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EN BANC

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

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GREGORIO PERFECTOR, defendant-appellant.

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

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

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

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

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

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

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

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

The execution of the crime was but the natural effect of the environment of the place in which it was committed.

How many of the present Senators can say without remorse in their conscience and with serenity of mind, that they do not
owe their victory to electoral robbery? How may?

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

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

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

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

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

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

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

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

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

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

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

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

Without prejudice to the right of any member of the court to explain his position, we will discuss the two main points just
mentioned.

1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code. — The Libel Law, Act No. 277, was
enacted by the Philippine Commission shortly after organization of this legislative body. Section 1 defines libel as a
"malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical
exhibitions, tending to blacken the memory of one who is dead or to impeach the honesty, virtue, or reputation, or publish
the alleged or natural deffects of one who is alive, and thereby expose him to public hatred, contempt or ridicule." Section
13 provides that "All laws and parts of laws now in force, so far as the same may be in conflict herewith, are hereby
repealed. . . ."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris. Ministers of the Crown have no
place under the American flag.

To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that the judgment
should be reversed and the defendant and appellant acquitted, with costs de officio. So ordered.

Ostrand and Johns, JJ., concur.

Separate Opinions

ARAULLO, C.J., concurring:

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

ROMUALDEZ, J., concurring:

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

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

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

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EN BANC

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

BERNARDITA R. MACARIOLA, complainant,

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

MAKASIAR, J:

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

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

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

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

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, the dispositive portion of which
reads:

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

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

The parties, through their respective counsels, presented to this Court for approval the following project of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Court respectfully submit
the following Project of Partition:

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

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lot shall be awarded
likewise to Bernardita R. Macariola;

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

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lot shall likewise be
awarded to Sinforosa Reyes-Bales;

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

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

WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made in accordance with
the decision of the Honorable Court be approved.

Tacloban City, October 16, 1963.

 10

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

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

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

SO ORDERED.

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

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

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

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

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

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

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and interest in Lot 1184-E to
"The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the stockholders of the
corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's wife,
Victoria S. Asuncion, with Judge Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles
of Incorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we shall henceforth refer to as
"TRADERS" were registered with the Securities and Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385,
rec.].
 11

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968 alleging four causes of
action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase
a portion of Lot No. 1184-E which was one of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise
violated Article 14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-
Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial Ethics, by
associating himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he was a
judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of judicial
decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised himself as a practising
attorney when in truth and in fact his name does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar; and
[4] that there was a culpable defiance of the law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).

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

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

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

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

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

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

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

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages;
 12

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary damages;

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

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

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE
DECEASED GERARDO VILLASIN —

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

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

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO.
3010 —

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

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

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

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

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

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

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

xxx xxx xxx

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

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject of litigation to the
persons disqualified therein. WE have already ruled that "... for the prohibition to operate, the sale or assignment of the property
 13

must take place during the pendency of the litigation involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513,
519 [1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).

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

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

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the Court of First Instance of
Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition and the two orders approving the same, as well as
the partition of the estate and the subsequent conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after
the finality of the decision which he rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated October
23, 1963 and November 11, 1963. Therefore, the property was no longer subject of litigation.

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

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

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

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

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

xxx xxx xxx

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

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

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

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

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

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

Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot 1154 by virtue of the
decision in Civil Case 3010 and not because of the project of partition, Exh. A. Such contention is absurd because from the
decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 belonged to the estate of Francisco Reyes Diaz while the
other half of said one-fourth was the share of complainant's mother, Felisa Espiras; in other words, the decision did not
adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became
the owner of the entire one-fourth of Lot 1154 only by means of the project of partition, Exh. A. Therefore, if Mrs.
Macariola sold Lot 1154 on October 22, 1963, it was for no other reason than that she was wen aware of the distribution of
the properties of her deceased father as per Exhs. A and B. It is also significant at this point to state that Mrs. Macariola
admitted during the cross-examination that she went to Tacloban City in connection with the sale of Lot 1154 to Dr. Decena
(tsn p. 92, November 28, 1968) from which we can deduce that she could not have been kept ignorant of the proceedings in
civil case 3010 relative to the project of partition.
 15

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

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

II

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

Article 14 — The following cannot engage in commerce, either in person or by proxy, nor can they hold any office or have
any direct, administrative, or financial intervention in commercial or industrial companies within the limits of the districts,
provinces, or towns in which they discharge their duties:

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

xxx xxx xxx

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

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

Political Law has been defined as that branch of public law which deals with the organization and operation of the governmental
organs of the State and define the relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897
 16

[1922]). It may be recalled that political law embraces constitutional law, law of public corporations, administrative law including the
law on public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more of the nature of an
administrative law because it regulates the conduct of certain public officers and employees with respect to engaging in business:
hence, political in essence.

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

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

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

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

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

On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants with each other
undergo any change. Their relations with their former sovereign are dissolved, and new relations are created
between them and the government which has acquired their territory. The same act which transfers their country,
transfers the allegiance of those who remain in it; and the law which may be denominated political, is necessarily
changed, although that which regulates the intercourse and general conduct of individuals, remains in force, until
altered by the newly- created power of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle of the public law that on
acquisition of territory the previous political relations of the ceded region are totally abrogated. "

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

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

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing
law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
 17

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection
with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by
any Iaw from having any interest.

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

It does not appear also from the records that the aforesaid corporation gained any undue advantage in its business operations by
reason of respondent's financial involvement in it, or that the corporation benefited in one way or another in any case filed by or
against it in court. It is undisputed that there was no case filed in the different branches of the Court of First Instance of Leyte in
which the corporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff,
versus Sinforosa O. Bales, et al.," wherein the complainant herein sought to recover Lot 1184-E from the aforesaid corporation. It
must be noted, however, that Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by
CFI Judge Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having disposed of his
interest therein on January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935 and 1973
Constitutions of the Philippines, nor is there an existing law expressly prohibiting members of the Judiciary from engaging or having
interest in any lawful business.

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

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

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

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act of 1959 prohibits an
officer or employee in the civil service from engaging in any private business, vocation, or profession or be connected with any
commercial, credit, agricultural or industrial undertaking without a written permission from the head of department, the same,
however, may not fall within the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last
portion of said paragraph speaks of a prohibition by the Constitution or law on any public officer from having any interest in any
business and not by a mere administrative rule or regulation. Thus, a violation of the aforesaid rule by any officer or employee in the
 18

civil service, that is, engaging in private business without a written permission from the Department Head may not constitute graft
and corrupt practice as defined by law.

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

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

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

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline judges of inferior courts as
well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of the existing Civil Service
Law and rules or of reasonable office regulations, or in the interest of the service, remove any subordinate officer or employee from
the service, demote him in rank, suspend him for not more than one year without pay or fine him in an amount not exceeding six
months' salary." Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers and
employees.

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

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

Although the actuation of respondent Judge in engaging in private business by joining the Traders Manufacturing and Fishing
Industries, Inc. as a stockholder and a ranking officer, is not violative of the provissions of Article 14 of the Code of Commerce and
 19

Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated
pursuant to the Civil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the Canons of
Judicial Ethics expressly declares that:

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

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

III

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

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

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

Of course it is highly desirable for a member of the judiciary to refrain as much as possible from maintaining close friendly
relations with practising attorneys and litigants in his court so as to avoid suspicion 'that his social or business relations or
friendship constitute an element in determining his judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does
 20

have social relations, that in itself would not constitute a ground for disciplinary action unless it be clearly shown that his
social relations be clouded his official actuations with bias and partiality in favor of his friends (pp. 403-405, rec.).

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

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY REMINDED TO BE MORE DISCREET IN HIS
PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.
Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ., concur.
Concepcion Jr., J., is on leave.
Fernando, C.J., Abad Santos and Esolin JJ., took no part.

Separate Opinions

AQUINO, J., concurring and dissenting:

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

Separate Opinions
AQUINO, J., concurring and dissenting:
I vote for respondent's unqualified exoneration.
BARREDO, J., concurring and dissenting:
I vote with Justice Aquino.
 21

EN BANC

G.R. No. L-49 November 12, 1945

WILLIAM F. PERALTA, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

William F. Peralta in his own behalf.

Office of the Solicitor General Tañada for respondent.
City Fiscal Mabanag as amicus curiae.

FERIA, J.:

Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the supervision and control of the
production, procurement and distribution of goods and other necessaries as defined in section 1 of Act No. 9 of the National
Assembly of the so-called Republic of the Philippines, was prosecuted for the crime of robbery as defined and penalized by section 2
(a) of Act No. 65 of the same Assembly. He was found guilty and sentenced to life imprisonment, which he commenced to serve on
August 21, 1944, by the Court of Special and Exclusive Criminal Jurisdiction, created in section 1 of Ordinance No. 7 promulgated by
the President of the so-called Republic of the Philippines, pursuant to the authority conferred upon him by the Constitution and laws
of the said Republic. And the procedure followed in the trial was the summary one established in Chapter II of Executive Order No.
157 of the Chairman of the Executive Commission, made applicable to the trial violations of said Act No. 65 by section 9 thereof and
section 5 of said Ordinance No. 7.

The petition for habeas corpus is based on the ground that the Court of Special and Executive Criminal Jurisdiction created by
Ordinance No. 7 "was a political instrumentality of the military forces of the Japanese Imperial Army, the aims and purposes of
which are repugnant to those aims and political purposes of the Commonwealth of the Philippines, as well as those of the United
States of America, and therefore, null and void ab initio," that the provisions of said Ordinance No. 7 are violative of the
fundamental laws of the Commonwealth of the Philippines and "the petitioner has been deprived of his constitutional rights"; that
the petitioner herein is being punished by a law created to serve the political purpose of the Japanese Imperial Army in the
Philippines, and "that the penalties provided for are much (more) severe than the penalties provided for in the Revised Penal Code."

The Solicitor General, in his answer in behalf of the respondent, states that, in his own opinion, for the reasons expressed in his brief
in the case of People of the Philippines, plaintiff-appellant, vs. Benedicto Jose y Santos, defendant-appellee, G. R. No. L-22 (p.
612, post), the acts and proceedings taken and had before the said Court of Special and Exclusive Criminal Jurisdiction which
resulted in the conviction and imprisonment of the herein petitioner, should now be denied force and efficacy, and therefore the
petition for habeas corpus should be granted. The reasons advanced by the Solicitor General in said brief and in his reply
memorandum in support of his contention are, that the Court of Special and Exclusive Criminal Jurisdiction created, and the
summary procedure prescribed therefor, by said Ordinance No. 7 in connection with Executive Order No. 157 of the Chairman of the
Executive Commission are tinged with political complexion; that the procedure prescribed in Ordinance No. 7 does not afford a fair
trial, violates the Constitution of the Commonwealth, and impairs the Constitutional rights of accused persons under their legitimate
Constitution. And he cites, in support of this last proposition, the decisions of the Supreme Court of the United States in the cases of
Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart (17 Wall., 570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104);
Sprott vs. United States (20 Wall., 459).

The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum he submits that the petition for habeas
corpus be denied on the following grounds: That the Court of Special and Exclusive Criminal Jurisdiction and the Acts, Ordinances
and Executive Orders, creating it are not of a political complexion, for said Court was created, and the crimes and offenses placed
under its jurisdiction were penalized heavily, in response to an urgent necessity, according to the preamble of Ordinance No. 7; that
 22

the right to appeal in a criminal case is not a constitutional right; and that the summary procedure established in said Ordinance No.
7 is not violative of the provision of Article III, section 1 (18) of the Constitution of the Commonwealth, to the effect that no person
shall be compelled to be a witness against himself, nor of the provision of section 1 (1) of the same Article that no person shall be
deprived of life, liberty, or property without due process of law.

The features of the summary procedure adopted by Ordinance No. 7, assailed by the petitioner and the Solicitor General as
impairing the constitutional rights of an accused are: that court may interrogate the accused and witnesses before trial in order to
clarify the points in dispute; that the refusal of the accused to answer the questions may be considered unfavorable to him; that if
from the facts admitted at the preliminary interrogatory it appears that the defendant is guilty, he may be immediately convicted;
and that the sentence of the sentence of the court is not appealable, except in case of death penalty which cannot be executed
unless and until reviewed and affirmed by a special division of the Supreme Court composed of three Justices.

Before proceeding further, and in order to determine the law applicable to the questions involved in the present case, it is necessary
to bear in mind the nature and status of the government established in these Islands by the Japanese forces of occupation under the
designation of Republic of the Philippines.

In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113, 127, ante), recently decided, this Court, speaking
through the Justice who pens this decision, held:

In view of the foregoing, it is evident that the Philippines Executive Commission, which was organized by Order No. 1,
issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government established by the military
forces of occupation and therefore a de facto government of the second kind. It was not different from the government
established by the British in Castine, Maine, or by the United States in Tanpico, Mexico. As Halleck says, "the government
established over an enemy's territory during the military occupation may exercise all the powers given by the laws of war to
the conqueror over the conquered, and is subject to all restrictions which that code imposes. It is of little consequence
whether such government be called a military or civil government. Its character is the same and the source of its authority
the same. In either case it is a government imposed by the laws of war and so far as it concerns the inhabitants of such
territory or the rest of the world those laws alone determine the legality or illegality of its acts." (vol. 2 p. 466.) The fact that
the Philippine Executive Commission was a civil and not a military government and was run by Filipinos and not by Japanese
nationals is of no consequence.

And speaking of the so-called Republic of the Philippines in the same decision, this Court said:

The so-called Republic of the Philippines, apparently established and organized as a sovereign state independent from any
other government by the Filipino people, was, in truth and reality, a government established by the belligerent occupant or
the Japanese forces of occupation. It was of the same character as the Philippine Executive Commission, and the ultimate
source of its authority was the same — the Japanese military authority and government. As General MacArthur stated in his
proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy duress, a so-called
government styled as the 'Republic of the Philippines' was established on October 14, 1943, based upon neither the free
expression of the peoples" will nor the sanction of the Government of the United States.' Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of
the Filipino people, before its military occupation and possession of the Islands had matured into an absolute and
permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of nations.

As the so-called Republic of the Philippines was a de facto government of the second kind (of paramount force), as the government
established in Castine, Maine, during its occupation by the British forces and as that of Tampico, Mexico, occupied during the war
with that the country by the United State Army, the question involved in the present case cannot be decided in the light of the
Constitution of the Commonwealth Government; because the belligerent occupant was totally independent of the constitution of
the occupied territory in carrying out the administration over said territory; and the doctrine laid down by the Supreme Court of the
 23

United States in the cases involving the validity of judicial and legislative acts of the Confederate States, considered as de
facto governments of the third kind, does not apply to the acts of the so-called Republic of the Philippines which is a de
facto government of paramount force. The Constitution of the so-called Republic of the Philippines can neither be applied, since the
validity of an act of a belligerent occupant cannot be tested in the light of another act of the same occupant, whose criminal
jurisdiction is drawn entirely from the law martial as defined in the usages of nations.

In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United States held that, by the military occupation
of Castine, Maine, the sovereignty of the United States in the territory was, of course, suspended, and the laws of the United States
could no longer be rightfully enforced there or be obligatory upon the inhabitants who remained and submitted to the belligerent
occupant. By the surrender the inhabitants passed under a temporary allegiance to the British government, and were bound by such
laws, and such only, as it chose to recognize and impose. And Oppenheim, in his Treatise on International Law, says that, in carrying
out the administration over the occupied territory and its inhabitants, "the (belligerent) occupant is totally independent of the
constitution and the laws of the territory, since occupation is an aim of warfare, and the maintenance and safety of his forces, and
the purpose of war, stand in the foreground of his interest and must be promoted under all circumstances or conditions. (Vol. II,
Sixth Edition, Revised, 1944, p. 342.)

The doctrine laid down in the decisions of the Supreme Court of the United States (in the cases of Texas vs. White, 7 Wall., 700;
Horn vs. Lockart, 17 Wall., 570; Williams vs. Bruffy, 96 U. S., 176 United States vs. Home Insurance Co., 20 Wall., 249;
Sprott vs. United States, 20 Wall., 459, and others) that the judicial and legislative acts of the Confederate States which impaired the
rights of the citizens under the Constitution of the United States or of the States, or were in conflict with those constitutions, were
null and void, is not applicable to the present case. Because that doctrine rests on the propositions that "the concession (of
belligerency) made to the Confederate Government . . . sanctioned no hostile legislation . . . and it impaired in no respect the rights
of loyal and citizens as they existed at the commencement of hostilities" (Williams vs. Bruffy, supra);that the Union is perpetual and
indissoluble, and the obligation of allegiance to the to the estate and obedience to her laws and the estate constitution, subject to
the Constitution of the United States, remained unimpaired during the War of Secession (Texas vs. White, supra) and that the
Confederate States "in most, if not in all instances, merely transferred the existing state organizations to the support of a new and
different national head. the same constitution, the same laws for the protection of the property and personal rights remained and
were administered by the same officers." (Sprott vs. United States, supra). In fine, because in the case of the Confederate States, the
constitution of each state and that of the United States or the Union continued in force in those states during the War of Secession;
while the Constitution of the Commonwealth Government was suspended during the occupation of the Philippines by the Japanese
forces of the belligerent occupant at regular war with the United States.

The question which we have to resolve in the present case in the light of the law of nations are, first, the validity of the creation of
the Court of Special and Exclusive Criminal Jurisdiction, and of the summary procedure adopted for that court; secondly, the validity
of the sentence which imprisonment during the Japanese military occupation; and thirdly, if they were then valid, the effect on said
punitive sentence of the reoccupation of the Philippines and the restoration therein of the Commonwealth Government.

