectively, in the ACA. The trial Court in its order dated
March 30, 1964 directed the Manager or Officer-in-Charge of the ACA to allow the posting of said order "for the information of all
employees and workers thereof," and to answer the petition. In compliance therewith, the ACA, while admitting most of the allegations
in the petition, denied that the Unions represented the majority of the supervisors and rank-and-file workers, respectively, in the ACA. It
further alleged that the petition was premature, that the ACA was not the proper party to be notified and to answer the petition, and that
the employees and supervisors could not lawfully become members of the Unions, nor be represented by them. However, in a joint
manifestation of the Unions dated May 7, 1964, with the conformity of the ACA Administrator and of the Agrarian Counsel in his
capacity as such and as counsel for the National Land Reform Council, it was agreed "that the union petitioners in this case represent
the majority of the employees in their respective bargaining units" and that only the legal issues raised would be submitted for the
resolution of the trial Court.
Finding the remaining grounds for ACA's opposition to the petition to be without merit, the trial Court in its order dated May 21, 1964
certified "the ACCFA Workers' Association and the ACCFA Supervisors' Association as the sole and exclusive bargaining

representatives of the rank-and-file employees and supervisors, respectively, of the Agricultural Credit Administration." Said order was
affirmed by the CIR en banc in its resolution dated August 24, 1964.
On October 2, 1964 the ACA filed in this Court a petition for certiorari with urgent motion to stay the CIR order of May 21, 1964. In a
resolution dated October 6, 1964, this Court dismissed the petition for "lack of adequate allegations," but the dismissal was later
reconsidered when the ACA complied with the formal requirement stated in said resolution. As prayed for, this Court ordered the CIR to
stay the execution of its order of May 21, 1964.
In this appeal, the ACA in effect challenges the jurisdiction of the CIR to entertain the petition of the Unions for certification election on
the ground that it (ACA) is engaged in governmental functions. The Unions join the issue on this single point, contending that the ACA
forms proprietary functions.
Under Section 3 of the Agricultural Land Reform Code the ACA was established, among other governmental agencies,1 to extend
credit and similar assistance to agriculture, in pursuance of the policy enunciated in Section 2 as follows:
SEC. 2. Declaration of Policy. It is the policy of the State:
(1) To establish owner-cultivatorships and the economic family-size farm as the basis of Philippine agriculture and, as a consequence,
divert landlord capital in agriculture to industrial development;
(2) To achieve a dignified existence for the small farmers free from pernicious institutional restraints and practices;
(3) To create a truly viable social and economic structure in agriculture conducive to greater productivity and higher farm incomes;
(4) To apply all labor laws equally and without discrimination to both industrial and agricultural wage earners;
(5) To provide a more vigorous and systematic land resettlement program and public land distribution; and
(6) To make the small farmers more independent, self-reliant and responsible citizens, and a source of genuine strength in our
democratic society.
The implementation of the policy thus enunciated, insofar as the role of the ACA therein is concerned, is spelled out in Sections 110 to
118, inclusive, of the Land Reform Code. Section 110 provides that "the administrative machinery of the ACCFA shall be reorganized to
enable it to align its activities with the requirements and objective of this Code and shall be known as the Agricultural Credit
Administration." Under Section 112 the sum of P150,000,000 was appropriated out of national funds to finance the additional credit
functions of the ACA as a result of the land reform program laid down in the Code. Section 103 grants the ACA the privilege of
rediscounting with the Central Bank, the Development Bank of the Philippines and the Philippine National Bank. Section 105 directs the
loaning activities of the ACA "to stimulate the development of farmers' cooperatives," including those "relating to the production and
marketing of agricultural products and those formed to manage and/or own, on a cooperative basis, services and facilities, such as
irrigation and transport systems, established to support production and/or marketing of agricultural products." Section 106 deals with
the extension by ACA of credit to small farmers in order to stimulate agricultural production. Sections 107 to 112 lay down certain
guidelines to be followed in connection with the granting of loans, such as security, interest and supervision of credit. Sections 113 to
118, inclusive, invest the ACA with certain rights and powers not accorded to non-governmental entities, thus:
SEC. 113. Auditing of Operations. For the effective supervision of farmers' cooperatives, the head of the Agricultural Credit
Administration shall have the power to audit their operations, records and books of account and to issue subpoena and subpoena
duces tecum to compel the attendance of witnesses and the production of books, documents and records in the conduct of such audit
or of any inquiry into their affairs. Any person who, without lawful cause, fails to obey such subpoena or subpoena duces tecum shall,
upon application of the head of Agricultural Credit Administration with the proper court, be liable to punishment for contempt in the
manner provided by law and if he is an officer of the Association, to suspension or removal from office.
SEC. 114. Prosecution of officials. The Agricultural Credit Administration, through the appropriate provincial or city fiscal, shall have
the power to file and prosecute any and all actions which it may have against any and all officials or employees of farmers'
cooperatives arising from misfeasance or malfeasance in office.

SEC. 115. Free Notarial Service. Any justice of the peace, in his capacity as notary ex-officio, shall render service free of charge to
any person applying for a loan under this Code either in administering the oath or in the acknowledgment of instruments relating to
such loan.
SEC. 116. Free Registration of Deeds. Any register of deeds shall accept for registration, free of charge any instrument relative to a
loan made under this Code.
SEC. 117. Writing-off Unsecured and Outstanding Loans. Subject to the approval of the President upon recommendation of the
Auditor General, the Agricultural Credit Administration may write-off from its books, unsecured and outstanding loans and accounts
receivable which may become uncollectible by reason of the death or disappearance of the debtor, should there be no visible means of
collecting the same in the foreseeable future, or where the debtor has been verified to have no income or property whatsoever with
which to effect payment. In all cases, the writing-off shall be after five years from the date the debtor defaults.
SEC. 118. Exemption from Duties, Taxes and Levies. The Agricultural Credit Administration is hereby exempted from the payment of
all duties, taxes, levies, and fees, including docket and sheriff's fees, of whatever nature or kind, in the performance of its functions and
in the exercise of its powers hereunder.
The power to audit the operations of farmers' cooperatives and otherwise inquire into their affairs, as given by Section 113, is in the
nature of the visitorial power of the sovereign, which only a government agency specially delegated to do so by the Congress may
legally exercise.
On March 19, 1964 Executive Order No. 75 was promulgated. It is entitled: "Rendering in Full Force and Effect the Plan of
Reorganization Proposed by the Special Committee on Reorganization of Agencies for Land Reform for the Administrative Machinery
of the Agricultural Land Reform Code," and contains the following pertinent provisions:
Section 3. The Land Reform Project Administration2 shall be considered a single organization and the personnel complement of the
member agencies including the legal officers of the Office of the Agrarian Counsel which shall provide legal services to the LRPA shall
be regarded as one personnel pool from which the requirements of the operations shall be drawn and subject only to the civil service
laws, rules and regulations, persons from one agency may be freely assigned to positions in another agency within the LRPA when the
interest of the service so demands.
Section 4. The Land Reform Project Administration shall be considered as one organization with respect to the standardization of job
descriptions position classification and wage and salary structures to the end that positions involving the same or equivalent
qualifications and equal responsibilities and effort shall have the same remuneration.
Section 5. The Civil Service laws, rules and regulations with respect to promotions, particularly in the consideration of person next in
rank, shall be made applicable to the Land Reform Project Administration as a single agency so that qualified individuals in one
member agency must be considered in considering promotion to higher positions in another member agency.
The implementation of the land reform program of the government according to Republic Act No. 3844 is most certainly a
governmental, not a proprietary, function; and for that purpose Executive Order No. 75 has placed the ACA under the Land Reform
Project Administration together with the other member agencies, the personnel complement of all of which are placed in one single pool
and made available for assignment from one agency to another, subject only to Civil Service laws, rules and regulations, position
classification and wage structures.
The appointing authority in respect of the officials and employees of the ACA is the President of the Philippines, as stated in a 1st
indorsement by his office to the Chairman of the National Reform Council dated May 22, 1964, as follows:
Appointments of officials and employees of the National Land Reform Council and its agencies may be made only by the President,
pursuant to the provisions of Section 79(D) of the Revised Administrative Code. In accordance with the policy and practice, such
appointments should be prepared for the signature of the Executive Secretary, "By Authority ofthe President".3
When the Agricultural Reform Code was being considered by the Congress, the nature of the ACA was the subject of the following
exposition on the Senate floor:

Senator Tolentino: . . . . "The ACA is not going to be a profit making institution. It is supposed to be a public service of the government
to the lessees and farmer-owners of the lands that may be bought after expropriation from owners. It is the government here that is the
lender. The government should not exact a higher interest than what we are telling a private landowner now in his relation to his tenants
if we give to their farmers a higher rate of interest . . . ." (pp. 17 & 18, Senate Journal No. 16, July 3, 1963)
The reason is obvious, to pinpoint responsibility for many losses in the government, in order to avoid irresponsible lending of
government money to pinpoint responsibility for many losses . . . .
Senator Manglapus: ". . . But assuming that hypothesis, that is the reason why we are appropriating P150,000,000.00 for the
Agricultural Credit Administration which will go to intensified credit operations on the barrio level . . ." (p. 3, Senate Journal No. 7).
That it is the reason why we are providing for the expansion of the ACCFA and the weeding out of the cooperative activity of the ACCFA
and turning this over to the Agricultural Productivity Commission, so that the Agricultural Credit Administration will concentrate entirely
on the facilitation of credit on the barrio level with the massive support of 150 million provided by the government. . . . (pp. 4 & 5 of
Senate Journal No. 7, July 3, 1963)
. . . But by releasing them from this situation, we feel that we are putting them in a much better condition than that in which they are
found by providing them with a business-like way of obtaining credit, not depending on a paternalistic system but one which is
business-like that is to say, a government office, which on the barrio level will provide them that credit directly . . . . (p. 40, Senate
Journal No. 7, July 3, 1963) (emphasis supplied).
The considerations set forth above militate quite strongly against the recognition of collective bargaining powers in the respondent
Unions within the context of Republic Act No. 875, and hence against the grant of their basic petition for certification election as proper
bargaining units. The ACA is a government office or agency engaged in governmental, not proprietary functions. These functions may
not be strictly what President Wilson described as "constituent" (as distinguished from "ministrant"),4 such as those relating to the
maintenance of peace and the prevention of crime, those regulating property and property rights, those relating to the administration of
justice and the determination of political duties of citizens, and those relating to national defense and foreign relations. Under this
traditional classification, such constituent functions are exercised by the State as attributes of sovereignty, and not merely to promote
the welfare, progress and prosperity of the people these letter functions being ministrant he exercise of which is optional on the part
of the government.
The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite
unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called
upon to enter optionally, and only "because it was better equipped to administer for the public welfare than is any private individual or
group of individuals,"5 continue to lose their well-defined boundaries and to be absorbed within activities that the government must
undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the
tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed
adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice.
It was in furtherance of such policy that the Land Reform Code was enacted and the various agencies, the ACA among them,
established to carry out its purposes. There can be no dispute as to the fact that the land reform program contemplated in the said
Code is beyond the capabilities of any private enterprise to translate into reality. It is a purely governmental function, no less than, say,
the establishment and maintenance of public schools and public hospitals. And when, aside from the governmental objectives of the
ACA, geared as they are to the implementation of the land reform program of the State, the law itself declares that the ACA is a
government office, with the formulation of policies, plans and programs vested no longer in a Board of Governors, as in the case of the
ACCFA, but in the National Land Reform Council, itself a government instrumentality; and that its personnel are subject to Civil Service
laws and to rules of standardization with respect to positions and salaries, any vestige of doubt as to the governmental character of its
functions disappears.
In view of the foregoing premises, we hold that the respondent Unions are not entitled to the certification election sought in the Court
below. Such certification is admittedly for purposes of bargaining in behalf of the employees with respect to terms and conditions of
employment, including the right to strike as a coercive economic weapon, as in fact the said unions did strike in 1962 against the
ACCFA (G.R. No. L-21824).6 This is contrary to Section 11 of Republic Act No. 875, which provides:
SEC. 11. Prohibition Against Strike in the Government The terms and conditions of employment in the Government, including any
political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein

shall not strike for the purposes of securing changes or modification in their terms and conditions of employment. Such employees may
belong to any labor organization which does not impose the obligation to strike or to join in strike: Provided, However, that this section
shall apply only to employees employed in governmental functions of the Government including but not limited to governmental
corporations.7
With the reorganization of the ACCFA and its conversion into the ACA under the Land Reform Code and in view of our ruling as to the
governmental character of the functions of the ACA, the decision of the respondent Court dated March 25, 1963, and the resolution en
banc affirming it, in the unfair labor practice case filed by the ACCFA, which decision is the subject of the present review in G. R. No. L21484, has become moot and academic, particularly insofar as the order to bargain collectively with the respondent Unions is
concerned.
What remains to be resolved is the question of fringe benefits provided for in the collective bargaining contract of September 4, 1961.
The position of the ACCFA in this regard is that the said fringe benefits have not become enforceable because the condition that they
should first be approved by the Office of the President has not been complied with. The Unions, on the other hand, contend that no
such condition existed in the bargaining contract, and the respondent Court upheld this contention in its decision.
It is to be listed that under Section 3, Article XIV, of the agreement, the same "shall not become effective unless and until the same is
duly ratified by the Board of Governors of the Administration." Such approval was given even before the formal execution of the
agreement, by virtue of "Resolution No. 67, Regular Meeting No. 7, FY 1960-61, held on August 17, 1961," but with the proviso that
"the fringe benefits contained therein shall take effect only if approved by the office of the President." The condition is, therefore,
deemed to be incorporated into the agreement by reference.
On October 23, 1962 the Office of the President, in a letter signed by the Executive Secretary, expressed its approval of the bargaining
contract "provided the salaries and benefits therein fixed are not in conflict with applicable laws and regulations, are believed to be
reasonable considering the exigencies of the service and the welfare of the employees, and are well within the financial ability of the
particular corporation to bear."
On July 1, 1963 the ACCFA management and the Unions entered into an agreement for the implementation of the decision of the
respondent Court concerning the fringe benefits, thus:
In the meantime, only Cost of Living Adjustment, Longevity Pay, and Night Differential Benefits accruing from July 1, 1961 to June 30,
1963 shall be paid to all employees entitled thereto, in the following manner:
A) The sum of P180,000 shall be set aside for the payment of:
1) Night differential benefits for Security Guards.
2) Cost of Living Adjustment and Longevity Pay.
3) The unpaid balance due employees on Item A (1) and (2) this paragraph shall be paid in monthly installments as finances permit but
not beyond December 20, 1963.
3. All benefits accruing after July 1, 1963, shall be allowed to accumulate but payable only after all benefits accruing up to June 30,
1963, as per CIR decision hereinabove referred to shall have been settled in full; provided, however, that commencing July 1, 1963 and
for a period of only two (2) months thereafter (during which period the ACCFA and the Unions shall negotiate a new Collective
Bargaining Agreement) the provisions of the September 4, 1961 Collective Bargaining Agreement shall be temporarily suspended,
except as to Cost of Living Adjustment and "political" or non-economic privileges and benefits thereunder.
On July 24, 1963 the ACCFA Board of Governors ratified the agreement thus entered into, pursuant to the provision thereof requiring
such ratification, but with the express qualification that the same was "without prejudice to the pending appeal in the Supreme Court . . .
in Case No. 3450-ULP." The payment of the fringe benefits agreed upon, to our mind, shows that the same were within the financial
capability of the ACCFA then, and hence justifies the conclusion that this particular condition imposed by the Office of the President in
its approval of the bargaining contract was satisfied.

We hold, therefore, that insofar as the fringe benefits already paid are concerned, there is no reason to set aside the decision of the
respondent Court, but that since the respondent Unions have no right to the certification election sought by them nor, consequently, to
bargain collectively with the petitioner, no further fringe benefits may be demanded on the basis of any collective bargaining agreement.
The decisions and orders appealed from are set aside and/or modified in accordance with the foregoing pronouncements. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Castro, Teehankee and Barredo, JJ., concur.
Zaldivar, J., concurs in the result.
Separate Opinions
FERNANDO, J., concurring:
The decision reached by this Court so ably given expression in the opinion of Justice Makalintal, characterized with vigor, clarity and
precision, represents what for me is a clear tendency not to be necessarily bound by our previous pronouncements on what activities
partake of a nature that is governmental.1 Of even greater significance, there is a definite rejection of the "constituent-ministrant"
criterion of governmental functions, followed in Bacani v. National Coconut Corporation.2 That indeed is cause for gratification. For me
at least, there is again full adherence to the basic philosophy of the Constitution as to the extensive and vast power lodged in our
government to cope with the social and economic problems that even now sorely beset us. There is therefore full concurrence on my
part to the opinion of the Court, distinguished by its high quality of juristic craftsmanship. I feel however that the matter is of such vital
importance that a separate concurring opinion is not inappropriate. It will also serve to give expression to my view, which is that of the
Court likewise, that our decision today does not pass upon the rights of labor employed in instrumentalities of the state discharging
governmental functions.
1. In the above Bacani decision, governmental functions are classified into constituent and ministrant. "The former are those which
constitute the very bonds of society and are compulsory in nature; the latter are those that are undertaken only by way of advancing the
general interests of society, and are merely optional. President Wilson enumerates the constituent functions as follows: '(1) The
keeping of order and providing for the protection of persons and property from violence and robbery. (2) The fixing of the legal relations
between man and wife and between parents and children. (3) The regulation of the holding, transmission, and interchange of property,
and the determination of its liabilities for debt or for crime. (4) The determination of contract rights between individuals. (5) The
definition and punishment of crime. (6) The administration of justice in civil cases. (7) The determination of the political duties,
privileges, and relations of citizens. (8) Dealings of the state with foreign powers: the preservation of the state from external danger or
encroachment and the advancement of its international interests.' "3
The ministrant functions were then enumerated, followed by a statement of the basis that would justify engaging in such activities.
Thus: "The most important of the ministrant functions are: public works, public education, public charity, health and safety regulations,
and regulations of trade and industry. The principles determining whether or not a government shall exercise certain of these optional
functions are: (1) that a government should do for the public welfare those things which private capital would not naturally undertake
and (2) that a government should do these things which by its very nature it is better equipped to administer for the public welfare than
is any private individual or group of individuals."4
Reference is made in the Bacani decision to the first of the many publications of Justice Malcolm on the Philippine government, which
appeared in 1916,5 adopting the formulation of the then Professor, later President, Woodrow Wilson of the United States, in a textbook
on political science the first edition of which was published in 1898. The Wilson classification reflected the primacy of the dominant
laissez-faire concept carried into the sphere of government.
A most spirited defense of such a view was given by former President Hadley of Yale in a series of three lectures delivered at Oxford
University in 1914. According to President Hadley: "I shall begin with a proposition which may sound somewhat startling, but which I
believe to be literally true. The whole American political and social system is based on industrial property right, far more completely
than has ever been the case in any European country. In every nation of Europe there has been a certain amount of traditional
opposition between the government and the industrial classes. In the United States no such tradition exists. In the public law of
European communities industrial freeholding is a comparatively recent development. In the United States, on the contrary, industrial
freeholding is the foundation on which the whole social order has been established and built up."6

The view is widely accepted that such a fundamental postulate did influence American court decisions on constitutional law. As was
explicitly stated by Justice Cardozo, speaking of that era: "Laissez-faire was not only a counsel of caution which statesmen would do
well to heed. It was a categorical imperative which statesmen as well as judges, must obey."7 For a long time, legislation tending to
reduce economic inequality foundered on the rock that was the due process clause, enshrining as it did the liberty of contract. To cite
only one instance, the limitation of employment in bakeries to sixty hours a week and ten hours a day under a New York statute was
stricken down for being tainted with a due process objection in Lochner v. New York.8 It provoked one of the most vigorous dissents of
Justice Holmes, who was opposed to the view that the United States Constitution did embody laissez-faire. Thus: "General propositions
do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I
think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that
the word 'liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it
can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they
have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping
condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health.
Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of
work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss." It was not until 1908, in
Muller v. Oregon,9 that the American Supreme Court held valid a ten-hour maximum for women workers in laundries and not until 1917
in Bunting v. Oregon10 that such a regulatory ten-hour law applied to men and women passed the constitutional test.
Similarly, state legislation fixing minimum wages was deemed offensive to the due process clause in a 1923 decision in Adkins v.
Children's Hospital.11 Only in 1937, in the leading case of West Coast Hotel v. Parrish,12 was the Adkins case overruled and a
minimum wage law New York statute upheld. The same unsympathetic attitude arising from the laissez-faire concept was manifest in
decisions during such period, there being the finely-spun distinctions in the Wolff Packing Co. v. Court of Industrial Relations13
decision, as to when certain businesses could be classified as affected with public interest to justify state regulation as to prices. After
eleven years, in 1934, in Nebbia v. New York,14 the air of unreality was swept away by this explicit pronouncement from the United
States Supreme Court: "The phrase 'affected with a public interest' can, in the nature of things, mean no more than that an industry, for
adequate reason, is subject to control for the public good."
It is thus apparent that until the administration of President Roosevelt, the laissez-faire principle resulted in the contraction of the
sphere where governmental entry was permissible. The object was to protect property even if thereby the needs of the general public
would be left unsatisfied. This was emphatically put forth in a work of former Attorney General, later Justice, Jackson, citing an opinion
of Judge Van Orsdel. Thus: "It should be remembered that of the three fundamental principles which underlie government, and for
which government exists, the protection of life, liberty, and property, the chief of these is property . . . ."15 The above excerpt from
Judge Van Orsdel forms part of his opinion in Children's Hospital v. Adkins, when decided by the Circuit Court of Appeals.16
Nonetheless, the social and economic forces at work in the United States to which the new deal administration of President Roosevelt
was most responsive did occasion, as of 1937, greater receptivity by the American Supreme Court to a philosophy less rigid in its
obeisance to property rights. Earlier legislation deemed offensive to the laissez-faire concept had met a dismal fate. Their nullity during
his first term could, more often than not, be expected.17
As a matter of fact, even earlier, in 1935, Professor Coker of Yale, speaking as a historian, could already discern a contrary drift. Even
then he could assert that the range of governmental activity in the United States had indeed expanded. According to him: "Thus both
liberals and conservatives approve wide and varied governmental intervention; the latter condemning it, it is true, when the former
propose it, but endorsing it, after it has become a fixed part of the status quo, as so beneficial in its effects that no more of it is needed.
Our history for the last half-century shows that each important governmental intervention we have adopted has been called socialistic
or communistic by contemporary conservatives, and has later been approved by equally conservative men who now accept it both for
its proved benefits and for the worthy traditions it has come to represent. Both liberal and conservative supporters of our large-scale
business under private ownership advocate or concede the amounts and kinds of governmental limitation and aid which they regard as
necessary to make the system work efficiently and humanely. Sooner or later, they are willing to have government intervene for the
purpose of preventing the system from being too oppressive to the masses of the people, protecting it from its self-destructive errors,
and coming to its help in other ways when it appears not to be able to take care of itself."18
At any rate, by 1943, the United States was reconciled to laissez-faire having lost its dominance. In the language of Justice Jackson in
the leading case of West Virginia State Board of Education v. Barnette:19 "We must transplant these rights to a soil in which the
laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are
increasingly sought through closer integration of society and through expanded and strengthened governmental controls."

2. The influence exerted by American constitutional doctrines unavoidable when the Philippines was still under American rule
notwithstanding, an influence that has not altogether vanished even after independence, the laissez-faire principle never found full
acceptance in this jurisdiction, even during the period of its full flowering in the United States. Moreover, to erase any doubts, the
Constitutional Convention saw to it that our fundamental law embodies a policy of the responsibility thrust on government to cope with
social and economic problems and an earnest and sincere commitment to the promotion of the general welfare through state action. It
would thus follow that the force of any legal objection to regulatory measures adversely affecting property rights or to statutes
organizing public corporations that may engage in competition with private enterprise has been blunted. Unless there be a clear
showing of any invasion of rights guaranteed by the Constitution, their validity is a foregone conclusion. No fear need be entertained
that thereby spheres hitherto deemed outside government domain have been enchroached upon. With our explicit disavowal of the
"constituent-ministrant" test, the ghost of the laissez-faire concept no longer stalks the juridical stage.
As early as 1919, in the leading case of Rubi V. Provincial Board of Mindoro,20 Justice Malcolm already had occasion to affirm: "The
doctrines of laissez-faire and of unrestricted freedom of the individual, as axioms of economic and political theory, are of the past. The
modern period has shown a widespread belief in the amplest possible demonstration of governmental activity. The Courts unfortunately
have sometimes seemed to trail after the other two branches of the Government in this progressive march."
It was to be expected then that when he spoke for the Court in Government of the Philippine Islands v. Springer,21 a 1927 decision, he
found nothing objectionable in the government itself organizing and investing public funds in such corporations as the National Coal
Co., the Phil. National Bank, the National Petroleum Co., the National Development Co., the National Cement Co. and the National Iron
Co. There was not even a hint that thereby the laissez-faire concept was not honored at all. It is true that Justice Malcolm concurred
with the majority in People v. Pomar,22 a 1924 opinion, which held invalid under the due process clause a provision providing for
maternity leave with pay thirty days before and thirty days after confinement. It could be that he had no other choice as the Philippines
was then under the United States, and only recently the year before, the above-cited case of Adkins v. Children's Hospital,23 in line
with the laissez-faire principle, did hold that a statute providing for minimum wages was constitutionally infirm on the same ground.
Our constitution which took effect in 1935, upon the inauguration of the Commonwealth of the Philippines, erased whatever doubts
there might be on that score. Its philosophy is antithetical to the laissez-faire concept. Delegate, later President, Manuel Roxas, one of
the leading members of the Constitutional Convention, in answer precisely to an objection of Delegate Jose Reyes of Sorsogon, who
noted the "vast extensions in the sphere of governmental functions" and the "almost unlimited power to interfere in the affairs of
industry and agriculture as well as to compete with existing business" as "reflections of the fascination exerted by [the then] current
tendencies" in other jurisdictions,24 spoke thus: "My answer is that this constitution has a definite and well defined philosophy, not only
political but social and economic. A constitution that in 1776 or in 1789 was sufficient in the United States, considering the problems
they had at that time, may not now be sufficient with the growing and ever-widening complexities of social and economic problems and
relations. If the United States of America were to call a constitutional convention today to draft a constitution for the United States, does
any one doubt that in the provisions of that constitution there will be found definite declarations of policy as to economic tendencies;
that there will be matters which are necessary in accordance with the experience of the American people during these years when vast
organizations of capital and trade have succeeded to a certain degree to control the life and destiny of the American people? If in this
constitution the gentleman will find declarations of economic policy, they are there because they are necessary to safeguard the
interests and welfare of the Filipino people because we believe that the days have come when in self-defense, a nation may provide in
its constitution those safeguards, the patrimony, the freedom to grow, the freedom to develop national aspirations and national
interests, not to be hampered by the artificial boundaries which a constitutional provision automatically imposes."25
Delegate Roxas continued further: "The government is the creature of the people and the government exercises its powers and
functions in accordance with the will and purposes of the people. That is the first principle, the most important one underlying this
document. Second, the government established in this document is, in its form, in our opinion, the most adapted to prevailing
conditions, circumstances and the political outlook of the Filipino people. Rizal said, 'Every people has the kind of government that they
deserve.' That is just another form of expressing the principle in politics enunciated by the French philosophers when they said: 'Every
people has the right to establish the form of government which they believe is most conducive to their welfare and their liberty.' Why
have we preferred the government that is established in this draft? Because it is the government with which we are familiar. It is the
form of government fundamentally such as it exists today; because it is the only kind of government that our people understand; it is
the kind of government we have found to be in consonance with our experience, with the necessary modification, capable of permitting
a fair play of social forces and allowing the people to conduct the affairs of that government."26
One of the most prominent delegates, a leading intellectual, former President Rafael Palma of the University of the Philippines,
stressed as a fundamental principle in the draft of the Constitution the limitation on the right to property. He pointed out that the then
prevailing view allowed the accumulation of wealth in one family down to the last remote descendant, resulting in a grave disequilibrium

