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 factogovernment, 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
factogovernment. 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 above-quoted proclamation of General Douglas MacArthur of October 23, 1944 that is, whether
it was the intention of the Commander in Chief of the American Forces to annul and 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 first-felt 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

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

G.R. No. L-36409 October 26, 1973

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LORETA GOZO, defendant-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Jaime M. Lantin and Solicitor
Norberto P. Eduardo for plaintiff-appellee.

Jose T. Nery for defendant-appellant.

FERNANDO, J.:

Appellant seeks to set aside a judgment of the Court of First Instance of Zambales, convicting her of a violation
of an ordinance of Olongapo, Zambales, requiring a permit from the municipal mayor for the construction or
erection of a building, as well as any modification, alteration, repair or demolition thereof. She questions its
validity, or at the very least, its applicability to her, by invoking due process,1 a contention she would premise
on what for her is the teaching of People v. Fajardo.2 If such a ground were far from being impressed with
solidity, she stands on quicksand when she would deny the applicability of the ordinance to her, on the pretext
that her house was constructed within the naval base leased to the American armed forces. While yielding to the
well-settled doctrine that it does not thereby cease to be Philippine territory, she would, in effect, seek to
emasculate our sovereign rights by the assertion that we cannot exercise therein administrative jurisdiction. To
state the proposition is to make patent how much it is tinged with unorthodoxy. Clearly then, the lower court
decision must be affirmed with the sole modification that she is given thirty days from the finality of a judgment
to obtain a permit, failing which, she is required to demolish the same.

The facts are undisputed. As set forth in the decision of the lower court: "The accused bought a house and lot
located inside the United States Naval Reservation within the territorial jurisdiction of Olongapo City. She
demolished the house and built another one in its place, without a building permit from the City Mayor of
Olongapo City, because she was told by one Ernesto Evalle, an assistant in the City Mayor's office, as well as
by her neighbors in the area, that such building permit was not necessary for the construction of the house. On
December 29, 1966, Juan Malones, a building and lot inspector of the City Engineer's Office, Olongapo City,
together with Patrolman Ramon Macahilas of the Olongapo City police force apprehended four carpenters
working on the house of the accused and they brought the carpenters to the Olongapo City police headquarters
for interrogation. ... After due investigation, Loreta Gozo was charged with violation of Municipal Ordinance
No. 14, S. of 1964 with the City Fiscal's Office."3 The City Court of Olongapo City found her guilty of violating
Municipal Ordinance No. 14, Series of 1964 and sentenced her to an imprisonment of one month as well as to
pay the costs. The Court of Instance of Zambales, on appeal, found her guilty on the above facts of violating
such municipal ordinance but would sentence her merely to pay a fine of P200.00 and to demolish the house
thus erected. She elevated the case to the Court of Appeals but in her brief, she would put in issue the validity of
such an ordinance on constitutional ground or at the very least its applicability to her in view of the location of
her dwelling within the naval base. Accordingly, the Court of Appeals, in a resolution of January 29, 1973,
noting the constitutional question raised, certified the case to this Court.

There is, as mentioned in the opening paragraph of this petition, no support in law for the stand taken by
appellant.

1. It would be fruitless for her to assert that local government units are devoid of authority to require building
permits. This Court, from Switzer v. Municipality of
Cebu,4 decided in 1911, has sanctioned the validity of such measures. It is much too late in the day to contend
that such a requirement cannot be validly imposed. Even appellant, justifiably concerned about the unfavorable
impression that could be created if she were to deny that such competence is vested in municipal corporations
and chartered cities, had to concede in her brief: "If, at all; the questioned ordinance may be predicated under
the general welfare clause ... ."5 Its scope is wide, well-nigh all embracing, covering every aspect of public
health, public morals, public safety, and the well being and good order of the community.6

It goes without saying that such a power is subject to limitations. Certainly, if its exercise is violative of any
constitutional right, then its validity could be impugned, or at the very least, its applicability to the person
adversely affected could be questioned. So much is settled law. Apparently, appellant has adopted the view that
a due process question may indeed be raised in view of what for her is its oppressive character. She is led to
such a conclusion, relying on People v. Fajardo.7 A more careful scrutiny of such a decision would not have led
her astray, for that case is easily distinguishable. The facts as set forth in the opinion follow: "It appears that on
August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo as mayor of the municipality of
Baao, Camarines Sur, the municipal council passed the ordinance in question providing as follows: "... 1. Any
person or persons who will construct or repair a building should, before constructing or repairing, obtain a
written permit from the Municipal Mayor. ... 2. A fee of not less than P2.00 should be charged for each building
permit and P1.00 for each repair permit issued. ... 3. [Penalty]-Any violation of the provisions of the above, this
ordinance, shall make the violator liable to pay a fine of not less than P25 nor more than P50 or imprisonment
of not less than 12 days nor more than 24 days or both, at the discretion of the court. If said building destroys
the view of the Public Plaza or occupies any public property, it shall be removed at the expense of the owner of
the building or house. ... ." Four years later, after the term of appellant Fajardo as mayor had expired, he and his
son-in-law, appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to
construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's name, located
along the national highway and separated from the public plaza by a creek ... . On January 16, 1954, the request
was denied, for the reason among others that the proposed building would destroy the view or beauty of the
public plaza ... . On January 18, 1954, defendants reiterated their request for a building permit ..., but again the
request was turned down by the mayor. Whereupon, appellants proceeded with the construction of the building
without a permit, because they needed a place of residence very badly, their former house having been
destroyed by a typhoon and hitherto they had been living on leased property."8

Clearly then, the application of such an ordinance to Fajardo was oppressive. A conviction therefore for a
violation thereof both in the justice of the peace court of Baao, Camarines Sur as well as in the Court of First
Instance could not be sustained. In this case, on the contrary, appellant never bothered to comply with the
ordinance. Perhaps aware of such a crucial distinction, she would assert in her brief: "The evidence showed that
even if the accused were to secure a permit from the Mayor, the same would not have been granted. To require
the accused to obtain a permit before constructing her house would be an exercise in futility. The law will not
require anyone to perform an impossibility, neither in law or in fact: ... ."9 It would be from her own version, at
the very least then, premature to anticipate such an adverse result, and thus to condemn an ordinance which
certainly lends itself to an interpretation that is neither oppressive, unfair, or unreasonable. That kind of
interpretation suffices to remove any possible question of its validity, as was expressly announced in Primicias
v. Fugoso. 10 So it appears from this portion of the opinion of Justice Feria, speaking for the Court: "Said
provision is susceptible of two constructions: one is that the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse to grant permit for the holding of a lawful assembly or meeting, parade,
or procession in the streets and other public places of the City of Manila; and the other is that the applicant has
the right to a permit which shall be granted by the Mayor, subject only to the latter's reasonable discretion to
determine or specify the streets or public places to be used for the purpose, with a view to prevent confusion by
overlapping, to secure convenient use of the streets and public places by others, and to provide adequate and
proper policing to minimize the risk of disorder. After a mature deliberation, we have arrived at the conclusion
that we must adopt the second construction, that is, construe the provisions of the said ordinance to mean that it
does not confer upon the Mayor the power to refuse to grant the permit, but only the discretion, in issuing the
permit, to determine or specify the streets or public places where the parade or procession may pass or the
meeting may be held." 11 If, in a case affecting such a preferred freedom as the right to assembly, this Court
could construe an ordinance of the City of Manila so as to avoid offending against a constitutional provision,
there is nothing to preclude it from a similar mode of approach in order to show the lack of merit of an attack
against an ordinance requiring a permit. Appellant cannot therefore take comfort from any broad statement in
the Fajardo opinion, which incidentally is taken out of context, considering the admitted oppressive application
of the challenged measure in that litigation. So much then for the contention that she could not have been
validly convicted for a violation of such ordinance. Nor should it be forgotten that she did suffer the same fate
twice, once from the City Court and thereafter from the Court of First Instance. The reason is obvious.Such
ordinance applies to her.