(1) As to the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction by Ordinance No. 7, the only factor to
be considered is the authority of the legislative power which promulgated said law or ordinance. It is well established in
International Law that "The criminal jurisdiction established by the invader in the occupied territory finds its source neither in the
laws of the conquering or conquered state, — it is drawn entirely form the law martial as defined in the usages of nations. The
authority thus derived can be asserted either through special tribunals, whose authority and procedure is defined in the military
code of the conquering state, or through the ordinary courts and authorities of the occupied district." (Taylor, International Public
Law, p. 598.) The so-called Republic of the Philippines, being a governmental instrumentality of the belligerent occupant, had
therefore the power or was competent to create the Court of Special and Exclusive Criminal Jurisdiction. No question may arise as to
whether or not a court is of political complexion, for it is mere a governmental agency charged with the duty of applying the law to
cases falling within its jurisdiction. Its judgments and sentences may be of political complexion, or not depending upon the nature or
character of the law so applied. There is no room for doubt, therefore, as to the validity of the creation of the court in question.
 24

With respect to the Summary procedure adopted by Ordinance No. 7, and followed in the trial of the case which resulted in the
conviction of the herein petitioner, there is also no question as to the power or competence of the belligerent occupant to
promulgate the law providing for such procedure. For "the invader deals freely with the relations of the inhabitants of the occupied
territory towards himself . . . for his security also, he declares certain acts, not forbidden by the ordinary laws of the country, to be
punishable; and he so far suspends the laws which guard personal liberty as is required for the summary punishment of any one
doing such acts." (Hall's International Law, seventh ed., p. 5000). A belligerent "occupant may where necessary, set up military
courts instead of the ordinary courts; and in case, and in so far as, he admits the administration of justice by the ordinary courts, he
may nevertheless, so far as is necessary for military purposes, or for the maintenance of public order and safety temporarily alter the
laws, especially the Criminal Law, on the basis of which justice is administered as well as the laws regarding procedure."
(Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.)

No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwealth Constitution relating to
the rights of accused under that Constitution, because the latter was not in force during the period of the Japanese military
occupation, as we have already stated. Nor may said Constitution be applied upon its revival at the time of the re-occupation of the
Philippines by virtue of the principle of postliminium because "a constitution should operate prospectively only, unless the words
employed show a clear intention that it should have a retrospective effect" (Cooley's Constitutional Limitations, seventh edition,
page 97, and cases quoted and cited in the footnote), especially as regards laws of procedure applied to cases already terminated
completely.

The only restrictions or limitations imposed upon the power of a belligerent occupant to alter the laws or promulgate new ones,
especially the criminal law as well as the laws regarding procedure, so far as it is necessary for military purposes, that is, for his
control of the territory and the safety and protection of his army, are those imposed by the Hague Regulations, the usages
established by civilized nations, the laws of humanity and the requirements of public conscience. It is obvious that the summary
procedure under consideration does not violate those precepts. It cannot be considered as violating the laws of humanity and public
conscience, for it is less objectionable, even from the point of view of those who are used to the accusatory system of criminal
procedure than the procedural laws based on the semi-inquisitorial or mixed system prevailing in France and other countries in
continental Europe.

(2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction which imposes life imprisonment
upon the herein petitioner, depends upon the competence or power of the belligerent occupant to promulgate Act No. 65 which
punishes the crime of which said petitioner was convicted.

Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907 "indicates that the laws to be enforced by the occupant
consist of, first, the territorial law in general, as that which stands to the public order and social and commercial life of the district in
a relation of mutual adaptation, so that any needless displacement of it would defeat the object which the invader is enjoined to
have in view, and secondly, such variations of the territorial law as may be required by real necessity and are not expressly
prohibited by any of the rules which will come before us. Such variations will naturally be greatest in what concerns the relation of
the communities and individuals within the district to the invading army and its followers, it being necessary for the protection of
the latter, and for the unhindered prosecution of the war by them, that acts committed to their detriment shall not only lose what
justification the territorial law might give them as committed against enemies, but shall be repressed more severely than the
territorial law would repress acts committed against fellow subjects. Indeed the entire relation between the invaders and the
invaded, so far as it may fall within the criminal department whether by the intrinsic nature of the acts done or in consequence of
the regulations made by the invaders, may be considered as taken out of the territorial law and referred to what is called martial
law." (Westlake, International Law, Part II, War, p. 96.)

According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so far as it is used to describe any fact in relation to
belligerent occupation, does not refer to a particular code or system of law, or to a special agency entrusted with its administration.
The term merely signifies that the body of law actually applied, having the sanction of military authority, is essentially martial. All
law, by whomsoever administered, in an occupied district martial law; and it is none the less so when applied by civil courts in
 25

matters devoid of special interest to the occupant. The words "martial law" are doubtless suggestive of the power of the occupant to
share the law as he sees fit; that is, to determine what shall be deemed lawful or unlawful acts, to establish tests for ascertaining the
guilt of offenders, to fix penalties, and generally to administer justice through such agencies as the found expedient.

And the United States Rules of Land Warfare provide that the belligerent occupant may promulgate such new laws and regulations
as military necessity demands, and in this class will be included those laws which come into being as a result of military rule; that is,
those which establish new crimes and offenses incident to a state of war and are necessary for the control of the country and the
protection of the army, for the principal object of the occupant is to provide for the security of the invading army and to contribute
to its support and efficiency and the success of its operations. (Pub. 1940, pp. 76, 77.)

From the above it appears clear that it was within the power and competence of the belligerent occupant to promulgate, through
the National Assembly of the so-called Republic of the Philippines, Act No. 65 of the said Assembly, which penalizes the crimes of
robbery and other offenses by imprisonment ranging from the maximum period of the imprisonment prescribed by the laws and
ordinances promulgated by the President of the so-called Republic as minimum, to life imprisonment or death as maximum.
Although these crimes are defined in the Revised Penal Code, they were altered and penalized by said Act No. 65 with different and
heavier penalties, as new crimes and offenses demanded by military necessity, incident to a state of war, and necessary for the
control of the country by the belligerent occupant, the protection and safety of the army of occupation, its support and efficiency,
and the success of its operations.

They are not the same ordinary offenses penalized by the Revised Penal Code. — The criminal acts penalized by said Act No. 65 are
those committed by persons charged or connected with the supervision and control of the production, procurement and distribution
of foods and other necessaries; and the penalties imposed upon the violators are different from and much heavier than those
provided by the Revised Penal Code for the same ordinary crimes. The acts penalized by said Act were taken out of the territorial law
or Revised Penal Code, and referred to what is called martial law by international jurists, defined above by Hyde, in order, not only
to prevent food and other necessaries from reaching the "guerrillas" which were harassing the belligerent occupant from every nook
and corner of the country, but also to preserve the food supply and other necessaries in order that, in case of necessity, the Imperial
Japanese forces could easily requisition them, as they did, and as they had the right to do in accordance with the law of nations for
their maintenance and subsistence (Art. LII, Sec. III, Hague Conventions of 1907). Especially taking into consideration the fact, of
which this court may take judicial notice, that the Imperial Japanese Army had depended mostly for their supply upon the produce
of this country.

The crimes penalized by Act No. 65 — as well as the crimes against national security and the law of nations, to wit: treason,
espionage, inciting war, violation of neutrality, correspondence with hostile country, flight to enemy's country, piracy; and the
crimes against public order, such as rebellion, sedition and disloyalty, illegal possession of firearms and other, penalized by
Ordinance No. 7 and placed under jurisdiction of the Court of Special and Exclusive Criminal Jurisdiction — are all of a political
complexion, because the acts constituting those offenses were punished, as are all political offenses, for public rather than private
reasons, and were acts in aid or favor of the enemy and against the welfare, safety and security of the belligerent occupant. While it
is true that these offenses, when committed against the Commonwealth or United States Government, are defined and also
penalized by the territorial law Revised Penal Code, they became inapplicable as crimes against the occupier upon the occupation of
the Islands by the Japanese forces. And they had to be taken out of the territorial law and made punishable by said Ordinance No. 7,
for they were not penalized before under the Revised Penal Code when committed against the belligerent occupant or the
government established by him in these Island. They are also considered by some writers as war crimes in a broad sense. In this
connection Wheaton observes the following:

"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to time ordered to be done or
forbidden to be done in the martial law proclamation or regulations of the invading or occupying commander. Thus, in the Anglo-
Boer war, the British military authorities proclaimed the following to be offenses against their martial law; — Being in possession of
arms, ammunition, etc.; traveling without a permit; sending prohibited goods; holding meetings other than those allowed; using
seditious language; spreading alarmist reports; overcharging for goods; wearing uniforms without due authority; going out of doors
 26

between certain hours; injuring military animals or stores; being in possession, without a permit, of horses, vehicles, cycles, etc.;
hindering those in execution of military orders; trespassing on defense works. Such offenses, together with several others, were
specified in the Japanese regulations made in the Russo-Japanese war." (Wheaton's International Law, War, seventh edition, 1944,
p. 242.)

It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction against the petitioner,
imposing upon him the penalty of life imprisonment, was good and valid, since it was within the admitted power or competence of
the belligerent occupant to promulgate the law penalizing the crime of which petitioner was convicted.

(3) The last question is the legal effect of the reoccupation of the Philippines and restoration of the Commonwealth Government;
that is whether or not, by the principle of postliminy, the punitive sentence which petitioner is now serving fell through or ceased to
be valid from that time.

In order to resolve this last question, it is not necessary to enter into an elaborate discussion on the matter. It is sufficient to quote
the opinion on the subject of several international jurists and our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and
Dizon, supra.

Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals continued or created by the belligerent
occupant, opines "that judicial acts done under this control, when they are not of a political complexion, administrative acts so done,
to the extent that they take effect during the continuance of his control, and the various acts done during the same time by private
persons under the sanction of municipal law, remain good. . . . Political acts on the other hand fall through as of course, whether
they introduce any positive change into the organization of the country, or whether they only suspend the working of that already in
existence. The execution also of punitive sentences ceases as of course when they have had reference to acts not criminal by the
municipal law of the state, such for example as acts directed against the security or control of the invader." (Hall's International Law,
seventh edition, p. 518.)

Westlake, speaking of the duration of the validity of punitive sentences for offenses such as the one in question, which is within the
admitted power or competence of the belligerent occupant to punish, says that: "To the extent to which the legal power of the
occupant is admitted he can make law for the duration of his occupation. Like any other legislator he is morally subject to the duty of
giving sufficient notice of his enactments or regulations, not indeed so as to be debarred from carrying out his will without notice,
when required by military necessity and so far as practically carrying out his will can be distinguished from punishment, but always
remembering that to punish for breach of a regulation a person who was justifiably ignorant of it would be outrageous. But the law
made by the occupant within his admitted power, whether morally justifiable or not, will bind any member of the occupied
population as against any other member of it, and will bind as between them all and their national government, so far as it produces
an effect during the occupation. When the occupation comes to an end the authority of the national government is restored, either
by the progress of operations during the war or by the conclusion of a peace, no redress can be had for what has been actually
carried out but nothing further can follow from the occupant's legislation. A prisoner detained under it must be released, and no civil
right conferred by it can be further enforced. The enemy's law depends on him for enforcement as well as for enactment. The
invaded state is not subject to the indignity of being obliged to execute his commands. (Westlake, International Law, Part II, War, pp.
97, 98.)

And Wheaton, who, as above stated, considers as war crimes such offenses as those penalized in Ordinance No. 7 and Act No. 65,
says: "In general, the cast of the occupant possess legal validity, and under international law should not be abrogated by the
subsequent government. But this rule does not necessarily apply to acts that exceed the occupant's power (e.g., alienation of the
domains of the State or the sovereign), to sentences for 'war treason' and 'war crimes,' to acts of a political character, and to those
that beyond the period of occupation. When occupation ceases, no reparation is legally due for what has already been carried out."
(Wheaton's International Law, supra, p. 245.)
 27

We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra, that all judgments of
political complexion of the courts during the Japanese regime, ceased to be valid upon the reoccupation of the islands by virtue of
the principle or right of postliminium. Applying that doctrine to the present case, the sentence which convicted the petitioner of a
crime of a political complexion must be considered as having ceased to be valid ipso facto upon the reoccupation or liberation of the
Philippines by General Douglas MacArthur.

It may not be amiss to say in this connection that it is not necessary and proper to invoke the proclamation of General Douglas
MacArthur declaring null and void all laws, among them Act No. 65, of the so-called Republic of the Philippines under which
petitioner was convicted, in order to give retroactive effect to the nullification of said penal act and invalidate sentence rendered
against petitioner under said law, a sentence which, before the proclamation, had already become null and of no effect.

We therefore hold that the punitive sentence under consideration, although good and valid during the military occupation of the
Philippines by the Japanese forces, ceased to be good and valid ipso facto upon the reoccupation of these Island and the restoration
therein of the Commonwealth Government.

In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and it is ordered that the petitioner be released
forthwith, without pronouncement as to costs. So ordered.

Jaranilla, Pablo and Bengzon, JJ., concur.

Moran, C.J., concurs in the result.

Separate Opinions

OZAETA, J., concurring:

Amidst the forest of opinions that have cropped up in this case it would seem unnecessary to plant an additional tree. To justify our
effort — lest we seem intent to bring coal to Newcastle — we ought to state that the following opinion had been prepared before
the others were tendered. It has been impossible for the Court to reconcile and consolidate the divergent views of its members
although they arrive at practically the same result.

Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction of Manila, the petitioner was found guilty and
sentenced to life imprisonment. He commenced to serve the sentence on August 21, 1944. He now petitions this Court for the writ
of habeas corpus, alleging that Ordinance No. 7, by which the Court of Special and Exclusive Criminal Jurisdiction was created and
which was promulgated on March 8, 1944, by the President of the "Republic of the Philippines," was null and void ab initio. The
Solicitor General, answering the petition on behalf of the respondent Director of Prisons, expressed the opinion that "the acts and
proceedings taken and before the said Court of Special and Exclusive Criminal Jurisdiction which resulted in the conviction and
imprisonment of the herein prisoner should now be denied force and efficacy," and recommended "that the writ of habeas
corpus prayed for be granted and that the City Fiscal be instructed to prepare and file the corresponding information for robbery
against the petitioner herein in the Court of First Instance of Manila."

The case was argued before us on September 21 and 22, 1945, by the First Assistant Solicitor General on behalf of the respondent
and the City Fiscal as amicus curiae — the former impugning and the latter sustaining the validity of said Ordinance No. 7. Section 1
of the ordinance in question reads as follows:

SECTION 1. There is hereby created in every province and city throughout the Philippines one or more courts of special
criminal jurisdiction as the President of the Republic of the Philippines may determine upon recommendation of the
Minister of Justice, which courts shall have exclusive jurisdiction to try and determine crimes and offenses penalized by Act
 28

No. 65 entitled "An Act imposing heavier penalties for crimes involving robbery, bribery, falsification, frauds, illegal
exactions and transactions, malversation of public funds and infidelity as defined in the Revised Penal Code and violations
of food control laws, when committed by public officers and employees, and for similar offenses when committed by
private individuals or entities, and providing for a summary procedure for the trial of such offenders."

Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction also to try the following crimes as defined in the
Revised Penal Code: crimes against national security and the law of nations, crimes against public order, brigandage, arson and other
crimes involving destruction, illegal detention committed by private individuals and kidnapping of minors; and illegal possession of
firearms, as defined in an executive order. Section 3 provides for the appointment of one judge of first instance to preside over the
court above mentioned and of a special prosecutor in each special court. Section 4 authorizes the court to impose a longer term of
imprisonment than that fixed by law, or imprisonment for life or death where not already fixed by law, for the crimes and offenses
mentioned in section 2. The remaining sections read as follows:

SEC. 5. The trial of the cases arising sections 1 and 2 hereof shall be started within two days after the filing of the
corresponding information, shall be summary in procedure, and shall aim at their expeditious and prompt disposition.
Technicalities shall be avoided and all measures calculated to serve this end shall be taken by the trial judge. Said cases shall
be decided within four days after the same are submitted for decision. The summary procedure provided in Act No. 65
insofar as not inconsistent with the provisions of this Ordinance, shall govern the trial of the cases enumerated in said
sections 1 and 2 hereof.

SEC. 6. The decisions of the special courts herein created shall be final except where the penalty imposed is death, in which
case the records of the particular case shall be elevated en consulta to a special division of the Supreme Court composed of
the three members to be designated by the President of the Republic of the Philippines. The clerk of each special court,
upon the promulgation of a decision imposing the death penalty, shall immediately forward the records of the case to the
special division of the Supreme Court herein created, which shall decide the case within fifteen days from the receipt of the
records thereof.

SEC. 7. The interest of public safety so requiring it, the privileges of the writ of habeas corpus are hereby suspended with
respect to persons accused of, or under investigations for, any of the crimes and offenses enumerated in sections 1 and 2
hereof.

SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the provisions hereof, are hereby repealed or modified
accordingly.

SEC. 9. This Ordinance shall take effect immediately upon its promulgation.

The summary procedure provided in Act No. 65 of the "Republic," as referred to in section 5 above quoted, is in turn that established
by Chapter II of Executive Order No. 157 of the Chairman of the Philippine Executive Commission, dated May 18, 1943. Under said
procedure (section 17) "search warrants may be issued by the court or by any prosecuting officer, authorizing peace officers to
search for and seize any articles or objects described in the warrant, including those which may be regarded as evidence of an
offense under this Order even if such articles or objects are not included among those described in section 2, Rule 122, of the Rules
of Court." Section 18 reads as follows:

SEC. 18. The accused or his representative may be examined by the court, and with the permission of the court, by the fiscal
or other prosecuting officer as to any matters favorable or unfavorable to him or his principal; and either may apply to the
judge for the examination of the co-accused or the representative of the latter in matters related to the defense of the
accused. Statements made by the accused, his co-accused, or the representative of the accused or a person acting in a
similar capacity, irrespective of the circumstances under which they were made, shall be admissible in evidence if material
to the issue.
 29

Section 21 provides for the summary trial in the following manner:

Such trials shall be conducted according to the following rules:

(a) After arraignment and plea, the court shall immediately cause to be explained to the accused the facts constituting the
offenses with which he is charged, and the judge shall interrogate the accused and the witnesses as to the facts and
circumstances of the case in order to clarify the points in dispute and those which are admitted.

(b) Refusal of the accused to answer any questions made or allowed by the court may be considered unfavorable to him.

(c) Except for justifiable reasons, the accused shall not be allowed to plead and assert defenses that are inconsistent with
each other.

(d) If from the facts admitted at the preliminary interrogation, it should appear that the accused is guilty of the crime
charged in the information, or in any other information, or in any other information, or in any other information
subsequently filed by the prosecuting officer, a sentence of conviction may be immediately rendered against the accused.
Otherwise, the judge shall dictate an order distinctly specifying the facts admitted by the accused and those which are in
dispute, and the trial shall be limited to the latter, unless the judge, for special reasons, otherwise directs.

(e) Unjustified absence of an accused who has been released on bail, or of his representative shall not be a ground for
interrupting the proceedings or attacking the validity of the judgment.