and bringing in its wake extreme misery side by side with conspicuous luxury. He did invite attention to the few millionaires at one
extreme with the vast masses of Filipinos deprived of the necessities of life at the other. He asked the Convention whether the Filipino
people could long remain indifferent to such a deplorable situation. For him to speak of a democracy under such circumstances would
be nothing but an illusion. He would thus emphasize the urgent need to remedy the grave social injustice that had produced such
widespread impoverishment, thus recognizing the vital role of government in this sphere.27
Another delegate, Tomas Confesor of Iloilo, was quite emphatic in his assertion for the need of a social justice provision which is a
departure from the laissez-faire principle. Thus: "Take the case of the tenancy system in the Philippines. You have a tenant. There are
hundreds of thousands of tenants working day in and day out, cultivating the fields of their landlords. He puts all his time, all his energy,
the labor and the assistance of his wife and children, in cultivating a piece of ground for his landlord but when the time comes for the
partition of the products of his toil what happens? If he produces 25 cavanes of rice, he gets only perhaps five and the twenty goes to
the landlord. Now can he go to court? Has he a chance to go to court in order to secure his just share of the products of his toil? No.
Under our present regime of law, under our present regime of justice, you do not give that to the poor tenant. Gentlemen, you go to the
Cagayan Valley and see the condition under which those poor farmers are being exploited day in and day out. Can they go to court
under our present regime of justice, of liberty, or democracy? The other day, workmen were shot by the police just because they
wanted to increase or they desired that their wages be increased from thirty centavos a day to forty or fifty centavos. Is it necessary to
spill human blood just to secure an increase of ten centavos in the daily wages of an ordinary laborer? And yet under our present
regime of social justice, liberty and democracy, these things are happening; these things, I say, are happening. Are those people getting
any justice? No. They cannot get justice now from our courts. For this reason, I say it is necessary that we insert 'social justice' here
and that social justice must be established by law. Proper legal provisions, proper legal facilities must be provided in order that there be
a regime not of justice alone, because we have that now and we are seeing the oppression arising from such a regime. Consequently,
we must emphasize the term 'social justice'."28
Delegate Ventenilla of Pangasinan reflected the attitude of the Convention as to why laissez-faire was no longer acceptable. After
speaking of times having changed, he proceeded: "Since then new problems have arisen. The spiritual mission of government has
descended to the level of the material. Then its function was primarily to soothe the aching spirit. Now, it appears, it must also appease
hunger. Now that we may read history backwards, we know for instance, that the old theory of 'laissez-faire' has degenerated into 'big
business affairs' which are gradually devouring the rights of the people the same rights intended to be guarded and protected by the
system of constitutional guaranties. Oh, if the Fathers were now alive to see the changes that the centuries have wrought in our life!
They might contemplate the sad spectacle of organized exploitation greedily devouring the previous rights of the individual. They might
also behold the gradual disintegration of society, the fast disappearance of the bourgeois the middle class, the backbone of the
nation and the consequent drifting of the classes toward the opposite extremes the very rich and the very poor."29
Shortly after the establishment of the Commonwealth, the then Justice Jose P. Laurel, himself one of the foremost delegates of the
Constitutional Convention, in a concurring opinion, later quoted with approval in the leading case of Antamok Goldfields Mining Co. v.
Court of Industrial Relations,30 decided in 1940, explained clearly the need for the repudiation of the laissez-faire doctrine. Thus: "It
should be observed at the outset that our Constitution was adopted in the midst of surging unrest and dissatisfaction resulting from
economic and social distress which was threatening the stability of governments the world over. Alive to the social and economic forces
at work, the framers of our Constitution boldly met the problems and difficulties which faced them and endeavored to crystallize, with
more or less fidelity, the political, social and economic propositions of their age, and this they did, with the consciousness that the
political and philosophical aphorism of their generation will, in the language of a great jurist, 'be doubted by the next and perhaps
entirely discarded by the third.' . . . Embodying the spirit of the present epoch, general provisions were inserted in the Constitution
which are intended to bring about the needed social and economic equilibrium between component elements of society through the
application of what may be termed as the justitia communis advocated by Grotius and Leibnits many years ago to be secured through
the counterbalancing of economic and social forces and opportunities which should be regulated, if not controlled, by the State or
placed, as it were, in custodia societatis. 'The promotion of social justice to insure the well-being and economic security of all the
people' was thus inserted as vital principle in our Constitution. ... ."31 In the course of such concurring opinion and after noting the
changes that have taken place stressing that the policy of laissez-faire had indeed given way to the assumption by the government of
the right to intervene although qualified by the phrase "to some extent", he made clear that the doctrine in People v. Pomar no longer
retain, "its virtuality as a living principle."32
3. It must be made clear that the objection to the "constituent-ministrant" classification of governmental functions is not to its formulation
as such. From the standpoint of law as logic, it is not without merit. It has neatness and symmetry. There are hardly any loose ends. It
has the virtue of clarity. It may be said in its favor likewise that it reflects all-too-faithfully the laissez-faire notion that government cannot
extend its operation outside the maintenance of peace and order, protection against external security, and the administration of justice,

with private rights, especially so in the case of property, being safeguarded and a hint that the general welfare is not to be entirely
ignored.
It must not be lost sight of though that logic and jural symmetry while undoubtedly desirable are not the prime consideration. This is
especially so in the field of public law. What was said by Holmes, almost nine decades ago, carry greater conviction now. "The life of
the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions
of public policy avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to
do than the syllogism in determining the rules by which men should be governed."33 Then too, there was the warning of Geny cited by
Cardozo that undue stress or logic may result in confining the entire system of positive law, "within a limited number of logical
categories, predetermined in essence, immovable in basis, governed by inflexible dogmas," thus rendering it incapable of responding
to the ever varied and changing exigencies of life.34,
It is cause enough for concern if the objection to the Bacani decision were to be premised on the score alone that perhaps there was
fidelity to the requirements of logic and jural symmetry carried to excess. What appears to me much more deplorable is that it did fail to
recognize that there was a repudiation of the laissez-faire concept in the Constitution. As was set forth in the preceding pages, the
Constitution is distinguished precisely by a contrary philosophy. The regime of liberty if provided for, with the realization that under the
then prevalent social and economic conditions, it may be attained only through a government with its sphere of activity ranging far and
wide, not excluding matters hitherto left to the operation of free enterprise. As rightfully stressed in our decision today in line with what
was earlier expressed by Justice Laurel, the government that we have established has as a fundamental principle the promotion of
social justice.35 The same jurist gave it a comprehensive and enduring definition as the "promotion of the welfare of all the people, the
adoption by the government of measures calculated to insure economic stability of all the component elements of society, through the
maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally,
through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of
all governments in the time honored principle of salus populi estsuprema lex."36
There is thus from the same distinguished pen, this time writing for the Court, a reiteration of the view of the laissez-faire doctrine being
repugnant to the fundamental law. It must be added though that the reference to extra-constitutional measures being allowable must be
understood in the sense that there is no infringement of specific constitutional guarantees. Otherwise, the judiciary will be hard put to
sustain their validity if challenged in an appropriate legal proceeding.
The regime of liberty contemplated in the Constitution with social justice as a fundamental principle to reinforce the pledge in the
preamble of promoting the general welfare reflects traditional concepts of a democratic policy infused with an awareness of the vital
and pressing need for the government to assume a much more active and vigorous role in the conduct of public affairs. The framers of
our fundamental law were as one in their strongly-held belief that thereby the grave and serious infirmity then confronting our bodypolitic, on the whole still with us now, of great inequality of wealth and mass poverty, with the great bulk of our people ill-clad, ill-housed,
ill-fed, could be remedied. Nothing else than communal effort, massive in extent and earnestly engaged in, would suffice.
To paraphrase Laski, with the necessary modification in line with such worthy constitutional ends, we look upon the state as an
organization to promote the happiness of individuals, its authority as a power bound by subordination to that purpose, liberty while to be
viewed negatively as absence of restraint impressed with a positive aspect as well to assure individual self-fulfillment in the attainment
of which greater responsibility is thrust on government; and rights as boundary marks defining areas outside its domain.37 From which
it would follow as Laski so aptly stated that it is the individual's "happiness and not its well-being [that is] the criterion by which its
behavior [is] to be judged. His interests, and not its power, set the limits to the authority it [is] entitled to exercise."38 We have under
such a test enlarged its field of competence. 4. With the decision reached by us today, the government is freed from the compulsion
exerted by the Bacani doctrine of the "constituent-ministrant" test as a criterion for the type of activity in which it may engage. Its
constricting effect is consigned to oblivion. No doubts or misgivings need assail us that governmental efforts to promote the public weal,
whether through regulatory legislation of vast scope and amplitude or through the undertaking of business activities, would have to face
a searching and rigorous scrutiny. It is clear that their legitimacy cannot be challenged on the ground alone of their being offensive to
the implications of the laissez-faire concept. Unless there be a repugnancy then to the limitations expressly set forth in the Constitution
to protect individual rights, the government enjoys a much wider latitude of action as to the means it chooses to cope with grave social
and economic problems that urgently press for solution. For me, at least, that is to manifest deference to the philosophy of our
fundamental law. Hence my full concurrence, as announced at the outset.
5. The opinion of Justice Makalintal contains this footnote: "It must be stated, however, that we do not here decide the question not
at issue in this case of whether or not a labor organization composed employees discharging governmental functions, which is
allowed under the legal provision just quoted, provided such organization does not impose the obligation to strike or to join in strike,

may petition for a certification election and compel the employer to bargain collectively with it for purposes other than to secure
changes or conditions in the terms and conditions of employment."
With such an affirmation as to the scope of our decision there being no holding on the vexing question of the effects on the rights of
labor in view of the conclusion reached that the function engaged in is governmental in character, I am in full agreement. The answer to
such a vital query must await another day.
ACCFA vs CGCO
Case Digest
Facts:
ACCFA, a government agency created under RA 821, as amended was reorganized and its name changed to Agricultural Credit
Administration (ACA) under the RA 3844 or Land Reform Code. While ACCFA Supervisors' Association (ASA) and the ACCFA Workers'
Association (AWA), are labor organizations (the Unions) composed of the supervisors and the rank-and-file employees in the ACCFA.
A CBA was agreed upon by labor unions (ASA and AWA) and ACCFA. The said CBA was supposed to be effective on 1 July 1962. Due
to non-implementation of the CBA the unions held a strike. And 5 days later, the Unions, with its mother union, the Confederation of
Unions in Government Corporations and Offices (CUGCO), filed a complaint against ACCFA before the CIR on ground of alleged acts
of unfair labor practices; violation of the collective bargaining agreement in order to discourage the members of the Unions in the
exercise of their right to self-organization, discrimination against said members in the matter of promotions and refusal to bargain.
ACCFA moved for a reconsideration but while the appeal was pending, RA 3844 was passed which effectively turned ACCFA to ACA.
Then, ASA and AWA petitioned that they obtain sole bargaining rights with ACA. While this petition was not yet decided upon, EO 75
was also passed which placed ACA under the Land Reform Project Administration. Notwithstanding the latest legislation passed, the
trial court and the appellate court ruled in favor of ASA and AWA.
ISSUE: W/N ACA is a government entity
YES.
It was in furtherance of such policy that the Land Reform Code was enacted and the various agencies, the ACA among them,
established to carry out its purposes. There can be no dispute as to the fact that the land reform program contemplated in the said
Code is beyond the capabilities of any private enterprise to translate into reality. It is a purely governmental function, no less than, the
establishment and maintenance of public schools and public hospitals. And when, aside from the governmental objectives of the ACA,
geared as they are to the implementation of the land reform program of the State, the law itself declares that the ACA is a government
office, with the formulation of policies, plans and programs vested no longer in a Board of Governors, as in the case of the ACCFA, but
in the National Land Reform Council, itself a government instrumentality; and that its personnel are subject to Civil Service laws and to
rules of standardization with respect to positions and salaries, any vestige of doubt as to the governmental character of its functions
disappears.
The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite
unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called
upon to enter optionally, and only "because it was better equipped to administer for the public welfare than is any private individual or
group of individuals,"5continue to lose their well-defined boundaries and to be absorbed within activities that the government must
undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the
tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed
adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice.
The Unions have no bargaining rights with ACA. EO 75 placed ACA under the LRPA and by virtue of RA 3844 the implementation of the
Land Reform Program of the government is a governmental function NOT a proprietary function. Being such, ACA can no longer step
down to deal privately with said unions as it may have been doing when it was still ACCFA. However, the growing complexities of
modern society have rendered the classification of the governmental functions as unrealistic, if not obsolete. Ministerial and
governmental functions continue to lose their well-defined boundaries and are absorbed within the activities that the government must
undertake in its sovereign capacity if it to meet the increasing social challenges of the times and move towards a greater socialization
of economic forces.

CO KIM CHAM vs TAN KEH

G.R. No. L-5
September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent judge of the lower court be ordered to continue the
proceedings in civil case No. 3012 of said court, which were 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
judgements of the court of the Philippines under the Philippine Executive Commission and the Republic of the Philippines established
during the Japanese military occupation, and that, furthermore, the lower 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 government established in
the Philippines during the Japanese occupation were no 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 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 administration 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 judicial courts, based upon what had existed therefore, with approval of the said Commander in Chief, who was to exercise
jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative organization, issued Executive Orders Nos. 1 and 4,
dated January 30 and February 5, 1942, respectively, in which the Supreme Court, Court of Appeals, Courts of First Instance, and the
justices of the peace and municipal courts under the Commonwealth were continued with the same jurisdiction, in conformity with the
instructions given to the said Chairman of the Executive Commission by the Commander in Chief of Japanese Forces in the Philippines

in the latter's Order No. 3 of February 20, 1942, concerning basic principles to be observed by the Philippine Executive Commission in
exercising legislative, executive and judicial powers. Section 1 of said Order provided that "activities of the administration 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 Constitution restored to the
Commonwealth whose seat is here established 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 court 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 of the 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 judgements 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 court 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 were 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.
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 the 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 governments 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 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 of such as the government of the Southern Confederacy in revolt 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 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 with the territories, and against the rightful authority of an established and lawful government; and
(2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to
such force, do not become responsible, or 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, 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 Mine, 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 possessions of territory by lawfull 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 said Section III provides "the authority of the
legislative power having actually passed into the hands of the occupant, the latter shall take steps in his power to reestablish and
insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."
According to the 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 suspended
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 municipal laws in force in the country, that is, those
laws which enforce public order and regulate 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 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 President 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 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 war, as
established by the usage of the of the world, and confirmed by the writings of publicists and decisions of courts in fine, from the law
of nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military
occupation, excepts so far as they are suspended or changed by the acts of 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." (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 no originate in lawful acts of regular war; but it was not, on the account, less actual or less supreme. And we think
that it must be classed among the governments of which these are examples. . . .
In the case of William 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
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 kindered subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National
Government, and did not impair the rights of citizens under the Constitution'. 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 occured 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 are 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 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
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, 1, IV, 25); and, in the same way,
the Duke of Willington, 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, 1944, a
portion of which has been already quoted, "under enemy duress, a so-called government styled as the 'Republic of the Philippines' was
established on October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the Government of the
United States." Japan had no legal power to grant independence to the Philippines or transfer the sovereignty of the 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 Hauge Conventions of 1907 (which prohibits compulsion of
the population of the occupied territory to swear allegiance to the hostile power), the 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 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 the 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 or the Unite 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
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 Islands and established a republic, governing the Islands until possession thereof was
surrendered to the United States on February 22, 1898. And the said Supreme Court held in that case that "such government was of
the class of de facto 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 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 of 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
effect during the continuance of his control, and the various acts done during the same time by private persons under the sanction of
municipal law, remain good. Were it otherwise, the whole social life of a community would be paralyzed by an invasion; and as between
the state and the 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 the 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 so-called Republic of the Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of a political complexion, are and remain valid
after reoccupation of a territory occupied by a belligerent occupant, 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 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 abovequoted 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 void 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 the 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 judgements 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 of 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 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 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
judgements or decisions may afterwards be annulled, and criminals would not be deterred from committing crimes or offenses in the
expectancy that they may escaped the penalty if judgments rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements 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 case which have heretofore been duly
appealed to the Court of Appeals shall be transmitted to the Supreme Court final decision." This provision impliedly recognizes that the
judgments and proceedings of the courts during the Japanese military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or refer to cases which have been duly appealed to said court
prior to the Japanese occupation, but to cases which had therefore, 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 say: "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 quotion 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 to decide; that there is no rule of international law that denies to the restored
government the right of 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 doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier, such as the laws, regulations
and processes other than judicial of the government established by the belligerent occupant. But in view of the fact that the
proclamation uses the words "processes of any other government" and not "judicial processes" prisely, 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 for 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 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 of conscience, constitute or from 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 from 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 occupied, and forbidden to prevent the nationals thereof from asserting or enforcing therein their civil rights, by necessary
implication, the military commander of the forces of liberation or the restored government is restrained from nullifying or setting aside
the judgments rendered by said courts in their litigation during the period of occupation. Otherwise, the purpose of these precepts of
the Hague Conventions would be thwarted, for to declare them null and void would be tantamount to suspending in said courts the right
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 respectively to their
jurisdiction; but we have found nothing to warrant the order here in question. . . . The clearest language would be necessary to satisfy
us that Congress intended that the power given by these acts should be so exercised. . . . It was an arbitrary stretch of authority,
needful to no good end that can be imagined. Whether Congress could have conferred the power to do such an act is a question we
are not called upon to consider. It is an unbending rule of law that the exercise of military power, where the rights of the citizen are
concerned, shall never be pushed beyond what the exigency requires. (Mithell 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 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
now good and valid after the reoccupation of liberation of the Philippines by the American and Filipino forces.
3.
The third and last question is whether or not the courts of the Commonwealth, which are the same as those existing prior to,
and continued during, the Japanese military occupation by the Philippine 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 were
reoccupied or liberated by the American and Filipino forces, and the Commonwealth Government was restored.
Although in theory the authority 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 force and to be administered by the ordinary tribunals
substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present
occasion." And Taylor in this connection says: "From a theoretical point of view it may be said that the conqueror is armed with the right
to substitute his arbitrary will for all 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
institution so far as military necessity will permit." (Taylor, International Public Law, p.596.) Undoubtedly, this practice has been adopted
in order that the ordinary pursuits and business of society may not be unnecessarily deranged, inasmuch as belligerent occupation is
essentially provisional, and the government established by the occupant of transient character.
Following these practice and precepts of the law of nations, 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 affective for the time
being as in the past," and "all public officials shall remain in their present post and carry on faithfully their duties as before." When the
Philippine Executive Commission was organized by Order No. 1 of the Japanese Commander in Chief, on January 23, 1942, the
Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of January 30 and February 5, respectively, continued the
Supreme Court, Court of Appeals, Court of First Instance, and justices of the peace of 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 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 had become reestablished and conceived of as having 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 principles "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 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.)
The argument advanced by the respondent judge in his resolution in support in 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 the left pending therein," is "that said courts were 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
institution or courts so continued remain the laws and institutions or courts of the occupied territory. The laws and the 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 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 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 use of the
name of the Emperor or a compromise. (Wheaton, International Law, War, 7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established continues until changed by the some
competent legislative power. It is not change 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 on Laws
(Cambridge, 1916, Section 131): "There can no break or interregnum in law. From the time the law comes into existence with the firstfelt corporateness of a primitive people it must last until the final disappearance of human society. Once created, it persists until a
change take 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 acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the laws which create and confer upon them their
jurisdiction, it is evident that such laws, not being 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 of the laws creating and conferring jurisdiction upon them have continued in force until now, it
necessarily follows that the same courts may continue exercising the same jurisdiction over cases pending therein before the
restoration of the Commonwealth Government, unless and until they are abolished or the laws creating and conferring jurisdiction upon
them are repealed by the said government. As a consequence, enabling laws or acts providing that proceedings pending in one court
be continued by or transferred to another court, are not required by the mere change of government or sovereignty. They are necessary
only in case the former courts are abolished or their jurisdiction so change 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 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 Island
were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing the civil jurisdiction of the
provost courts created by the military government of occupation in the Philippines during the Spanish-American War of 1898, the same
section 78 provided for the transfer of all civil actions then pending in the provost courts to the proper tribunals, that is, to the justices of
the peace courts, Court 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 court created by Act No. 183 were transferred to the latter.
That the present courts as 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"(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 dully 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 the court, having refused
to act and continue him does 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, 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, Paras, Jaranilla and Pablo, JJ., concur.
Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this case is the validity of the proceedings held in civil case No. 3012, in the Court of First Instance of
the City of Manila, under the now defunct Philippine Republic, during Japanese occupation; and the effect on said proceedings of the
proclamation of General Douglas MacArthur, dated October 23, 1944. The decision of this question requires the application of
principles of International Law, in connection with the municipal law in force in this country, before and during Japanese occupation.
Questions of International Law must be decided as matters of general 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).
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 Conventions 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 be 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 later 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 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 of International Law, section 167).
There can be no question that the Philippines was under Japanese military occupation, from January, 1942, up to the time of the
reconquest by the armed forces of the United States of the Island of Luzon, in February, 1945.
It will thus be readily seen that the civil laws of the invaded State continue in force, in so far as they do not affect the hostile occupant
unfavorably. The regular judicial Tribunals of the occupied territory continue 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 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., 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, 3rd 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.
If the military occupant is thus in duly 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 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 establish 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).

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." (William 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 denominateda 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 wrong doers, for those acts, though not warranted by the laws of the rightful government. Actual
government of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by
military authority, but they may be administered, also, by civil authority, supported more or less directly by military force. (Macleod vs.
United States [1913] 229 U.S., 416.)
The government established in the Philippines, under the so-called Philippine Republic, during Japanese occupation, was and should
be considered as a de facto government; and that the judicial proceedings conducted before the courts which had been established in
this country, during said Japanese occupation, are to be considered legal and valid and enforceable, even after the liberation of this
country by the American forces, as long as the said judicial proceedings had been conducted, under the laws of the Commonwealth of
the Philippines.
The judicial proceedings involved in the case under consideration merely refer to the settlement of property rights, under the provisions
of the Civil Code, in force in this country under the Commonwealth government, before and during Japanese occupation.
Now, petitioner contends that the judicial proceedings in question are null and void, under the provisions of the proclamation issued by
General Douglas MacArthur, dated October 23, 1944; as said proclamation "nullifies all the laws, regulations and processes of any
other government of 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 Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46
Phil., 385). The judiciary, always alive to the dictates of national welfare, can properly incline the scales of its decisions in favor of that
solution which will most effectively promote the public policy (Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should
receive a sensible construction. General terms should be so limited in their application as not 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 is 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., 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 his 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 the public interests.
For the foregoing reasons, I concur in the majority opinion.
PERFECTO, J., dissenting:
Law must be obeyed. To keep the bonds of society, it must not be evaded. On its supremacy depends the stability of states and
nations. No government can prevail without it. The preservation of the human race itself hinges in 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 code was engrave in black
diorite with cunie form 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 verdic India. Moses received at Sinai the ten commandments. Draco,
Lycurgus, Solon made laws in Greece. Even ruthless Genghis Khan used laws to keep discipline among the nomad hordes with which
he conquered the greater part of the European and Asiastic continents.
Animal and plants 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 the law. Planets and stars follow the laws discovered by Kepler, known as the law-maker of heavens. If,
endowed with rebellious spirit, they should happen to challenge the law of universal gravity, the immediate result would be cosmic
chaos. The tiny and twinkling points of light set above us on the velvet darkness of the night will cease to inspire us with dreams of
more beautiful and happier worlds.
Again we are called upon to do our duty. Here is a law that we must apply. Shall we shrink? Shall we circumvent it ? Can we ignore it?
The laws enacted by the legislators shall be useless if courts are not ready to apply them. It is actual application to real issues which
gives laws the breath of life.
In the varied and confused market of human endeavor there are so many things that might induce us to forget the elementals. There
are so many events, so many problem, 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 islands was accomplished, after the most amazing and spectacular war operations, General of the Army Douglas
MacArthur as a 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 distinguished and
classify which acts must be nullified, and which must validated. At the same time he had to take immediate action. More pressing
military matters were requiring his immediate attention. He followed the safe 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 the Philippines 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 Osmea 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 the only government having legal and valid jurisdiction over the people in areas of the Philippines free of
enemy occupation and control;
2.
The laws now existing on the statute books of the Commonwealth of the Philippines and the regulation 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 enemy occupation and control; and
I do hereby announce my purpose progressively to restore and extend to the people of the Philippines the sacred right of government
by constitutional process under the regularly constituted Commonwealth Government as rapidly as the several occupied areas are
liberated to 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 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 policies that should be followed by the public

administration organized by him; he may abolish the said agencies. In fact, he is the supreme ruler and law-maker of the territory under
his control, with powers limited only by the receipts of the fundamental laws of his country.
California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846. Shortly afterward the
United States had military possession of all upper California. Early in 1847 the President, as constitutional commander in chief of the
army and navy, authorized the military and naval commander of our forces in California to exercise the belligerent rights of a conqueror,
and 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 of 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, the
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 the civil cases, but judgement 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 judgement was illegal and void,
because the Provost Court had no jurisdiction of the case. The judgement of the District Court was against the plaintiffs, and this
judgement 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 under this constitutional provision they were entitled to immunity from 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 the civil courts in
captured districts during the war of the rebellion, and their creation by military authority?
This cannot be said to be an open question. The subject came under the 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 the 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 form 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 United States, which military courts are not. As was said in the opinion of the court, delivered by Chief
Justice Chase, in The Grapeshot, "It became the duty of the National government, wherever the insurgent power was overthrown, and
the territory which had been dominated by it was occupied by the National forces, to provide, as far as possible, so long as the war
continued, for the security of the 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 instructed 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, the jurisdiction of which declared to embrace, first, all criminal causes that should not otherwise provided for by law; and
secondly, original and exclusive cognizance of all civil cases not cognizable before the prefects and alcades. 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 the 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 the military authority of court 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
judgements 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 a Commander in Chief, had such authority. We do not concur in this view. General Butler was in
command of the conquering and the occupying army. He was commissioned to carry on the war in Louisina. He was, therefore,
invested with all the powers of making war, so far as they were denied to him by the Commander in Chief, and among these powers, as
we have seen, was 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 on 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.
"PROCESS" 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 it commencement to its conclusion.
PROCESS. In Practice. The means of compelling a defendant to appear in court after suing out the original writ, in civil, and after
indictment, in criminal cases.
The method taken by law to compel a compliance with the original writ or command as of the court.
A writ, warrant, subpoena, or other formal writing issued by authority law; also the means of accomplishing an end, including judicial
proceedings; Gollobitch vs. Rainbow, 84 la., 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 every comprehensive signification and many
meanings. It is 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 it 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
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.