2. Much less is a reversal indicated because of the alleged absence of the rather novel concept of administrative
jurisdiction on the part of Olongapo City. Nor is novelty the only thing that may be said against it. Far worse is
the assumption at war with controlling and authoritative doctrines that the mere existence of military or naval
bases of a foreign country cuts deeply into the power to govern. Two leading cases may be cited to show how
offensive is such thinking to the juristic concept of sovereignty, People v. Acierto, 12 and Reagan v.
Commissioner of Internal Revenue. 13 As was so emphatically set forth by Justice Tuason in Acierto: "By the
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. The
Philippine Government has not abdicated its sovereignty over the bases as part of the Philippine territory or
divested itself completely of jurisdiction over offenses committed therein. Under the terms of the treaty, the
United States Government has prior or preferential but not exclusive jurisdiction of such offenses. The
Philippine Government retains not only jurisdictional rights not granted, but also all such ceded rights as the
United States Military authorities for reasons of their own decline to make use of. The first proposition is
implied from the fact of Philippine sovereignty over the bases; the second from the express provisions of the
treaty." 14 There was a reiteration of such a view in Reagan. Thus: "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 sovereignty." 15 Then came this paragraph dealing with the principle of auto-limitation: "It is
to be admitted 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." A state then, if it chooses
to, may refrain from the exercise of what otherwise is illimitable competence." 16 The opinion was at pains to
point out though that even then, there is at the most diminution of jurisdictional rights, not its disappearance.
The words employed follow: "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." 17

Can there be anything clearer, therefore, than that only a turnabout, unwarranted and unjustified, from what is
settled and orthodox law can lend the slightest degree of plausibility to the contention of absence of
administrative jurisdiction. If it were otherwise, what was aptly referred to by Justice Tuason "as a matter of
comity, courtesy, or expediency" becomes one of obeisance and submission. If on a concern purely domestic in
its implications, devoid of any connection with national security, the Military-Bases Agreement could be thus
interpreted, then sovereignty indeed becomes a mockery and an illusion. Nor does appellant's thesis rest on less
shaky foundation by the mere fact that Acierto and Reagan dealt with the competence of the national
government, while what is sought to be emasculated in this case is the so-called administrative jurisdiction of a
municipal corporation. Within the limits of its territory, whatever statutory powers are vested upon it may be
validly exercised. Any residual authority and therein conferred, whether expressly or impliedly, belongs to the
national government, not to an alien country. What is even more to be deplored in this stand of appellant is that
no such claim is made by the American naval authorities, not that it would do them any good if it were so
asserted. To quote from Acierto anew: "The carrying out of the provisions of the Bases Agreement is the
concern of the contracting parties alone. Whether, therefore, a given case which by the treaty comes within the
United States jurisdiction should be transferred to the Philippine authorities is a matter about which the accused
has nothing to do or say. In other words, the rights granted to the United States by the treaty insure solely to that
country and can not be raised by the offender." 18 If an accused would suffer from such disability, even if the
American armed forces were the beneficiary of a treaty privilege, what is there for appellant to take hold of
when there is absolutely no showing of any alleged grant of what is quaintly referred to as administrative
jurisdiction? That is all, and it is more than enough, to make manifest the futility of seeking a reversal.

WHEREFORE, the appealed decision of November 11, 1969 is affirmed insofar as it found the accused, Loreta
Gozo, guilty beyond reasonable doubt of a violation of Municipal Ordinance No. 14, series of 1964 and
sentencing her to pay a fine of P200.00 with subsidiary imprisonment in case of insolvency, and modified
insofar as she is required to demolish the house that is the subject matter of the case, she being given a period of
thirty days from the finality of this decision within which to obtain the required permit. Only upon her failure to
do so will that portion of the appealed decision requiringdemolition be enforced. Costs against the accused.

Makalintal, C.J., Zaldivar, Castro, Teehankee, Makasiar, Antonio and Esguerra, JJ., concur.

Barredo, J., took no part.

G.R. Nos. 70116-19 August 12, 1986

COMMISSIONER OF INTERNAL REVENUE, petitioner,

vs.
FRANK ROBERTSON, JAMES W. ROBERTSON, ROBERT H. CATHEY, JOHN L. GARRISON
AND THE COURT OF TAX APPEALS, respondents.

PARAS, J.:

This is a Petition for Review of the consolidated decision dated 14 December 1984 of the Court of Tax Appeals
(C.T.A.) in C.T.A. Case No. 2735, entitled "Frank Robertson vs. Coconut commissioner of Internal
Revenue," C.T.A. Case No. 2736, entitled "James W. Robertson vs. Commissioner of Internal Revenue;" C.T.A.
Case No. 2738, entitled "Robert H. Cathey vs. Commissioner of Internal Revenue" and C.T.A. Case No. 2739,
entitled "John L. Garrison vs. Commissioner of Internal Revenue," cancelling the assessments for deficiency
income tax for taxable years 1969-1972, inclusive of interests and penalties against:

Frank Robertson (CTA Case No. 2735)-P l32,750.65

James W. Robertson (CTA Case No. 2736)-190,433.17

Robert H. Cathey (CTA Case No. 2738)-92,013.17

John L. Garrison (CTA Case No. 2739)-196,754.32

The above-entitled cases are consolidated as these involve similar or Identical fact situations on a question
involving the scope of the tax exemption provision in Article XII, Par. 2, of the RP-US Military Bases
Agreement of 1947, quoted as follows:

2. No 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
by reason only of such employment, or his spouse and minor children and dependent parents of
either spouse, shall be liable to pay income tax in the Philippines except in respect of income
derived from Philippine sources or sources other than the United States sources.

The Court of Tax Appeals found the following undisputed antecedent facts:

Petitioner Frank Robertson (CTA Case No. 2735) is an American citizen born in the Philippines
on July 8, 1924. He resided in the Philippines until repatriated to the United States in 1945 and
took residence at Long Beach, California. Soon after he was employed by the U.S. Federal
Government with a job at the U.S. Navy. His work brought him to the U.S. Navy's various
installations overseas with eventual assignment at the U.S. Naval Ship Repair Facility at Subic
Bay, Olongapo, Philippines, in 1962.

Like his brother Frank Robertson, petitioner James Robertson (CTA Case No. 2736) was born in
the Philippines on December 22, 1918 and had since resided in this country until repatriated to
the United States in 1945 and there, established his domicile. He landed a job with the U.S. Navy
Shipyard at Long Beach, California as a U.S. Federal Civil Service employee. He returned to the
Philippines in 1958 with assignment at the U.S. Naval Base at Subic Bay, Olongapo, and has
since remained thru 1972.

In CTA Case No. 2738, petitioner Robert H. Cathey is a United States born citizen who first
came to the Philippines with the U.S. liberation force in 1944, and upon discharge from the
military service in 1946 turned a U.S. Navy's civilian employee with station at Makati, Metro
Manila.