The provisions of Rules 115 to 117 of the Rules of Court shall be suppletory to the foregoing insofar as they are not in
conflict therewith.

The records shows that during their existence the courts of special and exclusive criminal jurisdiction created by the ordinance in
question convicted and sentenced a total of 94 individuals, 55 of whom had been prosecuted for illegal possession of firearms and
15 for robbery; and that of the 94 convicts only 3, including the herein petitioner, remain in confinement, 21 having escaped, 37
having been released, and 33 having died.

In synthesis, the argument of the Solicitor General is as follows: Acts of the military occupant which exceed his power tested by the
criterion set forth in article 43 of the Hague Regulations, are null and without effect as against the legitimate government.
(Wheaton's International Law, 7th ed., p. 245.) Acts in furtherance or support of rebellion against the United States, or intended to
defeat the just rights of citizens, and other Acts of like nature, must, in general, be regarded as invalid and void. (Texas vs. White, 74
U. S., 733; 19 Law. ed., 240.) Judicial or legislative acts in the insurrectionary states were valid where they were not hostile in their
purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the
Constitution. (Horn vs.Lockhart, 17 Wall., 570-581; 21 Law. ed., 660.) All the enactment of the de facto legislatures in the
insurrectionary states during the war, which were not hostile to the Union or to the authority of the General Government and which
were not in conflict with the Constitution of the United States, or of the states, have the same validity as if they had been
enactments of legitimate legislatures. (United States vs. The Home Insurance Co., 22 Wall., 99-104; 22 Law. ed., 818.) Tested by
these principles of international law, Ordinance No. 7 must be declared void (1) because it favored the forces of occupation and the
civilian Japanese inasmuch as it provided an excessively heavy penalty for the summary trial of possession of firearms and violations
of food control regulations and (2) because it impaired the rights of citizens under the Constitution inasmuch as the procedure
therein prescribed withdrew the privilege of the accused against self-incrimination and his right to appeal to the Supreme Court
even where the penalty imposed was life imprisonment or death.

In substance, the City Fiscal argues that the heavier penalty for the illegal possession of firearms than that fixed by the
Administrative Code was not directed toward the suppression of underground activities against the Japanese army, and the rigid
enforcement of the food control measures was not intended to insure the procurement of supplies by said army, because in any
 30

event the Japanese military occupant freely exercised the power to go after and punish his enemies directly without recurring to the
agencies of the "Republic," for there were even cases where the offenders were already in the hands of the police or courts of the
"Republic" but they were unceremoniously taken from said agencies by the Japanese military police and punished or liquidated by it
at Fort Santiago or elsewhere; and as regards food control, the Japanese forces did not have any need of the measures or agencies
established by the "Republic" because the Japanese forces themselves commandeered what they needed or sent out their own
agents to purchase it for them at prices even much higher than those fixed by the "Republic"; that the procedure prescribed
afforded a fair trial and did not violate any fundamental rights; that the military occupant was not in duty bound to respect the
constitution and the laws of the occupied territory; that he could abrogate all of them and promulgate new ones if he so chose; that
the cases cited by the Solicitor General are not applicable because they deal with the validity of acts and processes of the
governments of the rebel states during the Civil War and are based upon the indissolubility of the Union; that the validity or nullity
of the ordinance in question should be judged in the light of the provisions of the Constitution and the laws of the "Republic" and of
generally accepted principles of international law; that even assuming that it should be judged by the standard or the Constitution of
the Commonwealth, the ordinance satisfies all the requirements of said Constitution; that the right to appeal in a criminal case is not
a constitutional but a purely statutory right which may be granted or withheld at the pleasure of the state; and, finally, that the
supposed invalidity of the sentence imposed against the petitioner cannot be raised by habeas corpus.

There is no question that in virtue of that of the proclamation of General MacArthur of October 23, 1944 (41 Off. Gaz., 147, 148),
Ordinance No. 7 is no longer of any force and effect since the restoration of the Government of the Common wealth of the
Philippines. The question before us is whether said ordinance ever acquired any force and effect or was null and void ab initio.

Invoking decisions of the Supreme Court of the United States in cases involving the validity of Acts of the Confederacy and of a rebel
state as a de facto government during the Civil War, the Solicitor General maintains that the ordinance in question was null and void
because it impaired the rights of citizens under the Constitution and because it was hostile in its purpose to the United States and
the Commonwealth of the Philippines.

The decisions invoked would be applicable if the so-called Republic of the Philippines should be considered as a government
established by the Filipino people in rebellion against the Commonwealth and the Sovereignty of the United States. The decisions of
the Supreme Court of the United States declaring invalid Acts of a rebel state or of the Confederacy which were in furtherance or
support of rebellion against the United States or which impaired the rights of citizens under the Constitution, rest on the proposition
that the Union is perpetual and indissoluble and that the obligations of allegiance to the state, and obedience to her laws, subject to
the Constitution of the United States, remained unimpaired during the War of Secession. (See Texas vs. White, 74 U.S., 700; 19 Law.
ed., 227, 237; William vs. Bruffy, 96 U.S., 176; 24 Law. ed. 716.) Obviously, that proposition does not hold true with respect to a de
facto government established by the enemy in an invaded and occupied territory in the course of a war between two independent
nations. Such territory is possessed temporarily so possessed temporarily by lawful government at war with the country of which the
territory so possessed is a part, and during that possession the obligations of the inhabitants to their country are suspended,
although not abrogated (United States vs. Rice, 4 Wheat., 253; Fleming vs. Page 9 How., 614; Baldy vs. Hunter, 171 U.S., 388; 43 Law.
ed., 208, 210.) In the case of Williams vs. Bruffy, supra, the court, speaking though Mr. Justice Field, observed: "The rule stated by
Vattel, that the justice of the cause between two enemies being by law of nations reputed to be equal, whatsoever is permitted to
the one in virtue of war is also permitted to the other, applies only to cases of regular war between independent nations. It has no
application to the case of a war between an established government and insurgents seeking to withdraw themselves from its
jurisdiction or to overthrow its authority. The court further stated that the concession of belligerent rights made to the Confederate
Government sanctioned no hostile legislation and impaired in no respect the rights loyal citizens as they had existed at the
commencement of hostilities.

On the other hand, in a war between independent nations "the rights of the occupant as a law-giver have broad scope." He many
"suspend the existing laws and promulgate new ones when the exigencies of the military service demand such action. According to
the Rules of Land Warfare he will naturally alter or suspend all laws of a political nature as well as a political privileges, and laws
which affect the welfare and safety of his command." (Hyde on International Law, vol. 2, p. 367.) It will be seen then that in a war
between independent nation the army of occupation has the right to enact laws and take measures hostile to its enemy, for its
 31

purpose was to harass and subdue the latter; and it is not bound to respect or preserve the rights of the citizens of the occupied
territory under their Constitution.

Let us now look into the nature and status of the government styled "Republic of the Philippines "in order to determined the
criterion by which the validity of its enactments should be tested. In the recent case of Co Kim Cham vs. Valdez Tan Keh Dizon (G.R.
No. L-5, p. 113, ante), this Court speaking through Justice Feria, had occasion to comment upon the nature of said government in the
following words:

The so-called Republic of the Philippines, apparently established and organized as a sovereign state independent from any
other government by the Filipino people, was, in truth and reality, a government established by the belligerent occupant or
the Japanese forces of occupation. It was of the same character as the Philippines Executive Commission, and the ultimate
source of its authority was the same — the Japanese military authority and government. As General McArthur stated in his
proclamation of October 23, 1944, a portion of which had been already quoted, "under enemy duress a was established on
October 14, 1943, base upon neither the free expression of the peoples" will nor the sanction of the Government of the
United States.' Japan had no legal power to grant independence to the Philippines or transfer the sovereignty of the United
State to, or recognize the latent sovereignty of, the Filipino people, before its military occupation and possession of the
Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other means
recognized in the law of nations. For it is a well-established doctrine in internal law, recognized in the law, recognized in
Article 45 of the Hague Conventions of 1907 (which prohibits compulsion of the population of the occupied territory to
swear allegiance to the hostile power), that belligerent occupation, being essentially provisional, does not severe to transfer
sovereignty over the territory controlled although the de jure government is during the period of occupancy deprived of the
power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat.,
246; Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U.S., 345.) The formation of the Republic of the Philippines
was a scheme contrived by Japan to delude of the Filipino people into believing in the apparent magnanimity of the
Japanese gesture of transferring or turning over the rights of governments into the hands of Filipinos. It was established
under the mistaken belief that, by doing so, Japan would secure the cooperation or at least the neutrality of the Filipino
people in her war against the United States and other allied nations.

We reaffirmed those statements. To show further the fictitious character of much-propagandized "independence" which Japan
purported to grant to the Philippines through the establishment of the "Republic", we may add that, as matter of contemporary
history and of common knowledge, in practice the Japanese military authorities in the Philippines never treated the "Republic of the
Philippines" as an independent government after its inauguration. They continued to impose their will on its executive officials when
their interests so required. The Japanese military police arrested and punished various high officials of said government, including
the First Assistant Solicitor General, and paid no attention to the protests and representations made on their behalf by the President
of the "Republic." As a climax of their continual impositions, in December 1944 the Japanese military authorities placed the
President and the members of his Cabinet under the "protective" custody of the military police, and on the 22nd of the month
forced them to leave the seat of the government in Manila and hide with them in the mountains. The only measure they did not
succeed in imposing upon the "Republic" was the conscription of the Filipino youth into an army to fight with the Japanese against
the United States. So, while in theory and for the purpose of propaganda Japan professed to be a benefactor and liberator of the
Filipinos, hoping thereby to secure their willing cooperation in her war efforts, in practice she continued to enslave and oppress the
Filipinos, as she saw that the latter remained loyal to the United States. She found that the Filipinos merely feigned cooperation as
their only means of self-preservation and that those who could stay beyond the reach of her army of occupation manifested their
hospitality by harassing and attacking that army. Thus Japan continued to oppress and tyrannize the Filipinos notwithstanding the
former's grant of "independence" to the latter. It would therefore be preposterous to declare that the "Republic of the Philippines"
was a government established by the Filipino people in rebellion against the Commonwealth and the sovereignty of the United
States.

The said government being a mere instrumentality of the Commander in Chief of the Japanese army as military occupant, the
ordinance question promulgated by the President of the "Republic" must be deemed as an act emanating from the power or
 32

authority of said occupant. The question, therefore, is whether or not it was within the competence of the military occupant to pass
such a law.

Article 43 of the Hague Regulations provides as follows:

ART. 43. The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take
all steps in his power to reestablish and insure, as far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country.

Commenting upon this article, Hyde in his work on International Law, volume 2, pages 366, 367, 368, says:

In consequence of his acquisition of the power to control the territory concerned, the occupant enjoys the right and is
burdened with the duty to take all the measures within his power to restore and insure public order and safety. In so doing
he is given great freedom may be partly due to circumstance that the occupant is obliged to consider as a principal object
the security, support, efficiency and success of his own force in a hostile land inhabited by nationals of the enemy. . . .

xxx xxx xxx

The right to legislate is not deemed to be unlimited. According to the Hague Regulations of 1907, the occupant is called
upon to respect, "unless absolutely prevented, the laws in force the ordinary civil and criminal laws which do not conflict
with security of his army or its support, efficiency, and success."

In the exercise of his powers the commander must be guided by his judgment and his experience and a high sense of justice.
(President McKinley, Order to the Secretary of War, July 18, 1898, on the occupation of Santiago de Cuba by the American forces,
Moore, Dig. VII, p. 261.)

Acts of the military occupant which exceed his power tested by the criterion set forth in article 43 of the Hague Regulations, are null
and without effect as against the legitimate government. (Wheaton's International Law, 7th ed. [1944], p. 245.)

Hall in his Treatise on Internal Law, (7th edition), discussing the extent of the right of a military occupant, states:

If occupation is merely a phase in military operations, and implies no change in the legal position of the invader with
respect to the occupied territory and its inhabitants, the rights which he possesses over them are those which in the special
circumstances represent his general right to do whatever acts are necessary for the prosecution of his war; in other words
he has the right of exercising such control, and such control only, within the occupied territory as is required for his safety
and the success of his operations. . . . On occupying a country an invader at once invest himself with absolute authority; and
the fact of occupation draws with it as of course the substitution of his will for previously existing law whenever such
substitution is reasonably needed, and also the replacement of the actual civil judicial administration by the military
jurisdiction. In its exercise however this ultimate authority is governed by the condition that the invader, having only a right
to such control as is necessary for his safety and the success of his operations, must use his power within the limits defined
by the fundamental notion of occupation, and with due reference to its transient character. He is therefore forbidden as a
general rule to vary or suspend laws affecting property and private personal relations, or which regulate the moral order of
the community. . . . (Pages 498, 499.)

We deduce from the authorities that the power of the occupant is broad and absolute in matters affecting his safety. But in affairs
which do not affect the security, efficacy, and success of his military operations, his power is qualified by the transient character of
his administration. He is forbidden "to vary or suspend laws affecting property and private personal relations, or which regulate the
moral order of the community." Unless absolutely prevented, he is bound to laws, and civil and criminal, in force in the country.
 33

Tested by this criterion, was it within the power or competence of the Commander in Chief of the Japanese army of occupation of
the Philippines to promulgate Ordinance No. 7? In so far as said ordinance created new court of special criminal jurisdiction we think
his power to promulgate and enforce it during the occupation cannot be seriously disputed; but in so far as that ordinance varied
radically our law of criminal procedure and deprived the accused of certain rights which our people have always treasured and
considered inviolate, we are of the that it transcended his power or competence. We base this opinion upon the following
considerations:

1. The occupant was not absolutely prevented from respecting our law of criminal procedure and the Court of Special and Exclusive
Criminal jurisdiction. The application or nonapplication of said law did not affect the security, efficacy, and success of his military
operations. The crimes over which the said court was vested with jurisdiction were mostly crimes against property penalized in our
Revised Penal Code, which crimes did not affect the army of occupation. As to the illegal possession of firearms the City Fiscal
himself, who the validity of the ordinance, informs us that the occupant did not avail himself of said court but punished his enemies
direct without recurring to the agencies of the "Republic"; and he further informs us that "as regards food control, the Japanese
forces did not have any need of the measures or agencies established by "Republic", nor did they make use of them.

2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial, repugnant to the humanitarian method of administering
criminal justice adopted by all progressive, democratic, and freedom-loving countries of the world, and, therefore, devoid of that
high sense of justice by which the military occupant must be guided in the exercise of his powers. This concept is, we think, borne
out by an examination of the following features of said procedure:

(a) Under the rule of procedure embodied in said ordinance any prosecuting officer may, on his own volition and even without
probable cause, issue a search warrant for the seizure of documents and articles which may be regarded as evidence of an offense
— in violation of section 2, Rule 122 of the Bill of Rights contained in the Constitution of the Commonwealth, which guarantees "the
right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures," and
prohibits the issuance of warrants except upon probable cause to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce.

(b) The trial must be commenced within two days after the filing of the information — in violation of section 7, Rule 114, which give
the accused at least two days after the plea of not guilty within which to prepare fort trial.

(c) The presumption of innocence in favor of the accused in all criminal prosecutions until the contrary is proved, which is likewise
guaranteed by the Bill of Rights, is violated in that, after the arraignment and before the presentation of any proof for the
prosecution, the accused is interrogated by the judge as to the facts and circumstances of the case, and if from the facts obtained by
such interrogation it should appear (to the judge) that accused is guilty a sentence of conviction may be immediately rendered
against him, thereby also depriving him of his right to meet the witnesses face to face and of his privilege against self-incrimination.

The City Fiscal justifies this feature of the procedure by giving the following hypothetical case: "In the house of Juan and under his
bed a policeman finds a revolver. Juan is arrested and an information for illegal possession of firearms is filed against him by the
fiscal. He is brought before the judge of the corresponding special court for the preliminary interrogatory. He is asked whether or
not he admits that the revolver was found in his house. He answers in the affirmative but says that he is not the owner of the
revolver and he does not know how it placed there. Asked whether he knows of anybody who could have placed the revolver under
his bed, he answers that it might have been place there by a guest who slept on his bed the night previous to its discovery by the
polices. He is asked to give the name of the guest reffered to and his address, but he refuses to answers. Asked if he has other
witnesses to support his claim, he answer that he has none. As may be seen, the evidence of guilt is complete, and there being no
further evidence to be presented that may change the result the accused may be then and there sentenced by the court. In this
case, the conviction of the accused is reasonable and fair, for his refusal to reveal the identity of his alleged guest may due, either to
the fact that there was no such guest, or that the cause for concealing his identity is worth suffering for. Volente non fit injuria."
 34

But to us that hypothetical case is a good illustration of the injustice of such procedure. There the accused was convicted not
because the prosecution had proved his guilt but because he was unable to prove his innocence. His inability to prove who the
owner of the revolver was, did not to our mind prove him guilt, beyond reasonable doubt, under the circumstances. He was accused
of illegal possession of firearm, an offense punishable under the ordinance in question with imprisonment for six to twelve years. He
pleaded not guilty, for according to him the revolver was not his and he did not know how it got into his house. He had no time to
investigate and try to find out whether the policeman himself or some the other person who wished to do him harm had planted it
there, sooner was the revolver seized than he was brought before the court and interrogated about it when he was naturally dazed
and in a state of alarm. If the law of criminal procedure had been followed, he would have had ample time to reflect and endeavor
to unravel the mystery. He could have consulted a lawyer, and he would have been entitled to at least two days after the
information was read to him to investigate the facts and prepare for the trial. At the trial he would not have been required to
answer to any proof in his defense until the prosecution had presented its witness, principally the policeman. His lawyer could have
cross-examined the policeman and found out from him whether he had any grudge against the accused and how he happened to
search the latter's house. From the testimony of the policeman the accused might have been enlightened as to how and by whom
the revolver was place in his house. Suppose that the policeman should say that his informant as to the presence of the revolver
under the bed of the accused was a houseboy of the latter, and suppose that houseboy was really the one who planted the revolver
because of some grievance he had against his master but that the latter had not suspected before that his houseboy had any
revolver. In view of the revelation of the policeman he would had been able to investigate and ascertain that fact. In that he way he
could have satisfactory explained how and by whom the revolver was placed under his bed. But under the procedure in question as
outlined by the City Fiscal, the accused was of course utterly unable to do that and was consequently doomed to at least six years'
imprisonment for a crime he had not committed.