As employed in the 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 subpoena whereby any action, suit or proceeding shall be commenced, or which shall be
issued in or upon any action, suit or proceeding. (50 C. J., PP. 441, 442.)
The 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 two fold, namely, by the King's writ, or by proceeding and warrant, either in deed or in law, without
writ." (People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.)
Baron Comyn says that process, in a large acceptance, comprehends the whole proceedings after the original and before judgement;
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 court ought to be in the name of the King. It is called "process" because it proceeds or goes 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 it demands, and any 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 it is not restricted to mesne process. In a narrow or restricted sense it is 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 from 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 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 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 a
proceeding after the original, before the judgement. A policy of fire insurance contained the condition that if the property shall be sold or
transferred, or any change takes place in 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 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. Trimple,
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 in 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. 279; Bou vs. 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 then 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 case 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, 199; 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 so-called government styled as the "Republic of the Philippines," based upon neither the free
expression of the people's will nor the sanction of the Government of the United States, and is purporting to the 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 he 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 "process." besides those judicial character, those of executive or
administrative character. At any rate, judicial processes cannot be excluded.
THE WORDS OF 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, 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 decisions. The successive neglect of a series of small distinctions, in the effort to follow precedent, is very
liable to end in perverting instruments from their plain meaning. In no other branch of the law (trusts) is so much discretion required in
dealing with authority. . . . There is a strong presumption in favor of giving them words their natural meaning, and against reading them
as if they said something else, which they are not fitted to express. (Merrill vs. Preston, 135 Mass., 451, 455 (1883).
When the words of an instrument are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framer,
there is no occasion to resort to other means of interpretation. It is not allowable to interpret what needs no interpretation.
Very strong expression 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 liberty to imagine an intent and bind the letter to the intent.
The Supreme Court of the United States said: "The primary and general rule of statutory construction is that the intent of the law-maker
is to be found in the language that he has used. He is presumed to know the meaning of the words and the rules of grammar. The
courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true that there are cases in which the
letter of the statute is not deemed controlling, but the cases are few and exceptional and only arise where there are cogent reasons for
believing that the letter does not fully and accurately disclose the intent. No mere ommission, no mere failure to provide for
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 on both sides resorted to what may
call war weapons of psychological character.
So Japan, since its military forces occupied Manila, had waged an intensive campaign 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 the liberation, that is, to restore in our country constitutional processes and the high ideals 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 the Christianity assimilated by our people from teachers of Spain, and the commonsense rules of the American democratic way of life.
It was necessary to free that ideology from any Japanese impurity.
Undoubtedly, the author of the proclamation thought that the laws, regulations, and processes of all the branches of the governments
established under the Japanese regime, if allowed to continue and to have effect, might be a means of keeping and spreading in our
country the Japanese influence, with the same deadly effects 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 reigned and governed by a line 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 the 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 occured 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 from suicide, and on September 13, 1912, on the
occasion of the funeral of Emperor Meiji, induced General Maresuke Nogi and his wife to practice the abhorrent "junshi", and example
of which is offered to us in the following words of a 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
from the hito-bashira (pillar-men) to gird the grave. They were buried alive in circle up to the neck around the thomb and "for several
days they died not, but wept and wailed day night. At last they died not, but wept and wailed day night. At last they did not 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 window, his
ministers, and notable men and women of his kingdom, selected by the priests to partake of such abominable honor. (Broduer, The
Pageant of Civilization, pp. 62-66.)
General MacArthur sought to annul completely the officials 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
Frehsness"; 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 tha mandated islands in the Pacific; they initiated that 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 the 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 an anchronism of a modern world power which seems to be reincarnation of one whose primitive social types of pre-history, whose proper place must be found in an archeological collection. It
represents a backward jump in the evolution of ethical and juridical concepts, a reversion that, more than a simple pathological state,
represents a characteristics 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 the wholesale and indiscriminate slapping, tortures, and
atrocious massacres. Driving nails in the cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical zonings,
looting of properties, establishments of redlight districts, machine gunning of women and children, interment of alive persons, they are
just mere preludes of the promised paradised 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, munitions dumps, artillery base, deposits of bombs and gasoline, torture chambers and zone, 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 the prejuce of placing
of 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 dispotic 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 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 reality; justice is admnistered 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 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 in the dreaded military dungeons, where torture or horrible death were
always awaiting the defenseless victim of the 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 the 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 the rights of a group of individuals, and to protect the same, a way is being
sought to neutralize the effect of the proclamation.
The way found is to invoke international law. The big and resounding word is considered as a shibboleth powerful enough to shield the
affected persons from the annulling impact.
Even then, international law is not invoked to challenge the legality or authority of the proclamation, but only to construe it in a
convenient way so that judicial processes during the Japanese occupation, through an exceptional effort of the imagination, might to
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 country, 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 driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se developpe sans cesse, il change
eternellement de formes; tour il avance et il recule, selon less vicissitudes de histoire et suivan un rhythm monotone qui est comme le
flux et le reflux d'un mer. (M. Revon, De l'existence du driot 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 of 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 antimony 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 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.)
The characteristic plasticity of law is very noticeable, much more than in any other department, in international law.
In a 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 the belligerents to massacre the women and the 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 effect 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 San
Francisco Conference on June 26, 1945, we have to rely on unsystemized 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 insists, therefore, that the principles should be specific and unmistakably defined and that there is definite and conclusive
evidence to the effect that they generally accepted among the civilized nations of the world and that they belong to the current era and
no other epochs of history.
The temptation of assuming the role of a legislator is greater in international law than in any other department of law, since there are no
parliaments, congresses, legislative assemblies which can enact laws and 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 wandering of the imagination often impair the course of dialistics.
THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW
Is there any principle of international law that may effect 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 viodance and nullity of all judicial processes, procedures, and proceedings of
all courts under the Japanese regime.
But those who are sponsoring the cause of said judicial processes try to achieve their aim, not by direct means, but by following a
tortuous side-road.
They accept and recognize the full authority of the author of the proclamation to issue it and all its parts, but they maintain that General
MacArthur did not and could not have in mind the idea of nullifying the judicial processes during the Japanese occupation, because that
will be in violation of the principles of international law.
If we follow the reasoning of the majority opinion we will have to reach the conlusion that the world "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 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 exist, it can be pointed out. If the principle exists, it can 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 lighting 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 Japanese occupation are
valid even after liberation; second whether the October Proclamation had invalidated all judgement 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 tourism 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
postliminium, 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 of the absolute proposition that all acts and proceedings of the legislative, executive, and judicial departments of a
de facto governments are good and valid.
It is be noted that no authority, absolutely no authority, has been cited to support the absolute and sweeping character of the majority
proposition as stated in their opinion.
No authority could be cited, because the majority itself loses faith in the validity of such absolute and sweeping proposition, by
establishing an unexplained exception as regards the judicial acts and proceedings of a "political complexion."
Besides, it is useless to try to 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
government 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 governments are
good and valid? Did it not maintain that they are so as a "legal truism in political and international law?"
Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial processes because they are good
and valid in accordance with international law, why should the same reasoning not apply to legislative and executive processes?
Why does the majority maintain that, notwithstanding the fact that, according that 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 cannot
stand the least analysis or the test of logic.

A great legal luminary admonished that we must have courage to unmasks pretense if we are to reach a peace that will abide beyond
the fleeting hour.
It is admitted that the commanding general of a belligerent army of occupation as an agent of his government, "may not unlawfully
suspend existing laws and promulgate new ones in the occupied territory if and when exigencies of the military occupation demand
such action," but it is doubted whether the commanding general of the army of the restored legitimate government can exercise the
same broad legislative powers.
We beg to disagree with a theory so unreasonable and subversive.
We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an invading army, or of a usurping
army, should enjoy greater legal authority during the illegal, and in the case of the Japanese, iniquitous and bestial occupation, than the
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 for 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 interest of the persons who might be adversely affected by the annulment of the judicial processes of the
governments under the Japanese regime, but we cannot help smiling when we hear that chaos will reign or that the world will sink.
It is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed that the President, in the exercise of
his constitutional powers of pardon and amnesty, had in the past released many criminals from imprisonment. And let us not forget that
due to human limitations, in all countries, under all governments, in peace or in war, there were, there are, and there will always be
unpunished criminals, and that situation never caused despair to any one.
We can conceive of inconveniences and hardships, but they are necessary contributions to great and noble purposes. Untold sacrifices
were always offered to attain high ideals and in behalf of worthy causes.
We cannot refrain from feeling a paternal emotion for those who are trembling with all sincerity because of the belief that the avoidance
of judicial proceedings of the governments under the Japanese regime "would paralyze the social life of the country." To allay such fear
we must remind them that the country that produced many great hereos and martyrs; that contributed some of highest morals figures
that humanity has ever produced in all history; which 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 municipalities and populated areas, were not able to paralyze the social life of our
people. Let us not loss 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 to courts of a future invasions, litigants will not summit their cases to courts whose judgement
may afterwards be annulled, and criminals would not be deterred from committing offenses in the expectancy that they may escape
penalty upon liberation of the country. We hope that Providence will never allow the Philippines to fall again under the arms of an
invading army, but if such misfortune will happen, let the October Proclamation serve as a notice to the ruthless invaders that the
official acts of the government of occupation will not merit any recognition from the legitimate government, especially 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 principle stated the majority opinion quotes from Wheaton the following: "Moreover when it is
said that occupier's acts are valid and under international law should not be abrogated by the subsequent conqueror, it must be
remembered that on 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 stored 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 the 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 the 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 therefore, 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 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, wee are entitled to presume that it is concurred in and, therefore, the qualifications made in the
statement in the majority opinion seem to completely groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF THE LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many duties imposed by international law on the military occupant of an
invaded country.
And from said duties it is deduced that the legitimate government, once restored in his own territory, is bound to respect all the official
acts of the government established by the usurping army, except judicial processes political complexion.
The reasoning calls for immediate opposition. It is absolutely contrary to all principles of logic.
Between the duties imposed in 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 occupants is duty bound to protect the civil rights of the inhabitants, but why should the legitimate government necessarily
validate the measures adopted by the 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 of the military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect the fundamental human rights
of the Filipinos life, property, and personal freedom?
The majority opinion recognizes in the military occupant the power to annul the 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 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 run the logic of the majority.
They don't mind the that General MacArthur speaks in the October Proclamation as follows:
NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-in-Chief of the military forces committed to
the liberation of the Philippines, do hereby proclaim and declare:
xxx

xxx

xxx

3. That all laws, regulations and processes of any other government 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. (emphasis supplied.)
General MacArthur says categorically "all processes", but the majority insists on reading differently, that, is: "NOT ALL processes." The
majority presume, suppose, against the unequivocal meaning of simple and well known words, that when General MacArthur said "all
processes", in fact, he said "not all processes", because it is necessary, by presumption, by supposition, to exclude judicial processes.
If where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to foresee the consequences of such
so stubborn attitude, but it is possible to understand how they reached the unacceptable possible conclusion which we cannot be avoid
opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted to our consideration, by presumption 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 to 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 insists 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
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.
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 the sections 56, 57, Chapter IV, of Act No. 136. The original and
appellate jurisdiction of the Supreme Court is provided in 17 and 18, Chapter II, of the same Act. The provisions of the above-cited do
not authorize, even implicitly, any of the decisions and judgements of tribunals of the 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 the well- established legal doctrine, prevailing not only in the Philippines, but also in the proper
enabling law.
Almost a 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 govenment and administrative provisions which they were authorized to
prescribed, the Commission should bear in mind that the government which they were establishing was designed not for the
satisfaction of the Americans or for the expression of their 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 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 Administravo." All records, books, papers, causes, actions, proceedings, and appeals logged,
deposited, or pending in the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal called
"Contencioso Administravo," 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 allowed the same procedure as regards the transfer of cases and processes pending in the
abolished Spanish Courts of First Instance to the tribunals of the same name established by the Philippine Commission.
SEC. 64.
Disposition of records, papers, causes, and appeals, now pending in the existing Courts of First Instance. All
records, books, papers, actions, proceedings, and appeals lodged, deposited, or pending in the Court of First Instance as now
constituted of or 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 case of
appeal, appealed thereto.

SEC. 65.
Abolition of existing Courts of First Instance. The existing Courts 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 eventhough 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 justice of the peace established by
this Act (No. 136) are authorized to try and determine the actions so transferred to them respectively from the provost courts, in the
same manner and with the same legal effect as though such actions had originally been commenced in the courts created" by virtue of
said Act.
MUNICIPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila, No. 183.
Two municipal courts for the city were created by section 40 of said Act, one for the northern side of Pasig River and the other for the
southern side.
They were courts with criminal jurisdiction or 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 pas 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.
Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that decisions rendered by the provost courts and
military commission shall be ordered executed by the 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 decision 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 the overthrown by the vicissitudes of war. The troops of the Union occupied New Orleans, and held
military possession of the city and such other portions of the State as had submitted to the General Government. The nature of this
occupation and possession was fully explained in the case of The Vinice.
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 Provincial Court, limited in duration, according to the terms of the
proclamation, by the 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 judgements, orders, and decrees of the Provisional Court in causes transferred to the Circuit Court
should at once become the orders, judgements, 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.
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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 judgement and decrees, to the proper courts of the United States. (U. S. Reports,
Wallace, Vol. 9, The Grapeshot, 131-133.)
JUDGEMENTS OF THE 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 Constitution, a provision to said effect was inserted in said document.
Section 149 of the Louisiana Constitution reads as follows:
All the 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. Report, Wallace, Vol. 22,
Mechanics' etc. Bank vs. Union Bank, 281.)
EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE NOT EXECUTORY
The member states of the United States of America belong to the same nation, to the country, and are under the same sovereignty.
But judgements 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 bar the sister state judgement puis darrien continuance. (Wharton, on the Conflict of Laws, Vol. II, p. 1411.)
Under the Constitution of the United States, when a judgement 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 judgement of a sister state, as to an action on a foreign judgement, to set
up as a defense, want of jurisdiction of the court rendering the judgement; and, as indicating such want of jurisdiction, to aver by plea
that the defendant was not an inhabitant of the state rendering the judgement, and had not been served with process, and did not enter
his appearance; or that the attorney was without authority to appear. (Id., pp. 1414-1415.)
The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the absence of an enabling act or of an
express legislative grant, have no jurisdiction to take cognizance and continue the judicial processes, procedures, and proceedings of
the tribunals which were created by the Japanese Military Administration and functioned under the Vargas Philippine Executive
Commission of 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 Asenio P. Dizon, the respondent judge of the Court of the 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 the 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 inevitable
result of the sweeping and absolute annulment declared by the 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 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, 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 the international law on military occupants, but no authority has
been cited to the effect that the representative of the restored legitimate government is a bound to recognize and accept as valid the
acts and processes of said occupants. On the contrary, Wheaton says that if the occupant's acts are reversed "no international wrong
would be committed."
Following the authority of Wheaton, undisputed by the majority, General MacArthur thought, as the wisest course, of declaring "NULL
AND VOID AND WITHOUT EFFECT," by official proclamation, "ALL PROCESSES" under the Japanese regime, that is legislative,
executive and judicial processes, which fall under the absolute adjective "ALL".
That declaration is a law. It is a law that everybody 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 annullment of all the judicial processes under the
Japanese regime, as provided in the October Proclamation, but the tribunals are not 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 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 feel the full weight of the
corresponding responsibility, as the American courts with admiralty jurisdiction and the Prize Courts of England did feel. In fact, it is in
the judiciary where, more than in any point of view is more pressing, more imperative, more unavoidable. Justice has no country. It is of
all countries. The horizon of justice cannot be limited by the scene where our tribunals are functioning and moving. That horizon is
boundless. That is why in our constitution the bill of rights has been written not for Filipinos, but for all persons. They are rights that
belong to men, not as Filipinos, Americans, Russians, Chinese or Malayan, but as a 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 "AND VOID 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 the 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 facts of the governments under the Japanese regime, legislative,
executive, and judicial, is legal, and justified by the wrongs committed by the Japanese.
3.
That when General MacArthur proclaimed and declared in the October Proclamation "That all laws, regulations and
processes" of the Japanese sponsored governments, during enemy occupation, "are null and void and without effect", he meant exactly
what he said.

4.
That where General MacArthur said "all processes" we must read and understand precisely and exactly "all processes", and
not "some processes". "All" and "some" have incompatible meanings and are not interchangeable.
5.
That the word "processes" includes judicial procedures, proceedings, processes, and cases. Therefore, "all processes" must
include "all judicial processes.".
6.
That we have no right to attribute 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 the 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 their interpretation and application, and on a pinchbeck. It is a course based on misconstruction or
misunderstanding of the October Proclamation, in utter disregard of the most elemental principles of legal here meneutics. It is a course
that leads to nowhere, except to the brink of disaster, because it is following the dangerous path of ignoring or disobeying the law.
Let us not allow ourselves to be deceived. The issue confronting us is not of passing importance. It is an issue of awesome magnitude
and transcendency. It goes to and reaches the very bottom. It is simple. Lacking in complexities. But it may shake the very foundation
of society, the cornerstone of the state, the primary pillar of the nation. It may dry the very foundation of social life, the source of
vitalizing sap that nurtures the body politic. The issue is between the validity of one or more Japanese regime processes and the
sanctity of the law.
That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. It is the alpha and the 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 cross road: which way shall we follow? The
processes and the law are placed in the opposite ends of the balance. Shall we inclined 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 lucubration's, no amount of speculative gymnastics, no amount of juggling of immaterial principles of
international law, no amount of presumptions and suppositions, surmises and conjectures, no amount of dexterity in juridical exegesis
can divert our attention from the real, simple, looming, hypostasis of the issue before us: Law. It is Law with all its majestic grandeur
which we are defying and intending to overthrow from the sacred pedestal where the ages had placed her as a goddess, to be
enshrined, obeyed, and venerated by men, forever. Let us not dare to lay our profaning hands on her vestal virginity, lest the oracle
should 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 proceeding 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 a plaintiff in
said case, and of the petition filed by respondent Eusebio Valdez Tan Keh, as defendant therein, on May 31, 19045, held: " first, that by
virtue of the proclamation of General MacArthur quoted above, all laws, regulations and processes of any other government in the
Philippines than that of the Commonwealth became null and void and without legal effect in Manila on February 3, 1945 or, at the lates,
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 judgement, 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 denied.
In stating the reasons for this dissent, we may divide the arguments under the following propositions:
1.
The proceedings in said civil case No. 3012 are null and void under General of the Army MacArthur's proclamation of October
23, 1944 (41 Off. Gaz., 147, 148);
2.
(a) The government styled as, 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 socalled 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;
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 consideration of policy of practical convenience militate against petitioner's contention.

I
The proceedings in said civil case No. 3012 are null and void under General of the Army MacArthur's proclamation of October 23, 1944
(41 Off. Gaz., 147, 148).
In this proclamation, after reciting certain now historic facts, among which was that 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:
xxx

xxx

xxx

3.
That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are
null and void and without legal effect in areas of the Philippines free of enemy occupation and control; and
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xxx

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the Commonwealth of the
Philippines and the laws, regulations and other acts of their duly constituted government whose seat is now firmly re-established on
Philippine soil.
The evident meaning and effect of the 3rd paragraph above quoted is, I think, that as the different areas of the Philippines were
progressively liberated, the declaration of nullity therein contained shall attach to the laws, regulations and processes thus condemned
in so far as said 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 the 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
liberation solemnly enjoined upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the
Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted government. This is all-inclusive it
comprises not only the loyal citizens in the liberated areas but also those in areas still under enemy occupation and control. It will be
noticed that the complaint in said civil case No. 3012 was filed twenty-six days after the above-quoted proclamations of General of the
Army MacArthur. If the parties to said case were to consider the proceedings therein up to the date of the liberation of Manila valid and
binding, they would hardly be complying with the severe injunction to render full respect for and obedience to our Constitution and the
laws, regulations and other acts of our duly constituted government from October 23, 1944, onwards. Indeed, to my mind, in choosing
between these two courses of action, they would be dangerously standing on the dividing line between loyalty and disloyalty to this
country and its government.
The proceeding in question, having been had before the liberation of Manila, were unquestionably "processes" of the Japanesesponsored government in the Philippines within the meaning of the aforesaid proclamation of General of the Army MacArthur and,
consequently, fall within the condemnation of the proclamation. Being processes of a branch of a government which had been
established in the hostility to the Commonwealth Government, as well as the United States Government, they could not very well be
considered by the parties to be valid and binding, at least after October 23, 1944, without said parties incurring in disobedience and
contempt of the proclamation which enjoins them to render full respect for the 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:
One of the fourtheenth of this month, a puppet government was set up in the Philippine Island with Jose P. Laurel, formerly a justice of
the Philippine Supreme Court, as "president." Jorge Vargas, formerly as a member of the 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 hyphocritical 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 symphaty 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

(Form 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 symphaty goes out to those remain
loyal to the United States and the Commonwealth that great majority of the Filipino people who have not been deceived by the
promises of the enemy.
The most that I can concede is that while the Japanese Army of occupation was in control in the Islands and their paramount military
strength gave those of our people who were within their reach no other alternative, these had to obey their orders and decrees, but the
only reason for such obedience would be that paramount military strength and not any intrinsic legal validity in the enemy's orders and
decrees. And once that paramount military strength disappeared, the reason for the obedience vanished, and obedience should
likewise cease.
As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S., 176; 24 Law. ed., 719), "In the
face of an overwhelming force, obedience in such matters may often be a necessity and, in the interest of order, a duty. No concession
is thus made to the rightfulness of the authority exercised." (Emphasis ours.) The court there refers to its own former decision in
Thorington vs. Smith, and makes it clear that the doctrine in the Thorington case, so far as the effects of the acts of the provisional
government maintained by the British in Casetine, 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." (Emphasis 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 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 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
supremancy of the Confederate Government existed over certain territory, individual resistance to its authority then would have 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;
emphasis 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 treaties
have variously denominated provisional or military government, and the majority holds that the Japanese-sponsored government in the
Philippines was such a government. Without prejudice to later discussing the effects which the renunciation of war as an instrument of
national policy contained in our Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have produced in this rule in so
far as the Philippines is concerned, let us set forth some considerations apropos of this conclusion of the majority. If the power to
establish here such a provisional government is recognized in the Commander in Chief of the invasion army, why should we not
recognize at least an equal power in the Commander in Chief of the liberation army to overthrow that government will all of its acts, at
least of 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 choosen 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 sovereignty of Japan, the American Commander in Chief
represented the sovereignty of the United States, as well as the Government of the Commonwealth. If Japan had won this war, her
paramount military supremacy would have continued to be exerted upon the Filipino people, and out of sheer physical compulsion this
country would have had to bow to the continuance of the puppet regime that she had set up here for an indefinite time. In such a case,
we admit that, not because the acts of that government would then 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 the 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 posses sovereign
powers; as such to displace to jurisdiction and authority of the United States from nearly half of their territory and, instead of their laws,
to substitute and enforce those of its own enactment. Its pretentions being resisted, they were submitted to the arbitrament of war. In
that contest the Confederacy failed; and in its failure its pretentions were dissipated, its armies scattered, and the whole fabric of its
government broken in pieces. (24 Law, ed., 719; emphasis ours.)
By analogy, if the Japanese invasion and occupation of the Philippines had been lawful which, however, is not the case and if
Japan had succeeded in permanently maintaining the government that she established in the Philippines, which would have been the
case had victory been hers, there would be more reason for holding the acts of that government valid, but because Japan has lost the
war and, therefore, failed in giving permanence to that government, the contrary conclusion should legitimately follow.
The validity of legislation exercised by either contestant "depends not upon the existence of hostilities but upon the ultimate success of
the party which it is adopted" (emphasis ours). And, referring to the overthrow of the of the Confederacy, the Court, said, "when its
military forces were overthrown, it utterly perished, and with it all its enactments" (emphasis ours)
The majority cite on page 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 the protection of private rights, which has existed in the States prior to the
rebellion, remanded during (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 status, order, ordinances
and 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 "status, 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, usages 36 et seq., Official Gazette, edited at the Office of the
Executive Commission) gave the "Detailed Instruction Based on Guiding Principle of the 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, 19452 of the Japanese Commander in Chief provided in paragraph 3 that "The Authorities and
the People of the Commonwealth should sever their relations with the U.S. o . . ." (This is, likewise, repugnant to the Commonwealth
Constitution and the to the Government of that 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 Confederate 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 unsuccesfully 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, I 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 is 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.) (Emphasis 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 loss the war. And since the founding of the Japanese-sponsored government in the Philippines was designed
to supplant and did actually supplant the rightful government and since all its acts could not but a 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 the 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 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 instruments
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 consequently subscribed the Briand-Kellog Pact.
Those horrors and devastations were increased a hundred fold, if not more, in this second World War, but even before this war
occurred, our own people, through our Constitutional delegates, who framed the Commonwealth Constitution also adopted the same
doctrine, and embodied an express renunciation of war as an instrument of national policy in the instrument that they drafted. It is true
that in section 3, Article II, above-cited, our Constitution adopts the generally accepted principles of International Law as a part of the

law of the Nation. But, of course, this adoption is exclusive of those principles of International Law which might involve recognition of
war as an instrument of national policy. It is plain that on the side of the Allies, the present war is purely defensive. When Japan started
said war, treacherously and without previous declaration, and attacked Pearl Harbor and the Philippines on those two fateful days of
December 7 and 8, 1941, she employed war as an instrument of the 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 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 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 necessary consequence of this, those rules of International Law were no longer applicable to the Philippines and to the United
States at the time of the Japanese invasion 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 Tydings-McDufie Act of 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 stamps 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 the Filipinos. And 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 slighest intensions to make your people our enemy; rather we considered them as our friends who will join us has
hand-in-hand in the establishment of an orderly Greater East Asia. . . ., (Official Gazette, edited at the Office of the Executive
Commission, Vol. I, p. 55.)
If the Philippines was a neutral territory when invaded by the Japanese, the following principles from Lawrence, International Law (7th
ed.), p. 603, are pertinent:
The Duties of Belligerent States Towards Neutral States. . . . To refrain from carrying on hostilities within neutral territory. We have
already seen that, though this obligation was recognized in theory during the infancy of International law, it was often very imperfectly
observed in practice. But in modern times it has been strickly 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. . . . (Emphasis ours.)
In all the cases and authorities supporting the power or right to set up a provisional government, the belligerent had the right to invade
or occupy the territory in the 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.) (Emphasis ours.) The illustrious leader of the United
Nations could not have in more unmistakable terms the utter illegality of that invasion and occupation. If the establishment of a
provinsional 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 the government, which
was its mere application or extention.
The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and treacherous attack," the meager and almost
untrained forces of the Philippine Army had been inducted into the American Army, did not change the neutral status of the Philippines.
That military measure had been adopted for purely defensive purposes. Nothing could be farther from the minds of the government and
military leaders of the United States and the Philippines in adopting it than to embark upon any aggressive or warlike enterprise against
any other nation. It is an old and honored rule dating as far back as the 18th century 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 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 be a de facto court, its judge had to be a de facto
judge, which he could not be, as presently demonstrated.
As said by President Osmea, in replying to the speech of General of the Army MacArthur when the latter turned over to him the full
powers and responsibilities of the Commonwealth Government, on February 27, 1945:
xxx

xxx

xxx

The time has come when the world should know that when our forces surrendered in Bataan and Corregidor, resistance to the enemy
was taken up by the people itself resistance which was inarticulate and disorganized in its inception but which grew from the day to
day and from 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 auxilliary 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 town 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 the 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, and 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 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 regulation 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 Sates 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.
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 Osmea would not be speaking of re-establishing those courts in his
aforesaid Executive Order. For soothe, 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 Supreme Court, the President 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 the Japanese-sponsored government. In the Commonwealth judicial system, if a Justice
or Judge should die or 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 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 Japanese-sponsored courts were not the same Commonwealth courts, the conclusion
is unavoidable that any jurisdiction possessed by the former and any cases left pending therein, were not and could not be
automatically transfered to the Commonwealth courts which we re-established under Executive Order No. 36. For the purpose, a
special legislation was necessary.
Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the President recognized as valid the
proceedings in all cases appealed to the Court of Appeals. Section 2 of that order simply provides that all cases which have been duly
appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. The adverb "duly" would indicate that the
President foresaw the possibility of appeals not having been duly taken. All cases appealed to the Court of Appeals before the war and
the 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 the President Osmea, 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 preceeding and issued on the same date, the President speaks of re-establishing the courts as fast as
provinces were liberated from the Japanese occupation.
IV
The question boils down to whether the Commonwealth Government, as now restored, is to be bound by the acts of either or both of
those Japanese-sponsored governments.