Petitioner John Garrison (CTA Case No. 2739) is a Philippine born American citizen also
repatriated to the United States in 1945 establishing his domicile at San Francisco, California.
Soon after he was employed by the U.S. Federal Government in its military installations. He
returned to the Philippines in 1952 assigned at the U.S. Naval Base, Subic Bay, Philippines.

All told, the petitioners are citizens of the United States; holders of American passports and
admitted as Special Temporary Visitors under Section 9 (a) visa of the Philippine Immigration
Act of 1940, as amended; civilian employees in the U.S. Military Base in the Philippines in
connection with its construction, maintenance, operation, and defense; and incomes are solely
 derived from salaries from the U.S. government by reason of their employment in the U.S. Bases
in the Philippines." (pp. 76-78, Record)

The Court a quo after due hearing, rendered its judgment in favor of respondents cancelling and setting aside
the assessments for deficiency income taxes of respondents for the taxable years 1969-1972, inclusive of
interests and penalties.

Petitioner Commissioner of Internal Revenue now comes before Us assigning one alleged error, to wit:

The Court of Tax Appeals erred in holding that private respondents are, by virtue of Article XII,
Par 2 of the RP-US Military Bases Agreement of 1947, exempt from Philippine income tax.

Petitioner, to support his contentions, argues that the laws granting tax exemptions must be construed
in strictissimi juris against the taxpayer, and that the burden of proof is on private respondents, Frank
Robertson, James W. Robertson, Robert J. Cathey and John L. Garrison to establish that their residence in the
country is by reason only of their employment in connection with the construction, maintenance, operation or
defense of the U.S. Bases in the Philippines as provided for under Article XII, Par. 2 of the RP-US Military
Bases Agreement of 1947 (supra). Petitioner avers in his Brief, dated February 4, 1986, filed before this Court,
that private respondents have failed to discharge this burden, alleging, among other things, (1) that both
respondents Frank Robertson and James Robertson, who are brothers, own residential properties respectively
declared in the name of James Robertson and in the name of Frank Robertson's wife for taxation purposes; (2)
that James Robertson is now a retired Federal Civil Service employee and presently living with his family in
Olongapo City, which circumstance indicate that respondents' residence in this country is not by reason only of
his employment in the U.S. naval base; (4) that respondent Robert H. Cathey owns the house at Quezon City
where he presently resides; (5) that the stay of respondent John Garrison who returned to the Philippines in the
year 1948 is uninterrupted except for a two-year stint in Okinawa in the years 1950 to 1952; (6) that the
issuance in San Francisco, California of a Voter's Certificate to respondent John Garrison in 1945 does not in
any way indicate that he was a U.S. resident, in the years 1969 to 1972.

The aforegoing facts were the main argument of petitioner in support of his contentions against respondents.
Such contentions do not impress Us as meritorious.

The law and the facts of the case are so clear that there is no room left for Us to doubt the validity of private
respondents' defense. In order to avail oneself of the tax exemption under the RP-US Military Bases Agreement:
he must be a national of the United States employed in connection with the construction, maintenance,
operation or defense, of the bases, residing in the Philippines by reason of such employment, and the income
derived is from the U.S. Government (Art. XII par. 2 of PI-US Military Bases Agreement of 1947). Said
circumstances are all present in the case at bar. Likewise, We find no justifiable reason to disturb the findings
and rulings of the lower court in its decision reading as follows:

We find nothing in the said treaty provision that justified the lifting of the tax exemption
privilege of the petitioners (private respondents herein). Respondent (petitioner herein) has
grafted a meaning other than that conveyed by the plain and clear tenor of the Agreement. An
examination of the words used and the circumstances in which they were used, shows the basic
intendment "to exempt all U.S. citizens working in the Military Bases from the burden of paying
Philippine Income Tax without distinction as to whether born locally or born in their country of
origin." Ubi lex non distinguit nec nos distinguere debemos (one must not distinguish where the
law does not distinguish) (Emphasis supplied). Moreover, the ruling has altered a satisfactorily
settled application of the exemption clause and has fallen short of measuring up to the familiar
principle of International Law that, "The obligation to fulfill in good faith a treaty engagement
requires that the stipulations be observed in their spirit as well as according to their letter and that
what has been promised be performed without evasion, or subterfuge, honestly and to the best of
the ability of the party which made the promise." (Kunz, The Meaning and Range of the Norm
(Pacta Sunt Servanda, 29 A.J.I.L. 180 (1945); cited in Freidmann, Lisstzyn, Pugh, International
Law (1969) 329). Somehow, the ruling becomes an anacoluthon and a persiflage.

It bears repeating as so disclosed in the records that the petitioners together with families upon
repatriation in 1945 had since acquired domicile and residency in the United States. And,
obtained employment with the United States Federal Service. Not until after several years of a
hiatus, petitioners did return to the Philippines not so much of honoring a pledge nor of
sentimental journey but by reason of taking up assigned duties with the United States military
bases in the Philippines where they were gainfully employed by the U.S. Federal Government.
 The situation of the petitioners is of no different mold as of the rest of the U.S. civilian
employees who continued to enjoy the benefits of tax exemption under the Agreement,
Petitioners' circumstances before the questioned ruling remained obtaining thru the taxable years
1969-1972. It appears too much of a stretch to hold petitioners straight-jacketed to an irreversible
situs of birth constraint and by reason thereof deny altogether any opportunity to a serendipitous
enjoyment of a tax relief accorded in the Agreement. Such a random quirk of pirouette in the tax
treatment fags sharply at odds with the shared expectations of the high contracting parties. This
Court will not deem itself authorized to depart from the plain meaning of the tax exemption
provision so explicit in terms and so searching in extent. (Emphasis supplied) This does not
however foreclose the possibility of petitioners' coming to roost in the country contingent upon
the termination of their tour of duty, but only then may the bridge be crossed for tax purposes.
(pp. 82-84, Record)

The circumstances in the case of Reagan vs. Commissioner of Internal Revenue (30 SCRA 968) relied upon by
petitioner in support of the government's claim are different from the circumstances of the case herein and the
ruling obtained in the former case cannot be invoked or applied in support of petitioner's contention. A cursory
reading of said case shows that William Reagan was at one time a civilian employee of an American
corporation providing technical assistance to the U.S. Air Force in the Philippines. He questioned 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 US Marine Corps., the transaction having taken place at the
Clark Field Air Base in Pampanga. It was his contention that in legal contemplation the sale was made outside
Philippine territory and therefore beyond our jurisdictional power to tax. Clearly, the facts in said case are
different from those obtaining in the present suit.

WHEREFORE, premises considered, the appealed decision of the Court of Tax Appeals is AFFIRMED and the
petition for review is hereby DISMISSED. No costs.

SO ORDERED.

G.R. No. L-4254 September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.

First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for respondents.