(d) Section 6 of the Ordinance in question provided: "The decisions of the special courts herein created shall be final except where
the penalty imposed is death, in which case the records of the particular case shall be elevated en consulta to a special division of
the Supreme Court composed of three members to be designated by the President of the Republic of the Philippines." Under our
law of criminal procedure, which the military occupant was bound to respect unless absolutely prevented, all persons accused of any
offense have the right to appeal to the Court Appeals or to the Supreme Court. It is true that as rule that right is statutory and may
be withdrawn by the legislature except in certain cases where the right to appeal is provided in the Constitution itself, as in the cases
involving life imprisonment and death penalty; but the question here is not whether the legislative department of the legitimate
government has the power to abrogate that right but whether it was within the competence of the military occupant to do so.

(e) In the instant case the penalty imposed upon accused by the special court, after a summary trial was life imprisonment, and he
was denied the right to have that sentence reviewed by the Supreme Court, altho under sub-section 4, section 2, Article VIII of the
Constitution of the Commonwealth, he could not have been deprived by law of that right.

( f ) Section 7 of the Ordinance suspended the privilege of the writ of habeas corpus with respect to persons accused of or under
investigation for any of the crimes and offenses enumerated in sections 1 and 2. The Constitution of the Commonwealth prohibit the
suspension of that privilege except in cases of invasion, insurrection, or rebellion when the public safety requires it. The suspension
by the ordinance was not motivated by any one of these cases but by the necessity for waging a campaign against certain classes of
crime; martial law was not declared; and the suspension of habeas corpus did not apply to all persons living in the specified territory
(as should have been done if the public safety required such suspension) but only to those accused of or investigated for certain
specified crimes or offenses. The result of such partial suspension was that persons accused of or under investigation for any of the
offenses specified in section 1 and 2 could be held in detention indefinitely, whereas person accused of or under investigation for
crimes other than those specified, such for example as theft, physical injuries, homicide, murder, and parricide, had the right to
demand their release by habeas corpus after the lapse of six hours. The same discrimination holds true with reference to the other
features already noted above, namely, unreasonable searches and seizures, summary trial, denial of the presumption innocence,
self-incrimination, and denial of the right to appeal. Such discrimination was unwarranted and unjust and was contrary to the
concept of justice prevailing in all democratic countries, where every person is entitled to the equal protection of the laws.
 35

3. It is apparent from the foregoing examination of the main features of the ordinance that while the methods thus adopted may not
be unusual under totalitarian governments like those of the aggressor nations in the recent global war, they are strange and
repugnant to the people of the democratic countries which united together to defeat said aggressors and "to reaffirm faith in
fundamental human person, in the equal rights of men and women and of nations large and small, . . . and to promote social
progress and better standards of life in larger freedom." (Preamble Charter for Peace adopted by the United Nations at San
Francisco, California, June 26, 1945.) The recent global war was a clash between two antagonistic ways of life, between facism and
democracy. It would be strange indeed if his Court, which functions under a democratic government that fought with the other
democratic nations in that war, should sanction or approve the way of life, against which that war was fought and won the cost of
million of lives and untold sacrifices.

4. The case involves the interpretation not of constitution but of international law, which "is based on usage and opinion"; and "he
who in such a case bases his reasoning on high considerations of morality may succeed in resolving the doubt in accordance with
humanity and justice." (Principles of International Lawrence, 7th ed., pp. 12, 13.) We think the contentions for the petitioner against
the validity of the ordinance in question are in accord with humanity and justice.

Before concluding this opinion we deem it pertinent to comment on the remark of the City Fiscal that, as stated in its preamble, the
ordinance in question was promulgated in response to "an urgent necessity for waging an immediately and relentless campaign
against certain classes and expediting the trail and determination thereof in order to hasten the re-establishment of peace and other
throughout the country and promote a feeling of security among the people conducive to the earlier return of normalcy in our
national life." We concede that the objective of the author of the ordinance was commendable, but we think — and in this we are
supported by the actual result — it was unattainable thru the means and methods prescribed in said ordinance. Peace and order and
normalcy could not be restored unless the root cause of their disturbance were eliminated first. That cause was the presence in the
country of the Japanese army, which wrecked our political, social, and economic structures, destroyed our means of communication,
robbed the people of their food, clothing, and medicine and other necessities of life, ejected them from their own homes, punished
and tortured innocent men and women, and other wise made life unbearable. The relative rampancy of the crimes mentioned in
said ordinance was but the effect of that cause. The cornering and hoarding of foodstuffs would not for the scarcity produced by the
Japanese army and the disruption of our commerce and industries on account of the invasion. The possession of firearms was
rendered desirable to many person to defend themselves against or attack the invader. Robberies and other crimes against property
increased as a resulted of hunger and privation to which the people were subjected by the rapacity of the Japanese. It was a
delusion to expect peace and normalcy to return without eliminating the cause of their disturbance or destruction of the Japanese
army in the Philippines — an objective to which the ordinance was not addressed. So, even from the point of view of the Filipino
people and not of the Japanese army of occupation, the ordinance in question results untenable.

Having reached the conclusion that the enactment of the procedure embodied in said ordinance for the special court therein
created was beyond the competence of the occupant, inasmuch as that procedure was inseparable from the first part of the
ordinance which creates the special court and prescribes the jurisdiction thereof, we are constrained to declare the whole ordinance
null and void ab initio. Consequently the proceedings in said court which resulted in the conviction and sentence of the petitioner
are also void.

PARAS, J., concurring in the result:

Charged with robbery, the petitioner herein was found guilty and sentence to suffer life imprisonment. He commenced to serve the
term on August 21, 1944. Inasmuch as he was a member of the Metropolitan Constabulary, the basis of the information was Act No.
65, passed during the Japanese — sponsored Republic of the Philippines and amending certain articles of the Revised Penal Code.
The trial was held by the then existing Court of Special and Exclusive Criminal Jurisdiction which was authorized to conduct
proceedings in a special manner. Ordinance No. 7 of the "Republic.")
 36

After General of the Army Douglas McArthur had issued the Proclamation dated October 23, 1944, the Act under which the
petitioner was charged and convicted stands nullified, and the original provisions of the Revised Penal Code restored. By virtue of
article 22 of the said Code, "Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony, who is not a
habitual criminal, as this term is defined in rule 5 of article 62 of this Code, although at the time of the publication of such laws a
final sentence has been pronounced and the convict is serving the same."

In the absence of other details, it may here be assumed that the offense committed is that defined in article 294, paragraph 5, which
provides as follows:

Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:

The penalty of prision correccional to prision mayor in its medium period in other cases.

In accordance with the provisions of the Indeterminate Sentence Law (Acts Nos. 4103 and 4225 ), the maximum penalty that can be
imposed is six months of arresto mayor.

This Court has already dismissed cases wherein the defendants were charge with the violation of law in force at the time of the
commission and trial of the crime, after said laws have been repealed by subsequent legislation, People vs. Moran (Phil., 44
387); People vs. Tamayo (61 Phil., 226 ), and also repeatedly released on writs of habeas corpus prisoners who, were given the
benefit of subsequent legislation either repealing statute under which they had been convicted or modifying the same by imposing
lesser penalties, Escalante vs. Santos (56 Phil., 483); Directo vs. Director of Prisons (56 Phil., 692).

Prisoners who behave well are almost always liberated upon the expiration of the minimum penalty fixed in the judgments of
conviction or within a reasonable time thereafter. In the present case, there being no information that the double the period of the
minimum penalty that could be imposed upon him, he should be released. As this is the effect of the decision of the majority, I
concur in the result.

DE, JOYA, J., concurring:

The principal question involved in this case is the validity of the judicial proceeding held in criminal case No. 66 of the Court of
Special and Exclusive Criminal Jurisdiction, established in the City of Manila, during Japanese occupation, under the authority of
Ordinance No. 7, issued by the President of the so-called Philippine Republic, and the effect on said proceeding of the proclamation
of General Douglas McArthur, dated October 23, 1944.

In said criminal case, herein petitioner was accused of the crime of robbery and sentenced to life imprisonment, on August 21, 1944.

There can be doubt that the government established in this country by the Commander in Chief of the Japanese Imperial Forces,
under the name of the Philippine Executive Commission, was a de facto government, as already held by this Court in civil case G.R.
No. L-5 entitled Co Kim Cham vs. Valdez Tan Keh and Dizon, decided on September 17, 1945 (p. 133, ante). Said government
possessed all the characteristics of a de facto government as defined by the Supreme Court of the United States, in the following
language:

But there is another description of government, called also by publicists a government de facto, but which might, perhaps,
be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is
maintained by active military power within the territories, and against the rightful authority of an established and lawful
government; and (2), that while it exist it must necessarily be obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not
 37

warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military authority, but they may be
administrated, also, by civil authority, supported more or less directly by military force. (MacLeod vs. United States [1913,]
229 U. S., 416.)

Under a de facto government, the courts of the country, under military occupation, should be kept open, and whenever practicable,
the subordinate officers of the local administration should be allowed to continue in their functions, supported by the military force
of the invader, because the responsibility of maintaining peace and public order, and of punishing crime, falls directly upon the
commander in chief of the occupying forces. And in the performance of this duty, he may proclaim martial law (Davis, Elements of
International Law [3d.], pp. 330-332).

In occupied territory, the conquering power has a right to displace the pre-existing authority, and to assume to such extent as it may
deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and
clothe them with designated powers, according to its pleasure. It may prescribe the revenues to be paid, and apply them to its own
use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may
be exerted in such cases, save those which are found in the laws and customs and usages of war (Cross vs. Harrison, 16 How., 164 ;
Leitensdorfer vs. Webb, 20 Id., 176; The Grapeshot, 9 Wall.[ U.S.], 129; New Orleans vs. Steamship Co., [1874], 20 Wall., [ U.S.], 287.

It is generally the better course for the inhabitants of the territory, under military occupation, that they should continue to carry on
the ordinary administration under the invader; but the latter has no right to force them to do so. If they decline, his only rights, and
it is also his duty, is to replace them by appointees of his own, so far as necessary for maintaining order and the continuance of the
daily life of the territory: other purposes, as these of the superior judicial offices, can bide their time (Westlake, International Law,
Part II, War, 2d ed., pp. 121-123).

Though the fact of occupation imposes no duties upon the inhabitants of the occupied territory, the invader himself is not left
equally free. As it is a consequence of his acts that the regular government of the country is suspended, he is bound to take
whatever means are required for the security of public order; and as his presence, so long as it is based upon occupation, is
confessedly temporary, and his rights of control spring only from the necessity of the case, he is also bound to alter or override the
existing laws as little as possible (Hall, International Law, 6th ed., 476).

The government established here under the Philippine Executive Commission was more in consonance with the general practice
among civilized nations, in establishing governments for the maintenance of peace and order and the administration of justice, in
territories of the enemy under military occupation; because said government was of a temporary character.

The government subsequently established under the so-called Philippine Republic, with a new constitution, was also of the nature of
a de facto government, in accordance with International Law, as it was established under the authority of the military occupant and
supported by the armed forces of the latter. But it was somewhat different from that established under the Philippine Executive
Commission, because the former apparently, at least, had the semblance of permanency, which however, is unusual in the practices
among civilized nations, under similar circumstances.

Under military occupation, the original national character of the soil and of the inhabitants of the territory remains unaltered; and
although the invader is invested with quasisovereignity, which give him a claim as of right to the obedience of the conquered
population, nevertheless, its exercise is limited by the qualification which has gradually become established, that he must not, as a
general rule, modify the permanent institutions of the country (Hall, International Law, 6th ed., p. 460).

The Convention Concerning the Laws and Customs of War on Land, adopted at The Hague in 1899, lays down (Arts. 42, 43) definite
rules concerning military authority over the territory of a hostile state. In addition to codifying the accepted law, it provides that the
occupant must respect, unless absolutely prevented, the laws in force in the country.
 38

It will thus be readily seen that the municipal law of the invaded state continues in force, in so far as it does not affect the hostile
occupant unfavorably. The regular courts of the occupied territory continue to act in cases not affecting the military occupation; and
it is not customary for the invader to take the whole administration into his own hands, as it is easier to preserve order through the
agency of the native officials, and also because the latter are more competent to administer the laws of the territory; and the
military occupant, therefore, generally keeps in their posts such of the judicial officers as are willing to serve under him, subjecting
them only to supervision by the military authorities, or by superior civil authorities appointed by him (Young vs. United States, 97 U.
S., 39; 24 Law. ed., 992; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118; MacLeod vs. United States, 229 U. S., 416; 33 Sup.
Ct., 955; 57; Law. ed., 1260; Taylor, International Law, secs. 576, 578; Wilson, International Law, pp. 331-337; Hall, International Law,
6th ed. (1909), pp. 464, 465,475,476; Lawrence, International Law, 7th ed., pp. 421-413; Davis, Elements of International Law, 3rd
ed., pp. 330-332, 335; Holland, International Law, pp. 356-57, 359; Westlake, International Law, Part II, War 2d ed., pp. 121-123).

The judicial proceedings conducted, under the municipal law of the territory, before the court established by the military occupant
are general considered legal and valid, even after the government established by the invader had been displaced by the legitimate
government of said territory.

Thus the judgment rendered by the Confederate courts, during the Civil War, merely settling the rights of private parties actually
within their jurisdiction, not tending to defeat the legal rights of citizens of the United States, nor in furtherance of laws passed in aid
of the rebellion, had been declared legal, valid and binding (Coleman vs.Tennessee, 97 U. S 509., 24 Law. ed., 1118;
Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21 Law. ed., 660; Sprott vs. United States, 20 Wall., 249; 22 Law.
ed., 371)

When the military forces of the Confederate states were destroyed, their government perished, and with it all its enactments. But
the legislative acts of the several States forming the Confederacy stood on a different ground, and so far as they did not impair or
tend to impair the supremacy of the national authority, or the just rights of citizens under the Federal constitution, they were
considered as legal, valid and binding (Williams vs. Bruffy, 96 U. S., 177; 24 Law. ed., 716; Ford vs. Surget, 97 U. S., 594; 24 Law. ed.,
1018; United States vs. Ins. Co., 22 Wall. [ U. S.], 99; 22 Law. ed., 816; Ketchum vs. Buckley [1878], 99 U. S.,188; Johnson vs. Atlantic
G. & W. I. Transit Co., 156 U. S., 618; 15 Sup. Ct., 520).

In the later case, the Supreme Court of the United States reaffirmed that the judicial and legislative acts of the rebellious States,
as de facto governments, should be respected by the courts, if they were not hostile in their purpose or mode of enforcement to the
authority of the national government, and did not impair the rights of citizens under the Federal Constitution. (Baldy vs. Hunter, 171
U. S., 388; 18 Sup. Ct., 890; Law. ed., 208.)

Under the proclamation of General Douglas MacArthur, dated October 23, 1944, declaring null and void all laws, regulations and
processes issued and promulgated by the Philippine Executive Commission and the Philippine Republic, during Japanese occupation,
said Ordinance No. 7 promulgated on March 8, 1944, creating the Court of Special and Exclusive Criminal Jurisdiction, ostensibly for
the speedy reestablishment of peace and order, and Executive Commission, prescribing summary rules of procedure, and other
allied laws, such as Act No. 65 of the puppet republic, prescribing heavier penalties, became null and void, once the Japanese armies
in the Philippines had been defeated, as with them the de facto governments, successively established under them, perished, and
with them all their enactments and processes of a hostile character.

But there are other considerations equally important why judicial proceedings held and conducted before the courts established by
said de facto governments, under laws promulgated by them, should be declared null and void, without violating, in the least,
settled principles, judicial precedents or public policy.

Said Ordinance No. 7 adopted as integral parts thereof said Executive Order No. 157, as well as said Act No. 65 of the National
Assembly of the puppet republic, prescribing exceptionally heavy penalties for the crimes enumerated therein.
 39

The principal crimes mentioned in said Ordinance No. 7 and Act No. 65 of the puppet republic and the other allied laws are illegal
possession of firearms, robbery, violations of food-control laws, falsification malversation and bribery; and it was under said laws
that herein petitioner was prosecuted and sentenced to life imprisonment for the crime robbery.

The penalty of life imprisonment or death for robbery was aimed principally at the underground forces resolute and determined to
seize and remove stores of food provisions, whenever possible, to prevent them from falling into the hands of the enemy.

The penalty of twelve years' imprisonment for illegal possession of firearms was directed mainly against those underground forces,
that had been receiving arms from the forces of liberation across the seas.

Violation of food-control laws were included and used as a pretext and justification for the seizure and confiscation of food
provisions so badly needed by the invader.

And the inclusion under said Ordinance No. 7 of the crime of bribery and other was used as a cloak to conceal its venom and make
said law look innocent.

By the imposition of excessive penalties , by the denial of the remedy of habeas corpus, by compelling the accused to testify against
themselves, and by denying them the right of appeal to the highest court of the land, except where the death penalty was imposed,
and by its summary procedure, said Ordinance No. 7 and the other allied laws impaired and defeated the just and legal rights of
Filipino citizens under the Commonwealth Constitution, and the supremacy of the authority of the legitimate Government. Under
said laws, the persons accused were deprived of liberty without due process of law.

In the language of this Court, "the phrase 'due process of law' used in the Philippine Bill should receive a comprehensive
interpretation, and no procedure should be treated as unconstitutional which makes due provision for the trial of alleged criminal
before a court of competent jurisdiction, for bringing the accused into court and notifying him of the cause he is required to meet,
for giving him an opportunity to be heard, for the deliberation and judgement of the court, and for an appeal from such judgement
to the highest tribunal" (United States vs. Kennedy, 18 Phil., 122).

In their conception, in their purpose and mode of enforcement and execution said laws were hostile to the authority of the
Commonwealth Government and that of the United States of America; as they had been promulgated in furtherance of the war aims
of the enemy, and they are, therefore, of political character and complexion.

Those repressive laws were aimed at the men and women who had kept the faith, and whose heroes and martyrs now lie in graves
still unknown and whose names remain unsung; but whose heroic efforts and sacrifices have made immortal the legends of Filipino
resistance, and made possible our participation in the councils of free and liberty-loving peoples and nations.