In the last analysis, in deciding the question of validity or nullity of the proceedings involved herein, we are confronted with the
necessity to decide whether the Court of first Instance of Manila and this Supreme Court, as re-established under the Commonwealth
Constitution, and the entire Commonwealth Government, are to be bound by the acts of the said Japanese-sponsored court and
government. To propound this question is, to my mind, to answer it most decidedly in the negative, not only upon the ground of the
legal principles but also for the reasons of national dignity and international decency. To answer the question in the affirmative would be
nothing short for legalizing the Japanese invasion and occupation of the Philippines. Indeed, it would be virtual submission to the
dictation of an invader our people's just hatred of whom gave rise to the epic Philippine resistance movement, which has won the
admiration of the entire civilized world.
V
Even considerations of policy or practical convenience militate against petitioner's contention.
In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the following to say:
It is contended, however, that the judicial system implanted by the Philippine Executive Commission and the Republic was the same as
that of the Commonwealth prior to Japanese occupation; that the laws administered and enforced by said courts during the existence
of said regime were the same laws on the statute books of 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 the 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 institution 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 the 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 the
dispute were had, in acting by virtue of the supposed authority which he was supposed to have received from that government, did so
with no more legal power than if he had acted as a mere lawyer applying the same laws to the case. If duplication of work or effort, or
even if confussion, should be alleged to possibly arise from a declaration of nullity or judicial proceedings had before those Japanesesponsored 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 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 for from the Japanese, 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 adverse 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 it was for instances, 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 then generally difficult and abnormal
conditions prevailing. Under such conditions, cases or denial of a party's day in court expected. Such denial might arise from many a
cause. It might be party's fear to appear before the court because in doing so, he would have had to get near the feared Japanese. It
might be because he did not recognize any legal authority in that court, or it might be his down-right repugnance of the hated enemy.
And I dare say that among such people would be found more than seventeen million Filipinos. These are but a few of countless cause.
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 processes
of the Japanese-sponsored governments in the Philippines. I think, this aspect of the question has been unduly stressed. The situation
is not without remedy, but the remedy lies with the legislature and not with the courts. As the courts cannot create a new or special
jurisdiction for themselves, which is a legislative function, and as the situation demands such new or special jurisdiction, let the
legislature act in the premises. For instance, the Congress may enact a law conferring a special jurisdiction upon the courts of its
selection, whereby said courts may, after hearing all the parties interested, and taking all the necessary safeguards, so that, a party's
day in court or other constitutional or statutory right under the Commonwealth Government should not be prejudiced by any of said
acts, processes or proceedings, particullarly, those in 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 where 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 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. May in their common
hardship and sufferings under yoke of foreign oppression, they had not much time to think of such differences, if they did not utterly
forget them. Their undoubted hatred of the invader was enough to keep them away from the judicial system that said invader allowed to
have. Those who voluntarily went to the courts in those tragic days belong to the small minority.
As to the 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.
Case Digest
Facts of the case: Co Kim Chan had a pending civil case, initiated during the Japanese occupation, with the Court of First Instance of
Manila. After the Liberation of the Manila and the American occupation, Judge Arsenio Dizon refused to continue hearings on the case,
saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial proceedings and judgments of
the courts of the Philippines and, without an enabling law, lower courts have no jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts of the defunct Republic of the Philippines (the Philippine government under the Japanese).
The court resolved three issues:
1.
Whether or not judicial proceedings and decisions made during the Japanese occupation were valid and remained valid even
after the American occupation;
2.
Whether or not the October 23, 1944 proclamation MacArthur issued 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 invalidated all judgments and judicial acts and proceedings of the courts;
3.
And whether or not if they were not invalidated by MacArthurs proclamation, those courts could continue hearing the cases
pending before them.
Ratio: Political and international law recognizes that all acts and proceedings of a de facto government are good and valid. The
Philippine Executive Commission and the Republic of the Philippines under the Japanese occupation may be considered de facto
governments, supported by the military force and deriving their authority from the laws of war.
Municipal laws and private laws, however, usually remain in force unless suspended or changed by the conqueror. Civil obedience is
expected even during war, for 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. And if they were not valid, then it would not have been necessary for MacArthur to
come out with a proclamation abrogating them.
The second question, the court said, hinges on the interpretation of the phrase processes of any other government and whether or
not he intended it to annul all other judgments and judicial proceedings of courts during the Japanese military occupation.
IF, according to international law, non-political judgments and judicial proceedings of de facto governments are valid and remain valid
even after the occupied territory has been liberated, then it could not have been MacArthurs intention to refer to judicial processes,
which would be in violation of international law.

A well-known rule of statutory construction is: A statute ought never to be construed to violate the law of nations if any other possible
construction remains.
Another is that where great inconvenience will result from a particular construction, 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.
Annulling judgments of courts made during the Japanese occupation would clog the dockets and violate international law, therefore
what MacArthur said should not be construed to mean that judicial proceedings are included in the phrase processes of any other
governments.
In the case of US vs Reiter, the court said that if such laws and institutions are continued in use by the occupant, they become his and
derive their force from him. The laws and courts of the Philippines did not become, by being continued as required by the law of
nations, laws and courts of Japan.
It is a legal maxim that, excepting of a political nature, law once established continues until changed by some competent legislative
power. IT IS NOT CHANGED MERELY BY CHANGE OF SOVEREIGNTY. Until, of course, the new sovereign by legislative act creates
a change.
Therefore, even assuming that Japan legally acquired sovereignty over the Philippines, and the laws and courts of the Philippines had
become courts of Japan, as the said courts and laws creating and conferring jurisdiction upon them have continued in force until now, it
follows that the same courts may continue exercising the same jurisdiction over cases pending therein before the restoration of the
Commonwealth Government, until abolished or the laws creating and conferring jurisdiction upon them are repealed by the said
government.
DECISION: Writ of mandamus issued to the 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.
Summary of ratio:
1.
International law says the acts of a de facto government are valid and civil laws continue even during occupation unless
repealed.
2.
MacArthur annulled proceedings of other governments, but this cannot be applied on judicial proceedings because such a
construction would violate the law of nations.
3.
Since the laws remain valid, the court must continue hearing the case pending before it.
***3 kinds of de facto government: one established through rebellion (govt gets possession and control through force or the voice of the
majority and maintains itself against the will of the rightful government)
through occupation (established and maintained by military forces who invade and occupy a territory of the enemy in the course of war;
denoted as a government of paramount force)
through insurrection (established as an independent government by the inhabitants of a country who rise in insurrection against the
parent state)

LAWYERS LEAGUE FOR A BETTER PHILIPPINES vs. PRES. AQUINO

Case Digest
G.R. NO. 73748, May 22, 1986
FACTS:
President Corazon Aquino issued Proclamation No. 1 on February 25, 1986 announcing that she and Vice President Laurel were taking
power. On March 25, 1986, proclamation No.3 was issued providing the basis of the Aquino government assumption of power by
stating that the "new government was installed through a direct exercise of the power of the Filipino people assisted by units of the New
Armed Forces of the Philippines."
Petitioners alleged that the Aquino government is illegal because it was not established pursuant to the 1973 Constitution.
ISSUE:
Whether or not the government of Corazon Aquino is legitimate.
HELD:
Yes. The legitimacy of the Aquino government is not a justiciable matter but belongs to the realm of politics where only the people are
the judge.
The Supreme Court further held that:
The people have accepted the Aquino government which is in effective control of the entire country;
It is not merely a de facto government but in fact and law a de jure government; and
The community of nations has recognized the legitimacy of the new government.

IN RE: BERMUDEZ, 145 SCFRA 160

G.R. No. 76180 October 24, 1986
IN RE: SATURNINO V. BERMUDEZ, petitioner.
R E S O L U T IO N
PER CURIAM:
In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first paragraph of Section 5 (not Section
7 as erroneously stated) of Article XVIII of the proposed 1986 Constitution, which provides in full as follows:
Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May,
1992.
Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare and answer the question of the
construction and definiteness as to who, among the present incumbent President Corazon Aquino and Vice-President Salvador Laurel
and the elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said Section 7 (sic)
of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ...
The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.
Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that
this Court assumes no jurisdiction over petitions for declaratory relief. More importantly, the petition amounts in effect to a suit against
the incumbent President of the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure.
The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of the aforequoted provision is
manifestly gratuitous, it being a matter of public record and common public knowledge that the Constitutional Commission refers
therein to incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for
the extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second paragraph of the
cited section provides for the holding on the second Monday of May, 1992 of the first regular elections for the President and VicePresident under said 1986 Constitution. In previous cases, the legitimacy of the government of President Corazon C. Aquino was
likewise sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution. The said cases were
dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made
the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so
that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has
recognized the legitimacy of tlie present government. All the eleven members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a
Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution.
etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there can be no question that President
Corazon C. Aquino and Vice-President Salvador H. Laurel are the incumbent and legitimate President and Vice-President of the
Republic of the Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,
ACCORDINGLY, the petition is hereby dismissed.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.
MELENCIO-HERRERA, J., concurring:
GUTIERREZ, Jr., J., concurring:
FELICIANO, JJ., concurring.
The petitioner asks the Court to declare who are "the incumbent President and Vice President elected in the February 7, 1986
elections" as stated in Article XVIII, Section 5 of the Draft Constitution adopted by the Constitutional Commission of 1986.
We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over petitions for declaratory relief.
As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected President and Vice President in the
February 7, 1986 elections should be addressed not to this Court but to other departments of government constitutionally burdened
with the task of making that declaration.
The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly provide 'that boards of canvassers
in each province and city shall certified who were elected President and Vice President in their respective areas. The certified returns
are transmitted to the legislature which proclaims, through the designated Presiding Head, who were duty elected.
Copies of the certified returns from the provincial and city boards of canvassers have not been furnished this Court nor is there any
need to do so. In the absence of a legislature, we cannot assume the function of stating, and neither do we have any factual or legal
capacity to officially declare, who were elected President and Vice President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution, we agree that there is no doubt
the 1986 Constitutional Commission referred to President Corazon C. Aquino and Vice President Salvador H. Laurel.
Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.
For the foregoing reasons, we vote to DISMISS the instant petition.
CRUZ, J., concurring:
I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not yet been ratified and is therefore not
yet effective. I see here no actual conflict of legal rights susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs.
Haworth, 300 U.S. 227; PACU vs. Secretary of Education, 97 Phil. 806.)
Case Digest
Facts:
This is a petition for declaratory relief filed by the petitioner Bermudez seeking for the clarification of Sec. 5, Art. 18 of the proposed
1986 Constitution, as quoted:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May,
1992.
Petitioner sought the aid of the Court to determine as to whom between the incumbent Pres. Aquino and VP Laurel and elected Pres.
Marcos and VP Tolentino the said provision refers to.
Issue: Whether the Court should entertain the petition for declaratory relief?
Held:
It is elementary that this Court assumes no jurisdiction over petitions for declaratory relief.(Note: ROC provides that the jurisdiction for
petitions for declaratory relief is with the RTC )
More importantly, the petition amounts in effect to a suit against the incumbent President of the Republic, President Corazon C. Aquino,
and it is equally elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure.
It being a matter of public record and common public knowledge that the Constitutional Commission refers therein to incumbent
President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of their
term to noon of June 30, 1992 for purposes of synchronization of election

In Re: Letter of Reynato Puno

[A.M. No. 90-11-2697-CA. June 29, 1992.]
LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court of Appeals dated 14 November 1990.
RESOLUTION
PADILLA, J.:
Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals, wrote a letter dated 14 November 1990 addressed to
this Court, seeking the correction of his seniority ranking in the Court of Appeals.
It appears from the records that petitioner was first appointed Associate Justice of the Court of Appeals on 20 June 1980 but took his
oath of office for said position only on 29 November 1982, after serving as Assistant Solicitor General in the Office of the Solicitor
General since 1974. 1
On 17 January 1983, the Court of Appeals was reorganized and became the Intermediate Appellate Court pursuant to Batas
Pambansa Blg. 129 entitled "An Act Reorganizing the Judiciary. Appropriating Funds Therefor and For Other Purposes." 2 Petitioner
was appointed Appellate Justice in the First Special Cases Division of the Intermediate Appellate Court. On 7 November 1984,
petitioner accepted an appointment to be ceased to be a member of the Judiciary. 3
The aftermath of the EDSA Revolution in February 1986 brought about a reorganization of the entire government, including the
Judiciary. To effect the reorganization of the Intermediate Appellate Court and other lower courts, a Screening Committee was created,

with the then Minister of Justice, now Senator Neptali Gonzales as Chairman and then Solicitor General, now Philippine Ambassador to
the United Nations Sedfrey Ordoez as Vice Chairman. President Corazon C. Aquino, exercising legislative powers by virtue of the
revolution, issued Executive Order No. 33 to govern the aforementioned reorganization of the Judiciary. 4
The Screening Committee recommended the return of petitioner as Associate Justice of the new Court of Appeals and assigned him
the rank of number eleven (11) in the roster of appellate court justices. When the appointments were signed by President Aquino on 28
July 1986, petitioners seniority ranking changed, however, from number eleven (11) to number twenty six (26). 5
Petitioner now alleges that the change in his seniority ranking could only be attributed to inadvertence for, otherwise, it would run
counter to the provisions of Section 2 of Executive Order No. 33, which reads:chanrobles virtual lawlibrary
"SECTION 2.

Section 3, Chapter 1 of Batas Pambansa Blg. 129, is hereby amended to read as follows:jgc:chanrobles.com.ph

"SEC. 2. Organization. There is hereby created a Court of Appeals which shall consist of a Presiding Justice and fifty Associate
Justices who shall be appointed by the President of the Philippines. The Presiding Justice shall be so designated in his appointment
and the Associate Justice shall have precedence according to the dates of their respective appointments, or when the appointments of
two or more shall bear the same date, according to the order in which their appointments were issued by the President. Any Member
who is reappointed to the Court after rendering service in any other position in the government shall retain the precedence to which he
was entitled under his original appointment, and his service in the Court shall, for all intents and purpose be considered as continuous
and uninterrupted." 6
Petitioner elaborates that President Aquino is presumed to have intended to comply with her own Executive Order No. 33 so much so
that the correction of the inadvertent error would only implement the intent of the President as well as the spirit of Executive Order No.
33 and will not provoke any kind of constitutional confrontation (between the President and the Supreme Court). 7
Petitioner points to the case of Justice Oscar Victoriano, former Presiding Justice of the Court of Appeals who, according to petitioner,
was transferred from his position as Justice of the Court of Appeals to the Ministry of Justice as Commissioner of Land Registration and
in 1986 was reappointed to the Court of Appeals. Petitioner states that his (Victorianos) stint in the Commission of Land Registration
did not adversely affect his seniority ranking in the Court of Appeals, for, in his case, Executive Order No. 33 was correctly applied. 8
In a resolution of the Court en banc dated 29 November 1990, the Court granted Justice Punos request. 9 It will be noted that before
the issuance of said resolution, there was no written opposition to, or comment on petitioners aforesaid request. The dispositive portion
of the resolution reads:jgc:chanrobles.com.ph
"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno for correction of his seniority ranking in the Court of Appeals is
granted. The presiding Justice of the Court of Appeals, the Honorable Rodolfo A. Nocon, is hereby directed to correct the seniority rank
of Justice Puno from number twelve (12) to number five (5). Let copies of this Resolution be furnished the Court Administrator and the
Judicial and Bar Council for their guidance and information." 10
A motion for reconsideration of the resolution of the Court en banc dated 29 November 1990 was later filed by Associate Justices Jose
C. Campos, Jr. and Luis A. Javellana, two (2) of the Associate Justices affected by the ordered correction. They contend that the
present Court of Appeals is a new Court with fifty one (51) members and that petitioner could not claim a reappointment to a prior court;
neither can he claim that he was returning to his former court, for the courts where he had previously been appointed ceased to exist at
the date of his last appointment. 11
The Court en banc in a resolution dated 17 January 1992 required the petitioner to file his comment on the motion for reconsideration
of the resolution dated 29 November 1990.
In his Comment, petitioner argues that, by virtue of Executive Order No. 33 read in relation to B.P. Blg. 129, his seniority ranking in the
Court of Appeals is now number five (5) for, though President Aquino rose to power by virtue of a revolution, she had pledged at the
issuance of Proclamation No. 3 (otherwise known as the Freedom Constitution) that "no right provided under the unratified 1973
Constitution (shall) be absent in the Freedom Constitution." 12
Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually re-enacted the last sentence of Sec. 3, Chapter 1 of
B.P. Blg. 129, statutory construction rules on simultaneous repeal and re-enactment mandate, according to petitioner, the preservation
and enforcement of all rights and liabilities which had accrued under the original statute. 13 Furthermore, petitioner avers that, although

the power of appointment is executive in character and cannot be usurped by any other branch of the Government, such power can still
be regulated by the Constitution and by the appropriate law, in this case, by the limits set by Executive Order NO. 33 14 for the power
of appointment cannot be wielded in violation of law. 15
Justices Javellana and Campos were required by the Court to file their reply to Justice Punos comment on their motion for
reconsideration of the resolution of the Court en banc dated 24 January 1991.chanrobles.com:cralaw:red
In their Reply and Supplemental Reply, Associate Justices Javellana and Campos submit that the appeal or request for correction filed
by the petitioner was addressed to the wrong party. They aver that as petitioner himself had alleged the mistake to be an "inadvertent
error" of the Office of the President, ergo, he should have filed his request for correction also with said Office of the President and not
directly with the Supreme Court. 16 Furthermore, they point out that petitioner had indeed filed with the Office of the President a
request or petition for correction of his ranking, (seniority) but the same was not approved such that his recourse should have been an
appropriate action before the proper court and impleading all parties concerned. The aforesaid non-approval by the Office of the
President they argue, should be respected by the Supreme Court "not only on the basis of the doctrine of separation of powers but also
their presumed knowledge ability and even expertise in the laws they are entrusted to enforce" 17 for it (the non-approval) is a
confirmation that petitioners seniority ranking at the time of his appointment by President Aquino was, in fact, deliberate and not an
"inadvertent error" as petitioner would have the Court believe. 18
The resolution of this controversy is not a pleasant task for the Court since it involves not only members of the next highest court of the
land but persons who are close to members of this Court. But the controversy has to be resolved. The core issue in this case is
whether the present Court of Appeals is a new court such that it would negate any claim to precedence or seniority admittedly enjoyed
by petitioner in the Court of Appeals and Intermediate Appellate Court existing prior to Executive Order No. 33 or whether the present
Court of Appeals is merely a continuation of the Court of Appeals and Intermediate Appellate Court existing prior to said Executive
Order No. 33.
It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct from the Court of Appeals or the
Intermediate Appellate Court existing prior to Executive Order No. 33, for it was created in the wake of the massive reorganization
launched by the revolutionary government of Corazon C. Aquino in the aftermath of the people power (EDSA) revolution in 1986.
A resolution has been defined as "the complete overthrow of the established government in any country or state by those who were
previously subject to it" 19 or as "a sudden, radical and fundamental change in the government or political system, usually effected with
violence or at least some acts of violence." 20 In Kelsens book, General Theory of Law and State, it is defined as that which "occurs
whenever the legal order of a community is nullified and replaced by a new order . . . a way not prescribed by the first order itself." 21
It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the "people power revolution" that
the Filipino people tore themselves away from an existing regime. This revolution also saw the unprecedented rise to power of the
Aquino government.
From the natural law point of view, the right of revolution has been defined as "an inherent right of a people to cast out their rulers,
change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal
and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable." 22 It has been
said that "the locus of positive law-making power lies with the people of the state" and from there is derived "the right of the people to
abolish, to reform and to alter any existing form of government without regard to the existing constitution." 23
The three (3) clauses that precede the text of the Provisional (Freedom) Constitution, 24 read:jgc:chanrobles.com.ph
"WHEREAS, the new government under President Corazon C. Aquino was installed through a direct exercise of the power of the
Filipino people assisted by units of the New Armed Forces of the Philippines;
"WHEREAS, the heroic action of the people was done in defiance of the provisions of the 1973 Constitution, as amended;
"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by virtue of the powers vested in me by the sovereign mandate of
the people, do hereby promulgate the following Provisional Constitution."25cralaw:red
These summarize the Aquino governments position that its mandate is taken from "a direct exercise of the power of the Filipino
people." 26

Discussions and opinions of legal experts also proclaim that the Aquino government was "revolutionary in the sense that it came into
existence in defiance of the existing legal processes" 27 and that it was a revolutionary government "instituted by the direct action of
the people and in opposition to the authoritarian values and practices of the overthrown government." 28
A question which naturally comes to mind is whether the then existing legal order was overthrown by the Aquino government. "A legal
order is the authoritative code of a polity. Such code consists of all the rules found in the enactments of the organs of the polity. Where
the state operates under a written constitution, its organs may be readily determined from a reading of its provisions. Once such organs
are ascertained, it becomes an easy matter to locate their enactments. The rules in such enactments, along with those in the
constitution, comprise the legal order of that constitutional state." 29 It is assumed that the legal order remains as a "culture system" of
the polity as long as the latter endures 30 and that a point may be reached, however, where the legal system ceases to be operative as
a whole for it is no longer obeyed by the population nor enforced by the officials. 31
It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional processes; in fact, it was achieved in violation
of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr. Marcos at the winner in the
1986 presidential election. 32 Thus it can be said that the organization of Mrs. Aquinos Government which was met by little resistance
and her control of the state evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of
the Marcos Cabinet officials, revampt of the Judiciary and the Military signalled the point where the legal system then in effect, had
ceased to be obeyed by the Filipino.
The Court holds that the Court of Appeals and Intermediate Appellate Court existing prior to Executive Order No. 33 phased out as part
of the legal system abolished by the revolution and that the Court of Appeals established under Executive Order No. 33 was an entirely
new court with appointments thereto having no relation to earlier appointments to the abolished courts, and that the reference to
precedence in rank contained in the last sentence of Sec. 2, BP Blg. No. 129 as amended by Executive Order No. 33 refers to
prospective situations as distinguished from retroactive ones.
But even assuming, arguendo, that Executive Order No. 33 did not abolish the precedence or seniority ranking resulting from previous
appointment to the Court of Appeals or Intermediate Appellate Court existing prior to the 1986 revolution, it is believed that President
Aquino as head of then revolutionary government, could disregard or set aside such precedence or seniority in ranking when she made
her appointments to the reorganized Court of Appeals in 1986.
It is to be noted that, at the time of the issuance of Executive Order No. 33, President Aquino was still exercising the powers of a
revolutionary government, encompassing both executive and legislative powers, such that she could, if she so desired, amend, modify
or repeal any part of B.P. Blg. 129 or her own Executive Order No. 33. It should also be remembered that the same situation was still in
force when she issued the 1986 appointments to the Court of Appeals. In other words, President Aquino, at the time of the issuance of
the 1986 appointments, modified or disregarded the rule embodied in B.P. Blg. 129 as amended by Executive Order No. 33, on
precedence or seniority in the case of the petitioner, for reasons known only to her. Since the appointment extended by the President to
the petitioner in 1986 for membership in the new Court of Appeals with its implicit ranking in the roster of justices, was a valid
appointment anchored on the Presidents exercise of her then revolutionary powers, it is not for the Court at this time to question or
correct that exercise.
ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the seniority rankings of members of the Court of Appeals,
including that of the petitioner, at the time the appointments were made by the President in 1986, are recognized and upheld.
SO ORDERED.
Paras, Grio-Aquino, Regalado, Davide, Jr. and Romero, JJ., concur.
Separate Opinions
FELICIANO, J., concurring:chanrob1es virtual 1aw library
I agree with the conclusion reached in the majority opinion written by my learned brother, Padilla, J. In particular, I agree that the Court
of Appeals established by Executive Order No. 33 is a new court, and was not merely the old Intermediate Appellate Court with a new
label.

If one examines the provisions of B.P. Blg. 129, known as "The Judiciary Reorganization Act of 1980," relating to the old Intermediate
Appellate Court, it is quite clear that the previously existing Court of Appeals was abolished and a new court, denominated the
Intermediate Appellate Court, was created. Thus, Section 3 of B.P. Blg. 129 reads as follows:jgc:chanrobles.com.ph
"Sec. 3. Organization. There is hereby created an Intermediate Appellate Court which shall consist of a Presiding Appellate Justice
and forty-nine Associate Appellate Justices who shall be appointed by the President of the Philippines. The Presiding Appellate Justice
shall be so designated in his appointment, and the Associate Appellate Justices shall have precedence according to the dates of their
respective appointments, or when the appointments of two or more of them shall bear the same date, according to the order in which
their appointments were issued by the President. Any member who is reappointed to the Court after rendering service in any other
position in the government shall retain the precedence to which he was entitled under his original appointment, and his service in Court
shall, to all intents and purposes, be considered as continuous and uninterrupted." (Emphasis supplied)
Section 44 of the same statute provided as follows:jgc:chanrobles.com.ph
"Sec. 44.
Transitory provisions. The provisions of this Act shall be immediately carried out in accordance with an Executive
Order to be issued by the President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile and
Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the Municipal Circuit Courts
shall continue to function as presently constituted and organized, until the completion of the reorganization provided in this Act as
declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof
shall cease to hold office. The cases pending in the old Courts shall be transferred to the appropriate Courts constituted pursuant to
this Act, together with the pertinent function, records, equipment, property and the necessary personnel.
x

(Emphasis supplied)
Executive Order No. 33, promulgated on 28 July 1986, provided in part as follows:jgc:chanrobles.com.ph
"Section 2.
library

Section 3, Chapter I of Batas Pambansa Blg. 129, is hereby amended to read as follows:chanrob1es virtual 1aw

SEC. 3. Organization There is hereby created a Court of Appeals which shall consist of a Presiding Justice and fifty Associate
Justices who shall be appointed by the President of the Philippines. The Presiding Justice shall be so designated in his appointment,
and the Associate Justices shall have precedence according to the dates of their respective appointments, or when the appointments of
two or more of them shall bear the same date, according to the order in which their appointments were issued by the President. Any
member who is reappointed to the Court after rendering service in any other position in the government shall retain the precedence to
which he was entitled under his original appointment, and his service in the Court shall, for all intents and purposes, be considered as
continuous and uninterrupted." (Emphasis supplied)
Although Executive Order No. 33 spoke of amending Section 3, Chapter 1 of B.P. Blg. 129, it will be seen that what really happened
was the re-enactment of said Section 3, Chapter 1 of B.P. Blg. 129. In other words, much more happened than simply the renaming of
the old Intermediate Appellate Court into (once again) Court of Appeals. If all that Executive Order No. 33 wanted to achieve was the
relabeling of the old Intermediate Appellate Court into the "Court of Appeals," there was no need to amend or re-enact Section 3 of B.P.
Blg. 129. For Section 8 of Executive Order No. 33 provided as follows:jgc:chanrobles.com.ph
"SECTION 8.
The terms Intermediate Appellate Court, Presiding Appellate Justice and Associate Appellate Justice(s) used in the
Judiciary Reorganization Act of 1980 or in any other law or executive order shall hereafter mean Court of Appeals, Presiding Justice
and Associate Justice(s), respectively."cralaw virtua1aw library
Thus, President Aquino was quite free, legally speaking to appoint to the new Court of Appeals whoever in her judgment was fit and
proper for membership in that new court in an order of precedence that she was just then establishing.chanrobles law library
The sentence found in Section 3 of B.P. Blg. 129 as amended or re-enacted through the medium of Section 2 of Executive Order No.
33

"Any Member who is reappointed to the Court after rendering service in any other position in the government shall retain the
precedence to which he was entitled under his original appointment, and his service in the Court shall, for all intents and purposes, be
considered as continuous and uninterrupted."cralaw virtua1aw library
which my distinguished brother in the Court, Gutierrez, Jr., J., very heavily stressed, contemplates in my submission the situation of a
member of the new Court of Appeals accepting appointment to some other department or branch of government, outside the Judiciary,
and who later receives an appointment once again to that same Curt of Appeals. But Mr. Justice Reynato S. Puno was not in such a
situation. The last preceding appointment to the Judiciary of Mr. Justice Reynato S. Puno was to the then Intermediate Appellate Court
newly created by B.P. Blg. 129. In 1984, he left that court to become Deputy Minister in the Ministry of Justice. His next appointment to
the Judiciary was not to the old Intermediate Appellate Court, which by that time had passed on to history. His appointment dated 28
July 1986, was, in my view, as already noted, to the new Court of Appeals established by Executive Order No. 33. Thus, the last
sentence of Section 3 of B.P. Blg. 129 (before re-enactment by Executive Order No. 33) afforded no basis for a claim to the same
numerical precedence in the new Court of Appeals that he would have been entitled to had the old Intermediate Appellate Court not
gone out of existence. It is difficult for me to understand how a claim to a particular position in an order of precedence can be made
where the court itself, to which the new appointment is made, is a new and distinct court.
I vote to grant the Motion for Reconsideration.
BELLOSILLO, J., concurring:chanrob1es virtual 1aw library
I agree with the ponencia of Mr. Justice Padilla, so I vote to grant the motion for reconsideration of Our Resolution of November 29,
1990. I am for respecting the seniority ranking of the Associate Justices of the Court of Appeals at the time they were appointed by the
President on July 31, 1986.
I must admit that, like Mr. Justice Gutierrez, Jr., and Mr. Justice Padilla, it was not easy for me to decide to participate in the
deliberations in this case considering that it involves esteemed colleagues in the Court of Appeals. As such, when subject Resolution
was promulgated, I did not react despite the proddings of well-meaning friends. It refused to be dragged into the "fray" in deference to
Justice Reynato S. Puno who would be adversely affected. I remained firm in my resolve to stay away from the controversy. It was to
me a personal privilege so to do, which i could waive, as I did.
But circumstances have changed; not that I no longer revere my friendship with Justice Puno, but as a member now of this Court it has
become my duty no longer a mere privilege, much less a right to aid the Court in resolving this controversy in the fairest possible
way, a responsibility I find no justification to shirk.
On August 1, 1986, at the oath-taking ceremonies for the newly-appointed members of the Court of Appeals at Malacaang, when I
noticed Justice Puno take a seat on my right, 1 I asked him to transfer to the left where our senior justices were assigned. I was
assuming that he should be on the left because he was appointed to the old Appellate Court ahead of me. But he showed me the list
where he appeared as No. 26, Justice Lising, No. 25, and I was No. 24. Since he appeared perturbed with his new rank, I suggested to
him to seek the help of then Justice Secretary Neptali A. Gonzales, Chairman of the Screening Committee that processed the
appointments of the new members of the Court of Appeals, and who was then just a meter and a half in front of us. But after talking to
Secretary Gonzales, Justice Puno returned to his original assigned seat. When I asked him what happened, he simply shrugged his
shoulders. Obviously, he failed in his bid.
We then took our oath in the order we were ranked in the list.
Some two (2) months or so later, in an En Banc session back in the Court of Appeals, as we were seated side by side with Justice
Puno, 2 I inquired again from him as to what happened to his request with Malacaang conveyed through the Presiding Justice for the
correction of his ranking. Justice Puno told me it was not granted.
The letter of then Presiding Justice Emilio A. Gancayco dated August 7, 1986, which was his second in fact on the subject, addressed
to Executive Secretary Joker P. Arroyo, is enlightening and informative
"Dear Sir:chanrob1es virtual 1aw library

In relation to my letter of August 5, 1986 informing you of the possible over-sight in the ranking of Mr. Justice REYNATO S. PUNO in his
reappointment as member of this Court, I am furnishing you a certification of the Clerk of Court to the same effect, and also in relation
to the ranking of Messrs. Rodolfo A. Nocon and Jorge A. Coquia who in accordance with their original appointment to this Court are
more senior than Mr. Justice Oscar R. Victoriano in the said order.
If Her Excellency President Corazon Aquino should decide to rearrange the ranking of the incumbent justices of this Court in
accordance with the provisions of Section 2, Executive Order # 33 their proper ranking should be as follows:chanrob1es virtual 1aw
library
No. 3 Mr. Justice Rodolfo A. Nocon;
No. 4 Mr. Justice Jorge A. Coquia;
No. 5 Mr. Justice Oscar R. Victoriano; and
No. 11 Mr. Justice Reynato S. Puno."cralaw virtua1aw library
While this letter perhaps did not elicit the desired response from Executive Secretary Arroyo as his answer did not squarely settle the
issue, the message is clear, i.e., Malacaang did not grant the request for correction of what was perceived to be a "possible
oversight", even after it was twice brought to its attention. Here I am reminded of the principle in procedure that a motion that is not
granted, especially after an unreasonable length of time, is deemed denied, and the lapse of more than four (4) years before Justice
Puno finally came to Us 3 is reasonably unreasonable.
The letter-appointment of President Corazon C. Aquino addressed to then Chief Justice Claudio Teehankee dated July 31, 1986, in fact
categorically specifies the order of seniority of her appointees, thus
"Dear Mr. Chief Justice.
I have appointed the Presiding Justice and the Associate Justices of the Court of Appeals under the following order of
seniority:chanrob1es virtual 1aw library
1.