TUASON, J.:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of this
Court of July 30, 1949. The history of the petitioner's detention was thus briefly set forth in that decision,
written by Mr. Justice Bengzon:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. Upon
liberation he was arrested as a Japanese spy, by U.S. Army Counter Intelligence Corps. Later he was
handed to theCommonwealth Government for disposition in accordance with Commonwealth Act No.
682. Thereafter, the People's Court ordered his release. But the deportation Board taking his case up,
found that having no travel documents Mejoff was illegally in this country, and consequently referred
the matter to the immigration authorities. After the corresponding investigation, the Board of
commissioners of Immigration on April 5, 1948, declared that Mejoff had entered the Philippines
illegally in 1944, without inspection and admission by the immigration officials at a designation port of
entry and, therefore, it ordered that he be deported on the first available transportation to Russia. The
petitioner was then under custody, he having been arrested on March 18, 1948. In May 1948 he was
transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some
Russian vessels. In July and August of that year two boats of Russian nationality called at the Cebu Port.
But their masters refused to take petitioner and his companions alleging lack of authority to do so. In
October 1948 after repeated failures to ship this deportee abroad, the authorities removed him to Bilibid
Prison at Muntinglupa where he has been confined up to the present time, inasmuch as the
 Commissioner of Immigration believes it is for the best interests of the country to keep him under
detention while arrangements for his departure are being made.

The Court held the petitioner's detention temporary and said that "temporary detention is a necessary step in the
process of exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation, the
Government has the right to hold the undesirable alien under confinement for a reasonable lenght of time." It
took note of the fact, manifested by the Solicitor General's representative in the course of the of the oral
argumment, that "this Government desires to expel the alien, and does not relish keeping him at the people's
expense . . . making efforts to carry out the decree of exclusion by the highest officer of the land." No period
was fixed within which the immigration authorities should carry out the contemplated deportation beyond the
statement that "The meaning of 'reasonable time' depends upon the circumstances, specially the difficulties of
obtaining a passport, the availability of transportation, the diplomatic arrangements with the governments
concerned and the efforts displayed to send the deportee away;" but the Court warned that "under established
precedents, too long a detention may justify the issuance of a writ of habeas corpus."

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this decision
dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the prisoner from custody.
Mr. Justice Paras qualified his dissent by stating that he might agree "to further detention of the herein
petitioner, provided that he be released if after six months, the Government is still unable to deport him." This
writer joined in the latter dissent but thought that two months constituted reasonable time.

Over two years having elapsed since the decision aforesaid was promulgated, the Government has not found
way and means of removing the petitioner out of the country, and none are in sight, although it should be said in
justice to the deportation authorities, it was through no fault of theirs that no ship or country would take the
petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept. 18, 1946,
157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no less true however, as
impliedly stated in this Court's decision, supra, that foreign nationals, not enemy against whom no charge has
been made other than that their permission to stay has expired, may not indefinitely be kept in detention. The
protection against deprivation of liberty without due process of law and except for crimes committed against the
laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless
of nationality. Whether an alien who entered the country in violation of its immigration laws may be detained
for as long as the Government is unable to deport him, is a point we need not decide. The petitioner's entry into
the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government
whose decrees were law furing the occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of
international law as part of the law of Nation." And in a resolution entitled "Universal Declaration of Human
Rights" and approved by the General Assembly of the United Nations of which the Philippines is a member, at
its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as
applied to all human beings were proclaimed. It was there resolved that "All human beings are born free and
equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, nationality or social origin, property, birth, or other status" (Art. 2): that "Every one has the right to an
effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by
the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile" (Art.
9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody an
alien who has been detained an unreasonably long period of time by the Department of Justice after it has
become apparent that although a warrant for his deportation has been issued, the warrant can not be
effectuated;" that "the theory on which the court is given the power to act is that the warrant of deportation, not
having been able to be executed, is functus officio and the alien is being held without any authority of law." The
decision cited several cases which, it said, settled the matter definitely in that jurisdiction, adding that the same
result had reached in innumerable cases elsewhere. The cases referred to were United States ex rel.
Ross vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9
Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C.
Md. Aug. 28, 1942, 46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins (1948), 90 Fed.
Supp., 132, which is nearly foursquare with the case at hand. In that case a stateless person, formerly a Polish
national, resident in the United States since 1911 and many times serving as a seaman on American vessels both
in peace and in war, was ordered excluded from the United States and detained at Ellis Island at the expense of
the steamship company, when he returned from a voyage on which he had shipped from New York for one or
more European ports and return to the United States. The grounds for his exclusion were that he had no passport
or immigration visa, and that in 1937 had been convicted of perjury because in certain documents he presented
himself to be an American citizen. Upon his application for release on habeas corpus, the Court released him
upon his own recognizance. Judge Leibell, of the United States District Court for the Southern District of New
York, said in part:

When the return to the writ of habeas corpus came before this court, I suggested that all interested
parties . . . make an effort to arrange to have the petitioner ship out of some country that he would
receive him as a resident. He is, a native-born Pole but the Polish Consul has advised him in writing that
he is no longer a Polish subject. This Government does not claim that he is a Polish citizen. His attorney
says he is a stateless. The Government is willing that he go back to the ship, but if he were sent back
aboard a ship and sailed to the Port (Cherbourg, France) from which he last sailed to the United States,
he would probably be denied permission to land. There is no other country that would take him, without
proper documents.

It seems to me that this is a genuine hardship case and that the petitioner should be released from
custody on proper terms. . . .

What is to be done with the petitioner? The government has had him in custody almost seven months
and practically admits it has no place to send him out of this country. The steamship company, which
employed him as one of a group sent to the ship by the Union, with proper seaman's papers issued by the
United States Coast Guard, is paying $3 a day for petitioner's board at Ellis Island. It is no fault of the
steamship company that petitioner is an inadmissible alien as the immigration officials describe him. . . .

I intend to sustain the writ of habeas corpus and order the release of the petitioner on his own
recognizance. He will be required to inform the immigration officials at Ellis Island by mail on the 15th
of each month, stating where he is employed and where he can be reached by mail. If the government
does succeed in arranging for petitioner's deportation to a country that will be ready to receive him as a
resident, it may then advise the petitioner to that effect and arrange for his deportation in the manner
provided by law.

Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to the quandry
in which the parties here finds themselves, solution which we think is sensible, sound and compatible with law
and the Constitution. For this reason, and since the Philippine law on immigration was patterned after or copied
from the American law and practice, we choose to follow and adopt the reasoning and conclusions in the
Staniszewski decision with some modifications which, it is believed, are in consonance with the prevailing
conditions of peace and order in the Philippines.

It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the petitioner was
engaged in subversive activities, and fear was expressed that he might join or aid the disloyal elements if
allowed to be at large. Bearing in mind the Government's allegation in its answer that "the herein petitioner was
brought to the Philippines by the Japanese forces," and the fact that Japan is no longer at war with the United
States or the Philippines nor identified with the countries allied against these nations, the possibility of the
petitioner's entertaining or committing hostile acts prejudicial to the interest and security of this country seems
remote.

If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolonged
detention would be unwarranted by law and the Constitution, if the only purpose of the detention be to eliminate
a danger that is by no means actual, present, or uncontrolable. After all, the Government is not impotent to deal
with or prevent any threat by such measure as that just outlined. The thought eloquently expressed by Mr.
Justice Jackson of the United States Supreme Court in connection with the appliccation for bail of ten
Communists convicted by a lower court of advocacy of violent overthrow of the United States Government is,
in principle, pertinent and may be availed of at this juncture. Said the learned Jurist:

The Governmet's alternative contention is that defendants, by misbehavior after conviction, have
forfeited their claim to bail. Grave public danger is said to result from what they may be expected to do,
in addition to what they have done since their conviction. If I assume that defendants are disposed to
commit every opportune disloyal to act helpful to Communist countries, it is still difficult to reconcile
with traditional American law the jailing of persons by the courts because of anticipated but as yet
 uncommitted crimes. lmprisonment to protect society from predicted but unconsummated offenses is so
unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to
resort it, even as a discretionary judicial technique to supplement conviction of such offenses as those of
which defendants stand convicted.