Said laws are contrary to the principles of Democracy, championed by North America, whose gigantic efforts and heroic sacrifices
have vindicated human rights, human dignity and human freedom, and consecrated them anew all over the earth with the generous
blood of her children. They violate the fundamental principles of Justice for which civilized Mankind stands, under the benign
leadership of Totalitarianism and given all the nations of the earth a new birth as well as a new character of freedom, to enable each
and everyone to live a nobler and more worthy life and realize the justice and prosperity of the future.

For the foregoing reasons, I concur in the dispositive part of the opinion prepared by Mr. Justice Feria.

PERFECTO, J., concurring:

 40

On October 21, 1944, petitioner William F. Peralta began to serve, in the Muntinglupa Prison Camp, a sentence of life imprisonment
imposed by the Court of Special and Exclusive Criminal Jurisdiction, created by Ordinance No. 7 issued by President Laurel of the
Republic of the Philippines under the Japanese regime, and now seeks a writ of habeas corpus in order that his liberty may be
restored to him, contending that said Ordinance No. 7 was null and void ab initio because it was of a political complexion and its
provisions are violative of the fundamental laws of the Commonwealth of the Philippines.

Petitioner alleges that sometime in the month of September, 1943, he joined the Constabulary forces as a private, against his will,
and before joining it, he was for several times arrested and maltreated as a guerrilla member, he being then a minor only 17 years
old, and that he was prosecuted, not because he committed any crime, but because he joined the guerrilla organization, deserted
the Constabulary forces, and followed political and military activities in open allegiance to the Commonwealth Government and the
United States of America.

The Solicitor General, appearing in behalf of respondent Director of Prisons, answered the petition agreeing that the acts and
proceedings taken and had before said Court of Special and Exclusive Criminal Jurisdiction should be denied force and efficacy, and
therefore, recommended that the writ prayed for be granted.

At the hearing held on September 21, and 22, 1945, there appeared to argue the First Assistant Solicitor General, impugning the
validity of said Ordinance No. 7, and the City Fiscal of Manila, as amicus curiae, who sustained the validity if the said Ordinance and
the proceeding by virtue of which petitioner was sentenced to life imprisonment.

I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY THE OCTOBER PROCLAMATION OF GENERAL MACARTHUR

On October 23, 1944, General of the Army Douglas MacArthur, Commander in Chief of the Philippine-American Forces, which fought
in Bataan and later liberated the whole Philippines, as an aftermath of the liberation, issued a proclamation declaring:

1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority of the Government of
the United States, the sole and only government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;

2. That the laws now existing on the statute books of the Commonwealth of the Philippines and the regulations
promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines
free of enemy occupation and control; and

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

It appears that Ordinance No. 7 in question has been issued under the Japanese regime and that the judicial process under which
petitioner has been sentenced to life imprisonment, having been held in a court not belonging to the Commonwealth of the
Philippines but organized and established under the authority of the enemy, became null and void and without effect since October
23, 1944, by virtue of the above-quoted October Proclamation of General MacArthur.

We have explained at length our position as to the effects of said October Proclamation in our dissenting opinion in the case of Co
Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, 153, ante), and we deem it unnecessary to repeat what we stated in said
opinion.

It is fortunate that all the members of the Supreme Court arrived at a unanimous conclusion as to the absolute nullity of the process
under which petitioner is now being held in prison.
 41

The shocking character of the provisions of Ordinance No. 7 and the processes held under it show once more how General
MacArthur was absolutely right and justified in issuing the October Proclamation.

There are indications that more processes held under the Japanese regime will come to our knowledge, revealing strong grounds for
their annulment, justifying, like the process here in question, the wisdom of the decision of General MacArthur in nullifying in a
sweeping manner all judicial processes held during enemy occupation.

The October Proclamation is, in keeping with the following official statement of the President of the United States:

On the fourteenth of this month, a puppet government was set up in the Philippine Islands with Jose P. Laurel, formerly a
justice of the Philippine Supreme Court as president. Jorge Vargas, formerly a member of the Philippine Commonwealth
Cabinet and Benigno Aquino, also formerly a member of that cabinet, were closely associated with Laurel in this movement.
The first act of the new puppet regime was to sign a military alliance with Japan. The second act was a hypocritical appeal
for American sympathy which was made in fraud and deceit, and was designed to confuse and mislead the Filipino people.

I wish to make it clear that neither the former collaborationist "Philippine Executive Commission" nor the present Philippine
Republic has the recognition or sympathy of the Government of the United States. . . .

Our sympathy goes out to those who remain loyal to the United States and the Commonwealth — that great majority of the
Filipino people who have not been deceived by the promises of the enemy. . . .

October 23, 1943

FRANKLIN DELANO ROOSEVELT

President of the United States
(From U. S. Naval War College, International Law Documents, 1943, pp. 93, 94.)

Putting aside the October Proclamation, by a mere perusal of the ordinance in question, we will see immediately how such law and
the processes held under it are incompatible with the fundamental principles and essential safeguards in criminal procedure,
universally recognized in civilized modern nations and how such ordinance and processes can only be justified by a retrogressive and
reactionary mentality developed under the social, cultural, and political atmosphere of the era of darkness.

II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES

Section 5 of Ordinance No. 7 provides that cases arising under it shall follow the summary procedure provided in Act No. 65 of the
Laurel Philippine Republic, which, in turn, is the same as that established by Chapter II of Executive Order No. 157 of the Chairman of
the Vargas Philippine Executive Commission, dated May 18, 1943.

Under said procedure, "search warrants may be issued by the court or by any prosecuting officer, authorizing peace officers to
search for and seize any articles or objects described in the warrant, including those which may be regarded as evidence of an
offense under this order even if such articles or objects are not included among those described in section 2, Rule 122, of the Rules
of Court." This provision is repugnant to the Filipino sense of right in the matter of warrants of search and seizure, sense of right
which has been clearly and definitely stereotyped in the following words of our fundamental law:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure
shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complaint and witnesses he may produce, and particularly describing the
place to be searched, and the persons or things to be seized. (Art. III, sec. 1, No. 3, Constitution of the Philippines.)
 42

This constitutional provision is violated by the summary, unreasonable, and arbitrary procedure provided under the authority of the
ordinance in question:

(1) By authorizing "any prosecuting officer" to issue search warrants, when under our Constitution such search warrants should be
issued only by a judge;

(2) By trespassing the limits established by section 2, Rule 122, of the Rules of Court, considered as a necessary element to make the
warrant reasonable;

(3) By authorizing the search and seizure of articles or objects not described in warrant, which is the real meaning of the words
"including those which may be regarded as evidence of an offense under this Ordinance."

III. DISCRIMINATORY AND INIQUITOUS SUSPENSION OF THE WRIT OF HABEAS CORPUS

Section 7 of Ordinance No. 7 in question provides that "the privileges of the writ habeas corpus are hereby suspended with respect
to persons accused of, or under investigation for, any of the crimes and offenses enumerated in sections 1 and 2 hereof."

This provision is also violative of one of the fundamental guarantees established in the Constitution of the Philippines, which
provides that the writ of habeas corpus may be suspended only in case of "invasion, insurrection, or rebellion" and only "when the
public safety requires it."

The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion,
when the public safety requires it, in any of which events the same may be suspended wherever during such period the
necessity for such suspension shall exist. (Art. III, sec. 1, No. 14, Constitution of the Philippines.)

Again, it is evident that the ordinance in question is repugnant to the deep sense of right of our people. It is so, not only because it
suspends the privilege of the writ of habeas corpus, without the circumstances which can only justify said suspension, but because it
flagrantly violates the fundamental principle of equality before the law, by depriving the accused, in cases falling under the
ordinance in question, of the privilege of the writ of habeas corpus, which is not denied to the accused in all other cases:

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the
equal protection of the laws. (Art. III, sec. 1, No. 1, Constitution of the Philippines.)

IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST SELF- INCRIMINATION

Under section 18 of Executive Order No. 157, above mentioned, "the accused or his representative may be examined by the court,
and with the permission of the court, by the fiscal or other prosecuting officer as to any matters favorable or unfavorable to him of
his principal." (Emphasis ours.)

It is also provided that "statements made by the accused, his co-accused, or the representative of the accused or a person acting in a
similar capacity, irrespective of the circumstances under which they were made shall be admissible in evidence if material to the
issue." (Emphasis ours.)

Under section 21 of Executive Order No. 157, after arraignment and plea, "the judge shall interrogate the accused . . . as to facts and
circumstances of the case in order to clarify the points in dispute and those which are admitted." In the same section it is also
provided that "refusal of the accused to answer any questions made or allowed by the court may be considered unfavorable to him."
(Emphasis ours.)
 43

Under the same section the absence of an accused or of his representative "shall not be a ground for interrupting the proceedings or
attacking the validity of the judgment."

From the foregoing, it appears:

(1) That the accused may be examined by the court or any prosecuting officer as to any matters favorable or unfavorable to him;

(2) That the refusal of the accused to answer may be considered unfavorable to him;

(3) That statements made by the accused, "irrespective of the circumstances under which they were made" (that is, even under third
degree procedure, or exacted through brutal kempei tortures), shall be admissible in evidence;

(4) That not only the accused, but "his representative" (his lawyer, whose personal security was jeopardized under the Japanese
regime), may be examined by the court or by the fiscal or other prosecuting officer, as if said representative or attorney is facing the
same criminal prosecution instituted against his client;

(5) That the statement made by said representative or attorney, although exacted under duress, intimidation, or torture, shall be
admissible in evidence;

(6) That statements made by any person acting in a similar capacity as a representative of the accused which may be a relative or a
friend or, even an impostor who might pose as a representative to assure the doom of the accused, "irrespective of the
circumstances under which they were made (that is, even if made in the absence of the accused, or in the same circumstances under
which masked spies decreed the death of innocent citizens pointed by them during zoning concentrations), shall be admissible in
evidence;

(7) That trial shall proceed in the absence of the accused;

(8) That trial shall proceed in the absence of his attorney or other representative.

It is evident that the procedure established violates the following provisions of our fundamental code:

In all criminal prosecutions the accused shall be presumed to be innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a
speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses in his behalf. (Art. III, sec. 1, No. 17, Constitution of the Philippines.)

No person shall be compelled to be a witness against himself. (Art. III, sec. 1, No. 18, Idem.)

The procedure is so revolving, so nauseating, and so opposed to human nature, that it takes a real courage to keep our equanimity
while we are compelled to analyze it.

It is beyond our comprehension how a man, endowed with reason, could devise such an execrable system of judicial procedure,
which is but a shameless mockery of the administration of justice.

We must be very careful to retain zealously the constitutional guarantee against self-incrimination. We must not forget that that
constitutional guarantee was acquired as a result of protest against all inquisitorial and third degree procedures. We must not forget
how, not very long ago, in the thirteen colonies of America, alleged witches were burned at the stake, as a means of compelling
them to confess their fantastic compacts with the devil. We must not forget how an institution created in the twelfth century was
 44

the cause of so much tortures and sufferings, and that the terroristic menace of its rakes was abolished in Spain, and therefore in
Philippines, only in 1834.

We must not forget that during normal times, under the twentieth century lights, just before the last global war started, in the
United States of America and in the Philippines, denunciations of third degree procedures employed by agents the law were often
heard. This very Supreme Court, not only once, had to deal with cases where such tactics were conclusively proved. Even today,
among criminal cases we have under consideration, there is evidence of confessions exacted through cruel and brutal means.

No matter what merits can be found, from the theoretical point of view, in the arguments of those who are championing the
suppression of the constitutional guarantee against self-incrimination, the undeniable reality of human experience shows
conclusively the absolute need of such guarantee if justice must be served. Even with the existence of such guarantee, there are
officers of the law who cannot resist temptation of using their power to compel, through third degree methods, innocent or guilty
persons to admit involuntarily real or imaginary offenses. Let us allow changes tending to nullify the protection against self-
incrimination, and no man, however innocent he may be, shall be secure in his person, in his liberty, in his honor, in his life.

V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON

In section 6 of Ordinance No. 7, it is provided that "the decision of the special courts herein created shall be final except where the
penalty imposed is death, in which case the records of the particular case shall be elevated en consulta to a special division of the
Supreme Court composed of three members to be designated by the President of the Republic of the Philippines."

This provision is a clear violation of the fundamental right of appeal, constitutionally guaranteed to all accused in the Philippines.
Under the Constitution of the Philippines, all accused are entitled to appeal to the Supreme Court:

(1) In all cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulations is in question.
(Art. VIII, sec. 2, No. 1, Constitution of the Philippines.)

(2) In all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (Art. VIII, sec
2, No. 2, Idem.)

(3) In all cases in which the jurisdiction of any trial court is in issue. (Art. VIII, sec. 2, No. 3, Idem.)

(4) In all criminal cases in which the penalty imposed is death or life imprisonment. (Art. VIII, sec. 2, No. 4, Idem.)

(5) In all cases in which an error or question of law is involved. (Art. VIII, sec. 2, No. 5, Idem.)

Before the adoption of the Constitution of the Philippines, it was the prevailing theory in judicial decisions that the right of appeal is
not a fundamental one, but it is a mere privilege or mere statutory grant.

The drafters of our Constitution, taught by the unerring lessons of human experience, came to the conclusion that mistake is one of
the most irretrievable human weaknesses.

The drafters of our Constitution, therefore, considered it necessary to establish constitutional guarantees to reduce to its minimum
the effects of such innate human weakness by providing that the appeal to the highest tribunal of the land may be enjoyed by any
accused, who, under the specific provisions of the Constitution, believed himself to be the victim of a wrong in any inferior court.

The fact that the provisions of section 2, of Article VIII, of the Constitution, instead of stating that the accused shall not be denied of
the right of appeal in the cases mentioned therein, provide that the Supreme Court may not be deprived of its jurisdiction to review,
revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments
 45

and decrees of inferior courts, in the specified cases, does not impair nor diminish the fundamental character of the right of appeal
of the accused to the Supreme Court.

The provisions of section 2, of Article VIII, of the Constitution, have been enacted by our Constitutional Convention, not for the
benefit and well-being of the people.

In fact, the Supreme Court is just one of the instrumentalities created by the Constitution in the service of the people. The Supreme
Court is not an entity or institution whose rights and privileges must be constitutionally guaranteed. It is only a means. It is one of
the means considered necessary by our Constitution to better serve the supreme interest of the people.

As a matter of fact, the Supreme Court of the United States itself declared that the elimination of said tribunal is not incompatible
with the existence of a government of laws. In a case of denaturalization wherein the Government of the United States sought to
deprive a person of his American citizenship, on the ground that the 1928 platform of the Communist Party of the United States, to
which the respondent belonged, advocated the abolition of the supreme Court, of the Senate and the veto power of the President,
and replacement of congressional districts with "councils of workers" in which legislative and executive powers would be united, the
Federal Supreme Court declared:

These would indeed be significant changes in our governmental structure — changes which it is safe to say are not desired
by the majority of the people in this country — but whatever our personal views, as judges we cannot say that person who
advocates their adoption through peaceful and constitutional means is not in fact attached to the Constitution — those
institutions are not enumerated as necessary in the government's test of "general political philosophy", and it is
conceivable that "orderly liberty" could be maintained without them. The Senate has not gone free of criticism and one
object of the Seventeenth Amendment was to make it more responsive to the popular will. The unicameral legislature is not
unknown in the country. It is that this Court has played a large in the unfolding of the constitutional plan (sometimes too so
in the opinion of some observers), but we be arrogant indeed if we presume that a government of laws, with protection for
minority groups would be impossible without it. Like other agencies of government, this Court at various lines its existence
has not escaped the shafts of critics whose sincerity and attachment to the Constitution is beyond question — critics who
have accused it of assuming functions of judicial review not intended to be conferred upon it, or of abusing those function
to thwart the popular will, and who advocated various remedies taking a wide range. (Schneiderman vs. United States of
America, June 21, 1943.)

VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION OF THE LAWS

The constitutional guarantee of equal protection of the laws is evidently abridged in the summary procedure in criminal cases under
Ordinance No. 7:

(1) By the fact that the accused therein are victims of search warrants specially provided for them, where the guarantees against
unreasonableness in search warrants issued against other accused are specially eliminated.

(2) By depriving the accused, under the Ordinance No. 7, the privilege of the writ of habeas corpus enjoyed by the accused in other
cases.

(3) By depriving the accused, under Ordinance No. 7 of the fundamental right of appeal in all cases, except when sentenced of death
is imposed.

(4) By discriminating against the accused, under Ordinance No. 7, where the right of appeal is retained for them, that is, in cases
where the sentenced imposed is death, by entrusting the power to revised said sentence to small minority of the Supreme Court,
under the Japanese regime, and a minority of three justices to be specially called out by the President of the Laurel Philippine
 46

Republic, undoubtedly with the evident purpose of the confirmation of the conviction of the accused, and to make the appeal en
consulta just an empty gesture to make the situation of the accused more pitiful by lengthening is days of agony.

(5) By placing the accused, in the case in question, under the sword of Damocles of an unfavorable presumptions, should he refuse
to answer any question that the court or any prosecuting officer might propound to him.

Under our constitution, no one shall be deprived of the "equal protection of the laws". (Art. III, sec. 1, No. 1, Constitution of the
Philippines.)

VII. THE PRESUMPTION OF INNOCENCE OF THE ACCUSED IN ALL CRIMINAL PROSECUTIONS VIOLATED

Since the American flag began to fly over our soil, the fundamental guarantee that in all criminal prosecution the accused shall be
presumed innocent until the contrary is proved beyond all reasonable doubt, has been implanted in our country to remain forever.

That guarantee was consecrated in our Constitution:

In all criminal prosecution the accused shall be presumed to be innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a
speedy and a public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses in his behalf. (Art. III, sec. 1, No. 17, Constitution of the Philippines.)

This guarantee is undoubtedly violated when, in the summary procedure established by Ordinance No. 7, it is provided that the
refusal of the accused to answer any question, propounded by the court or any officer, "may raise unfavorable presumption against
him."

If we have to keep democracy in our country, we must be vigilant in upholding the constitutional principle that all persons shall be
presumed to be innocent until the contrary is proved beyond all reasonable doubt.

This principle is the opposite of that prevailing under autocracies, or under facist or totalitarian regimes. During the Japanese
occupation all persons who might fall under the suspicion of any Japanese or their spies and lackeys, were presumed to be guilty of
any imaginary crime until they were able to convince their victimizers of the contrary, beyond any reasonable doubt. Even then, they
were submitted to preventive tortures and long months of imprisonment, just in case they might think later of committing any
offense against the Japanese or their collaborators.