Hon. Emilio A. Gancayco, Presiding Justice . . .

3.

Hon. Oscar R. Victoriano, Associate Justice

4.

Hon. Rodolfo A. Nocon, Associate Justice

5.

Hon. Jorge A. Coquia, Associate Justice . . .

12.

Hon. Jose C. Campos, Jr., Associate Justice . . .

16.

Hon. Luis A. Javellana, Associate Justice . . .

26.

Hon. Reynato S. Puno, Associate Justice . . ."cralaw virtua1aw library

x"

Considering the circumstances herein narrated, I find it difficult to yield to the proposition that an error was committed through
inadvertence by Malacaang in the ranking of the justices appointed to the Court of Appeals on July 31, 1986.
The above-quoted letter of President Aquino also brings to focus the ranking of Justice Oscar R. Victoriano who was junior to Justices
Nocon and Coquia in the old Court, as reflected in the letter of Presiding Justice Gancayco. However, in the letter of the President,
Justice Victoriano was ranked No. 3, while Justices Nocon and Coquia were ranked No. 4 and No. 5, respectively. Hence, it is not
accurate to say that Justice Victoriano was reinstated to his former rank in the old Court, but was even given a rank higher than
Justices Nocon and Coquia. This "possible oversight" was also brought to the attention of Malacaang but, like the case of Justice
Puno, no correction was made.chanrobles virtual lawlibrary

All these clearly support the view of Mr. Justice Padilla in his ponencia, as well as of Mr. Justice Feliciano in his concurring opinion, that
the present Court of Appeals is an entirely different court, distinct from the old Intermediate Appellate Court or the former Court of
Appeals, with a new members although some were drawn from the now defunct Intermediate Appellate Court, and that the "error"
referred to by Justice Puno could not have been only through "inadvertence" but deliberate, otherwise, Malacaang could have readily
effected the correction?
But whether the "error" was deliberate or committed through inadvertence, is Our Court the proper venue for the correction? Can We
now correct this alleged error of the appointing authority? Worse, can We direct the Office of the President to do what is exclusively
within its prerogative?
This brings me to the final point which bothers me still further. If We sustain the claim that the present Court of Appeals is merely a
continuation of the old Intermediate Appellate Court, or of the old Court of Appeals, then We may be swarmed with requests not only for
re-ranking but also for reinstatement of those who were not reappointed on July 31, 1986, but against whom no charges have been
filed. For then, should they not be allowed to enjoy their security of tenure as civil servants under the Constitution?
In the case of Justice Jorge S. Imperial, he was a member of the old Intermediate Appellate Court who was not reappointed to the new
Court of Appeals on July 31, 1986. There was no charge against him. He was later reappointed but only on January 2, 1987. Should
We also order that he be reinstated to his former rank in the Intermediate Appellate Court? Then, We may have to dislodge some of the
present division Chairmen of the Court of Appeals to accommodate him. That would be unsettling, disturbing, and disruptive of the
present system. I do not think We wish this to happen.
GUTIERREZ, JR., J., dissenting:chanrob1es virtual 1aw library
I regret that I have to differ from the position taken by Mr. Justice Padilla regarding the seniority ranking of Justice Reynato S. Puno in
the Court of Appeals.
I agree that the resolution of the controversy is not a pleasant one for us since it involves persons who are close to the members of this
Court. For me, the task is particularly difficult because apart from close personal relationship, I also highly respect the parties
considerable talents, abilities and qualifications. I have known Justice Jose C. Campos, Jr. since my student days and as a junior
member of this Court, I once urged his nomination for appointment to the Supreme Court even before he started to serve in the Court
of Appeals. Justice Luis A. Javellana was my colleague in the Social Security System while Justice Reynato S. Puno and I worked
together in the Office of the Solicitor General.
I believe, however, that we can resolve the issues on the basis of the facts and the applicable law, in the same way that we reverse or
affirm the parties respective ponencias disregarding personal feelings or close association.
The applicable provision of law in this case was introduced into the Judiciary Act of 1948 by Rep. Act No. 5204 on June 15, 1968 when
it amended the first paragraph of Section 24 to read:chanrob1es virtual 1aw library
x

"Provided, however, that any member of the Court of Appeals who has been reappointed to that court after rendering service in any
other branch of the government shall retain the precedence to which he is entitled under his original appointment and his service in
court shall, to all intents and purposes, be considered as continuous and uninterrupted . . ."cralaw virtua1aw library
This provision was reiterated in all subsequent repealing or amendatory acts and continues to the present. It is found in Batas
Pambansa Blg. 129, Section 3 and in Executive Order No. 33 under President Corazon C. Aquino reorganized the Court of Appeals.
I respectfully submit that from 1968 to 1992, there was no single moment when this provision ceased to exist. It was never repealed
and never disappeared from the law. Everybody, including the appointing power is, of course, bound by the law.
I agree with Justice Padillas discussion of President Aquinos powers in a revolutionary government, a government revolutionary in the
sense that it came into existence in defiance of the existing legal processes.

I, however, believe that the appointments of the Justices of the Court of Appeals in 1986 were not a personal act of a revolutionary
President. Far from it.
First, President Aquinos government ceased to be revolutionary on March 25, 1986 when she promulgated Proclamation No. 3, which
she called the Freedom Constitution. Her government became a constitutional one bound by the Freedom Constitution and the
executive orders issued under its authority.
Second, one significant provision of the Freedom Constitution states that "all elective and appointive officials and employees under the
1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such appointment is made within a period of one year from February 26, 1986."
(Section 2, Article III, Emphasis supplied).
Third, the President implemented the above provision of the Constitution on July 28, 1986 when she issued Executive Order No. 33
which amended B.P. 129. As earlier stated, Executive Order No. 33 reiterated verbatim the provision of B.P. No. 129 which provided for
retention of precedence of a member who is reappointed after a sting in another position in the government.
President Aquino was bound by the provisions of Executive Order No. 33 because it is a law enacted pursuant to constitutional
authority. She could no longer act as a revolutionary President because there was a Constitution, and there were statutes under that
Constitution, in existence.
More important, Executive Order No. 33 was enacted precisely to provide for the reorganization of the Intermediate Appellate Court into
the Court of Appeals. The President intended that every provision of Executive Order No. 33 should be followed precisely for the
purpose for which it was enacted, namely, reorganization of the appellate court. I cannot understand the reasoning which says that all
provisions of Executive Order No. 33 must apply in the reorganization of the Court of Appeals except the provision on retention of
seniority by a reappointed member which must be for the future only.
Even assuming that this one sentence of Executive Order No. 33 was intended to be prospective, then the President has to follow B.P.
No. 129 because Proclamation No. 3, Article IV provides:jgc:chanrobles.com.ph
"SECTION 1.
All existing laws, decrees, executive orders, proclamations, letters of instruction, implementing rules and regulations,
and other executive issuances not inconsistent with this Proclamation shall remain operative until amended, modified, or repealed by
the President or the regular legislative body to be established under a New Constitution."cralaw virtua1aw library
For us lawyers, there is one signal feature of President Aquinos six years in the presidency and this is her dedicated personal
observance of the rule of law. Even when some of our decisions nullified her favorite projects, she unhesitatingly ordered compliance
with our interpretation of the law. I cannot believe that the President would knowingly violate one provision of a law she promulgated
even as she complied with ever other provision of that same law.
Not only the law but also the facts support the correctness of our November 29, 1990 resolution.chanrobles law library : red
We stated in our resolution:jgc:chanrobles.com.ph
"Following this specific provision on seniority, the Screening Committee recommended the return and reappointment of Justice Puno as
Associate Justice of the New Court of Appeals. He was assigned the seniority rank of number eleven (11) following Associate Justice
Vicente V. Mendoza who was given the seniority rank of number ten (10). Unfortunately, however, due to a mistake which can only be
inadvertent, the seniority rank of Justice Puno appears to have been changed from number eleven (11) to number twenty six (26), after
the appointments in the new Court of Appeals were signed by President Aquino. Through his letter, Justice Puno prays for the
correction of his seniority ranking alleging that he should now be given the seniority rank of number five (5) instead of number twelve
(12) in the Court of Appeals.
We find the petition for correction of ranking by Justice Puno to be meritorious. The mistake in the ranking of Justice Puno from number
eleven (11) to number twenty six (26) in the 1986 judicial reorganization has to be corrected, otherwise, there will be a violation of the
clear mandate of Executive Order No. 33 that any member who is reappointed to the Court after rendering service in any other position
in the government shall retain the precedence to which he was entitled under his original appointment, and his service in the court
shall, for all intents and purposes be considered as continuous and uninterrupted. In fine, the executive service of Justice Puno as
Deputy Minister of Justice should not adversely affect the continuity of his service in the judiciary upon his return and appointment

thereto on July 28,1 986. Otherwise, the salutary purpose of Executive Order No. 33 which is to attract competent members of the
judiciary to serve in other branches of the government without fear of losing their seniority status in the judiciary in the event of their
return thereto would be defeated . . ." (Res. dtd. 11-29-90, pp. 2-3)
Nobody disputes the fact that the Screening Committee headed by the then Secretary of Justice Neptali Gonzales and a member of
which was our own Justice Leo D. Medialdea ranked Justice Reynato S. Puno as No. 11 in their recommendation.
When the appointments came out, Mr. Puno was No. 26. This, of course, violates not only Executive Order No. 33 but also the laws on
the same subject which preceded it.
That the President never intended to violate a key provision of law is shown in the September 17, 1986 letter of Executive Secretary
Joker P. Arroyo, appended to the Reply submitted by Justices Campos and Javellana. The explanation reads:jgc:chanrobles.com.ph
"17 September 1986
Hon. Emilio A. Gancayco
Presiding Justice
Court of Appeals
Manila.
Sir:chanrob1es virtual 1aw library
In reply to your enclosed letter of August 7, 1986, please be informed that the President had nothing to do with the order of seniority.
The list and order of seniority was submitted by a screening committee and passed on to the Supreme Court for review.
Very truly yours,
(SGD.) JOKER P. ARROYO
Executive Secretary"
When Secretary Arroyo states that the President had nothing to do with the order or sequence of seniority, it means that she just
followed the recommendations of her own Screening Committee, which recommendations had already been reviewed by the Supreme
Court. She did not select any recommendees her own. She never deviated from the recommendations because everybody
recommended was appointed. The change from No. 11 to No. 26 could not have been a deliberate act of the President as she had
nothing to do with the order of seniority of the Justices she was appointing. The change could only have been an inadvertence because
it was violative not only of the law but also of the recommendations of her Screening Committee.
There are other matters raised in the letter and reply of Justices Campos and Javellana which have been answered by Justice Puno in
his Comment. I find no need to comment on them at this time.
I regret if my answer to the query of Justice Campos led him to be lulled into inaction. Justice Campos called me up over the telephone
inquiring about the petition of Justice Puno before I was aware that there was such a petition. I try to read all petitions filed with the
court en banc but I do so only after they are placed in the agenda and are in the next order of business of a particular session. My staff
never places a copy of any petition on my desk until it is entered in the agenda. It is unfortunate that Justices Campos, Camilon, dela
Fuente, Javellana, Purisima, de Pano, and Bellosillo were not furnished copies of the letter-petition of Justice Puno but this is for then
Chief Justice Marcelo B. Fernan and Clerk of Court Atty. Daniel T. Martinez to explain.
Justices Campos and Javellana state that "Justice Puno is 50 years old and to put him in No. 5 will destroy the chances of those
displaced by him who are older than he to aspire for promotion."cralaw virtua1aw library
The fears of the good Justices are unfounded. Except for the Presiding Justice, a greater number of "junior" Justices have been
appointed in the past ten years to the Supreme Court from the Court of Appeals, than the most senior Justices of that Court. In other

words, there has been more by passing of senior members than adherence to the seniority listing. In fact, the latest nominations of the
Judicial and Bar Council for position to which Justice Bellosillo was appointed, included Justice Campos and excluded Justices
Kapunan and Puno. I understand that in the past few vacancies in this court, Justice Campos has been nominated more often than
Justice Puno.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
Our resolution dated November 29, 1990 correcting the seniority ranking of Justice Puno was a unanimous decision of this Court
except for Mr. Justice Padilla were discussed and fully deliberated upon. Since our resolution is based on both the facts and the law, I
see no reason why we should modify or set it aside.
I, therefore, vote to reiterate the Courts resolution dated November 29, 1990.
Narvasa, C.J., Bidin, Medialdea and Nocon, JJ., concur.
CRUZ, J., dissenting:chanrob1es virtual 1aw library
I join Mr. Justice Gutierrez in his dissent, with these brief additional remarks.
Sec. 3 of BP 129 laid down the original precedence rule applicable to members of the Intermediate Appellate Court. This was embodied
in Sec. 2 of EO 33 without change except as to the name of the court. The first provision was not repealed. As Mr. Justice Feliciano
points out, it was merely "re-enacted."cralaw virtua1aw library
I do not think the re-enacted rule was intended to operate prospectively only. I believe it continues to be available to the former
members of the Intermediate Appellate Court no less than to the members of the Court of Appeals.
It is a well-known canon of construction that apparently conflicting provisions should be harmonized whenever possible. The ponencia
would instead revoke Sec. 3. of BP 129 even though Sec. 2 of EO 33 has not repealed but in fact re-enacted it. I would reconcile the
two provisions and give effect to both.
Significantly, Sec. 8 of EO 33 provides that "the term Intermediate Appellate Court . . . shall hereafter mean Court of Appeals."cralaw
virtua1aw library
Narvasa, C.J., concurs.VOL. 210, JUNE 29, 1992589
Letter of Associate Justice Reynato S. Puno
A.M. No. 90-11-2697-CA. June 29, 1992.
*
LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO
of the Court of Appeals dated 14 November 1990.
Courts; Political Law;
The rise of Pres. Corazon C. Aquino to power was by way of resolution. It is widely known that Mrs. Aquinos rise to the presidency was
not due to constitutional processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution as a Batasang
Pambansa resolution had earlier declared Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said that the
organization of Mrs. Aquinos Government which was met by little resistance and her control of the state evidenced by the appointment
of the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet officials, revamp of the Judiciary and
the Military signalled the point where the legal system then in effect, had ceased to be obeyed by the Filipino.
Same; Same;
The Court of Appeals established under E.O. 33was an entirely new court. The Court holds that the Court of Appeals and Intermediate
Appellate Court existing prior toExecutive Order No. 33 phased out as part of the legal system abolished by the revolution and that the
Court of Appeals established under Executive Order No. 33 was an entirely new court with appointments thereto having no relation to
earlier appointments to the abolished courts, and that the reference top recedence in rank contained in the last sentence of Sec. 2, BP
Blg.No. 129 as amended by Executive Order No. 33 refers to prospective situations as distinguished from retroactive ones. Same;
Same;
As head of a revolutionary government, Pres. Corazon C. Aquino can disregard any precedence or seniority of the 1986 appointments,
modified or disregarded the rule embodied in B.P. Blg. 129 as amended by Executive Order No. 33,on precedence or seniority in the

case of the petitioner, for reasons known only to her. Since the appointment extended by the President to the petitioner in 1986 for
membership in the new Court of Appeals with its implicit ranking in the roster of justices, was a valid appointment anchored on the
Presidents exercise of her then revolutionary powers, it is not for the Court at this time to question or correct that exercise.
FELICIANO,
J., Concurring:
Courts; Political Law; The Court of Appeals was a new court. Although Executive Order No. 33 spoke of
Amending Section 3, Chapter 1 of B.P. Blg. 129, it will be seen that what really happened was the
re-enactment of said Section 3, Chapter 1 of B.P. Blg. 129. In other words, much more happened than simply there naming of the old
Intermediate Appellate Court into (once again) Court of Appeals. If all that Executive Order No. 33 wanted to achieve was the relabeling
of the old Intermediate Appellate Court into the Court of Ap-peals, there was no need to amend or re-enact Section 3 of B.P. Blg.
129. Same; Same;
President Aquino was free to appoint to the new Court of Appeals people she feels fit thereto and in the order of precedence she
wanted. But Mr. Justice Reynato S. Puno was not in such a situation. The last preceding appointment to the Judiciary of Mr. Justice
Reynato S. Puno was to the then Intermediate Appellate Court newly created by B.P. Blg. 129. In 1984, he left that court to become
Deputy Minister in the Ministry of Justice. His next appointment to the Judiciary was not to the old Intermediate Appellate Court, which
by that time had passed on to history. His appointment dated 28 July 1986, was, in my view, as already noted, to the new Court of
Appeals established by Executive Order No. 33.Thus, the last sentence of Section 3 of B.P. Blg. 129 (before reenactment by Executive
Order No. 33) afforded no basis for a claim to the same numerical precedence in the new Court of Appeals that he would have been
entitled to had the old Intermediate Appellate Court not gone out of existence. It is difficult for me tounderstand how a claim to a
particular position in an order of precedence can be made where the court itself, to which the new appointment is made, is a new and
distinct court.
BELLOSILLO,
J., Concurring:
Courts; Political Law; Malacaang itself had sent a clear message that the rank given to Justice Reynato S. Puno (No. 26) should Puno
remain while this letter perhaps did not elicit the desired response from Executive Secretary Arroyo as his answer did not squarely
settle the issue, the message is clear, i.e., Malacaang did not grant the request for correction of what was perceived to be a possible
oversight, even after it was twice brought to its attention. Here I am reminded of the principle in procedure that a motion that is not
granted, especially after an unreasonable length of time, is deemed denied, and the lapse of more than four (4) years before Justice
Puno finally came to Us is reasonably unreasonable. The letter-appointment of President Corazon C. Aquino addressed to then Chief
Justice Claudio Teehankee dated July 31, 1986, in fact categorically specifies the order of seniority of her appointees.
GUTIERREZ, Jr.,
J., Dissenting:
Courts; Political Law; The change in the order of seniority of Mr. Justice Reynato Puno was an act of inadvertence by President
Aquino, a violation of law, and the recommendation of the Screening Committee. When Secretary Arroyo states that the President had
nothing to do with the order or sequence of seniority, it means that she just followed the recommendations of her own Screening
Committee, which recommendations had already been reviewed by the Supreme Court. She did not select any recommendees from
another list. She did not make a new listing or ranking of her own. She never deviated from the recommendations because everybody
recommended was appointed. The change from No. 11 to No. 26 could not have been a deliberate act of the President as she had
nothing to do with the order of seniority of the Justices she was appointing. The change could only have been an inadvertence because
it was violative not only of the law but also of the recommendations of her Screening Committee.
CRUZ,
J., Dissenting:
Courts; Political Law; B.P. 129 and E.O. 33 should be reconciled. The present C.A. is a continuation of the former I.A.C. I do not think
the re-enacted rule was intended to operate prospectively only. I believe it continues to be available to the former members of the
Intermediate Appellate Court no less than to the members of the Court of Appeals. It is a well-known canon of construction that
apparently conflicting provisions should be harmonized whenever possible. The ponencia
would instead revoke Sec. 3 of BP 129 even though Sec. 2 of EO 33 has not repealed but in fact re-enacted it. I would reconcile the
two provisions and give effect to both. ADMINISTRATIVE MATTER in the Supreme Court. The facts are stated in the resolution of the
Court.
RESOLUTION
PADILLA,
J.:

Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals, wrote a letter dated 14 November1990addressed to
this Court, seeking the correction of his seniority ranking in the Court of Appeals. It appears from the records that petitioner was first
appointed Associate Justice of the Court of Appeals on 20June 1980 but took his oath of office for said position only on29 November
1982, after serving as Assistant Solicitor General in the Office of the Solicitor General since 1974.
1
On 17 January 1983, the Court of Appeals was reorganized and became the Intermediate Appellate Court pursuant to Batas
Pambansa Blg. 129 entitled An Act Reorganizing the Judiciary. Appropriating Funds Therefore and For Other Purposes.
2
Petitioner was appointed Appellate Justice in the First Special Cases Division of the Intermediate Appellate Court. On 7 November
1984, petitioner accepted an appointment to be Deputy Minister of Justice in the Ministry of Justice; he thus ceased to be a member of
the Judiciary.
3
The aftermath of the EDSA Revolution in February 1986brought about a reorganization of the entire government, including the
Judiciary. To effect the reorganization of the Intermediate Appellate Court and other lower courts, a Screening Committee was created,
with the then Minister of Justice, now Senator Neptali Gonzales as Chairman and then Solicitor General, now Philippine Ambassador to
the United Nations Sedfrey Ordoez as Vice Chairman. President Corazon C. Aquino, exercising legislative powers by virtue of the
revolution, issued Executive Order No. 33 to govern the aforementioned reorganization of the Judiciary.
4
The Screening Committee recommended the return of petitioner as Associate Justice of the new Court of Appeals and assigned him
the rank of number eleven (11) in the roster of appellate court justices. When the appointments were signed by President Aquino on 28
July 1986,petitioners seniority ranking changed, however, from number eleven (11) to number twenty six (26).
5
Petitioner now alleges that the change in his seniority ranking could only be attributed to inadvertence for, otherwise, it would run
counter to the provisions of Section 2of Executive Order No. 33, which reads:
SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is hereby amended to read as follows:
SEC. 2. Organization. There is hereby created a Court of Appeals which shall consist of a Presiding Justice and fifty Associate Justices
who shall be appointed by the President of the Philippines. The Presiding Justice shall be so designated in his appointment and the
Associate Justice shall have precedence according to the dates of their respective appointments, or when the appointments of two or
more shall bear the same date, according to the order in which their appointments were issued by the President. Any Member who is
reappointed to the Court after rendering service in any other position in the government shall retain the precedence to which he was
entitled under his original appointment, and his service in the Court shall, for all intents and purposes be considered as continuous and
uninterrupted.
6
Petitioner elaborates that President Aquino is presumed to have intended to comply with her own Executive Order No. 33 so much so
that the correction of the inadvertent error would only implement the intent of the President as well as the spirit of Executive Order No.
33 and will not provoke any kind of constitutional confrontation (between the President and the Supreme Court).
7
Petitioner points to the case of Justice Oscar Victoriano, former Presiding Justice of the Court of Appeals who, according to petitioner,
was transferred from his position as Justice of the Court of Appeals to the Ministry of Justice as Commissioner of Land Registration and
in 1986 was reappointed to the Court of Appeals. Petitioner states that his (Victorianos) stint in the Commission of Land Registration
did not adversely affect his seniority ranking in the Court of Appeals, for, in his case, Executive Order No.33 was correctly applied.
8
In a resolution of the Court en banc dated 29 November1990, the Court granted Justice Punos request.
9
It will be noted that before the issuance of said resolution, there was no written opposition to, or comment on petitioners aforesaid
request. The dispositive portion of the resolution reads:
IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno for correction of his seniority ranking in the Court of Appeals is
granted. The Presiding Justice of the Court of Appeals, the Honorable Rodolfo A. Nocon, is hereby directed to correct the seniority rank
of Justice Puno from number twelve (12) to number five (5). Let copies of this Resolution be furnished the Court Administrator and the
Judicial and Bar Council for their guidance and information.
10
A motion for reconsideration of the resolution of the Court en banc dated 29 November 1990 was later filed by Associate Justices Jose
C. Campos, Jr. and Luis A. Javellana, two (2) of the Associate Justices affected by the ordered correction. They contend that the
present Court of Appeals is a new Court with fifty one (51) members and that petitioner could not claim a reappointment to a prior
court; neither can he claim that he was returning to his former court, for the courts where he had previously been appointed ceased to
exist at the date of his last appointment.