But the right of every American to equal treatment before the law is wrapped up in the same
constitutional bundle with those of these Communists. If an anger or disgust with these defendants we
throw out the bundle, we alsocast aside protection for the liberties of more worthy critics who may be in
opposition to the government of some future day.

xxx xxx x x x1wphl.nt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very
practical aspect of this application which must not be overlooked or underestimated that is the
disastrous effect on the reputation of American justice if I should now send these men to jail and the full
Court later decide that their conviction is invalid. All experience with litigation teaches that existence of
a substantial question about a conviction implies a more than negligible risk of reversal. Indeed this
experience lies back of our rule permitting and practice of allowing bail where such questions exist, to
avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our system of justice.
If that is prudent judicial practice in the ordinary case, how much more important to avoid every chance
of handing to the Communist world such an ideological weapon as it would have if this country should
imprison this handful of Communist leaders on a conviction that our highest Court would confess to be
illegal. Risks, of course, are involved in either granting or refusing bail. I am naive enough to
underestimate the troublemaking propensities of the defendants. But, with the Department of Justice
alert to the the dangers, the worst they can accomplish in the short time it will take to end the litigation is
preferable to the possibility of national embarrassment from a celebrated case of unjustified
imprisonment of Communist leaders. Under no circumstances must we permit their symbolization of an
evil force in the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid
that risk is not to jail these men until it is finally decided that they should stay jailed.

If that case is not comparable with ours on the issues presented, its underlying principle is of universal
application. In fact, its ratio decidendi applies with greater force to the present petition, since the right of
accused to bail pending apppeal of his case, as in the case of the ten Communists, depends upon the discretion
of the court, whereas the right to be enlarged before formal charges are instituted is absolute. As already noted,
not only are there no charges pending against the petitioner, but the prospects of bringing any against him are
slim and remote.

Premises considered, the writ will issue commanding the respondents to release the petitioner from custody
upon these terms: The petitioner shall be placed under the surveillance of the immigration authorities or their
agents in such form and manner as may be deemed adequate to insure that he keep peace and be available when
the Government is ready to deport him. The surveillance shall be reasonable and the question of reasonableness
shall be submitted to this Court or to the Court of First Instance of Manila for decision in case of abuse. He shall
also put up a bond for the above purpose in the amount of P5,000 with sufficient surety or sureties, which bond
the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth Act No. 613.

No costs will be charged.

Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO
TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO
ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.

Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for
respondents.
MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of
the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now charged
before a military Commission convened by the Chief of Staff of the Armed forces of the Philippines with
having unlawfully disregarded and failed "to discharge his duties as such command, permitting them to commit
brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese
Forces in violation of the laws and customs of war" comes before this Court seeking to establish the
illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents
Melville S. Hussey and Robert Port from participating in the prosecution of petitioner's case before the Military
Commission and to permanently prohibit respondents from proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor
an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore
petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues "That
in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an illegal
order this commission is without jurisdiction to try herein petitioner."

Second. That the participation in the prosecution of the case against petitioner before the Commission in
behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys
authorized by the Supreme Court to practice law in the Philippines is a diminution of our personality as an
independent state and their appointment as prosecutor are a violation of our Constitution for the reason that they
are not qualified to practice law in the Philippines.

Third. That Attorneys Hussey and Port have no personality as prosecution the United State not being a party
in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing
the trial of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947
This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3,
that

The Philippines renounces war as an instrument of national policy and adopts the generally accepted
principles of international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day including the Hague
Convention the Geneva Convention and significant precedents of international jurisprudence established by the
United Nation all those person military or civilian who have been guilty of planning preparing or waging a war
of aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of
the laws and customs of war, of humanity and civilization are held accountable therefor. Consequently in the
promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in
conformity with the generally accepted and policies of international law which are part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in chief of
all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz.,
664) 1 when we said

War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of
war may remain pending which should be disposed of as in time of war. An importance incident to a
conduct of war is the adoption of measure by the military command not only to repel and defeat the
enemies but to seize and subject to disciplinary measure those enemies who in their attempt to thwart or
impede our military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.)
Indeed the power to create a military commission for the trial and punishment of war criminals is an
aspect of waging war. And in the language of a writer a military commission has jurisdiction so long as
a technical state of war continues. This includes the period of an armistice or military occupation up to
the effective of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of
War Criminals by Military Tribunals, America Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect
of war namely the trial and punishment of war criminal through the issuance and enforcement of Executive
Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in
violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the
first and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and
Geneva conventions form, part of and are wholly based on the generally accepted principals of international
law. In facts these rules and principles were accepted by the two belligerent nation the United State and Japan
who were signatories to the two Convention, Such rule and principles therefore form part of the law of our
nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has
been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle
of international law as continued inn treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under
the sovereignty of United States and thus we were equally bound together with the United States and with Japan
to the right and obligation contained in the treaties between the belligerent countries. These rights and
obligation were not erased by our assumption of full sovereignty. If at all our emergency as a free state entitles
us to enforce the right on our own of trying and punishing those who committed crimes against crimes against
our people. In this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil.,
372):

. . . The change of our form government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during then Commonwealth because it
is an offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in
the prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines in
accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our
national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a special law and
not by the Rules of court which govern ordinary civil court. It has already been shown that Executive Order No.
68 which provides for the organization of such military commission is a valid and constitutional law. There is
nothing in said executive order which requires that counsel appearing before said commission must be attorneys
qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it is common in
military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even
possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only
fair and proper that United States, which has submitted the vindication of crimes against her government and
her people to a tribunal of our nation should be allowed representation in the trial of those very crimes. If there
has been any relinquishment of sovereignty it has not been by our government but by the United State
Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the
spirit of comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the personality of
attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people have
been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before the
Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the
vindication of the honor of its citizens and its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody,
this Court will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.
G.R. No. L-53622 April 25, 1980

JOVITO R. SALONGA, petitioner,

vs.
CAPTAIN ROLANDO HERMOSO, TRAVEL PROCESSING CENTER, and GENERAL FABIAN
VER, respondents.

FERNANDO, C.J.:

This is not the first time petitioner Jovito R. Salonga came to this Tribunal by way of a mandamus proceeding
to compel the issuance to him of a certificate of eligibility to travel. In the first case, Salonga v. Madella, 1 the
case became moot and academic as the Office of the Solicitor General, in its answer to the petition, stated that
the travel eligibility certificate was not denied and, as a matter of fact, had been granted. Nonetheless, a brief
separate opinion was filed, concurring in the resolution, and worded thus: "Clearly this petition had assumed a
moot and academic character. Its dismissal is thus indicated. May I just add these few words as my response to
the plea of petitioner in his Manifestation and Reply dated October 28, 1978. This is how I would view the
matter not only where petitioner is concerned but in all other similar cases. Respondent Travel Processing
Center should discharge its injunction conformably to the mandate of the Universal Declaration of Human
Rights on the right to travel. One of the highlights of the keynote address of President Marcos in the Manila
World Law Conference in celebration of the World Peace Through Law Day on August 21, 1977 was the lifting
of 'the ban on international travel.' There should be fidelity to such a pronouncement. It is the experience of the
undersigned in his lectures abroad the last few years, in the United States as well as in Malaysia, Singapore and
Australia, that respect accorded constitutional rights under the present emergency regime had elicited the
commendation of members of the bench, the bar, and the academe in foreign lands. It is likewise worthy of
notice that in his keynote address to the International Law Association, President Marcos made reference to
martial law being instituted in accordance with law and that the Constitution had been applied in appropriate
cases. As an agency of the executive branch, therefore, the Travel Processing Center should ever be on its
guard, lest the impression be created that such declarations amount, to paraphrase Justice Jackson, to no more
than munificent bequests in a pauper's will. Petitioner, to my mind, is justified, the more so in the light of the
Answer of Acting Solicitor General Vicente Mendoza, to an affirmative response to his prayer in his
Manifestation and Reply 'that under the circumstances mentioned in the Petition, Petitioner is entitled to travel
abroad, and that it is in recognition of this right that Respondents have issued his Certificate of Eligibility to
Travel, as mentioned in the Answer. 2