VIII. ORDINANCE NO. 7 VIOLATED THE HAGUE CONVENTION OF 1899

In the convention concerning the laws and customs of war on land, adopted by the Hague in 1899, it is provided that the military
occupant must respect the laws in force in the occupied country, unless absolutely prevented. (Arts. 42 and 43.)

The provision of the Convention has been flagrantly violated when, under the enemy occupation the Laurel Philippine Republic
enacted Ordinance No. 7 which suspended our laws, including the fundamental one, by substantially subverting the judicial
procedures in the special criminal cases instituted under said ordinance.

For this reason, said ordinance, being violative of international law, was null and void ab initio.

Under international law, under the most elemental principles of law, the legitimate government, once restored to its own territory,
after expelling the enemy invader, enjoys the absolute freedom of not recognizing or of nullifying any and all acts of the invader,
including those internationally legal ones. The situation is exactly the same as that of the owner of the house who can do anything in
it that pleases him, after expelling the bandit who was able to usurp its possession for a while.
 47

General McArthur exercised correctly that power by the sweeping nullification decreed in his October Proclamation.

But even without the October Proclamation, the judicial process — maybe it is better to say injudicial process — which resulted in
the imprisonment of petitioner, must be shorn of all effects because it had taken place under the authority of an ordinance which
was null and void ab initio.

IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN RENDERED UNDER FOREIGN AUTHORITY IS UNENFORCEABLE

The decision by which petitioner William F. Peralta was convicted and is being confined for life having been rendered by a tribunal
created, functioning, and acting under the authority of a foreign State, the Emperor of the Imperial Government of Japan, is
unenforceable.

It has, therefore, the nature of a foreign decision or judgment. For that reason, it is unenforceable within the Philippines or under
the Commonwealth, as we have shown in our opinion in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G.R. No. 5, p.
153, ante)

Said decision, having been rendered under Ordinance No. 7, which was null and void ab initio, carries the same vice as the ordinance
under which it was rendered.

But even admitting arguendo that said decision is valid, because it is so under international law, and is not included in the
nullification decreed by General Douglas MacArthur, still it cannot be enforced, being a foreign decision. A foreign decision can only
be enforced through the institution of an action before our tribunals. Even decisions of a court of the United States or of any of its
States or territories can be enforced in the Philippines only by the institution of an action or special proceeding before our own
courts. This theory is confirmed by sections 47 and 48, Rule 39, of the Rules of Court, which read:

SEC. 47. Effect of record of a court of the United States. — The effect of a judicial record of a court of the United States or of
a court of one of the States or territories of the United States, is the same in the Philippines as in the United States, or in the
States or territory where it was made, except that it can only be enforced here by an action or special proceeding, and
except, also, that the authority of a guardian, or executor, or administrator does not extend beyond the jurisdiction of the
Government under which he was invested with his authority.

SEC. 48. Effect of foreign judgments. — The effect of a judgement of a tribunal of a foreign country, having jurisdiction to
pronounce the judgement, is as follows:

(a) In case of a judgement against a specific thing, the judgment is conclusive upon the title to the thing;

(b) In case of a judgement against a person, the judgement is presumptive evidence of a right as between the parties and
their successors in interest by a subsequent title; but the judgement may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact.

X. THE STUNNING FACTS REVEALED IN THE REPORT OF THE DIRECTOR OF PRISONS.

At the hearing of this case, respondent Director of Prisons was required to submit statistical data concerning the number of
prisoners and the various crimes for which they were convicted by the Court of Special and Exclusive Criminal Jurisdiction.

In submitting said statistical data, the Solicitor General, as counsel for respondent, calls our attention to the fact that, out of the 92
prisoners committed by said courts to the Bureau of Prisons for confinement, fifty-five (55), that is more than one-half, were
convicted of illegal possession of firearms, and that only 3 are now actually in confinement serving sentences, among them the
petitioner in this proceeding, thus dissipating the unfounded fear entertained by the City Fiscal of Manila, to the effect that a
 48

pronouncement by this Supreme Tribunal that the sentences of the courts in question are null and void, will signify the release of
hundreds of criminals, whose liberty and mixing with society will endanger public peace and order.

Of the other two remaining prisoners serving sentence, one has been committed for evasion of service of sentence, and the other
for illegal possession of firearms.

Of the 55 prisoners convicted for illegal possession of firearms, 25 died, 23 were released, and 6 escaped, and this is the reason why
only one remains in confinement.

It is striking that so many prisoners died, 25 of those convicted for illegal possession of firearms, that is, almost 50% of them, 33 of
the total of 94 prisoners committed, or more than one-third of them. This unusual and shocking percentage of mortality is worth
inquiring into and, certainly, cannot be counted very favorably to judicial proceedings which eventually lead to such wholesale
death, if not outright massacre.

The fact that a big number of the prisoners, 21 of them, were able to escape, was not explained to us. Is it reasonable to surmise,
from the ruthless cruelty of the proceedings and of the penalties imposed, which exacted from the mouth of the First Assistant
Solicitor General, who appeared to argue the case in behalf of the respondent, the adjective "ferocious", that the wardens
themselves, moved by pity, directly or indirectly helped the escape?

More than one-third of the prisoners committed by the said courts in confinement to the Bureau of Prisons, that is, 33 of them died.
May we ask if they died because they were executed? Of those who died, one was convicted of profiteering in rice, one of robbery,
one of kidnapping of minor, one of violation of certain sections of Act No. 66, four of crimes against public order, and 25 of
possession of firearms. If all of them were executed by virtue of sentences rendered by the courts in question, that fact does not
speak very highly of their proceedings. If the accused died by natural death, there must be something physically or morally fatal in
said proceedings.

If a tree must be judged by the fruits it bears, how shall we judge proceedings so deadly, so fatal, so wantonly inhuman as the
proceedings had in the special courts in question?

The City Fiscal of Manila exerted great efforts to show that the fact that in the proceedings in question "the refusal of the accused to
answer any question made or allowed by the court may be considered unfavorable to him," does not violate the constitutional
guarantee against self-incrimination. He even goes to the extent of maintaining the theory that such constitutional guarantee is not
essential for the protection of the substantial rights of an accused.

His argument centered on the alleged freedom of the accused to refuse to answer any question made or allowed by the court,
alleging that, if the accused chooses to refuse to answer, the court cannot compel him to answer under menace of punishment for
contempt or through any other coercive or minatory measures.

The City Fiscal seems to labor under the belief that the fact that the silence of the accused "may be considered unfavorable to him",
is of no consequence at all.

Such belief can logically be entertained alone by ignoring completely the lessons of experience in human conduct.

If the refusal to answer can be considered unfavorably to the accused, is not that the same as placing him on the hard predicament
of choosing between testifying self-incriminating and risking the fatal effects of a legal presumption of guilt? Is not that the same as
placing him between the two steel cages of a dilemma: self-incrimination or presumption of guilt? Is not that the same as placing
him between Scylla and Charybdis, between a dagger and a wall? Either way, he will always find himself under the inexorable sword
of Damocles of sure punishment, whether he testifies or refuses to testify. It is not impossible to open a debate upon the abstract
 49

question whether the constitutional guarantee against self-incrimination should not remain. But the value of such a moot question,
for purposes of this case, is nil.

The constitutional guarantee had to be adopted as a protest against inquisitorial method of the past, when accused and suspects
were submitted to the most brutal torture to compel them to confess real or imaginary crimes. That past is not far away. It seems
that we are still smelling the stench of human flesh burned in the stakes, where suspected witches suffered iniquitous death.

There is no doubt that the procedure in question shows the purpose of pandering to the most flagitious doctrines in criminal
proceedings. The transgressions of the bill of rights in all its phases cannot be hidden even to a chela in constitutional law. It is the
very negation of the administration of justice. Such procedure has absolutely no place in the framework of our juridical system. We
will feel mere whifflers in our professed convictions, principles, and creed, if we should permit ourselves to fall into the weakness of
abetting it even for a moment, which could only happen once the flambeau of reason has ceased completely to burn. No one but the
truckling lackeys of the arrogant enemy could have the servility of applauding the implantation of the criminal procedure in
question.

All arguments and dissertations are useless to conceal the real fact. Behind and under said criminal process stealthily crawls and
trundles the Nippon psychosis, like a cobra with fangs overflowing with venom. To ferret it out from the hole where it lurks, waiting
for its victims, and crush its head with one hammer blow, is an imperative measure of national self-defense.

XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE RIGHT, TO IMMEDIATE RELEASE

After showing the absolute nullity of the judicial process under which petitioner has been convicted to suffer the penalty of life
imprisonment, the inevitable consequence is that he is entitled, as a matter of absolute right, to be immediately released, so that he
can once again enjoy a life of freedom, which is the natural boon to law-abiding residents of our country, and of which he was
unjustly deprived through means most abhorrent to human conscience.

We must not hesitate for one moment to do our duty in this case. The sooner we comply with it, the better. The process and
judgement under which petitioner has been convicted and is now undergoing an unjust imprisonment, is one of the hateful vestiges
left in our country by the moral savagery of a people spiritually perverted and debased. The seriousness of this matter cannot be
viewed with insouciance. We must not lose time to wipe out such vestiges if we must protect ourselves against their poisonous
effects in our political, social, and cultural patrimony.

We must erase those vestiges if we want to keep immune from all germs of decay the democratic institutions which are the pride of
our people and country, under which we are enjoying the blessings of freedom and with which we hope to assure the well-being and
happiness of the unending generations who will succeed us in the enjoyment of the treasures accumulated by a bountiful nature in
this Pearl of the Orient.

If we allow such vestiges to remain we are afraid that some historian may write about Philippine democracy, Philippine race, and
Philippine culture, what, on ancient art, Hegel said in the "Phenomenology of the Spirit", according to Kohler, the greatest work of
genius that the nineteenth century has produced:

The statues set up are corpses in stone, whence the animating soul has flown; while the hymns of praise are words from
which all belief has gone. The tables of the gods are bereft of spiritual food and drink, and from his games and festivals,
man no more receives the joyful sense of his unity with the Divine Being. The works of the muse lack the force and energy
of the Spirit which derived the certainty and assurance of itself just from the crushing ruin of goods and men. They are
themselves now just what they are for us — beautiful fruit broken off the tree, a kindly fate has passed on those works to
us, as a maiden might offer such fruit off tree. It is not their actual life as they exist, that is given us, not the tree that bore
them, not the earth and the elements, which constituted their substance, nor the climate that determined their constitutive
character, nor the change of seasons which controlled the process of their growth. So, too, it is not their living world that
 50

fate preserves and gives us with those works of ancient art, not the spring and summer of that ethical life in which they
bloomed and ripened, but the veiled remembrance alone of this reality.

Our sense of national self-preservation compels us, as an imperative duty, not only to restore immediately the petitioner to his
personal liberty, but, all possible means, to obliterate even the memory of the inquisitorial summary procedure depicted in the
present case.

Such procedure exhibits either inversion, retroversion, subversion, or perversion of elemental human concepts. It ignores
completely and debases the high purposes of a judicial procedure. It represents a hylistic ideology which proclaims the supremacy of
the state force over fundamental human rights. We must never allow the neck of our people to be haltered by the lethal string of
that ideology. It is a virus that must be eliminated before it produces the logical disaster. Such ideology is a cancerous excrescence
that must be sheared, completely extirpated, from the live tissues of our body politic, if the same must be saved.

We cannot understand how any one can justify the summary process in question under the principles embodied in our Constitution.
To profess attachment to those principles and, at the same time, to accept and justify such kind of criminal miscarriage of justice, is
just sheer hypocrisy. It is a repetition of what Seneca did when, after preaching moral virtues, justified without any compunction the
act of Nero, the sanguinary Roman Emperor, of murdering in cold blood his own mother. It is reproducing the crooked mentality of
Torquemada, who, upon the pretext of combating and persecuting heresy to save souls from hell, conceived the diabolical idea of
condemning their victims to an advanced version of hell in this life, and among those who suffered under the same spirit of
intolerance and bigotry which was its very essence are counted some of the greatest human characters, such as Galileo, Giordano
Bruno, and Girolamo Savonarola. That procedure might find justification in the thick heads of the Avars, Huns, Vandals, and Teutons,
or in the stratified mentality of Japanese cullions, but not in a healthy mind of a cultured person of modern times. To allow any
vestige any vestige of such procedure to remain is tantamount to reviving the situation during which our citizens endured sleepless
nights in constant fear of the hobnail terror stalking in the darkness, when their personal security and their life were hanging by the
thin of chance.

We wish a way could be found to free completely our people of the sense of shame, which they cannot help feeling, engendered by
members of our race who justified such abhorrent summary procedure and allowed themselves to become a party to the execution
of a scheme only acceptable to the undeveloped mentalities of the dark ages. It is a shame that makes our blood boil when we think
that countrymen of Father Gomez, of Rizal, of Mabini, could accept procedures representing the brutal ideology which is the very
opposite of the humane, lofty, and dignified ideology that placed said heroes and martyrs among the purest and noblest specimens
that humanity produced in all countries, in all time, for all ones and light years to come.

It is with joy and pride that we agree with all our brethren in unanimously granting petitioner the redress he seeks in his petition.

HILADO, J., concurring:

I concur in the result, as well as in the reasons stated in the majority opinion not inconsistent with the views expressed in my
dissenting opinion in G. R. No. L-5, Co Kim Cham vs. Valdez Tan Keh and Dizon (p. 199, ante).

However, I would additionally base my conclusion upon broader grounds.

Firstly, I reiterate here by reference the arguments advanced in said dissenting opinion in additional support of the conclusion that
the writ of mandamus herein sought should be granted. Secondly, the importance and transcendence of the legal principles involved
justify further elaboration.
 51

From the allegations of the petition herein, it can be deduced that the petitioner William F. Peralta was a "guerrillero" when he was
arrested, tried and convicted; and that he had never voluntarily submitted to the Japanese forces in his civil capacity.

No attempt is made in the Solicitor General's answer to controvert the facts alleged in the petition from which the foregoing
deduction flows, and from the record nothing appears which may tend to gainsay them. Even when he was forced temporarily to
join the Constabulary, which had been organized under orders of the Japanese Army in the Philippines, he did so against his will.

Even granting for the sake of argument, and laying aside for the moment the reasons to the contrary set forth in my aforesaid
dissenting opinion, that the rules of International Law regarding the power of a belligerent army of occupation to establish a
provisional government in an occupied enemy territory, are still binding upon the United States and the Commonwealth of the
Philippines, yet such rules would not be any avail to bind the herein petitioner by the laws, regulations, process and other acts of the
so-called "Republic of the Philippines", under and by virtue of which said petitioner has been convicted to life imprisonment by the
Court of Special and Exclusive Criminal Jurisdiction of Manila in Criminal Case No. 66 thereof.

If we analyze the different adjudications and treatises which have been cited in support of the validity or binding force of the acts of
such provisional governments, which have been variously called de facto governments, or governments of paramount force, with a
view to finding the real ground and philosophical justification for the doctrine therein announced, we will see that reason and that
justification are made to consist in the submission of the inhabitants upon whom the said acts have been held to be of obligatory or
binding force, to the army of occupation. Thus, to cite just a few typical examples, we quote the following excerpts from three
leading cases decided by the Supreme Court of the United States:

Excerpts from Thorington vs. Smith (8 Wall. [U. S.], 1; 19 Law. ed., 361)

That while it (government of paramount force) exists, it must necessarily be obeyed in civil matters by private citizens who,
by acts of obedience, rendered in submission to such force, do not become responsible, as wrong-doers, for those acts,
though not warranted by the laws of the rightful government (p. 363; Emphasis ours).

The authority of the United States over the territory was suspended, and the laws of the United States could no longer be
rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conqueror. (P. 364;
Emphasis ours.).

Excerpts from Fleming vs. Page (9 Howard. [U. S.], 603; 13 Law. ed., 276):

While it (Tampico) was occupied by our troops, they were in an enemy's country, and not in their own; the inhabitants were
still foreigners and enemies, and owed to the United States nothing more than the submission and obedience, sometimes
called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force which he is unable to
resist. (P. 281; Emphasis ours.)

Excerpts from United States vs. Rice (4 Wheat. [U. S.], 246; 4 Law. ed., 562):

The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could
no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the
conquerors. (P. 564; Emphasis ours.)

It results from the above-quoted pronouncements of the Supreme Court of the United States that the laws, regulations, processes
and other acts of the government that the occupying belligerent establishes are made binding only and precisely upon those
inhabitants from whom obedience could be effectively exacted, namely, those who remain within the effective reach of the
occupying forces and submit to them. This is plain common sense. Those who conceived and developed the doctrine could not
logically have thought of the army of occupation setting upon a civil government for those who still continued resistance. As to
 52

them, further military operations would be necessary to reduce them to submission, before one could think of civilly governing
them.

In the Philippines, during the occupation by the Japanese of Manila and certain other portions of the Archipelago, the overwhelming
majority of the people never submitted to the Japanese invaders, and never recognized any legality in the invasion of their country,
and to the very date of liberation refused to accept the alleged protection or benefits of the puppet governments of the "Philippine
Executive Commission" and the "Republic of the Philippines." The majority of our people lived in the provinces, in the farms, hills
and other places beyond the effective reach of the Japanese military garrisons. Only a small minority submitted to the invaders for
various reasons, such as their having been caught in Manila or other parts of the Island occupying government positions, or residing
therein without adequate facilities for escaping from or evading said invaders, reasons of ill health, disabling them from living the
hard life of the mountains, hills, or country places, and the like.

To have bound those of our people who constituted the great majority who never submitted to the Japanese oppressors, by the
laws, regulations, processes and other acts of those two puppet governments, would not only have been utterly unjust and
downright illegal, but would have placed them in the absurd and impossible condition of being simultaneously submitted to two
mutually hostile governments, with their respective constitutional and legislative enactments and institutions — on the one hand
bound to continue owing allegiance to the United States and the Commonwealth Government, and, on the other, to owe allegiance,
if only temporary, to Japan. Among them we find the petitioner William F. Peralta. The surrender of the Fil-American forces in
Bataan and Corregidor did not matter so far as this was concerned. Much less did that surrender obligate all the civil population to
submit to the Japanese, and obey all their future dictations. If it did, President Roosevelt and President Osmeña would not have so
heartily commended the Philippine resistance movement and so enthusiastically extolled the firm stand of those who participated
therein, in the former's message of October 23, 1943, and in the latter's speech of February 27, 1945, cited in the writer's above
mentioned dissenting opinion. If these historic utterances should seem incompatible with any provision of the Hague Convention,
we should understand from them that both Presidents must have considered such provision as no longer applicable to, or binding
upon, the United States and the Philippines. Who knows but that their attitude was based upon the renunciation of war as an
instrument of national policy by their respective peoples, which renunciation necessarily includes all the "rights" or "powers" which
may be claimed to be delivered from war so employed? Or else, upon the ground that such provisions does not support the
wrongful acts of Japan in the Philippines?