11
The Court en banc in a resolution dated 17 January 1992required the petitioner to file his comment on the motion for reconsideration of
the resolution dated 29 November 1990.In his Comment, petitioner argues that, by virtue of Executive Order No. 33 read in relation to
B.P. Blg. 129, his seniority ranking in the Court of Appeals is now number five (5) for, though President Aquino rose to power by virtue
of a revolution, she had pledged at the issuance of Proclamation No. 3 (otherwise known as the Freedom Constitution) that no right
provided under the unratified1973 Constitution (shall) be absent in the Freedom Constitution.
12
Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually re-enacted the last sentence of Sec. 3, Chapter 1 of
B.P. Blg. 129, statutory construction rules on simultaneous repeal and re-enactment mandate, according to positioner, the preservation
and enforcement of all rights and liabilities which had accrued under the original statute.
13
Furthermore, petitioner avers that, although the power of appointment is executive in character and cannot be usurped by any other
branch of the Government, such power can still be regulated by the Constitution and by the appropriate law, in this case, by the limits
set by Executive Order No. 33
14
for the power of appointment cannot be wielded in violation of law.
15
Justices Javellana and Campos were required by the Court to file their reply to Justice Punos comment on their motion for
reconsideration of the resolution of the Court en banc dated 24 January 1991.
In their Reply and Supplemental Reply, Associate Justices Javellana and Campos submit that the appeal or request for correction filed
by the petitioner was addressed to the wrong party. They aver that as petitioner himself had alleged the mistake to be an inadvertent
error of the Office of the President,
ergo, he should have filed his request for correction also with said Office of the President and not directly with the Supreme Court.
16
Furthermore, they point out that petitioner had indeed filed with the Office of the President a request or petition for correction of his
ranking,(seniority) but the same was not approved such that his recourse should have been an appropriate action before the proper
court and impleading all parties concerned. The aforesaid non-approval by the Office of the President they argue, should be respected
by the Supreme Court not only on the basis of the doctrine of separation of powers but also their presumed knowledgeability and even
expertise in the laws they are entrusted to enforce
17
for it (the non-approval) is a confirmation that petitioners seniority ranking at the time of his appointment by President Aquino was, in
fact, deliberate and not an inadvertent error as petitioner would have the Court believe.
18
The resolution of this controversy is not a pleasant task for the Court since it involves not only members of the next highest court of the
land but persons who are close to members of this Court. But the controversy has to be resolved. The core issue in this case is
whether the present Court of Appeals is a new court such that it would negate any claim to precedence or seniority admittedly enjoyed
by petitioner in the Court of Appeals and Intermediate Appellate Court existing prior to Executive Order No. 33 or whether the present
Court of Appeals is merely a Continuation of the Court of Appeals and Intermediate Appellate Court existing prior to said Executive
Order No.33.It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct from the Court of
Appeals or the Intermediate Appellate Court existing prior to Executive Order No. 33, for it was created in the wake of the massive
reorganization launched by the revolutionary government of Corazon C. Aquino in the aftermath of the people power (EDSA) revolution
in 1986. A revolution has been defined as the complete overthrow of the established government in any country or state by those who
were previously subject to it or as a sudden, radical and fundamental change in the government or political system, usually effected
with violence or at least some acts of violence.
20
In Kelsens book, General Theory of Law and State, it is defined as that which occurs whenever the legal order of a community is
nullified and replaced by a new order . . . a way not prescribed by the first order itself.
21
It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the people power revolution that
the Filipino people tore themselves away from an existing regime. This revolution also saw the unprecedented rise to power of the
Aquino government. From the natural law point of view, the right of revolution has been defined as an inherent right of a people to cast
out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising
when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable.
22

It has been said that the locus of positive law-making power lies with the people of the state and from there is derived the right of
the people to abolish, to reform and to alter any existing form of government without regard to the existing constitution.
The three (3) clauses that precede the text of the Provisional (Freedom) Constitution,
read:

WHEREAS, the new government under President Corazon C. Aquino was installed through a direct exercise of the power of
the Filipino people assisted by units of the New Armed Forces of the Philippines;WHEREAS, the heroic action of the people was done
in defiance of the provisions of the 1973 Constitution, as amended;WHEREFORE, I, Corazon C. Aquino, President of the Philippines,
by virtue of the powers vested in me by the sovereign mandate of the people, do hereby promulgate the following Provisional
Constitution.
25
These summarize the Aquino governments position that its mandate is taken from a direct exercise of the power of the Filipino people.
26
Discussions and opinions of legal experts also proclaim that the Aquino government was revolutionary in the sense that it came into
existence in defiance of the existing legal processes
27
and that it was a revolutionary government instituted by the direct action of the people and in opposition to the authoritarian values and
practices of the overthrown government.
28
A question which naturally comes to mind is whether the then existing legal order was overthrown by the Aquino government. A legal
order is the authoritative code of apolity. Such code consists of all the rules found in the enactments of the organs of the polity. Where
the state operates under a written constitution, its organs may be readily determined from a reading of its provisions. Once such organs
are ascertained, it becomes an easy matter to locate their enactments. The rules in such enactments, along with those in the
constitution,comprise the legal order of that constitutional state.
29
It is assumed that the legal order remains as a culture system of the polity as long as the latter endures
30
and that a point may be reached, however, where the legal system ceases to be operative as a whole for it is no longer obeyed by the
population nor enforced by the officials.
31
It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional processes; in fact, it was achieved in violation
of the provisions of the 1973Constitution as a Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the
1986 presidential election.
32
Thus it can be said that the organization of Mrs. Aquinos Government which was met by little resistance and her control of the state
evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet officials,
revamp of the Judiciary and the Military signalled the point where the legal system then in effect, had ceased to be obeyed by the
Filipino. The Court holds that the Court of Appeals and Intermediate Appellate Court existing prior to Executive Order No. 33 phased
out as part of the legal system abolished by the revolution and that the Court of Appeals established under Executive Order No. 33 was
an
Entirely new court with appointments thereto having no relation to earlier appointments to the abolished courts, and that the reference
to precedence in rank contained in the last sentence of Sec. 2, BP Blg. No. 129 as amended by Executive Order No. 33 refers to
prospective situations as believed that President Aquino as head of the then revolutionary government, could disregard or set aside
such precedence or seniority in ranking when she made her appointments to the reorganized Court of Appeals in 1986.It is to be noted
that, at the time of the issuance of Executive Order No. 33, President Aquino was still exercising the powers of a revolutionary
government, encompassing both executive and legislative powers, such that she could, if she so desired, amend, modify or repeal any
part of B.P. Blg. 129 or her own Executive Order No. 33.It should also be remembered that the same situation was still in force when
she issued the 1986 appointments to the Court of Appeals. In other words, President Aquino, at the time of the issuance of the 1986
appointments, modified or disregarded the rule embodied in B.P. Blg. 129 as amended by Executive Order No. 33, on precedence or
seniority in the case of the petitioner, for reasons known only to her. Since the appointment extended by the President to the petitioner
in 1986 for membership in the new Court of Appeals with itsimplicit ranking in the roster of justices, was a valid appointment anchored
on the Presidents exercise of her then revolutionary powers, it is not for the Court at this time to question or correct that exercise.
ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the seniority rankings of members of the Court of Appeals,
including that of the petitioner, at the time the appointments were made by the President in 1986,are recognized and upheld.
SO ORDERED.
Paras, Grio-Aquino, Regalado, Davide, Jr.,
and Romero, JJ., concur.

Narvasa (C.J.), I join Justices Gutierrez and Cruz in their DISSENTS.

Gutierrez, Jr.,J. Please see dissent. Cruz, J.,
I join Justice Gutierrez and file my own dissent.
Feliciano and Bellosillo, JJ.,
Please see separate concurring opinions.
Bidin, Medialdea and Nocon, JJ., Join in the dissent of Justice Gutierrez, Jr.
FELICIANO,
J.: Concurring
I agree with the conclusion reached in the majority opinion written by my learned brother, Padilla, J. In particular, I agree that the Court
of Appeals established by Executive Order No. 33 is a new court, and was not merely the old Intermediate Appellate Court with a new
label. If one examines the provisions of B.P. Blg. 129, known as The Judiciary Reorganization Act of 1980, relating to the old
Intermediate Appellate Court, it is quite clear that the previously existing Court of Appeals was abolished and a new court, denominated
the Intermediate Appellate Court, was created. Thus, Section 3 of B.P. Blg. 129 reads as follows: Sec. 3. Organization.
There is hereby created an Intermediate Appellate Court which shall consist of a Presiding Appellate Justice and forty-nine Associate
Appellate Justices who shall be appointed by the President of the Philippines. The Presiding Appellate Justice shall be so designated in
his appointment, and the Associate Appellate Justices shall have precedence according to the dates of their respective
appointments, or when the appointments of two or more of them shall bear the same date, according to the order in which their
appointments were issued by the President. Any member who is reappointed to the Court after rendering service in any other position
in the government shall retain the precedence to which he was entitled under his original appointment, and his service in Court shall, to
all intents and purposes, be considered as continuous and uninterrupted. (Italics supplied)
Section 44 of the same statute provided as follows:
Sec. 44. Transitory provisions.

The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the
President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts,
the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the Municipal Circuit Courts shall continue to function as
presently constituted and organized, until the completion of the reorganization provided in this Act as declared by the President. Upon
such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office. The
cases pending in the old Courts shall be transferred to the appropriate Courts constituted pursuant to this Act, together with the
pertinent functions, records, equipment, property and the necessary personnel.
Executive Order No. 33, promulgated on 28 July 1986,provided in part as follows:
Section 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, ishereby amended to read as follows:
SEC. 3.Organization. There is hereby created a Court of Appeals which shall consist of a Presiding Justice and fifty Associate Justices
who shall be appointed by the President of the Philippines. The Presiding Justice shall be so designated in his appointment, and the
Associate Justices shall have precedence according to the dates of their respective appointments, or when the appointments of two or
more of them shall bear the same date, according to the order in which their appointments were issued by the President. Any member
who is reappointed to the Court after rendering service in any other position in the government shall retain the precedence to which he
was entitled under his original appointment, and his service in the Court shall, for all intents and purposes, be considered as continuous
and uninterrupted.
Although Executive Order No. 33 spoke of amending Section 3, Chapter 1 of B.P. Blg. 129, it will be seen that what really happened
was the re-enactment of said Section 3, Chapter 1 of B.P. Blg. 129. In other words, much more happened than simply the renaming of
the old Intermediate Appellate Court into (once again) Court of Appeals. If allthat Executive Order No. 33 wanted to achieve was there
labeling of the old Intermediate Appellate Court into the Court of Appeals, there was no need to amend or re-enact Section 3 of B.P.
Blg. 129. For Section 8 of Executive Order No. 33 provided as follows:
SECTION 8. The terms Intermediate Appellate Court,
Presiding Appellate Justice and Associate Appellate Justice(s) used in the Judiciary Reorganization
Act of 1980 or in any other law or executive order shall hereafter mean Court of Appeals,
Presiding Justice and Associate Justice(s), respectively.
Thus, President Aquino was quite free, legally speaking, to appoint to the new Court of Appeals whoever in her judgment was fit and
proper for membership in that new court in an order of precedence that she was just then establishing.

The sentence found in Section 3 of B.P. Blg. 129 as amended or re-enacted through the medium of Section 2 of Executive Order No.
33
Any Member who is reappointed to the Court after rendering service in any other position in the government shall retain the precedence
to which he was entitled under his original appointment, and his service in the Court shall, for all intents and purposes, be considered
as continuous and uninterrupted.
which my distinguished brother in the Court, Gutierrez, Jr.,J., very heavily stressed, contemplates in my submission the situation of a
member of the new Court of Appeals accepting appointment to some other department or branch of government, outside the Judiciary,
and who later receives an appointment once again to that same Court of Appeals. But Mr. Justice Reynato S. Puno was not in such a
situation. The last preceding appointment to the Judiciary of Mr. Justice Reynato S. Puno was to the then Intermediate Appellate Court
newly created by B.P. Blg.129. In 1984, he left that court to become Deputy Minister in the Ministry of Justice. His next appointment to
the Judiciary was not to the old Intermediate Appellate Court, which by that time had passed on to history. His appointment dated 28
July 1986, was, in my view, as already noted, to the new Court of Appeals established by Executive Order No. 33. Thus, the last
sentence of Section 3of B.P. Blg. 129 (before reenactment by Executive Order No.33) afforded no basis for a claim to the same
numerical precedence in the new Court of Appeals that he would have been entitled to had the old Intermediate Appellate Court not
gone out of existence. It is difficult for me to understand how a claim to a particular position in an order of precedence can be made
where the court itself, to which the new appointment is made, is a new and distinct court. I vote to grant the Motion for Reconsideration.
BELLOSILLO, J.: Concurring
I agree with the ponencia of Mr. Justice Padilla, so I vote to grant the motion for reconsideration of Our Resolution of November 29,
1990. I am for respecting the seniority ranking of the Associate Justices of the Court of Appeals at the time they were appointed by the
President on July 31,1986.I must admit that, like Mr. Justice Gutierrez, Jr., and Mr. Justice Padilla, it was not easy for me to decide to
participate in the deliberations in this case considering that it involves esteemed colleagues in the Court of Appeals. As such, when
subject Resolution was promulgated, I did not react despite the proddings of well-meaning friends. I refused to be dragged into the fray
in deference to Justice Reynato S. Puno who would be adversely affected. I remained firm in my resolve to stay away from the
controversy. It was to me a personal privilege so to do, which I could waive, as I did. But circumstances have changed; not that I no
longer revere my friendship with Justice Puno, but as a member now of this Court it has become my duty no longer a mere privilege,
much less a right to aid the Court in resolving this controversy in the fairest possible way, a responsibility I find no justification to shirk.
On August 1, 1986, at the oath-taking ceremonies for the newly-appointed members of the Court of Appeals at Malacaang, when I
noticed Justice Puno take a seat on my right,
1
I asked him to transfer to the left where our senior justices were assigned. I was assuming that he should be on the left because he
was appointed to the old Appellate Court ahead of me. But he showed me the list where he appeared as No. 26, Justice Lising, No. 25,
and I was No. 24. Since he appeared perturbed with his new rank, I suggested to him to seek the help of then Justice Secretary Neptali
A. Gonzales, Chairman of the Screening Committee that processed the appointments of the new members of the Court of Appeals, and
who was
then just a meter and a half in front of us. But after talking toSecretary Gonzales, Justice Puno returned to his original assigned seat.
When I asked him what happened, he simply shrugged his shoulders. Obviously, he failed in his bid. We then took our oath in the order
we were ranked in thelist. Some two (2) months or so later, in an En Banc session back in the Court of Appeals, as we were seated
side by side with Justice Puno, I inquired again from him as to what happened to his request with Malacaang conveyed through the
Presiding Justice for the correction of his ranking. Justice Puno told me it was not granted. The letter of then Presiding Justice Emilio A.
Gancayco dated August 7, 1986, which was his second in fact on the subject, addressed to Executive Secretary Joker P. Arroyo, is
enlightening and informative
Dear Sir: In relation to my letter of August 5, 1986 informing you of the possible over-sight in the ranking of Mr. Justice REYNATO
S.PUNO in his reappointment as member of this Court, I am furnishing you a certification of the Clerk of Court to the same effect, and
also in relation to the ranking of Messrs. Rodolfo A. Nocon and Jorge A. Coquia who in accordance with their original appointment to
this Court are more senior than Mr. Justice Oscar R. Victoriano in the said order. If Her Excellency President Corazon Aquino should
decide to rearrange the ranking of the incumbent justices of this Court in accordance with the provisions of Section 2, Executive Order
# 33their proper ranking should be as follows: No. 3Mr. Justice Rodolfo A. Nocon; No. 4Mr. Justice Jorge A. Coquia; No. 5Mr. Justice
Oscar R. Victoriano; and No. 11Mr. Justice Reynato S. Puno.
While this letter perhaps did not elicit the desired response from Executive Secretary Arroyo as his answer did not squarely settle the
issue, the message is clear, i.e., Malacaang did not grant the request for correction of what was perceived to be a possible oversight
, even after it was twice brought to its attention. Here I am reminded of the principle in procedure that a motion that is not granted,
especially after an unreasonable length of time, is deemed denied, and the lapse of more than four (4) years before Justice Puno finally

came to US is reasonably unreasonable. The letter-appointment of President Corazon C. Aquino addressed to then Chief Justice
Claudio Teehankee dated July 31, 1986, in fact categorically specifies the order of seniority of her appointees, thus
Dear Mr. Chief Justice:I have appointed the Presiding Justice and the Associate Justices of the Court of Appeals under the following
order of seniority:
1. Hon. Emilio A. Gancayco, Presiding Justice x x x x
3. Hon. Oscar R. Victoriano, Associate Justice
4. Hon. Rodolfo A. Nocon, Associate Justice
5. Hon. Jorge A. Coquia, Associate Justice x x x x
12. Hon. Jose C. Campos, Jr., Associate Justice x x x x
16. Hon. Luis A. Javellana, Associate Justice x x x x
26. Hon. Reynato S. Puno, Associate Justicex x x x
Considering the circumstances herein narrated, I find itdifficult to yield to the proposition that an error was committed through
inadvertence by Malacaang in the ranking of the justices appointed to the Court of Appeals on July 31, 1986. The above-quoted letter
of President Aquino also brings to focus the ranking of Justice Oscar R. Victoriano who was junior to Justices Nocon and Coquia in the
old Court, as reflected in the letter of Presiding Justice Gancayco. However, in the letter of the President, Justice Victoriano was ranked
No. 3, while Justices Nocon and Coquia were ranked No. 4 and No. 5, respectively. Hence, it is not accurate to say that Justice
Victoriano was reinstated to his former rank in the old Court, but was even given a rank higher than Justices Nocon and Coquia. This
possible oversight was also brought to the attention of Malacaang but, like the case of Justice Puno, no correction was made. All
these clearly support the view of Mr. Justice Padilla in his ponencia, as well as of Mr. Justice Feliciano in his concurring opinion, that
the present Court of Appeals is an entirely different court, distinct from the old Intermediate Appellate Court or the former Court of
Appeals, with a new members although some were drawn from the now defunct Intermediate Appellate Court, and that the error
referred to by Justice Puno could not have been only through inadvertence but deliberate, otherwise, Malacaang could have readily
effected the correction. But whether the error was deliberate or committed through inadvertence, is Our Court the proper venue for
the correction? Can We now correct this alleged error of the appointing authority? Worse, can We direct the Office of the President to
do what is exclusively within its prerogative? This brings me to the final point which bothers me still further. If We sustain the claim that
the present Court of
Appeals is merely a continuation of the old Intermediate Appellate Court, or of the old Court of Appeals, then We may be swarmed with
requests not only for re-ranking but also for reinstatement of those who were not reappointed on July 31, 1986, but against whom no
charges have been filed. For then, should they not be allowed to enjoy their security of tenure as civil servants under the Constitution?
In the case of Justice Jorge S. Imperial, he was a member of the old Intermediate Appellate Court who was not reappointed to the new
Court of Appeals on July 31, 1986.There was no charge against him. He was later reappointed but only on January 2, 1987. Should We
also order that he be reinstated to his former rank in the Intermediate Appellate Court? Then, We may have to dislodge some of the
present division Chairmen of the Court of Appeals to accommodate him. That would be unsettling, disturbing, and disruptive of the
present system. I do not think We wish this to happen.
GUTIERREZ, JR.,J., Dissenting Opinion
I regret that I have to differ from the position taken by Mr. Justice Padilla regarding the seniority ranking of Justice Reynato S. Puno in
the Court of Appeals. I agree that the resolution of the controversy is not a pleasant one for us since it involves persons who are close
to the members of this Court. For me, the task is particularly difficult because apart from close personal relationship, I also highly
respect the parties considerable talents, abilities and qualifications. I have known Justice Jose C. Campos, Jr. since my student days
and as a junior member of this Court, I once urged his nomination for appointment to the Supreme Court even before he started to
serve in the Court of Appeals. Justice Luis A. Javellana was my colleague in the Social Security System while Justice Reynato S. Puno
and I worked together in the Office of the Solicitor General. I believe, however, that we can resolve the issues on the basis of the facts
and the applicable law, in the same way that we reverse or affirm the parties respective ponencias disregarding personal feelings or
close association. The applicable provision of law in this case was introduced into the Judiciary Act of 1948 by Rep. Act No.5204 on
June 15, 1968 when it amended the first paragraph of Section 24 to read:
xxx xxx xxx Provided, however, that any member of the Court of Appeals who has been reappointed to that court after rendering
service in any other branch of the government shall retain the precedence to which he is entitled under his original appointment and his
service in court shall, to all intents and purposes, be considered as continuous and uninterrupted. x x x
This provision was reiterated in all subsequent repealing or amendatory acts and continues to the present. It is found in Batas
Pambansa Blg. 129, Section 3 and in Executive Order No. 33 under which President Corazon C. Aquino reorganized the Court of
Appeals. I respectfully submit that from 1968 to 1992, there was no single moment when this provision ceased to exist. It was never
repealed and never disappeared from the law. Everybody, including the appointing power is, of course, bound by the law. I agree with
Justice Padillas discussion of President Aquinos powers in a revolutionary government, a government revolutionary in the sense that it
came into existence in defiance of the existing legal processes. I, however, believe that the appointments of the Justices of the Court of
Appeals in 1986 were not a personal act of a revolutionary President. Far from it.

First, President Aquinos government ceased to be revolutionary on March 25, 1986 when she promulgated Proclamation No. 3, which
she called the Freedom Constitution. Her government became a constitutional one bound by the Freedom Constitution and the
executive orders issued under its authority.
Second, one significant provision of the Freedom Constitution states that all elective and appointive officials and employees under the
1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such appointment is made within a period of one year from February 26, 1986.
(Section 2, Article III, emphasis supplied).
Third, the President implemented the above provision of the Constitution on July 28, 1986 when she issued Executive Order No. 33
which amended B.P. 129. As earlier stated, Executive Order No. 33 reiterated verbatim the provision of B.P. No. 129 which provided for
retention of precedence of a member who is reappointed after a stint in another position in the government. President Aquino was
bound by the provisions of Executive Order No. 33 because it is a law enacted pursuant to constitutional authority. She could no longer
act as a revolutionary President because there was a Constitution, and there were statutes under that Constitution, inexistence. More
important, Executive Order No. 33 was enacted precisely to provide for the reorganization of the Intermediate Appellate Court into the
Court of Appeals. The President intended that every provision of Executive Order No. 33 should be followed precisely for the purpose
for which it was enacted, namely, reorganization of the appellate court. I cannot understand the reasoning which says that all provisions
of Executive Order No. 33 must apply in the reorganization of the Court of Appeals except the provision on retention of seniority by a
reappointed member which must be for the future only. Even assuming that this one sentence of Executive OrderNo. 33 was intended
to be prospective, then the President has to follow B.P. No. 129 because Proclamation No. 3, Article IV provides:
SECTION 1. All existing laws, decrees, executive orders,proclamations, letters of instruction, implementing rules andregulations, and
other executive issuances not inconsistent with thisProclamation shall remain operative until amended, modified, orrepealed by the
President or the regular legislative body to beestablished under a New Constitution.
For us lawyers, there is one signal feature of
President Aquinos six years in the presidency and this is herdedicated personal observance of the rule of law. Even when some of our
decisions nullified her favorite projects, she unhesitatingly ordered compliance with our interpretation of the law. I cannot believe that
the President would knowingly violate one provision of a law she promulgated even as she complied with every other provision of that
same law. Not only the law but also the facts support the correctness of our November 29, 1990 resolution. We stated in our resolution:
Following this specific provision on seniority, the Screening Committee recommended the return and reappointment of Justice Puno as
Associate Justice of the New Court of Appeals. He was assigned the seniority rank of number eleven (11)
following Associate Justice Vicente V. Mendoza who was given the seniority rank of number ten (10). Unfortunately, however, due to a
mistake which can only be inadvertent, the seniority rank of Justice Puno appears to have been changed from number eleven (11) to
number twenty six (26), after the appointments in the new Court of Appeals were signed by President Aquino. Through his letter,
Justice Puno prays for the correction of his seniority ranking alleging that he should now be given the seniority rank of number five (5)
instead of number twelve (12) in the Court of Appeals. We find the petition for correction of ranking by Justice Puno to be meritorious.
The mistake in the ranking of Justice Puno from number eleven (11) to number twenty six (26) in the 1986 judicial reorganization has to
be corrected, otherwise, there will be a violation of the clear mandate of Executive Order No. 33 that any member who is reappointed to
the Court after rendering service in any other position in the government shall retain the precedence to which he was entitled under his
original appointment, and his service in the court shall, for all intents and purposes be considered as continuous and uninterrupted. In
fine, the executive service of Justice Puno as Deputy Minister of Justice should not adversely affect the continuity of his service in the
judiciary upon his return and appointment thereto on July 28, 1986. Otherwise, the salutary purpose of Executive Order No. 33 which is
to attract competent members of the judiciary to serve in other branches of the government without fear of losing their seniority status in
the judiciary in the event of their return thereto would be defeated. x xx (Res. dtd. 11-29-90, pp. 2-3)
Nobody disputes the fact that the Screening Committee headed by the then Secretary of Justice Neptali Gonzales and a member of
which was our own Justice Leo D. Medialdea ranked Justice Reynato S. Puno as No. 11 in their recommendation. When the
appointments came out, Mr. Puno was No. 26.This, of course, violates not only Executive Order No. 33 but also the laws on the same
subject which preceded it. That the President never intended to violate a key provision of law is shown in the September 17, 1986 letter
of Executive Secretary Joker P. Arroyo, appended to the Reply submitted by Justices Campos and Javellana. The explanation reads:
17 September 1986
Hon. Emilio A. Gancayco Presiding Justice Court of Appeals M a n i l a
S i r: In reply to your enclosed letter of August 7, 1986, please be informed that the President had nothing to do with the order of
seniority. The list and order of seniority was submittedby a screening committee and passed on to the Supreme Court for review.
Very truly yours,
(SGD.) JOKER P. ARROYO

Executive Secretary
When Secretary Arroyo states that the President had nothing to do with the order or sequence of seniority, it means that she just
followed the recommendations of her own Screening Committee, which recommendations had already been reviewed by the Supreme
Court. She did not select any recommendees from another list. She did not make a new listing or ranking of her own. She never
deviated from the recommendations because everybody recommended was appointed. The change from No. 11 to No.26 could not
have been a deliberate act of the President as she had nothing to do with the order of seniority of the Justices she was appointing. The
change could only have been an inadvertence because it was violative not only of the law but also of the recommendations of her
Screening Committee. There are other matters raised in the letter and reply of Justices Campos and Javellana which have been
answered by Justice Puno in his Comment. I find no need to comment on them at this time. I regret if my answer to the query of Justice
Campos led him to be lulled into inaction. Justice Campos called me up over the telephone inquiring about the petition of Justice Puno
before I was aware that there was such a petition. I try to read all petitions filed with the Court en banc but I do soon after they are
placed in the agenda and are in the next order of business of a particular session. My staff never places a copy of any petition on my
desk until it is entered in the agenda. It is unfortunate that Justices Campos, Camilon, dela Fuente, Javellana, Purisima, de Pano, and
Bellosillo were not furnished copies of the letter-petition of Justice Puno but this is for then Chief Justice Marcelo B. Fernan and Clerk
of Court Atty. Daniel T. Martinez to explain. Justices Campos and Javellana state that Justice Puno is 50 years old and to put him in
No. 5 will destroy the chances of those displaced by him who are older than he to aspire forpromotion.The fears of the good Justices
are unfounded. Except forthe Presiding Justice, a greater number of junior Justiceshave been appointed in the past ten years to the
SupremeCourt from the Court of Appeals, than the most seniorJustices of that Court. In other words, there has been moreby passing of
senior members than adherence to theseniority listing. In fact, the latest nominations of theJudicial and Bar Council for position to
which JusticeBellosillo was appointed, included Justice Campos and excluded Justices Kapunan and Puno. I understand that in the
past few vacancies in this court, Justice Campos has been nominated more often than Justice Puno. Our resolution dated November
29, 1990 correcting the seniority ranking of Justice Puno was a unanimous decision of this Court except for Mr. Justice Feliciano who
was on leave. All the matters treated by Justice Padilla were discussed and fully deliberated upon. Since our resolution is based on
both the facts and the law, I see no reason why we should modify or set it aside .I, therefore, vote to reiterate the Courts resolution
dated November 29, 1990.
CRUZ, J., Dissenting:
I join Mr. Justice Gutierrez in his dissent, with these brief additional remarks. Sec. 3 of BP 129 laid down the original precedence rule
applicable to members of the Intermediate Appellate Court. This was embodied in Sec. 2 of EO 33 without change except as to the
name of the court. The first provision was not repealed. As Mr. Justice Feliciano points out, it was merely re-enacted. I do not think the
re-enacted rule was intended to operate prospectively only. I believe it continues to be available to the former members of the
Intermediate Appellate Court no less than to the members of the Court of Appeals. It is a well-known canon of construction that
apparently conflicting provisions should be harmonized whenever possible. The ponencia would instead revoke Sec. 3 of BP129 even
though Sec. 2 of EO 33 has not repealed but in fact re-enacted it.
I would reconcile the two provisions and give effect to both. Significantly, Sec. 8 of EO 33 provides that the term Intermediate Appellate
Court . . . shall hereafter mean Court of Appeals.
Motion granted.
Note
.The Supreme Court has consistently held that the discretion of the appointing authority cannot be controlled, not even by the court, as
long as it is exercised properly (Alim vs. Civil Service Commission, 204 SCRA 510).
Case Digest
IN RE: LETTER OF REYNATO PUNO
June 29, 1992, 210 SCRA
FACTS:
Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals, wrote a letter dated 14 November 1990 addressed to
this Court, seeking the correction of his seniority ranking in the Court of Appeals. It appears from the records that petitioner was first
appointed Associate Justice of the Court of Appeals on 20 June 1980 but took his oath of office for said position only on 29 November
1982, after serving as Assistant Solicitor General in the Office of the Solicitor General since 1974.