The present petition is likewise impressed with a moot and academic aspect. In the motion to dismiss of the
Solicitor General dated April 21, 1980, it was stated that the certificate of eligibility to travel had been granted
petitioner. A xeroxed copy was enclosed. A resolution for dismissal is, therefore, in order.

From the docket of this Court, it appears that other petitions of this character had been filed in the past, namely,
Santos v. The Special Committee on Travel Abroad, 3 Pimentel v. Travel Processing Center, 4 and Gonzales v.
Special Committee on Travel. 5 In the aforesaid cases, as in this and the earlier Salonga petition, there was no
occasion to pass on the merits of the controversy as the certificates of eligibility to travel were granted. The
necessity for any ruling was thus obviated. Nonetheless, in view of the likelihood that in the future this Court
may be faced again with a situation like the present which takes up its time and energy needlessly, it is desirable
that respondent Travel Processing Center should exercise the utmost care to avoid the impression that certain
citizens desirous of exercising their constitutional right to travel could be subjected to inconvenience or
annoyance. In the address of President and Prime Minister Ferdinand E. Marcos before the American
Newspaper Publishers Association last Tuesday April 22, 1980, emphasized anew the respect accorded
constitutional rights The freedom to travel is certainly one of the most cherished. He cited with approval the
ringing affirmation of Willoughby, who, as he noted was "partial to the claims of liberty." 6 Burdick 7 and
Willis, 8 both of whom were equally convinced that there be no erosion to human rights even in times of martial
law, likewise received from President Marcos the accolade of his approval. It would appear, therefore, that in
case of doubt of the Officer-in-Charge of the Travel Processing Center, the view of General Fabian Ver should
immediately be sought. It goes without saying that the petition for such certificate of eligibility to travel be filed
at the earliest opportunity to facilitate the granting thereof and preclude any disclaimer as to the person desiring
to travel being in any way responsible for any delay.

WHEREFORE, the petition is dismissed for being moot and academic.

Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-
Herrera, JJ., concur.

G.R. No. L-49112 February 2, 1979

LEOVILLO C. AGUSTIN, petitioner,

vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE
ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity
as Minister Of Public Works, Transportation and Communications; and HON: BALTAZAR AQUINO,
in his capacity as Minister of Public Highways, respondents.

Leovillo C. Agustin Law Office for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D.
Aquino for respondents.

FERNANDO, J.:

The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is assailed in
this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar as the
rules and regulations for its implementation are concerned, for transgressing the fundamental principle of non-
delegation of legislative power. The Letter of Instruction is stigmatized by petitioner who is possessed of the
requisite standing, as being arbitrary and oppressive. A temporary restraining order as issued and respondents
Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L.
Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino, Minister of Public
Highways; were to answer. That they did in a pleading submitted by Solicitor General Estelito P.
Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear that the imputation of a
constitutional infirmity is devoid of justification The Letter of Instruction on is a valid police power measure.
Nor could the implementing rules and regulations issued by respondent Edu be considered as amounting to an
exercise of legislative power. Accordingly, the petition must be dismissed.

The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on December 2,
1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or serious accidents in land
transportation is the presence of disabled, stalled or parked motor vehicles along streets or highways without
any appropriate early warning device to signal approaching motorists of their presence; [Whereas], the hazards
posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety,
the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.);
[Whereas], the said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207,
recommended the enactment of local legislation for the installation of road safety signs and devices; [Now,
therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of safety on all streets and
highways, including expressways or limited access roads, do hereby direct: 1. That all owners, users or drivers
of motor vehicles shall have at all times in their motor vehicles at least one (1) pair of early warning device
consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and
40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or
more on any street or highway, including expressways or limited access roads, the owner, user or driver thereof
shall cause the warning device mentioned herein to be installed at least four meters away to the front and rear of
the motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall cause
Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to registered
owners of motor vehicles, except motorcycles and trailers, charging for each piece not more than 15 % of the
acquisition cost. He shall also promulgate such rules and regulations as are appropriate to effectively implement
this order. 4. All hereby concerned shall closely coordinate and take such measures as are necessary or
appropriate to carry into effect then instruction. 3 Thereafter, on November 15, 1976, it was amended by Letter
of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is hereby amended to read as
follows: 3. The Land transportation Commissioner shall require every motor vehicle owner to procure from any
and present at the registration of his vehicle, one pair of a reflectorized early warning device, as d bed of any
brand or make chosen by mid motor vehicle . The Land Transportation Commissioner shall also promulgate
such rule and regulations as are appropriate to effectively implement this order.'" 4 There was issued
accordingly, by respondent Edu, the implementing rules and regulations on December 10, 1976. 5 They were
not enforced as President Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the
installation of early warning device as a pre-registration requirement for motor vehicle was concerned. 6 Then
on June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and directed the immediate
implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that respondent
Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction No. 716, dated
June 30, 1978, the implementation of Letter of Instruction No. 229, as amended by Letter of Instructions No.
479, requiring the use of Early Warning Devices (EWD) on motor vehicle, the following rules and regulations
are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be implemented
provided that the device may come from whatever source and that it shall have substantially complied with the
EWD specifications contained in Section 2 of said administrative order; 2. In order to insure that every motor
vehicle , except motorcycles, is equipped with the device, a pair of serially numbered stickers, to be issued free
of charge by this Commission, shall be attached to each EWD. The EWD. serial number shall be indicated on
the registration certificate and official receipt of payment of current registration fees of the motor vehicle
concerned. All Orders, Circulars, and Memoranda in conflict herewith are hereby superseded, This Order shall
take effect immediately. 9 It was for immediate implementation by respondent Alfredo L. Juinio, as Minister of
Public Works, transportation, and Communications. 10

Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already properly
equipped when it came out from the assembly lines with blinking lights fore and aft, which could very well
serve as an early warning device in case of the emergencies mentioned in Letter of Instructions No. 229, as
amended, as well as the implementing rules and regulations in Administrative Order No. 1 issued by the land
transportation Commission," 11 alleged that said Letter of Instruction No. 229, as amended, "clearly violates the
provisions and delegation of police power, [sic] * * *: " For him they are "oppressive, unreasonable, arbitrary,
confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society." 12 He
contended that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the
motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will make
manufacturers and dealers instant millionaires at the expense of car owners who are compelled to buy a set of
the so-called early warning device at the rate of P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional
and contrary to the precepts of a compassionate New Society [as being] compulsory and confiscatory on the
part of the motorists who could very well provide a practical alternative road safety device, or a better substitute
to the specified set of EWD's." 15 He therefore prayed for a judgment both the assailed Letters of Instructions
and Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile.