Another reason advanced to justify the creation of a provisional civil government, with its courts and other departments, in occupied
enemy territory, is the alleged convenience of the civil population. It can immediately be asserted in reply that the convenience of
the above-mentioned overwhelming majority of our people, far from requiring the establishment of such government, was in the
very nature of things positively opposed thereto. They not only did not need the supposed benefits of such a government, but they
actually reputed them as inimical to the larger interest of the very ideology and cause for which they were continuing their
resistance to those who would extend here the brutal power and pernicious influence of the now exploded "Greater East Asia Co-
Prosperity Sphere." They suffered, yes, and suffered much — but they placed that ideology and that cause high above their private
comfort. Let us not penalize them for it. If this government is democratic, and when it comes to a question of convenience, whose
will and whose convenience should prevail, that of the majority or that of the minority? Are we going to force those free citizens of
this free country to accept the alleged benefits and assume the burdens of a government they have never consented to own?

I am furthermore, of opinion that there is another important consideration which argues against the recognition of the said
government as a de facto government or government of paramount force during the Japanese occupation of the Philippine Islands.
Japan, in starting and prosecuting this war against the United States and her allies by breaking the most vital rules of civilized
warfare as prescribed by International Law, must be deemed to have forfeited the right to invoke that law in so far as specific
provisions thereof would favor her or her acts. Japan in treacherously attacking Pearl Harbor and the Philippines, successively on
December 7 and 8, 1941, violated the rule providing for the necessity of declaring war as established at the Hague Conference of
1907 (Lawrence, Principles of International Law, 7th ed., pp. 321-322, 325); she has infringed the rule requiring that war prisoners be
cared for and treated with humanity (Ibid, p. 377); the rule imposing the obligation to properly tend the sick and wounded (Ibid,
384), the rule interdicting bombing of open and defenseless cities (Ibid, 522, 523) when she bombed Manila after it had been
 53

declared an open city and all its military defenses had been removed; the rule exempting noncombatants from personal injury (Ibid,
397) — her violations of one or the other of which were matters of daily occurrence, one might say, during her three and a half years
of tyranny and oppression in this country, and were climaxed by the ignominious and indescribable atrocities of the mass massacre
of innocent civilians during the battle for Manila. In the interpretation of doubtful provisions of International Law, Doctor Lawrence,
in his work cited above, has the following to say:

. . . If a point of Municipal Law is doubtful, men resort to supreme court for a decision, or to a supreme legislature for an
interpreting statute; but if a point of International Law is doubtful, they can resort only to general reasoning for a
convincing argument, unless, indeed, they settle the question by blows. And International Law in many of its details is
peculiarly liable to disputes and doubts, because it is based on usage and opinion. He who in such a case bases his
reasoning on high considerations of morality may succeed in resolving the doubt in accordance with humanity and justice.
(Pp. 12, 13.).

It would seem that to deny Japan benefits, because she has refused to carry the burdens of the law, is to base our reasoning "on
high considerations of morality", and to resolve any doubt, there be, as to the point in question, "in accordance with humanity and
justice." In other words (even if we applied said rules to the instant case), Japan, under the circumstances of this case, could not be
heard to say that the government which she established here was a de facto government, or a government of paramount force, as in
the cases where such a government was deemed to exist.

In additional to what has been said above, let us see if the Japanese-sponsored "Republic of the Philippines" did not introduces such
fundamental and drastic changes in the political organization of this country, as it existed upon the date of the Japanese invasion, as
to vitiate with invalidity the acts of all its department, executive, judicial, and legislative. To begin with, the Commonwealth
Constitution was completely overthrown. It was replaced by the so-called constitution of the "Republic." A casual comparison of
these two instruments cannot fail to reveal a most revolutionary transformation of the political organization of the country. While
under the Commonwealth Constitution the retention of American sovereignty over the Philippines is expressly recognized, for the
purposes specified in the ordinance appended thereto, in the very preamble of the constitution of the "Republic" the independence
" of the Philippines is proclaim. While under the Commonwealth Constitution the President and Vice-President are elected "by direct
vote of the people "Art. VII, sec. 2), under the constitution of the "Republic" the President (no Vice-President is provided for) was
elected "by majority of all the members of the Assembly" (Art. II, sec. 2). While under Commonwealth Constitution the legislative
power is vested in a bicameral Congress with a Senate and a House of Representatives (Art. VI, sec. 1), under the constitution of the
"Republic" that power was vested in a unicameral National Assembly (Art. III, sec. 1). While under the Commonwealth Constitution
the Senators are chosen at large by the qualified electors of the Philippines (Art. VI, sec. 2) and the Representatives by the qualified
electors in the respective districts (Art. VI, sec. 2) and the Representative by the qualified electors in the respective districts (Art. VI,
5), under the constitution of the "Republic" the National Assembly was composed of the provincial governors and city mayors as
members ex-oficio, and of delegate elected every three years, one from each and every province and chartered city (Art. III, sec. 2),
While under the Commonwealth Constitution, respecting the Judicial Department, the members of Supreme Court and all judges of
inferior courts are appointed by the President with the consent of the Commission on Appointments of the Congress (Art. VII, sec.),
under the constitution of the "Republic" the members of the Supreme Court were appointed by the President with the advice of the
Cabinet, and all judges of interior courts, by the President with the advice of the Supreme Court (Art. IV, sec. 4).

These changes and innovations can be multiplied many times, but the foregoing will suffice for our purpose.

It has been said constantly in this discussion that political acts, or acts of a political complexion of a de factogovernment of
paramount force, are the only ones vitiated with nullity. Of course, I disagree with those who so hold. But even by this test the
"Republic" — or, which is the same, the Imperial Japanese Forces which gave it birth — in thus introducing such positive changes in
the organization of this country or suspending the working of that already in existence, executed a political act so fundamental and
basic in nature and operation that all subsequent acts of the new government which of course had to be based thereon, inevitably
had to be contaminated by the same vitiating defect.
 54

Thus judicial acts done under his control, when they are not of a political complexion, administrative acts so done, to the
extent that they take effect during the continuance of his control, and various acts done during the same time by private
persons under the sanction of municipal law, remain good.. Political acts on the other hand fall through as of course,
whether they introduce any positive change into the organization of the country, or whether they only suspend the working
of that already in existence. . . . (Hall, International Law, 6th ed., p. 483; Emphasis ours.)

Finally, upon closed scrutiny, we will find that all of the de facto governments or governments of paramount force which have been
cited in all this discussion were at the same time bona fide governments. The British established such a government in Castine, and
ran it is a purely British organization. The Americans established another such government in Tampico, and ran it as an American
organization. The Confederate States established a like government in the seceding States, and ran it as the Government of the
Confederacy. They were all frank, sincere, and honest in their deeds as well as in their words. But what happened in this country
during the Japanese occupation? When the "Republic of the Philippines" was established on October 14, 1943, under duress exerted
by the Japanese Army, did the Japanese openly, frankly, and sincerely say that government was being established under their orders
and was to be run subject to their direction and control? Far from it! They employed all the means they could conceive to deceive
the Filipino people and the outside world that they had given the Filipinos their independence, and that "Republic" thereunder. But
behind the curtain, from beginning to end, there was the Imperial Japanese Army giving orders and instructions and otherwise
directing and controlling the activities of what really was their creature for the furtherance of their war aims. I cannot believe that
those who conceived and developed the doctrine of de facto government or government of paramount force, ever intended to
include therein such a counterfeit organization as the Japanese contrived here — an organization which, like its counterparts in
Manchukuo, Nanking, Burma, and Vichy, has been appropriately called "puppet" by the civilized government of the world.

BRIONES, M., concurrente:

El mandamiento de habeas corpus que se solicita debe concederse.

La proclama del General McArthur de 23 de Octubre de 1944, lanzada cuatro dias despues de su desembarco en Leyte con las
fuerzas libertadoras, reza en parte lo siguiente:

3. Que todas las leyes, regulaciones y procesos de cualquier otro gobierno en Filipinas que no fuera el del Commonwealth
son nulos e invalidos y carecen de efecto legal en areas de Filipinas liberadas de la ocupacion y control del enemigo.

Recientemente se ha discutido mucho en esta jurisdiccion sobre si la anulacion de que trata dicha proclama puede referirse tambien
a actuaciones judiciales ( judicial processes). En el asunto de Co Kim Cham contra Valdez Tan Keh y Dizon, R.G. No. L-5 (pag,
133, ante), he opinado afirmativamente, esto es, que el alcance de esa proclama puede extenderse a veces a ciertos actos
o procesos judiciales. Reafirmo ahora mi opinion y con mayor vigor y enfasis si cabe. Porque, a mi juicio, la sentencia de reclusion
perpetua impuesta al recurrente bajo la ocupacion militar japonesa es de aquellos actos judiciales del passado regimen que por su
naturaleza y circunstancias reclaman una decidida y pronta accion de parte nuestra en el sentido de anularla y dejarla sin efecto. Mis
razones se exponen a continuacion.

Parece innegable que la ley procesal bajo la cual fue enjuiciado y convicto el recurrente durante la ocupacion japonesa era
absolutamente incompatible con las salvaguardias y garantias de un proceso justo, imparcial y ordenado que la constitucion y
legislacion procesal del Commonwealth de Filipinas otorgan a todo acusado en una causa criminal. Hay en dicha ley ciertos aspectos
decididamente repulsivos para una conciencia disciplinada en las normas y pricipios de una democracia constitucional.

Bajo nuestro sistema procesal el acusado tiene derecho a que no se le ponga en situacion de acriminarse. Tiene a derecho a callarse
sin que esto pueda astribuirsele cargo inculpatorio alguno. Este es un derecho fundamental, garantido por la constitucion.
 55

Empero bajo el sistema procesal que se discute, "la negativa del acusado a constestar cualqueira pregunta formulada por el tribunal
o permitida por el mismo, puede ser considerada en contra de dicho acusado." (Seccion 21, Orden Ejecutiva No. 157.) Bajo este
mismo sistema el caracter sumarisimo del proceso llega a tal extremo que "una sentencia condenatoria puede dictarse
inmediatemente contra el acusado siempre que los hechos discubiertos en el interrogatorio preliminar demuestren que el acusado
es culpable."

Bajo el sistema procesal del Commonwealth, cualquier acusado convicto ante el Juzgado de Primera Instancia tiene el derecho de
apelar de la sentencia para ante el Tribunal superior de revision; y en los casos de condena a reclusion perpetua o a muerte, el
Tribunal Supremo es el llamado a revisar la causa, siendo compulsoria la revision en el caso de condena a muerte. Esta jurisdiccion
del Tribunal Supremo en los casos de condena a reclusion perpetua y a muerte no se halla estatuida simplemente por una ley
ordinaria, sino que esta proveida en la misma constitucion del Commonwealth. Asi que el derecho del condenado a reclusion
perpetua o a muerte para que se revise su cuasa por el Tribunal Supremo es constitucional y, por ende, no puede ser abolido por un
simple fiat legislativo.

En cambio, bajo el sistema procesal en controversia las sentencias de los tribunales o sumarias eran de caracter final, excepto
cuando la pena impuesta fuera la de muerte, en cuyo caso los autos se elevaban en consulta a una division especial del Tribunal
Supremo compuesta de tres miembros (Ordenanza No. 7 de la llamada Republica de Filipinas por la que se crearon las tribunales
especiales o sumarios). De modo que en esta ordenanza no solo se suprimia de una plumada el derecho de apelar reconocido y
establecido por la legislacion procesal del Commonwealth aun en los casos de delitos y penas ordinarios, sino que inclusive quedaba
abolido el derecho de apelar otorgado por la constitucion del Commonwealth al acusado condenado a reclusion perpetua. Por este
motivo el recurrente, a quien se le habia impuesto esta pena por el alergado delito de robo, no pudo apelar de al sentencia para
ante el Tribunal Supremo.

La cuestion que ahora tenemos que determinar y resolver es si debemos reconocer validez y eficacia en la sentencia por la cual el
recurrente se halla extinguiendo su condena de reclusion perpetua, o debemos anularla ahora que esta en nuestras manos el poder
hacerlo, restablecida como esta enteramente la normalidad juridica y constitucional en nuestro pais.

En favor de la validez de dicha sentencia se arguye que fue dictada por un tribunal creado por un gobierno de jure; que aun
admitiendo el caracter inquisitorial, anti democratico de la ley procesal bajo la cual fue enjuiciado el acusado, el gobierno de
facto era dueño de establecer los procedimientos legales que quisiera; y que, segun las reglas y doctrinas conocidas de derecho
international, las sentencias por "crimenes de guerra" o delitos politicos" generalmente validas aun despues de restablecido el
gobierno de jure. Se alega que en estos casos el derecho no tiene mas remedio que ceder a la fuerza, aceptando la realidad de los
hechos consumados.

Se admite, sin embargo, que la regla tiene sus excepciones. Una de allas esque "los actos del ocupante militar que rebasen su poder
a tenor del criterio establecido en el articulo 43 de las Regulaciones de La Haya, son nulos y sin efecto con relacion al gobierno
legitimo." (Wheaton's International Law, 7th ed. [1944], p. 245.) Segun esto, las sentencias por "crimenes de guerra" o "delitos
politicos" cometidos durante la ocupacion son, por razones pecfetamente comprensibles, nulas e invalidas al restablecerse la
soberania legitima. Tambien quedan comprendidos bajo esta excepcion los denominados actos de caracter o complexion politica.

Otra limitacion a los poderes de un gobierno de ocupacion militar es que elejercicio de tales poderes debe extenderse tan solo hasta
donde fuese necesario para su seguridad y el exito de sus operaciones, teniendo particularmente en cuental el caracter transeunte
de su occupacion. Como regla general, al invasor se le prohibe alterar o suspender las leyes referentes a la propiedad y a las
relaciones personales privadas, o las leyes que regulan el orden moral de la comunidad. (Hall, Treatise on International Law, 7th ed.,
498,499). Lo que se hace fuera de estas limitaciones es en exceso de su competencia y es generalmente nulo al rstaurarse la
soberania legitima.

Otra excepcion es la que se refiere a los actos de un gobierno de facto resultante de una insurreccion, rebelion, revolucion o guerra
civil. A esteefecto se ha declarado, peo ejemplo. que los actos en fomento o apoyo de unarebelion contra los Estados Unidos, o
 56

encaminados a anular los justos derechos de los ciudadanos, y otros actos de igual indole, deben ser considerados, por lo general,
invalidos y nulos (Texas vs. White, 74 U. S.,733; 19 Law, ed., 240). En otro caso se ha declaro la validez de ciertos actos judiciales o
legislativos en estados insurreccionados, siempre que su proposito o modo de operacion no fuerte hostil a la autoridad del gobierno
nacional, o no conculcaren derechos de los ciudadanos bajo la Constitucion. — Horn vs. Lockhart, 17 Well, 570-581; 2 Law. ed., 660.)

Visto el caso que nos ocupa a la luz de estas doctrinas, ¿cual de ellas debemos adoptar para determinar si es o no valida la sentencia
por la la cual el recurrente sufre ahora pena de reclusion perpetua y pide ser liberado mediante peticion de habeas corpus?

Se aservera que no procede aplicar al presente caso la doctrina establecida en la jurisprudencia americana sobre gobiernos de
facto resultantes de una insureccion, revolucion o guerra civil porque evidentemente la llamada Republica de Filipinas instaurada
durante la ocupacion militar japonesa no tenia este caracter, sino que era mas bien un gobierno establecido mediantefuerza y
coaccion por los mismos invasores para promover ciertos designios politicos relacionados con sus fines de guerra. En otras palabras,
era el mismo gobierno militar de ocupacion con fachada filipina arreglada y arbitrada coercitivamente.

Mientras estoy conforme con una parte de la asercion, esto es, que la aludida republica no tenia caracter insurreccional ni
revolucionario, en disfrute de plena autonomia, sino que era simple producto de la coaccion y estaba mediatizada continuamente
por el invasor, difiero de la otra parte, aquella que declara inaplicable la conocida doctrina americana mencionada arriba sobre
gobiernos de facto establecidos en el curso de una insurreccion, revolucion o guerra civil. Y la razon es sencilla. Si a un gobierno de
factode este ultimo tipo — gobierno establecido, despues de todo, por compatriotas,por conciudadanos — se le coarta con la
restriccion de que sus actos legislativos o judiciales, en tanto son validos, al restaurarse el regimende jure, en cuanto no conculcaren
los derechos justos de los ciudadanos, a los derechos garantidos por la constitucion, parece que no existe ninguna razon por que no
se ha de aplicar la misma restriccion al gobierno de facto establecido como incidente de una guerra entre dos naciones
independientes y enemigas. En realidad, la razon de nulidad es mucho mas poderosa y fuertecuando, en su caso como el de
Filipinas, el enemigo invasor incio la agresion de una manera inicua y traicionera y la ejecuto luego con vesania y sadismo que
llegaron a extremos inconcebibles de barbarie. En este caso la conculcacion de los justos derechos de los ciudadanos, o de los
derechos garantidos por la constitucion cobra proporciones de mucha mayor gravedad porque viene a ser tan solo parte de un vasto
plan de rapiña, devastacion y atrocidades de todo genero cometidas contra la humanidad y contra las leyes y usos de la guerra entre
naciones civilizadas. El invasor, en este caso, es como el foragido que se coloca fuera de toda ley. Por tanto, no hay absolutamente
ninguna razon para no aplicarle una restriccion que se estimabuena para el insurrecto o revolucionario.