On 17 January 1983, the Court of Appeals was reorganized and became the Intermediate Appellate Court pursuant to Batas
Pambansa Blg. 129 entitled An Act Reorganizing the Judiciary, Appropriating Funds Therefor and For Other Purposes.
Petitioner was appointed Appellate Justice in the First Special Cases Division of the Intermediate Appellate Court. On 7 November
1984, petitioner accepted an appointment to be Deputy Minister of Justice in the Ministry of Justice; he thus ceased to be a member of
the Judiciary.
The aftermath of the EDSA Revolution in February 1986 brought about a reorganization of the entire government, including the
Judiciary. To effect the reorganization of the Intermediate Appellate Court and other lower courts, a Screening Committee was created,
with the then Minister of Justice, now Senator Neptali Gonzales as Chairman and then Solicitor General, now Philippine Ambassador to
the United Nations Sedfrey Ordoez as Vice Chairman. President Corazon C. Aquino, exercising legislative powers by virtue of the
revolution, issued Executive Order No. 33 to govern the aforementioned reorganization of the Judiciary.
The Screening Committee recommended the return of petitioner as Associate Justice of the new Court of Appeals and assigned him
the rank of number eleven (11) in the roster of appellate court justices. When the appointments were signed by President Aquino on 28
July 1986, petitioners seniority ranking changed, however, from number eleven (11) to number twenty six (26).
Petitioner now alleges that the change in his seniority ranking could only be attributed to inadvertence for, otherwise, it would run
counter to the provisions of Section 2 of Executive Order No. 33.
Petitioner elaborates that President Aquino is presumed to have intended to comply with her own Executive Order No. 33 so much so
that the correction of the inadvertent error would only implement the intent of the President as well as the spirit of Executive Order No.
33 and will not provoke any kind of constitutional confrontation (between the President and the Supreme Court).
In a resolution of the Court en banc dated 29 November 1990, the Court granted Justice Punos request. The Presiding Justice of the
Court of Appeals, the Honorable Rodolfo A. Nocon, is directed to correct the seniority rank of Justice Puno from number twelve (12) to
number five (5). However, a motion for reconsideration of the resolution of the Court en banc dated 29 November 1990 was later filed
by Associate Justices Jose C. Campos, Jr. and Luis A. Javellana, two (2) of the Associate Justices affected by the ordered correction.
They contend that the present Court of Appeals is a new Court with fifty one (51) members and that petitioner could not claim a
reappointment to a prior court; neither can he claim that he was returning to his former court, for the courts where he had previously
been appointed ceased to exist at the date of his last appointment.
Petitioner argues that, by virtue of Executive Order No. 33 read in relation to B.P. Blg. 129, his seniority ranking in the Court of Appeals
is now number five (5) for, though President Aquino rose to power by virtue of a revolution, she had pledged at the issuance of
Proclamation No. 3 (otherwise known as the Freedom Constitution) that no right provided under the unratified 1973 Constitution (shall)
be absent in the Freedom Constitution.
Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually re-enacted the last sentence of Sec. 3, Chapter 1 of
B.P. Blg. 129, statutory construction rules on simultaneous repeal and re-enactment mandate, according to positioner, the preservation
and enforcement of all rights and liabilities which had accrued under the original statute.
Furthermore, petitioner avers that, although the power of appointment is executive in character and cannot be usurped by any other
branch of the Government, such power can still be regulated by the Constitution and by the appropriate law, in this case, by the limits
set by Executive Order No. 33 for the power of appointment cannot be wielded in violation of law
ISSUE:
Whether or not the present Court of Appeals is a new court such that it would negate any claim to precedence or seniority admittedly
enjoyed by petitioner in the Court of Appeals and Intermediate Appellate Court which existing prior to Executive Order No. 33.
HELD:
It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct from the Court of Appeals or the
Intermediate Appellate Court existing prior to Executive Order No. 33, for it was created in the wake of the massive reorganization
launched by the revolutionary government of Corazon C. Aquino in the aftermath of the people power (EDSA) revolution in 1986. A
revolution has been defined as the complete overthrow of the established government in any country or state by those who were
previously subject to it, or as a sudden, radical and fundamental change in the government or political system usually effected with
violence or at least some acts of violence.

It has been said that the locus of positive law-making power lies with the people of the state and from there is derived the right of the
people to abolish, to reform and to alter any existing form of government without regard to the existing constitution.
These summarize the Aquino governments position that its mandate is taken from a direct exercise of the power of the Filipino people.
A question which naturally comes to mind is whether the then existing legal order was overthrown by the Aquino government. A legal
order is the authoritative code of a polity. Such code consists of all the rules found in the enactments of the organs of the polity. Where
the state operates under a written constitution, its organs may be readily determined from a reading of its provisions. Once such organs
are ascertained, it becomes an easy matter to locate their enactments. The rules in such enactments, along with those in the
constitution, comprise the legal order of that constitutional state. It is assumed that the legal order remains as a culture system of the
polity as long as the latter endures and that a point may be reached, however, where the legal system ceases to be operative as a
whole for it is no longer obeyed by the population nor enforced by the officials.
It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional processes; in fact, it was achieved in violation
of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the
1986 presidential election. Thus it can be said that the organization of Mrs. Aquinos Government which was met by little resistance and
her control of the state evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of the
Marcos Cabinet officials, revamp of the Judiciary and the Military signalled the point where the legal system then in effect, had ceased
to be obeyed by the Filipino.
The Court GRANTS the Motion for Reconsideration and the seniority rankings of members of the Court of Appeals, including that of the
petitioner, at the time the appointments were made by the President in 1986, are recognized and upheld.

ESTRADA VS DESIERTO
[G.R. Nos. 146710-15. April 3, 2001]
JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondents.
[G.R. No. 146738. April 3, 2001]
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent.
RESOLUTION
PUNO, J.:
For resolution are petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and Omnibus Motion in G.R. No. 146738 of the
Courts Decision of March 2, 2001.
In G.R. Nos. 146710-15, petitioner raises the following grounds:
I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI, SECTION 3 (7) OF THE CONSTITUTION AND THE
SETTLED JURISPRUDENCE THEREON.
II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING WOULD VIOLATE THE DOUBLE JEOPARDY
CLAUSE OF THE CONSTITUTION, CONSIDERING THAT PETITIONER WAS ACQUITTED IN THE IMPEACHMENT
PROCEEDINGS.
III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE IMMUNITY FROM SUIT.
IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL HAVE NOT BEEN PREJUDICED BY PRE-TRIAL
PUBLICITY.

V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE COURT TO ENJOIN THE PRELIMINARY
INVESTIGATION OF THE INCUMBENT OMBUDSMAN, PETITIONER HAVING FAILED TO PROVE THE IMPAIRED CAPACITY OF
THE OMBUDSMAN TO RENDER A BIASED FREE DECISION.
In G.R. No. 146738, petitioner raises and argues the following issues:
1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED RESIGNED AS OF JANUARY 20, 2001;
2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF THE FOLLOWING RULES ON EVIDENCE:
HEARSAY, BEST EVIDENCE, AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA;
3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF THE HEARSAY RULE;
4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS INABILITY TO GOVERN CONSIDERING SECTION 11,
ARTICLE VII OF THE CONSTITUTION; and
5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS RIGHT TO FAIR TRIAL.
We find the contentions of petitioner bereft of merit.
I
Prejudicial Publicity on the Court
Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the Decision for adverting to newspaper accounts of
the events and occurrences to reach the conclusion that he has resigned. In our Decision, we used the totality test to arrive at the
conclusion that petitioner has resigned. We referred to and analyzed events that were prior, contemporaneous and posterior to the
oath-taking of respondent Arroyo as president. All these events are facts which are well-established and cannot be refuted. Thus, we
adverted to prior events that built up the irresistible pressure for the petitioner to resign. These are: (1) the expose of Governor Luis
Chavit Singson on October 4, 2000; (2) the I accuse speech of then Senator Teofisto Guingona in the Senate; (3) the joint
investigation of the speech of Senator Guingona by the Blue Ribbon Committee and the Committee on Justice; (4) the investigation of
the Singson expose by the House Committee on Public Order and Security; (5) the move to impeach the petitioner in the House of
Representatives; (6) the Pastoral Letter of Archbishop Jaime Cardinal Sin demanding petitioners resignation; (7) a similar demand by
the Catholic Bishops conference; (8) the similar demands for petitioners resignation by former Presidents Corazon C. Aquino and Fidel
V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD and her call for petitioner to resign; (10) the resignation
of the members of petitioners Council of Senior Economic Advisers and of Secretary Mar Roxas III from the Department of Trade and
Industry; (11) the defection of then Senate President Franklin Drilon and then Speaker of the House of Representatives Manuel Villar
and forty seven (47) representatives from petitioners Lapiang Masang Pilipino; (12) the transmission of the Articles of Impeachment by
Speaker Villar to the Senate; (13) the unseating of Senator Drilon as Senate President and of Representative Villar as Speaker of the
House; (14) the impeachment trial of the petitioner; (15) the testimonies of Clarissa Ocampo and former Finance Secretary Edgardo
Espiritu in the impeachment trial; (16) the 11-10 vote of the senator-judges denying the prosecutors motion to open the 2nd envelope
which allegedly contained evidence showing that petitioner held a P3.3 billion deposit in a secret bank account under the name of
Jose Velarde; (17) the prosecutors walkout and resignation; (18) the indefinite postponement of the impeachment proceedings to give
a chance to the House of Representatives to resolve the issue of resignation of their prosecutors; (19) the rally in the EDSA Shrine and
its intensification in various parts of the country; (20) the withdrawal of support of then Secretary of National Defense Orlando Mercado
and the then Chief of Staff, General Angelo Reyes, together with the chiefs of all the armed services; (21) the same withdrawal of
support made by the then Director General of the PNP, General Panfilo Lacson, and the major service commanders; (22) the stream of
resignations by Cabinet secretaries, undersecretaries, assistant secretaries and bureau chiefs; (23) petitioners agreement to hold a
snap election and opening of the controversial second envelope. All these prior events are facts which are within judicial notice by this
Court. There was no need to cite their news accounts. The reference by the Court to certain newspapers reporting them as they
happened does not make them inadmissible evidence for being hearsay. The news account only buttressed these facts as facts. For
all his loud protestations, petitioner has not singled out any of these facts as false.
We now come to some events of January 20, 2001 contemporaneous to the oath taking of respondent Arroyo. We used the Angara
Diary to decipher the intent to resign on the part of the petitioner. Let it be emphasized that it is not unusual for courts to distill a
persons subjective intent from the evidence before them. Everyday, courts ascertain intent in criminal cases, in civil law cases
involving last wills and testaments, in commercial cases involving contracts and in other similar cases. As will be discussed below, the
use of the Angara Diary is not prohibited by the hearsay rule. Petitioner may disagree with some of the inferences arrived at by the
Court from the facts narrated in the Diary but that does not make the Diary inadmissible as evidence.
We did not stop with the contemporaneous events but proceeded to examine some events posterior to the oath-taking of respondent
Arroyo. Specifically, we analyzed the all important press release of the petitioner containing his final statement which was issued after
the oath-taking of respondent Arroyo as president. After analyzing its content, we ruled that petitioners issuance of the press release
and his abandonemnt of Malacaang Palace confirmed his resignation.[1] These are overt acts which leave no doubt to the Court that
the petitioner has resigned.
In light of this finding that petitioner has resigned before 12 oclock noon of Janaury 20, 2001, the claim that the office of the President
was not vacant when respondent Arroyo took her oath of office at half past noon of the same day has no leg to stand on.

We also reject the contention that petitioners resignation was due to duress and an involuntary resignation is no resignation at all.
x x x [I]t has been said that, in determining whether a given resignation is voluntarily tendered, the element of voluntariness is vitiated
only when the resignation is submitted under duress brought on by government action. The three-part test for such duress has been
stated as involving the following elements: (1) whether one side involuntarily accepted the others terms; (2) whether circumstances
permitted no other alternative; and (3) whether such circumstances were the result of coercive acts of the opposite side. The view has
also been expressed that a resignation may be found involuntary if on the totality of the circumstances it appears that the employers
conduct in requesting resignation effectively deprived the employer of free choice in the matter. Factors to be considered, under this
test, are: (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the
choice he or she was given; (3) whether the employewe was given a reasonable time in which to choose; and (4) whether he or she
was permitted to select the effective date of resignation. In applying this totality of the circumstances test, the assessment whether real
alternatives were offered must be gauged by an objective standard rather than by the employees purely subjective evaluation; that the
employee may perceive his or her only option to be resignation for example, because of concerns about his or her reputation is
irrelevant. Similarly, the mere fact that the choice is between comparably unpleasant alternatives for example, resignation or facing
disciplinary charges does not of itself establish that a resignation was induced by duress or coercion, and was therefore involuntary.
This is so even where the only alternative to resignation is facing possible termination for cause, unless the employer actually lacked
good cause to believe that grounds for termination existed. In this regard it has also been said that a resignation resulting from a
choice between resigning or facing proceedings for dismissal is not tantamount to discharge by coercion without procedural view if the
employee is given sufficient time and opportunity for deliberation of the choice posed. Futhermore, a resignation by an officer charged
with misconduct is not given under duress, though the appropriate authority has already determined that the officers alternative is
termination, where such authority has the legal authority to terminate the officers employment under the particular circumstances,
since it is not duress to threaten to do what one has the legal right to do, or to threaten to take any measure authorized by law and the
circumstances of the case.[2]
In the cases at bar, petitioner had several options available to him other than resignation. He proposed to the holding of snap
elections. He transmitted to the Congress a written declaration of temporary inability. He could not claim he was forced to resign
because immediately before he left Malacaang, he asked Secretary Angara: Ed, aalis na ba ako? which implies that he still had a
choice of whether or not to leave.
To be sure, pressure was exerted for the petitioner to resign. But it is difficult to believe that the pressure completely vitiated the
voluntariness of the petitioners resignation. The Malacaang ground was then fully protected by the Presidential Security Guard
armed with tanks and high-powered weapons. The then Chief of Staff, General Angelo Reyes, and other military officers were in
Malacaang to assure that no harm would befall the petitioner as he left the Palace. Indeed, no harm, not even a scratch, was suffered
by the petitioner, the members of his family and his Cabinet who stuck it out with him in his last hours. Petitioners entourage was even
able to detour safely to the Municipal Hall of San Juan and bade goodbye to his followers before finally going to his residence in Polk
Street, Greenhills. The only incident before the petitioner left the Palace was the stone throwing between a small group of pro and anti
Erap rallyists which resulted in minor injuries to a few of them. Certainly, there were no tanks that rumbled through the Palace, no
attack planes that flew over the presidential residence, no shooting, no large scale violence, except verbal violence, to justify the
conclusion that petitioner was coerced to resign.
II
Evidentiary Issues
Petitioner devotes a large part of his arguments on the alleged improper use by this Court of the Angara Diary. It is urged that the use
of the Angara Diary to determine the state of mind of the petitioner on the issue of his resignation violates the rule against the
admission of hearsay evidence.
We are unpersuaded. To begin with, the Angara diary is not an out of court statement. The Angara Diary is part of the pleadings in the
cases at bar. Petitioner cannot complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its use. To be
sure, the said Diary was frequently referred to by the parties in their pleadings.[3] The three parts of the Diary published in the PDI from
February 4-6, 2001 were attached as Annexes A-C, respectively, of the Memorandum of private respondents Romeo T. Capulong, et
al., dated February 20, 2001. The second and third parts of the Diary were earlier also attached as Annexes 12 and 13 of the
Comment of private respondents Capulong, et al., dated February 12, 2001. In fact, petitioner even cited in his Second Supplemental
Reply Memorandum both the second part of the diary, published on February 5, 2001,[4] and the third part, published on February 6,
2001.[5] It was also extensively used by Secretary of Justice Hernando Perez in his oral arguments. Thus, petitioner had all the
opportunity to contest the use of the Diary but unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of court statement, still its use is not covered bythe hearsay rule.[6]
Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons
other than the witness by whom it is sought to produce it.[7] There are three reasons for excluding hearsay evidence: (1) absence of
cross examination; (2) absence of demeanor evidence, and (3) absence of the oath.[8] Not at all hearsay evidence, however, is
inadmissible as evidence. Over the years, a huge body of hearsay evidence has been admitted by courts due to their relevance,

trustworthiness and necessity.[9] The emergence of these exceptions and their wide spread acceptance is well-explained by Weinstein,
Mansfield, Abrams and Berger as follows:
x x x
On the other hand, we all make decisions in our everyday lives on the basis of other persons accounts of what happened, and verdicts
are usually sustained and affirmed even if they are based on hearsay erroneously admitted, or admitted because no objection was
made. See Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay evidence alone can support a verdict). Although
volumes have been written suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all hearsay evidence.
Indeed, the decided historical trend has been to exclude categories of highly probative statements from the definition of hearsay
(sections 2 and 3, infra), and to develop more class exceptions to the hearsay rule (sections 4-11, infra). Furthermore, many states
have added to their rules the residual, or catch-all, exceptions first pioneered by the Federal Rules which authorize the admission of
hearsay that does not satisfy a class exception, provided it is adequately trustworthy and probative (section 12, infra).
Moreover, some commentators believe that the hearsay rule should be abolished altogether instead of being loosened. See, e.g.,
Note, The Theoretical Foundation of the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted):
The Federal Rules of Evidence provide that [a]lthough relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. Under this structure, exclusion is justified by fears of how the jury will be influenced by
the evidence. However, it is not traditional to think of hearsay as merely a subdivision of this structure, and the Federal Rules do not
conceive of hearsay in that manner. Prejudice refers to the jurys use of evidence for inferences other than those for which the
evidence is legally relevant; by contrast, the rule against hearsay questions the jurys ability to evaluate the strength of a legitimate
inference to be drawn from the evidence. For example, were a judge to exclude testimony because a witness was particularly smooth
or convincing, there would be no doubt as to the usurpation of the jurys function. Thus, unlike prejudices recognized by the evidence
rules, such as those stemming from racial or religious biases or from the introduction of photographs of a victims final state, the
exclusion of hearsay on the basis of misperception strikes at the root of the jurys function by usurping its power to process quite
ordinary evidence, the type of information routinely encountered by jurors in their everyday lives.

Since virtually all criteria seeking to distinguish between good and bad hearsay are either incoherent, inconsistent, or indeterminate, the
only altenative to a general rule of admission would be an absolute rule of exclusion, which is surely inferior. More important, the
assumptions necessary to justify a rule against hearsay seem insupportable and, in any event, are inconsistent with accepted
notions of the function of the jury. Therefore, the hearsay rules should be abolished.
Some support for this view can be found in the limited empirical research now available which is, however, derived from simulations
that suggests that admitting hearsay has little effect on trial outcomes because jurors discount the value of hearsay evidence. See
Rakos & Landsman, Researching the Hearsay Rule: Emerging Findings, General Issues, and Future Directions, 76 Minn.L.Rev. 655
(1992); Miene, Park, & Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76 Minn.L.Rev. 683 (1992); Kovera,
Park, & Penrod, Jurors Perceptions of Eyewitness and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research
Essay: A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay Evidence in American Courts, 15 Law & Psychol. Rev. 65
(1991).
Others, even if they concede that restrictions on hearsay have some utility, question whether the benefits outweigh the cost:
The cost of maintaining the rule is not just a function of its contribution to justice. It also includes the time spent on litigating the rule.
And of course this is not just a cost voluntarily borne by the parties, for in our system virtually all the cost of the court salaries,
administrative costs, and capital costs are borne by the public. As expensive as litigation is for the parties, it is supported by an
enormous public subsidy. Each time a hearsay question is litigated, the public pays. The rule imposes other costs as well. Enormous
time is spent teaching and writing about the hearsay rule, which are both costly enterprises. In some law schools, students spend over
half their time in evidence classes learning the intricacies of the hearsay rule, and enormous academic resources are expended on
the rule.
Allen, Commentary on Professor Friendmans Article: The Evolution of the Hearsay Rule to a Rule of Admission, 76 Minn.L.Rev. 797,
800 [1992] (but would abolish rule only in civil cases). See also Friedman, Toward a Partial Economic, Game-Theoretic Analysis of
Hearsay, 76 Minn. L. Rev. 723 (1992).[10]
A complete analysis of any hearsay problem requires that we further determine whether the hearsay evidence is one exempted from
the rules of exclusion. A more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party
and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that the act, declaration or omission of a party as to a
relevant fact may be given in evidence against him.[11] It has long been settled that these admissions are admissible even if they are
hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the various authorities who explain why admissions are not
covered by the hearsay rule:[12]
Wigmore, after pointing out that the partys declaration has generally the probative value of any other persons asssertion, argued that
it had a special value when offered against the party. In that circumstance, the admission discredits the partys statement with the
present claim asserted in pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, he
continued,admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded if there was no

opportunity for the opponent to cross-examine because it is the opponents own declaration, and he does not need to cross examine
himself. Wigmore then added that the Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put himself
on the stand and explain his former assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154,
McCormick)
According to Morgan: The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in
which it was made furnish the trier means of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object
that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.
A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume
that they correspond with the truth, and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583).
The Angara Diary contains direct statements of petitioner which can be categorized as admissions of a party: his proposal for a snap
presidential election where he would not be a candidate; his statement that he only wanted the five-day period promised by Chief of
Staff Angelo Reyes; his statements that he would leave by Monday if the second envelope would be opened by Monday and Pagod na
pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I dont want any
more of this its too painful. Im tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will go. We
noted that days before, petitioner had repeatedly declared that he would not resign despite the growing clamor for his resignation. The
reason for the meltdown is obvious - - - his will not to resign has wilted.
It is, however, argued that the Angara Diary is not the diary of the petitioner, hence, non-binding on him. The argument overlooks the
doctrine of adoptive admission. An adoptive admission is a partys reaction to a statement or action by another person when it is
reasonable to treat the partys reaction as an admission of something stated or implied by the other person.[13] Jones explains that the
basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements
which the other person had made.[14] To use the blunt language of Mueller and Kirkpatrick, this process of attribution is not mumbo
jumbo but common sense.[15] In the Angara Diary, the options of the petitioner started to dwindle when the armed forces withdrew its
support from him as President and commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President Pimentel to
advise petitioner to consider the option of dignified exit or resignation. Petitioner did not object to the suggested option but simply
said he could never leave the country. Petitioners silence on this and other related suggestions can be taken as an admission by him.
[16]
Petitioner further contends that the use of the Angara diary against him violated the rule on res inter alios acta. The rule is expressed in
section 28 of Rule 130 of the Rules of Court, viz: The rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
Again, petitioner errs in his contention. The res inter alios acta rule has several exceptions. One of them is provided in section 29 of
Rule 130 with respect to admissions by a co-partner or agent.
Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little President. Indeed, he was authorized by the
petitioner to act for him in the critical hours and days before he abandoned Malacaang Palace. Thus, according to the Angara Diary,
the petitioner told Secretary Angara: Mula umpisa pa lang ng kampanya, Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli,
ikaw pa rin. (Since the start of the campaign, Ed, you have been the only one Ive listened to. And now at the end, you still are.)[17]
This statement of full trust was made by the petitioner after Secretary Angara briefed him about the progress of the first negotiation.
True to this trust, the petitioner had to ask Secretary Angara if he would already leave Malacaang after taking their final lunch on
January 20, 2001 at about 1:00 p.m. The Angara Diary quotes the petitioner as saying to Secretary Angara: ed, kailangan ko na bang
umalis? (Do I have to leave now?)[18] Secretary Angara told him to go and he did. Petitioner cannot deny that Secretary Angara
headed his team of negotiators that met with the team of the respondent Arroyo to discuss the peaceful and orderly transfer of power
after his relinquishment of the powers of the presidency. The Diary shows that petitioner was always briefed by Secretary Angara on
the progress of their negotiations. Secretary Angara acted for and in behalf of the petitionerin the crucial days before respondent
Arroyo took her oath as President. Consequently, petitioner is bound by the acts and declarations of Secretary Angara.
Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on the principal (petitioner).[19] Jones very well
explains the reasons for the rule, viz: What is done, by agent, is done by the principal through him, as through a mere instrument. So,
whatever is said by an agent, either in making a contract for his principal, or at the time and accompanying the performance of any act
within the scope of his authority, having relation to, and connected with, and in the course of the particular contract or transaction in
which he is then engaged, or in the language of the old writers, dum fervet opus is, in legal effect, said by his principal and admissible
in evidence against such principal.[20]
Moreover, the ban on hearsay evidence does not cover independently relevant statements. These are statements which are relevant
independently of whether they are true or not. They belong to two (2) classes: (1) those statements which are the very facts in issue,
and (2) those statements which are circumstantial evidence of the facts in issue. The second class includes the following:[21]
a. Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other
emotions;
b. Statements of a person which show his physical condition, as illness and the like;

c. Statements of a person from which an inference may be made as to the state of mind of another, that is, the knowledge, belief,
motive, good or bad faith, etc. of the latter;
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness.
Again, Jones tells us why these independently relevant statements are not covered by the prohibition against hearsay evidence:[22]
1088. Mental State or Condition Proof of Knowledge.- There are a number of comon issues, forming a general class, in proof of
which hearsay is so obviously necessary that it is not customary to refer to its admissibility as by virtue of any exception to the general
exclusionary rule. Admissibility, in such cases, is as of course. For example, where any mental state or condition is in issue, such as
motive, malice, knowledge, intent, assent or dissent, unless direct testimony of the particular person is to be taken as conclusive of his
state of mind, the only method of proof available is testimony of others to the acts or statements of such person. Where his acts or
statements are against his interest, they are plainly admissible within the rules hereinabove announced as to admissions against
interest. And even where not against interest, if they are so closely connected with the event or transaction in issue as to constitute
one of the very facts in controversy, they become admissible of necessity.
As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his state of mind and are circumstantial
evidence of his intent to resign. It also contains statements of Secretary Angara from which we can reasonably deduce petitioners
intent to resign. They are admissible and they are not covered by the rule on hearsay. This has long been a quiet area of our law on
evidence and petitioners attempt to foment a belated tempest cannot receive our imprimatur.
Petitioner also contends that the rules on authentication of private writings and best evidence were violated in our Decision, viz:
The use of the Angara diary palpably breached several hornbook rules of evidence, such as the rule on authentication of private
writings
xxx
A. Rule on Proof of Private Writings Violated
The rule governing private documents as evidence was violated. The law provides that before any private writing offered as authentic
is received in evidence, its due execution and authenticity must be proved either: a) by anyone who saw the document executed or
written, or b) by evidence of the genuineness of the signature or handwriting of the maker.
xxx
B. Best Evidence Rule Infringed
Clearly, the newspaper reproduction is not the best evidence of the Angara diary. It is secondary evidence, of dubious authenticity. It
was however used by this Honorable Court without proof of the unavailability of the original or duplicate original of the diary. The Best
Evidence Rule should have been applied since the contents of the diary are the subject of inquiry.
The rule is that, except in four (4) specific instances, [w]hen the subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself.[23]
Petitioners contention is without merit. In regard to the Best Evidence rule, the Rules of Court provides in sections 2 to 4 of Rule 130,
as follows:
Sec. 2. Documentary evidence. Documents as evidence consist of writings or any material containing letters, words, numbers,
figures or other modes of written expressions offered as proof of their contents.
Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time
and the fact sought to be established from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a public office.
Sec. 4. Original of document. (a) The original of a document is one the contents of which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally
regarded as originals.
(c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction,
all the entries are likewise equally regarded as originals.
It is true that the Court relied not upon the original but only copy of the Angara Diary as published in the Philippine Daily Inquirer on
February 4-6, 2001. In doing so, the Court, did not, however, violate the best evidence rule. Wigmore, in his book on evidence, states
that:
Production of the original may be dispensed with, in the trial courts discretion, whenever in the case in hand the opponent does not
bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.[24]
x x x