A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C. Agustin
v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and the arguments
adduced in the petition for prohibition with writ of p prohibitory and/or mandatory injunction, the Court
Resolved to (require) the respondents to file an answer thereto within ton (10) days from notice and not to move
to dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order] effective as of this
date and continuing until otherwise ordered by this Court.16

Two motions for extension were filed by the Office of the Solicitor General and granted. Then on November 15,
1978, he Answer for respondents was submitted. After admitting the factual allegations and stating that they
lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle car,"
they "specifically deny the allegations and stating they lacked knowledge or information sufficient to form a
belief as to petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the allegations in paragraphs
X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as
amended by Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission
Administrative Order No. 1 and its Memorandum Circular No. 32 violates the constitutional provisions on due
process of law, equal protection of law and undue delegation of police power, and that the same are likewise
oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal the truth being that
said allegations are without legal and factual basis and for the reasons alleged in the Special and Affirmative
Defenses of this Answer."18 Unlike petitioner who contented himself with a rhetorical recital of his litany of
grievances and merely invoked the sacramental phrases of constitutional litigation, the Answer, in
demonstrating that the assailed Letter of Instruction was a valid exercise of the police power and implementing
rules and regulations of respondent Edu not susceptible to the charge that there was unlawful delegation of
legislative power, there was in the portion captioned Special and Affirmative Defenses, a citation of what
respondents believed to be the authoritative decisions of this Tribunal calling for application. They are Calalang
v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna
Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines was a
signatory and which was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language
calm and dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of
Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its
highly-persuasive quality cannot be denied.

This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at the
outset, it is far from meritorious and must be dismissed.

1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by
petitioner and is the main reliance of respondents. It is the submission of the former, however, that while
embraced in such a category, it has offended against the due process and equal protection safeguards of the
Constitution, although the latter point was mentioned only in passing. The broad and expansive scope of the
police power which was originally Identified by Chief Justice Taney of the American Supreme Court in an 1847
decision as "nothing more or less than the powers of government inherent in every sovereignty" 23 was stressed
in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading decision after the
Constitution came into force, Calalang v. Williams, Identified police power with state authority to enact
legislation that may interfere with personal liberty or property in order to promote the general welfare. Persons
and property could thus 'be subjected to all kinds of restraints and burdens in order to we the general comfort,
health and prosperity of the state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the
doctrine, such a competence being referred to as 'the power to prescribe regulations to promote the health,
morals, peace, education, good order or safety, and general welfare of the people. The concept was set forth in
negative terms by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary power in the
State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it
could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power.
It is in the above sense the greatest and most powerful at. tribute of government. It is, to quote Justice Malcolm
anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes aptly pointed out 'to
all the great public needs.' Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the
future where it could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow
or parochial in the past may be interwoven in the present with the well-being of the nation. What is critical or
urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far from precisely
defined, rooted in the conception that men in organizing the state and imposing upon its government limitations
to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such salutary measures calculated to communal peace, safety, good
order, and welfare." 24

2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular police
power measure challenged was clearly intended to promote public safety. It would be a rare occurrence indeed
for this Court to invalidate a legislative or executive act of that character. None has been called to our attention,
an indication of its being non-existent. The latest decision in point, Edu v. Ericta, sustained the validity of the
Reflector Law, 25 an enactment conceived with the same end in view. Calalang v. Williams found nothing
objectionable in a statute, the purpose of which was: "To promote safe transit upon, and. avoid obstruction on
roads and streets designated as national roads * * *. 26 As a matter of fact, the first law sought to be nullified
after the effectivity of the 1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest,
was likewise prompted by the imperative demands of public safety.

3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and
regulations becomes even more apparent considering his failure to lay the necessary factual foundation to rebut
the presumption of validity. So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v.
City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a decision of Justice Branders of
the American Supreme Court, quoted in the opinion: "The statute here questioned deals with a subject clearly
within the scope of the police power. We are asked to declare it void on the ground that the specific method of
regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying
questions of fact may condition the constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual foundation of record in overthrowing the statute. 29

4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity. As
was pointed out in his Answer "The President certainly had in his possession the necessary statistical
information and data at the time he issued said letter of instructions, and such factual foundation cannot be
defeated by petitioner's naked assertion that early warning devices 'are not too vital to the prevention of
nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle
accidents that in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not backed up by
demonstrable data on record. As aptly stated by this Honorable Court: Further: "It admits of no doubt therefore
that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute
or ordinance is void on its face, which is not the case here"' * * *. But even as g the verity of petitioner's
statistics, is that not reason enough to require the installation of early warning devices to prevent another 390
rear-end collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result
from head-on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of such
Letter of Instruction is encased in the armor of prior, careful study by the Executive Department. To set it aside
for alleged repugnancy to the due process clause is to give sanction to conjectural claims that exceeded even the
broadest permissible limits of a pleader's well known penchant for exaggeration.

5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was exposed
in the Answer of the Solicitor General thus: "Such early warning device requirement is not an expensive
redundancy, nor oppressive, for car owners whose cars are already equipped with 1) blinking lights in the fore
and aft of said motor vehicles,' 2) "battery-powered blinking lights inside motor vehicles," 3) "built-in
reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps
(the Kinke) * * * because: Being universal among the signatory countries to the said 1968 Vienna Conventions,
and visible even under adverse conditions at a distance of at least 400 meters, any motorist from this country or
from any part of the world, who sees a reflectorized rectangular early seaming device installed on the roads,
highways or expressways, will conclude, without thinking, that somewhere along the travelled portion of that
road, highway, or expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs
or endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other built in
warning devices or the petroleum lamps will not immediately get adequate advance warning because he will
still think what that blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an
ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase, rather than decrease,
the danger of collision. 31

6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the
Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in
Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early warning
device prescribed thereby. All that is required is for motor vehicle owners concerned like petitioner, to equip
their motor vehicles with a pair of this early warning device in question, procuring or obtaining the same from
whatever source. In fact, with a little of industry and practical ingenuity, motor vehicle owners can even
personally make or produce this early warning device so long as the same substantially conforms with the
specifications laid down in said letter of instruction and administrative order. Accordingly the early warning
device requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make
manufacturers and dealers of said devices 'instant millionaires at the expense of car owners' as petitioner so
sweepingly concludes * * *. Petitioner's fear that with the early warning device requirement 'a more subtle
racket may be committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that
unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an unreasonable
degree, does not render the same illegal or immoral where, as in the instant case, the challenged Letter of
Instruction No. 229 and implementing order disclose none of the constitutional defects alleged against it.32

7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of power,
the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view he
entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the appropriate word,
by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon
questions of wisdom justice or expediency of legislation.' As expressed by Justice Tuason: 'It is not the province
of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is
primarily and exclusively a legislative concern.' There can be no possible objection then to the observation of
Justice Montemayor. 'As long as laws do not violate any Constitutional provision, the Courts merely interpret
and apply them regardless of whether or not they are wise or salutary. For they, according to Justice Labrador,
'are not supposed to override legitimate policy and * * * never inquire into the wisdom of the law.' It is thus
settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only
congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute
invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the
respective authority of each department and confined its jurisdiction to such a sphere. There would then be
intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the
judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender
should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired
the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise
insofar as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33

8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally
without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with
authoritative pronouncements from this Tribunal, he would not have the temerity to make such an assertion. An
exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful
delegation, there must be a standard, which implies at the very least that the legislature itself determines matters
of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to
repel A standard thus defines legislative policy, marks its maps out its boundaries and specifies the public
agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the
criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office
designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The
standard may be either express or implied. If the former, the non-delegation objection is easily met. The
standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of
the act considered as a whole. In the Reflector Law clearly, the legislative objective is public safety. What is
sought to be attained as in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the
recognition given expression by Justice Laurel in a decision announced not too long after the Constitution came
into force and effect that the principle of non-delegation "has been made to adapt itself to the complexities of
modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate
legislation" not only in the United States and England but in practically all modern governments.' He continued:
'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental
regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward
the delegation of greater powers by the legislature and toward the approval of the practice by the courts.'
Consistency with the conceptual approach requires the reminder that what is delegated is authority non-
legislative in character, the completeness of the statute when it leaves the hands of Congress being assumed." 34

9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration.
The petition itself quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the
hazards posed by such obstructions to traffic have been recognized by international bodies concerned with
traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization
(U.N.); [Whereas], the said Vionna Convention, which was ratified by the Philippine Government under P.D.
No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; *
* * " 35 It cannot be disputed then that this Declaration of Principle found in the Constitution possesses
relevance: "The Philippines * * * adopts the generally accepted principles of international law as part of the law
of the land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is impressed with such a
character. It is not for this country to repudiate a commitment to which it had pledged its word. The concept
of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of
international morality.

10. That is about all that needs be said. The rather court reference to equal protection did not even elicit any
attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such a casual
observation should be taken seriously. In no case is there a more appropriate occasion for insistence on what
was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the
constitutionality of a law wig not be considered unless the point is specially pleaded, insisted upon, and
adequately argued." 38 "Equal protection" is not a talismanic formula at the mere invocation of which a party to
a lawsuit can rightfully expect that success will crown his efforts. The law is anything but that.

WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately
executory. No costs.

Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera,
concur.

Makasiar, J, reserves the right to file a separate opinion.

Aquino J., took no part.

Concepcion J., is on leave.

Castro, C.J., certifies that Justice Concepcion concurs in their decision.

G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.:+.wph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries
of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion
by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases
Coalition sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from
2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy,
hardly two blocks away. Once there, and in an open space of public property, a short program would be
held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a
petition based on the resolution adopted on the last day by the International Conference for General
Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented
to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the
United States Ambassador. The march would be attended by the local and foreign participants of such
conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to
free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on
October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken
on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent
Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on
October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was sent by ordinary
mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the
advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference
was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate
and/or disrupt any assembly or congregations where a large number of people is expected to
attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police
authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other
enclosed area where the safety of the participants themselves and the general public may be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then
deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the
mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present
danger of a substantive evil that could justify the denial of a permit. On this point, the Court was unanimous,
but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy
would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution
reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the
Court's stand on the matter.

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and
peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be
passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and
petition the Government for redress of grievances." 10 Free speech, like free press, may be Identified with the
liberty to discuss publicly and truthfully any matter of public concern without censorship or
punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless
there be a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of
assembly connotes the right people to meet peaceably for consultation and discussion of matters Of public
concern.17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less
denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had
occasion to stress that it is a necessary consequence of our republican institutions and complements the right of
free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme
Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the
press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble
and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable.
the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to
examine the effects of the challenged governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character
both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate
public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed
than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of
Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an
appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and
explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given
a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and
become part of an instrument of force. Such utterance was not meant to be sheltered by the
Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or
printed, being in a context of violence. It must always be remembered that this right likewise provides for a
safety valve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing
climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful
means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than
just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its
value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true
ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may
not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is ruled out and
outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early
Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more
or less disorder will mark the public assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater
the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers." 24 It bears repeating that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one's destructive
urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in
our scheme of values.

3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on
the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view
expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of
streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and
parks for communication of views on national questions may be regulated in the interest of all; it is not absolute,
but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance
with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The above
excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit
in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly
is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be
granted for the or oposed march and rally starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two
block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In
holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza
Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case
of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap.
145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted
unless a special license therefor shall first be explained from the selectmen of the town or from licensing
committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States,
in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held
that 'a statute requiring persons using the public streets for a parade or procession to procure a special license
therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom
of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an opportunity to provide proper
policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point
made by Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed
by the Constitution, imply the existence of an organized society maintaining public order without which liberty
itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations
in order to assure the safety and convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon
which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the
public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right
which in other circumstances would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have
arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short
program upon reaching the public space between the two gates of the United States Embassy at Roxas
Boulevard. That would be followed by the handing over of a petition based on the resolution adopted at the
closing session of the Anti-Bases Coalition. The Philippines is a signatory of the Vienna Convention on
Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and
the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited
with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the
Philippines. The second paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take
appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally
accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna
Convention is a restatement of the generally accepted principles of international law, it should be a part of the
law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or
disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial
of the permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on
Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within
a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the
ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in
view of the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown
then to be applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be
confined within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe
guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued
the minute resolution granting the mandatory injunction allowing the proposed march and rally scheduled for
the next day. That conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil
to a legitimate public interest. There was no justification then to deny the exercise of the constitutional rights of
tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal Declaration
of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the
International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military
Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States
Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as to parks
and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit,
whether an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving
rise to an equal protection question. The principle under American doctrines was given utterance by Chief
Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The relations
of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the
Constitution protects." 36 There could be danger to public peace and safety if such a gathering were marked by
turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held
accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in
determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur,
given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a
specific public place is that the permit must be for the assembly being held there. The exercise of such a
right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on
the plea that it may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng
Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit
should recognize the right of the applicants to hold their assembly at a public place of their choice, another
place may be designated by the licensing authority if it be shown that there is a clear and present danger of a
substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions, this Court was
persuaded that the clear and present danger test was satisfied. The present situation is quite different. Hence the
decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators
does not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General
Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the police force is in
a position to cope with such emergency should it arise That is to comply with its duty to extend protection to the
participants of such peaceable assembly. Also from him came the commendable admission that there were the
least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the United States
Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act
offensive to the dignity of the United States Mission in the Philippines would take place and that, as mentioned
at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.'
" 40 Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a
provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope
with any contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that
precisely, it is the duty of the city authorities to provide the proper police protection to those exercising their
right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority
of the date, the public place where and the time when it will take place. If it were a private place, only the
consent of the owner or the one entitled to its legal possession is required. Such application should be filed well
ahead in time to enable the public official concerned to appraise whether there may be valid objections to the
grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the decision reached. If he is of the view
that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the
matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and
peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary, even more so than on the other
departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously
termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to
incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and
primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that
of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original resolution of
October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from
any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the
previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing,
however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be
shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he
did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of
unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself.
As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was
obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot
be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly
demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit
sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed
march and rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded
authority, granted the mandatory injunction in the resolution of October 25, 1983. It may be noted that the
peaceful character of the peace march and rally on October 26 was not marred by any untoward incident. So it
has been in other assemblies held elsewhere. It is quite reassuring such that both on the part of the national
government and the citizens, reason and moderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.