In several Canadian provinces, the principle of unavailability has been abandoned, for certain documents in which ordinarily no real
dispute arised. This measure is a sensible and progressive one and deserves universal adoption (post, sec. 1233). Its essential
feature is that a copy may be used unconditionally, if the opponent has been given an opportunity to inspect it. (empahsis supplied)
Franciscos opinion is of the same tenor, viz:
Generally speaking, an objection by the party against whom secondary evidence is sought to be introduced is essential to bring the
best evidence rule into application; and frequently, where secondary evidence has been admitted, the rule of exclusion might have
successfully been invoked if proper and timely objection had been taken. No general rule as to the form or mode of objecting to the
admission of secondary evidence is set forth. Suffice it to say here that the objection should be made in proper season that is,
whenever it appears that there is better evidence than that which is offered and before the secondary evidence has been admitted.
The objection itself should be sufficiently definite to present a tangible question for the courts consideration.[25]
He adds:
Secondary evidence of the content of the writing will be received in evidence if no objection is made to its reception.[26]
In regard to the authentication of private writings, the Rules of Court provides in section 20 of Rule 132, viz:
Sec. 20. Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and
authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.
On the rule of authentication of private writings, Francisco states that:
A proper foundation must be laid for the admission of documentary evidence; that is, the identity and authenticity of the document
must be reasonably established as a pre-requisite to its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263, and
others) However, a party who does not deny the genuineness of a proffered instrument may not object that it was not properly identified
before it was admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R. 835).[27]
Petitioner cites the case of State prosecutors v. Muro,[28] which frowned on reliance by courts on newspaper accounts. In that case,
Judge Muro was dismissed from the service for relying on a newspaper account in dismissing eleven (11) cases against Mrs. Imelda
Romualdez Marcos. There is a significant difference, however, between the Muro case and the cases at bar. In the Muro case, Judge
Muro dismissed the cases against Mrs. Marcos on the basis of a newspaper account without affording the prosecution the basic
opportunity to be heard on the matter by way of a written comment or on oral argument. . .(this is) not only a blatant denial of
elementary due process to the Government but is palpably indicative of bad faith and partiality. In the instant cases, however, the
petitioner had an opportunity to object to the admissibility of the Angara Diary when he filed his Memorandum dated February 20, 2001,
Reply Memorandum dated February 22, 2001, Supplemental Memorandum dated February 23, 2001, and Second Supplemental
memorandum dated February 24, 2001. He was therefore not denied due process. In the words of Wigmore, supra, petitioner had
been given an opportunity to inspect theAngara Diary but did not object to its admissibility. It is already too late in the day to raise his
objections in an Omnibus Motion, after the Angara Diary has been used as evidence and a decision rendered partly on the basis
thereof.
III
Temporary Inability
Petitioner argues that the Court misinterpreted the meaning of section 11, Article VII, of the Constitution in that congress can only
decide the issue of inability when there is a variance of opinion between a majority of the Cabinet and the President. The situation
presents itself when majority of the Cabinet determines that the President is unable to govern; later, the President informs Congress
that his inability has ceased but is contradicted by a majority of the members of the Cabinet. It is also urged that the presidents
judgment that he is unable to govern temporarily which is thereafter communicated to the Speaker of the House and the President of
the Senate is the political question which this Court cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he himself made the submission in G.R. No. 146738 that Congress has the
ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner
provided for in section 11 of Article VII.[29] We sustained this submission and held that by its many acts, Congress has already
determined and dismissed the claim of alleged temporary inability to govern proffered by petitioner. If petitioner now feels aggrieved by
the manner Congress exercised its power, it is incumbent upon him to seek redress from Congress itself. The power is conceded by
the petitioner to be with Congress and its alleged erroneous exercise cannot be corrected by this Court. The recognition of respondent
Arroyo as our de jure president made by Congress is unquestionably a political judgment. It is significant that House Resolution No.
176 cited as the bases of its judgment such factors as the peoples loss of confidence on the ability of former President Joseph Ejercito
Estrada to effectively govern and the members of the international community had extended their recognition of Her Excellency,
Gloria Macapagal-Arroyo as President of the Republic of the Philippines and it has a constitutional duty of fealty to the supreme will of
the people x x x. This political judgment may be right or wrong but Congress is answerable only to the people for its judgment. Its
wisdom is fit to be debated before the tribunal of the people and not before a court of justice. Needles to state, the doctrine of
separation of power constitutes an inseparable bar against this courts interposition of its power of judicial review to review the

judgment of Congress rejecting petitioners claim that he is still the President, albeit on leave and that respondent Arroyo is merely an
acting President.
Petitioner attempts to extricate himself from his submission that Congress has the ultimate authority to determine his inability to govern,
and whose determination is a political question by now arguing thatwhether one is a de jure or de facto President is a judicial question.
Petitioners change of theory, ill disguised as it is, does not at all impress. The cases at bar do not present the general issue of whether
the respondent Arroyo is the de jure or a de facto President. Specific issues were raised to the Court for resolution and we ruled on an
issue by issue basis. On the issue of resignation under section 8, Article VII of the Constitution, we held that the issue is legal and
ruled that petitioner has resigned from office before respondent Arroyo took her oath as President. On the issue of inability to govern
under section 11, Article VII of the Constitution, we held that the Congress has the ultimate authority to determine the question as
opined by the petitioner himself and that the determination of Congress is a political judgment which this Court cannot review.
Petitioner cannot blur these specific rulings by the generalization that whether one is a de jure or de facto President is a judicial
question.
Petitioner now appears to fault Congress for its various acts expressed thru resolutions which brushed off his temporary inability to
govern and President-on-leave argument. He asserts that these acts of Congress should not be accorded any legal significance
because: (1) they are post facto and (2) a declaration of presidential incapacity cannot be implied.
We disagree. There is nothing in section 11 of Article VII of the Constitution which states that the declaration by Congress of the
Presidents inability must always be a priori or before the Vice-President assumes the presidency. In the cases at bar, special
consideration should be given to the fact that the events which led to the resignation of the petitioner happened at express speed and
culminated on a Saturday. Congress was then not in session and had no reasonable opportunity to act a priori on petitioners letter
claiming inability to govern. To be sure, however, the petitioner cannot strictly maintain that the President of the Senate, the Honorable
Aquilino Pimentel, Jr. and the then Speaker of the House of Representatives, the Honorable Arnulfo P. Fuentebella, recognized
respondent Arroyo as the constitutional successor to the presidency post facto. Petitioner himself states that his letter alleging his
inability to govern was received by the Office of the Speaker on January 20, 2001 at 8:30 A.M.and the Office of the Senate at 9 P.M. of
the same day.[30] Respondent took her oath of office a few minutes past 12 oclock in the afternoon of January 20. Before the oathtaking, Senate President Pimentel, Jr. and Speaker Fuentebella had prepared a Joint Statement which states:[31]
Joint Statement of Support
and Recognition from the
Senate President and the Speaker
Of the House of Representatives
We, the elected leaders of the Senate and the House of Representatives, are called upon to address the constitutional crisis affecting
the authority of the President to effectively govern our distressed nation. We understand that the Supreme Court at that time is issuing
an en banc resolution recognizing this political reality. While we may differ on the means to effect a change of leadership, we however,
cannot be indifferent and must act resolutely. Thus, in line with our sworn duty to represent our people and in pursuit of our goals for
peace and prosperity to all, we, the Senate President and the Speaker of the House of Representatives, hereby declare our support
and recognition to the constitutional successor to the Presidency. We similarly call on all sectors to close ranks despite our political
differences. May God bless our nation in this period of new beginnings.
Mabuhay and Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQUILINO PIMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA
Speaker of the House of Representatives
This a priori recognition by the President of the Senate and the Speaker of the House of Representatives of respondent Arroyo as the
constitutional successor to the presidency was followed post factoby various resolutions of the Senate and the House, in effect,
confirming this recognition. Thus, Resolution No. 176 expressed x x x the support of the House of Representatives to the assumption
into office by Vice-President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and
expressing its support for her administration as a partner in the attainment of the nations goal under the Constitution.[32] Resolution
No. 82 of the Senate and Resolution No. 178 of the House of Representatives both confirmed the nomination of then Senator Teofisto
Guingona, Jr., as Vice-President.[33] It also passed Resolution No. 83 declaring the impeachment court functus officio.[34] Both
Houses sent bills to respondent Arroyo to be signed by her into law as President of the Philippines.[35] These acts of Congress, a priori
and post facto, cannot be dismissed as merely implied recognitions of respondent Arroyo, as the President of the Republic. Petitioners
insistence that respondent Arroyo is just a de facto President because said acts of Congress x x x are mere circumstances of
acquiescence calculated to induce people to submit to respondents exercise of the powers of the presidency[36] is a guesswork far
divorced from reality to deserve further discussion.
Similarly way off the mark is petitioners point that while the Constitution has made Congress the national board of canvassers for
presidential and vice-presidential elections, this Honorable Court nonetheless remains the sole judge in presidential and vice
presidential contests.[37] He thus postulates that such constitutional provision[38] is indicative of the desire of the sovereign people to

keep out of the hands of Congress questions as to the legality of a persons claim to the presidential office.[39] Suffice to state that the
inference is illogical. Indeed, there is no room to resort to inference. The Constitution clearly sets out the structure on how vacancies
and election contest in the office of the President shall be decided. Thus, section 7 of Article VII covers the instance when (a) the
President-elect fails to qualify, (b) if a President shall not have been chosen and (c) if at the beginning of the term of the President, the
President-elect shall have died or shall have become permanently disabled. Section 8 of Article VII covers the situation of the death,
permanent disability, removal from office or resignation of the President. Section 11 of Article VII covers the case where the President
transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to
discharge the powers and duties of his office. In each case, the Constitution specifies the body that will resolve the issues that may
arise from the contingency. In case of election contest, section 4, Article VII provides that the contests shall be resolved by this Court
sitting en banc. In case of resignation of the President, it is not disputed that this Court has jurisdiction to decide the issue. In case of
inability to govern, section 11 of Article VII gives the Congress the power to adjudge the issue and petitioner himself submitted this
thesis which was shared by this Court. In light of these clear provisions of the Constitution, it is inappropriate, to say the least, for
petitioner to make inferences that simply distort their meanings.
IV
Impeachment and Absolute Immunity
Petitioner contends that this Court disregarded section 3 (7) of Article XI of the Constitution which provides:
(7)
Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office
under the Republic of the Philippines, but the party convicted should nevertheless be liable and subject to prosecution, trial and
punishment according to law.
Petitioner reiterates the argument that he must be first convicted in the impeachment proceedings before he could be criminally
prosecuted. A plain reading of the provision will not yield this conclusion. The provision conveys two uncomplicated ideas: first, it tells
us that judgment in impeachment cases has a limited reach. . .i.e., it cannot extend further than removal from office and disqualification
to hold any office under the Republic of the Philippines, and second, it tells us the consequence of the limited reach of a judgment in
impeachment proceedings considering its nature, i.e., that the party convicted shall still be liable and subject to prosecution, trial and
punishment according to law. No amount of manipulation will justify petitioners non sequitur submission that the provision requires that
his conviction in the impeachment proceedings is a condition sine qua non to his prosecution, trial and punishment for the offenses he
is now facing before the respondent Ombudsman.
Petitioner contends that the private and public prosecutors walk out from the impeachment proceedings should be considered failure
to prosecute on the part of the public and private prosecutors, and the termination of the case by the Senate is equivalent to
acquittal.[40] He explains failure to prosecute as the failure of the prosecution to prove the case, hence dismissal on such grounds is
a dismissal on the merits.[41] He then concludes that dismissal of a case for failure to prosecute amounts to an acquittal for purposes
of applying the rule against double jeopardy.[42]
Without ruling on the nature of impeachment proceedings, we reject petitioners submission.
The records will show that the prosecutors walked out in the January 16, 2001 hearing of the impeachment cases when by a vote of 1110, the Senator-judges refused to open the second envelope allegedly containing the P3.3 billion deposit of the petitioner in a secret
bank account under the name Jose Velarde. The next day, January 17, the public prosecutors submitted a letter to the Speaker of the
House tendering their resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.
Senator Raul Roco immediately moved for the indefinite suspension of the impeachment proceedings until the House of
Representatives shall have resolved the resignation of the public prosecutors. The Roco motion was then granted by Chief Justice
Davide, Jr. Before the House could resolve the issue of resignation of its prosecutors or on January 20, 2001, petitioner relinquished
the presidency and respondent Arroyo took her oath as President of the Republic. Thus, on February 7, 2001, the Senate passed
Resolution No. 83 declaring that the impeachment court is functus officio.
Prescinding from these facts, petitioner cannot invoke double jeopardy. Double jeopardy attaches only: (1) upon a valid complaint; (2)
before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or
convicted or the case was dismissed or otherwise terminated without the express consent of the accused.[43] Assuming arguendothat
the first four requisites of double jeopardy were complied with, petitioner failed to satisfy the fifth requisite for he was not acquitted nor
was the impeachment proceeding dismissed without his express consent. Petitioners claim of double jeopardy cannot be predicated
on prior conviction for he was not convicted by the impeachment court. At best, his claim of previous acquittal may be scrutinized in
light of a violation of his right to speedy trial, which amounts to a failure to prosecute. As Bernas points out, a failure to prosecute,
which is what happens when the accused is not given a speedy trial, means failure of the prosecution to prove the case. Hence,
dismissal on such grounds is a dismissal on the merits.[44]
This Court held in Esmea v. Pogoy[45], viz:
If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the
case. After the prosecutions motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot
produce his evidence and, consequently fails to prove the defendants guilt, the court upon defendants motion shall dismiss the case,
such dismissall amounting to an acquittal of the defendant.

In a more recent case, this Court held:

It is true that in an unbroken line of cases, we have held that the dismissal of cases on the ground of failure to prosecute is equivalent
to an acquittal that would bar further prosecution of the accused for the same offense. It must be stressed, however, that these
dismissals were predicated on the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench
considering that the right of the private respondents to speedy trial has not been violated by the State. For this reason, private
respondents cannot invoke their right against double jeopardy.[46]
Petitioner did not move for the dismissal of the impeachment case against him. Even assuming arguendo that there was a move for its
dismissal, not every invocation of an accuseds right to speedy trial is meritorious. While the Court accords due importance to an
accuseds right to a speedy trial and adheres to a policy of speedy administration of justice, this right cannot be invoked loosely.
Unjustified postponements which prolong the trial for an unreasonable length of time are what offend the right of the accused to speedy
trial.[47] The following provisions of the Revised Rules of Criminal Procedure are apropos:
Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the accused shall be entitled to the following
rights:
(h) To have speedy, impartial and public trial.
Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once commenced shall continue from day to day as far
as practicable until terminated. It may be postponed for a reasonable length of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other shortterm trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred
eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court.
Petitioner therefore failed to show that the postponement of the impeachment proceedings was unjustified, much less that it was for an
unreasonable length of time. Recalling the facts, on January 17, 2001, the impeachment proceeding was suspended until the House of
Representatives shall have resolved the issue on the resignation of the public prosecutors. This was justified and understandable for
an impeachment proceeding without a panel of prosecutors is a mockery of the impeachment process. However, three (3) days from
the suspension or January 20, 2001, petitioners resignation supervened. With the sudden turn of events, the impeachment court
became functus officio and the proceedings were therefore terminated. By no stretch of the imagination can the four-day period from
the time the impeachment proceeding was suspended to the day petitioner resigned, constitute an unreasonable period of delay
violative of the right of the accused to speedy trial.
Nor can the claim of double jeopardy be grounded on the dismissal or termination of the case without the express consent of the
accused. We reiterate that the impeachment proceeding was closed only after the petitioner had resigned from the presidency, thereby
rendering the impeachment court functus officio. By resigning from the presidency, petitioner more than consented to the termination of
the impeachmment case against him, for he brought about the termination of the impeachment proceedings. We have consistently
ruled that when the dismissal or termination of the case is made at the instance of the accused, there is no double jeopardy.[48]
Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His arguments are merely recycled and
we need not prolong the longevity of the debate on the subject. In our Decision, we exhaustively traced the origin of executive immunity
in our jurisdiction and its bends and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life
to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his
alleged criminal acts committed while a sitting President. Petitioners rehashed arguments including their thinly disguised new spins are
based on the rejected contention that he is still President, albeit, a President on leave. His stance that his immunity covers his entire
term of office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is now a new de jure
President.
Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit during his term of office. He
buttresses his position with the deliberations of the Constitutional Commission, viz:
Mr. Suarez. Thank you.
The last question is with reference to the Committees omitting in the draft proposal the immunity provision for the President. I agree
with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original
provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least
the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of
an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost
daily?
Fr. Bernas: The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune
from suit.
Mr. Suarez: So there is no need to express it here.
Fr. Bernas: There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit
and to add other things.
Mr. Suarez; On the understanding, I will not press for any more query, madam President.
I thank the Commissioner for the clarification.[49]

Petitioner, however, fails to distinguish between term and tenure. The term means the time during which the officer may claim to hold
the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the
term during which the incumbent actually holds office. The tenure may be shorter than the term for reasons within or beyond the power
of the incumbent.[50] From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent
only with his tenure and not his term.
Indeed, petitioners stubborn stance cannot but bolster the belief that the cases at bar were filed not really for petitioner to reclaim the
presidency but just to take advantage of the immunity attached to the presidency and thus, derail the investigation of the criminal cases
pending against him in the Office of the Ombudsman.
V
Prejudicial Publicity on the Ombudsman
Petitioner hangs tough on his submission that his due process rights to a fair trial have been prejudiced by pre-trial publicity. In our
Decision, we held that there is not enough evidence to sustain petitioners claim of prejudicial publicity. Unconvinced, petitioner alleges
that the vivid narration of events in our Decision itself proves the pervasiveness of the prejudicial publicity. He then posits the thesis
that doubtless, the national fixation with the probable guilt of petitioner fueled by the hate campaign launched by some high circulation
newspaper and by the bully pulpit of priests and bishops left indelible impression on all sectors of the citizenry and all regions, so harsh
and so pervasive that the prosecution and the judiciary can no longer assure petitioner a sporting chance.[51] To be sure, petitioner
engages inexageration when he alleges that all sectors of the citizenry and all regions have been irrevocably influenced by this
barrage of prejudicial publicity. This exaggeration collides with petitioners claim that he still enjoys the support of the majority of our
people, especially the masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the transaction speaks for itself) to support his argument.
Under the res ipsa loquitur rule in its broad sense, the fact of the occurrence of an injury, taken with the surrounding circumstances,
may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact
for defendant to meet with an explanation.[52] It is not a rule of substantive law but more a procedural rule. Its mere invocation does
not exempt the plaintiff with the requirement of proof to prove negligence. It merely allows the plaintiff to present along with the proof of
the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence and to
thereby place on the defendant the burden of going forward with the proof.[53]
We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule usually applied only in tort cases, to the cases at bar.
Indeed, there is no court in the whole world that has applied theres ipsa loquitur rule to resolve the issue of prejudicial publicity. We
again stress that the issue before us is whether the alleged pervasive publicity of the cases against the petitioner has prejudiced the
minds of the members of the panel of investigators. We reiterate the test we laid down in People v. Teehankee,[54] to resolve this
issue, viz:
We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule
that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds
right to a fair trial for, as well pointed out , a responsible press has always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a
day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our communication system brings news as hey happen straight to our breakfast
tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of
a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose
members are overly protected from publicity lest they lost their impartiality. x x x x x x x x x. Our judges are learned in the law and
trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and
publicity stunts does not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized
the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and
adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that
the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do
not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial
and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden.
Petitioner keeps on pounding on the adverse publicity against him but fails to prove how the impartiality of the panel of investigators
from the Office of the Ombudsman has been infected by it. As we held before and we hold it again, petitioner has completely failed to

adduce any proof of actual prejudice developed by the members of the Panel of Investigators. This fact must be established by clear
and convincing evidence and cannot be left to loose surmises and conjectures. In fact, petitioner did not even identify the members of
the Panel of Investigators. We cannot replace this test of actual prejudice with the rule of res ipsa loquitur as suggested by the
petitioner. The latter rule assumes that an injury (i.e., prejudicial publicity) has been suffered and then shifts the burden to the panel of
investigators to prove that the impartiality of its members has been affected by said publicity. Such a rule will overturn our case law that
pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The cases are not wanting where an accused has
been acquitted despite pervasive publicity.[55] For this reason, we continue to hold that it is not enough for petitioner to conjure
possibility of prejudice but must prove actual prejudice on the part of his investigators for the Court to sustain his plea. It is plain that
petitioner has failed to do so.
Petitioner agains suggests that the Court should order a 2-month cooling off period to allow passions to subside and hopefully the
alleged prejudicial publicity against him would die down. We regret not to acquiesce to the proposal. There is no assurance that the so
called 2-month cooling off period will achieve its purpose. The investigation of the petitioner is a natural media event. It is the first time
in our history that a President will be investigated by the Office of the Ombudsman for alleged commission of heinous crimes while a
sitting President. His investigation will even be monitored by the foreign press all over the world in view of its legal and historic
significance. In other words, petitioner cannot avoid the kleiglight of publicity. But what is important for the petitioner is that his
constitutional rights are not violated in the process of investigation. For this reason, we have warned the respondent Ombudsman in
our Decision to conduct petitioners preliminary investigation in a circus-free atmosphere. Petitioner is represented by brilliant legal
minds who can protect his right as an accused.
VI
Recusation
Finally, petitioner prays that the members of this Honorable Court who went to EDSA put on record who they were and consider
recusing or inhibiting themselves, particularly those who had ex-parte contacts with those exerting pressure on this Honorable Court, as
mentioned in our Motion of March 9, 2001, given the need for the cold neutrality of impartial judges.[56]
We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12) members of the Court who merely accepted the
invitation of the respondent Arroyo to attend her oath taking. Asmere spectators of a historic event, said members of the Court did not
prejudge the legal basis of the claim of respondent Arroyo to the presidency at the time she took her oath. Indeed, the Court in its en
banc resolution on January 22, 2001, the first working day after respondent Arroyo took her oath as President, held in Administrative
Matter No. 01-1-05 SC, to wit:
A.M. No. 01-1-05-SC In re: Request for Vice President Gloria Macapagal-Arroyo to Take Her Oath of Office as President of the
Republic of the Philippines before the Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be
sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated
January 20, 2001, which request was treated as an administrative matter, the court Resolved unanimously to confirm the authority
given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office to
Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party.
The above resolution was unanimously passed by the 15 members of the Court. It should be clear from the resolution that the Court
did not treat the letter of respondent Arroyo to be administered the oath by Chief Justice Davide, Jr., as a case but as an administrative
matter. If it were considered as a case, then petitioner has reason to fear that the Court has predetermined the legitimacy of the claim
of respondent Arroyo to the presidency. To dispel the erroneous notion, the Court precisely treated the letter as an administrative
matter and emphasized that it was without prejudice to the disposition of any justiciable case that may be filed by a proper party. In
further clarification, the Court on February 20, 2001 issued another resolution to inform the parties and the public that it xxx did not
issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press
statement justifying the alleged resolution. Thus, there is no reason for petitioner to request for the said twelve (12) justices to recuse
themselves. To be sure, a motion to inhibit filed by a party after losing his case is suspect and is regarded with general disfavor.
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court
itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the
deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart
of judicial independence.[57] The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to
abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices.[58]
IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and his Omnibus Motion in G.R. No. 146738 are
DENIED for lack of merit.
SO ORDERED.
Case Digest
FACTS:

Estrada was inaugurated as president of the Republic of the Philippines on June 30, 1998 with Gloria Macapagal-Arroyo as his Vice
President.
In October 2000, Ilocos Sur governor Luis Chavit Singson, a close friend of the President, alleged that he had personally given
Estrada money as payoff from jueteng hidden in a bank account known as Jose Velarde a grassroots-based numbers game.
Singsons allegation also caused controversy across the nation, which culminated in the House of Representatives filing of an
impeachment case against Estrada on November 13, 2000. House Speaker Manny Villar fast-tracked the impeachment complaint. The
impeachment suit was brought to the Senate and an impeachment court was formed, with Chief Justice Hilario Davide, Jr. as presiding
officer. Estrada, pleaded not guilty.
The expos immediately ignited reactions of rage. On January 18, a crowd continued to grow at EDSA, bolstered by students from
private schools and left-wing organizations. Activists from the group Bayan and Akbayan as well as lawyers of the Integrated Bar of the
Philippines and other bar associations joined in the thousands of protesters.
On January 19, The Philippine National Police and the Armed Forces of the Philippines also withdrew their support for Estrada and
joined the crowd at EDSA Shrine.
At 2:00pm, Estrada appeared on television for the first time since the beginning of the protests and maintains that he will not resign. He
said that he wanted the impeachment trial to continue, stressing that only a guilty verdict will remove him from office.
At 6:15pm, Estrada again appeared on television, calling for a snap presidential election to be held concurrently with congressional and
local elections on May 14, 2001. He added that he will not run in this election.
OnJanuary 20, the Supreme Court declared that the seat of presidency was vacant, saying that Estrada constructively resigned his
post. Noon of the same day, Gloria Macapagal-Arroyo took her oath of office in the presence of the crowd at EDSA, becoming the 14th
president of the Philippines.
At 2:00 pm, Estrada released a letter saying he had strong and serious doubts about the legality and constitutionality of her
proclamation as president, but saying he would give up his office to avoid being an obstacle to healing the nation. Estrada and his
family later left Malacaang Palace.
A heap of cases then succeeded Estradas leaving the palace, which he countered by filing a peition for prohibition with a prayer for a
writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from conducting any further proceedings in cases filed
against him not until his term as president ends. He also prayed for judgment confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the
Constitution.
ISSUE:
1.) Whether or not the case at bar a political or justiciable issue. If justiciable, whether or not petitioner Estrada was a president-onleave or did he truly resign.
2.) Whether or not petitioner may invokeimmunity from suits.
HELD:
The Court defines a political issue as those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government.
It is concerned with issues dependent upon the wisdom, not legality of a particular measure.
The Court made a distinction between the Aquino presidency and the Arroyo presidency. The Court said that while the Aquino
government was a government spawned by the direct demand of the people in defiance to the 1973 Constitution, overthrowing the old
government entirely, the Arroyo government on the other hand was a government exercising under the 1987 constitution, wherein only
the office of the president was affected. In the former, it The question of whether the previous president (president Estrada) truly
resigned subjects it to judicial review. The Court held that the issue is legal and not political.
For the president to be deemed as having resigned, there must be an intent to resign and the intent must be coupled by acts of
relinquishment. It is important to follow the succession of events that struck petitioner prior his leaving the palace. Furthermore, the
quoted statements extracted from the Angara diaries, detailed Estradas implied resignation On top of all these, the press release he
issued regarding is acknowledgement of the oath-taking of Arroyo as president despite his questioning of its legality and his emphasis
on leaving the presidential seat for the sake of peace. The Court held that petitioner Estrada had resigned by the use of the totality test:
prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.
As to the issue of the peitioners contention that he is immuned from suits, the Court held that petitioner is no longer entitled to absolute
immunity from suit. The Court added that, given the intent of the 1987 Constitution to breathe life to the policy that a public office is a
public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a
sitting President. From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent only

with his tenure(the term during which the incumbent actually holds office) and not his term (time during which the officer may claim to
hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another).