La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de facto resultantes de una insurreccion, rebelion o guerra
civil a gobiernos de facto establecidos como incidente en el curso de una guerra entre dos naciones independeientes enemigas es
que, frente a casos de conculcacion de los justos derechos de los ciudadanos, o de los garantidos por laconstitucion para los efectos
de declararlos validos o nulos al restablecerse el gobierno de jure, ya no se hace preciso examinar si los actos conculcatorios fueron
motivados por razones o exigencias de las seguridad y exito de las operaciones del ocupante militar, sino que la piedra de toque de
la validez o nulidad viene a ser tan solo el acto positivo mismo de la conculcacion.

Esta forma de racioncinio no solo no es heterodoxa a la luz de los pincipiosestablecidos de derecho internacional, sino parece ser
una logica inferenciade los mismos. Ya hemos visto que al ocupante militar en el curso de unaguerra internacional se le prohibe,
como regla general, alterar o suspenderlas leyes referentes a la propiedad y a las relaciones personales privadas, olas leyes que
regulan el orden moral de la comunidad. (Hall, Treatise on International Law, supra.) Ahora cabe preguntar: ¿Son los justos derechos
de los ciudadanos, o los fundamentales garantidos por la constitucion inferiores en categoria a la propiedad, o las relaciones
personales privadas, o al ordenmoral de la comunidad? ¿No son en cierto sentido hasta superiores? Por tanto,a nadie debe chocar
que la prohibicion se extienda a estas materias. Es unainclusion y perfectamente natural, mas que justificada por los avances y
conquistas del moderno derecho internacional. Notese que en las fraguas de esta ultima guerra se han forjado unas modalidades
juridicas harto originalesque denotan el esfuerzo supremo y gigante dela humanidad por superar la barbarie y por dar al traste con
las formulas arcaicas, reaccionarias. Para citar solamente algunos ejemplos los mas destados, tenemos el enjuiciamento de los
llamados criminales de la guerra, y la responsabilidad que se exige a los jefes militares por las atricidades cometidas por las tropas
bajo su mando.
 57

Mi conclusion, por tanto, es que desde cualquier angulo que se mire la sentencia impuesta al recurrente por el tribunal sumario de
la llamada republica de Filipinas debe ser declarada nula, acotando las palabras delProcurador General, "no solo por razones
fundadas en principios de derecho internacional, sino tambien por la mas apremiante y poderosa de las razones,la de preservar y
salvaguardar a nuestros ciudadanos de los actos del enemigo."

Dar validez a esa sentencia ahora, en plena atmosfera de libertad que respiran a pulmon lleno de resto de nuestros conciudadanos
menos el recurrente y otras que corrieron su suerte durante la ocupacion japonesa,equivaldria tanto como prolongar el regimen de
opresion bajo el cual se tramito y se dicto la referida sentencia. Es mas, equivaldria a sancionar laideologia totalitaria, despotica,
medieval contra la cual nuestro pueblo lucho tan heroicamente jugandose todo; vida libertad y bienes materiales.

Ciertamente no nos hemos librado de la opresion para llegar a tan irrisorioresultado.

Concedase el remedio pedido.

 58

EN BANC

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

ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.

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

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

RESOLUTION

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

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

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

Considering that the conclusion that the sovereignty of the United State was suspended in Castine, set forth in the decision
in the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our decision in the cases of Co
Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra, in connection with the question, not of
 59

sovereignty, but of the existence of a government de factotherein and its power to promulgate rules and laws in the
occupied territory, must have been based, either on the theory adopted subsequently in the Hague Convention of 1907,
that the military occupation of an enemy territory does not transfer the sovereignty to the occupant; that, in the first case,
the word "sovereignty" used therein should be construed to mean the exercise of the rights of sovereignty, because as this
remains vested in the legitimate government and is not transferred to the occupier, it cannot be suspended without putting
it out of existence or divesting said government thereof; and that in the second case, that is, if the said conclusion or
doctrine refers to the suspension of the sovereignty itself, it has become obsolete after the adoption of the Hague
Regulations in 1907, and therefore it can not be applied to the present case;

Considering that even adopting the words "temporarily allegiance," repudiated by Oppenheim and other publicists, as
descriptive of the relations borne by the inhabitants of the territory occupied by the enemy toward the military government
established over them, such allegiance may, at most, be considered similar to the temporary allegiance which a foreigner
owes to the government or sovereign of the territory wherein he resides in return for the protection he receives as above
described, and does not do away with the absolute and permanent allegiance which the citizen residing in a foreign country
owes to his own government or sovereign; that just as a citizen or subject of a government or sovereign may be prosecuted
for and convicted of treason committed in a foreign country, in the same way an inhabitant of a territory occupied by the
military forces of the enemy may commit treason against his own legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort; and that if the allegiance of a citizen or subject to his government or
sovereign is nothing more than obedience to its laws in return for the protection he receives, it would necessarily follow
that a citizen who resides in a foreign country or state would, on one hand, ipso factoacquire the citizenship thereof since
he has enforce public order and regulate the social and commercial life, in return for the protection he receives, and would,
on the other hand, lose his original citizenship, because he would not be bound to obey most of the laws of his own
government or sovereign, and would not receive, while in a foreign country, the protection he is entitled to in his own;

Considering that, as a corollary of the suspension of the exercise of the rights of sovereignty by the legitimate government
in the territory occupied by the enemy military forces, because the authority of the legitimate power to govern has passed
into the hands of the occupant (Article 43, Hague Regulations), the political laws which prescribe the reciprocal rights,
duties and obligation of government and citizens, are suspended or in abeyance during military occupation (Co Kim
cham vs. Valdez Tan Keh and dizon, supra), for the only reason that as they exclusively bear relation to the ousted
legitimate government, they are inoperative or not applicable to the government established by the occupant; that the
crimes against national security, such as treason and espionage; inciting to war, correspondence with hostile country, flight
to enemy's country, as well as those against public order, such as rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear relation to, and are penalized by our Revised Penal Code as
crimes against the legitimate government, are also suspended or become inapplicable as against the occupant, because
they can not be committed against the latter (Peralta vs. Director of Prisons, supra); and that, while the offenses against
public order to be preserved by the legitimate government were inapplicable as offenses against the invader for the reason
above stated, unless adopted by him, were also inoperative as against the ousted government for the latter was not
responsible for the preservation of the public order in the occupied territory, yet article 114 of the said Revised Penal Code,
was applicable to treason committed against the national security of the legitimate government, because the inhabitants of
the occupied territory were still bound by their allegiance to the latter during the enemy occupation;

Considering that, although the military occupant is enjoined to respect or continue in force, unless absolutely prevented by
the circumstances, those laws that enforce public order and regulate the social and commercial life of the country, he has,
nevertheless, all the powers of de facto government and may, at his pleasure, either change the existing laws or make new
ones when the exigencies of the military service demand such action, that is, when it is necessary for the occupier to do so
for the control of the country and the protection of his army, subject to the restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations, the laws of humanity and the requirements of public conscience
(Peralta vs. Director of Prisons, supra; 1940 United States Rules of Land Warfare 76, 77); and that, consequently, all acts of
the military occupant dictated within these limitations are obligatory upon the inhabitants of the territory, who are bound
 60

to obey them, and the laws of the legitimate government which have not been adopted, as well and those which, though
continued in force, are in conflict with such laws and orders of the occupier, shall be considered as suspended or not in
force and binding upon said inhabitants;

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

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

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

Considering that the Commonwealth of the Philippines was a sovereign government, though not absolute but subject to
certain limitations imposed in the Independence Act and incorporated as Ordinance appended to our Constitution, was
recognized not only by the Legislative Department or Congress of the United States in approving the Independence Law
above quoted and the Constitution of the Philippines, which contains the declaration that "Sovereignty resides in the
people and all government authority emanates from them" (section 1, Article II), but also by the Executive Department of
the United States; that the late President Roosevelt in one of his messages to Congress said, among others, "As I stated on
August 12, 1943, the United States in practice regards the Philippines as having now the status as a government of other
independent nations — in fact all the attributes of complete and respected nationhood" (Congressional Record, Vol. 29,
part 6, page 8173); and that it is a principle upheld by the Supreme Court of the United States in many cases, among them
in the case of Jones vs. United States (137 U.S., 202; 34 Law. ed., 691, 696) that the question of sovereignty is "a purely
political question, the determination of which by the legislative and executive departments of any government conclusively
binds the judges, as well as all other officers, citizens and subjects of the country.
 61

Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending the final and
complete withdrawal of the sovereignty of the United States "All citizens of the Philippines shall owe allegiance to the
United States", was one of the few limitations of the sovereignty of the Filipino people retained by the United States, but
these limitations do not away or are not inconsistent with said sovereignty, in the same way that the people of each State
of the Union preserves its own sovereignty although limited by that of the United States conferred upon the latter by the
States; that just as to reason may be committed against the Federal as well as against the State Government, in the same
way treason may have been committed during the Japanese occupation against the sovereignty of the United States as well
as against the sovereignty of the Philippine Commonwealth; and that the change of our form of government from
Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during
the Commonwealth, because it is an offense against the same government and the same sovereign people, for Article XVIII
of our Constitution provides that "The government established by this constitution shall be known as the Commonwealth of
the Philippines. Upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of
Philippine independence, the Commonwealth of the Philippines shall thenceforth be known as the Republic of the
Philippines";

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

Separate Opinions

PERFECTO, J., concurring:

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

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

Petitioner's thesis that allegiance to our government was suspended during enemy occupation is advanced in support of the
proposition that, since allegiance is identical with obedience to law, during the enemy occupation, the laws of the Commonwealth
were suspended. Article 114 of the Revised Penal Code, the law punishing treason, under the theory, was one of the laws obedience
to which was also suspended.

Allegiance has been defined as the obligation for fidelity and obedience which the individual owes to his government or his
sovereign in return for the protection which he receives.

"Allegiance", as the return is generally used, means fealty or fidelity to the government of which the person is either a
citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208.

"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty of obedience of a subject to the
sovereign, under whose protection he is." United States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. ed., 890.
 62

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

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

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

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

Classification. — Allegiance is of four kinds, namely: (1) Natural allegiance — that which arises by nature and birth; (2)
acquired allegiance — that arising through some circumstance or act other than birth, namely, by denization or
naturalization; (3) local allegiance-- that arising from residence simply within the country, for however short a time; and (4)
legal allegiance — that arising from oath, taken usually at the town or leet, for, by the common law, the oath of allegiance
might be tendered to every one upon attaining the age of twelve years. (3 C.J.S., p.885.)

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

"Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to his state — the obligation of
obedience and support which he owes to it. The state is the political person to whom this liege fealty is due. Its substance is
the aggregate of persons owing this allegiance. The machinery through which it operates is its government. The persons
who operate this machinery constitute its magistracy. The rules of conduct which the state utters or enforces are its law,
 63

and manifest its will. This will, viewed as legally supreme, is its sovereignty. (W.W. Willoughby, Citizenship and Allegiance in
Constitutional and International Law, 1 American Journal of International Law, p. 915.).

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

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

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

It is a comparatively modern corruption of ligeance (ligeantia), which is derived from liege (ligius), meaning absolute or
unqualified. It signified originally liege fealty, i. e., absolute and qualified fealty. 18 L. Q. Rev., 47.

xxx xxx xxx

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

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

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

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

There is similarity in characteristics between allegiance to the sovereign and a wife's loyalty to her husband. Because some external
and insurmountable force precludes the husband from exercising his marital powers, functions, and duties and the wife is thereby
deprived of the benefits of his protection, may the wife invoke the theory of suspended loyalty and may she freely share her bed
 64

with the assailant of their home? After giving aid and comfort to the assailant and allowing him to enjoy her charms during the
former's stay in the invaded home, may the wife allege as defense for her adultery the principle of suspended conjugal fidelity?

Petitioner's thesis on change of sovereignty at the advent of independence on July 4, 1946, is unacceptable. We have already
decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante) that the Constitution of the Republic is the same as that of the
Commonwealth. The advent of independence had the effect of changing the name of our Government and the withdrawal by the
United States of her power to exercise functions of sovereignty in the Philippines. Such facts did not change the sovereignty of the
Filipino people. That sovereignty, following our constitutional philosophy, has existed ever since our people began to exist. It has
been recognized by the United States of America, at least since 1935, when President Roosevelt approved our Constitution. By such
act, President Roosevelt, as spokesman of the American people, accepted and recognized the principle that sovereignty resides in
the people that is, that Philippine sovereignty resides in the Filipino people.

The same sovereignty had been internationally recognized long before the proclamation of independence on July 4, 1946. Since the
early part of the Pacific war, President Quezon had been sitting as representative of a sovereign people in the Allied War Council,
and in June, 1945, the same Filipino people took part — outstanding and brilliant, it may be added — in the drafting and adoption of
the charter of the United Nations, the unmistakable forerunner of the future democratic federal constitution of the world
government envisioned by all those who adhere to the principle of unity of all mankind, the early realization of which is anxiously
desired by all who want to be spared the sufferings, misery and disaster of another war.

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

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

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

Petitioner advances the theory that protection in the consideration of allegiance. He argues that the Commonwealth Government
having been incapacitated during enemy occupation to protect the citizens, the latter were relieved of their allegiance to said
government. The proposition is untenable. Allegiance to the sovereign is an indispensable bond for the existence of society. If that
bond is dissolved, society has to disintegrate. Whether or not the existence of the latter is the result of the social compact
mentioned by Roseau, there can be no question that organized society would be dissolved if it is not united by the cohesive power
of the citizen's allegiance. Of course, the citizens are entitled to the protection of their government, but whether or not that
government fulfills that duty, is immaterial to the need of maintaning the loyalty and fidelity of allegiance, in the same way that the
physical forces of attraction should be kept unhampered if the life of an individual should continue, irrespective of the ability or
inability of his mind to choose the most effective measures of personal protection.
 65

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

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

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

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

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

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

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

That no one raised a voice in protest against the enactment of said act and that no one, at the time the act was being considered by
the Senate and the House of Representatives, ever dared to expose the uselessness of creating a People's Court to try crime which,
as claimed by petitioner, could not have been committed as the laws punishing them have been suspended, is a historical fact of
which the Supreme Court may take judicial notice. This fact shows universal and unanimous agreement of our people that the laws
of the Commonwealth were not suspended and that the theory of suspended allegiance is just an afterthought provoked by a
desperate effort to help quash the pending treason cases at any cost.
 66

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

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

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

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

HILADO, J., concurring:

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

I. SUSPENDED ALLEGIANCE.

(a) Before the horror and atrocities of World War I, which were multiplied more than a hundred-fold in World War II, the nations
had evolved certain rules and principles which came to be known as International Law, governing their conduct with each other and
 67

toward their respective citizens and inhabitants, in the armed forces or civilian life, in time of peace or in time of war. During the
ages which preceded that first world conflict the civilized governments had no realization of the potential excesses of which "men's
inhumanity to man" could be capable. Up to that time war was, at least under certain conditions, considered as sufficiently justified,
and the nations had not on that account, proscribed nor renounced it as an instrument of national policy, or as a means of settling
international disputes. It is not for us now to dwell upon the reasons accounting for this historical fact. Suffice it to recognize its
existence in history.

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

International law is not capable of development by legislation, for there is no continuously sitting international legislature.
Innovations and revisions in international law are brought about by the action of governments designed to meet a change
circumstances. It grows, as did the common law, through decisions reached from time to time in adopting settled principles
to new situations.

xxx xxx xxx

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

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

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

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

Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of 1924 for the Pacific Settlement of
International Disputes, signed by the representatives of forty-eight governments, which declared that "a war of aggression
constitutes .. an International crime. . . .
 68

The Eight Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of forty-eight
member-nations, including Germany, declared that a war of aggression constitutes an international crime. At the Sixth Pan-
American Conference of 1928, the twenty-one American Republics unanimously adopted a resolution stating that "war of
aggression constitutes an international crime against the human species."

xxx xxx xxx

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

When Justice Jackson speaks of "a marked reversion to the earlier and sounder doctrines of international law" and "the re-
establishment of the principle of justifiable war," he has in mind no other than "the doctrine taught by Grotius, the father of
international law, that there is a distinction between the just and the unjust war — the war of defense and the war of aggression" to
which he alludes in an earlier paragraph of the same report.

In the paragraph of said report immediately preceding the one last above mentioned Justice Jackson says that "international law as
taught in the 19th and the early part of the 20th century generally declared that war-making was not illegal and no crime at law."
But, as he says in one of the paragraphs hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a reversal of the
view-point that all war is legal and has brought international law into harmony with the common sense of mankind — that
unjustifiable war is a crime. Then he mentions as other reversals of the same viewpoint, the Geneva Protocol of 1924 for the Pacific
Settlement of International Disputes, declaring that a war of aggression constitutes an international crime; the 8th assembly of the
League of Nations in 1927, declaring that a war of aggression constitutes an international crime; and the 6th Pan-American
conference of 1928, which unanimously adopted a resolution stating that war of aggression constitutes an international crime
against the human species: which enumeration, he says, is not an attempt at an exhaustive catalogue.

It is not disputed that the war started by Japan in the Pacific, first, against the United States, and later, in rapid succession, against
other allied nations, was a war of aggression and utterly unjustifiable. More aggressive still, and more unjustifiable, as admitted on
all sides, was its attack against the Philippines and its consequent invasion and occupation of certain areas thereof.

Some of the rules and principles of international law which have been cited for petitioner herein in support of his theory of
suspended allegiance, have been evolved and accepted during those periods of the history of nations when all war was considered
legal, as stated by Justice Jackson, and the others have reference to military occupation in the course of really justifiable war.

Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the aggressive war which threw the entire Pacific area
into a seething cauldron from the last month of 1941 of the first week of September, 1945, expressly agreed to outlaw, proscribe
and renounce war as an instrument of national policy, and bound herself to seek the settlement of her disputes with other nations
only by pacific means. Thus she expressly gave her consent to that modification of the then existing rules and principles of
international law governing the matter. With the modification, all the signatories to the pact necessarily accepted and bound
themselves to abide by all its implications, among them the outlawing, prescription and renunciation of military occupation of
another nation's territory in the course of a war thus outlawed, proscribed and renounced. This is only one way of saving that the
rules and principles of international law therefore existing on the subject of military occupation were automatically abrogated and
rendered ineffective in all future cases of war coming under the ban and condemnation of the pact.

If an unjustifiable war is a crime; if a war of aggression constitutes an international crime; if such a war is an international crime
against the human species: a nation which occupies a foreign territory in the course of such a war cannot possibly, under any
principle of natural or positive law, acquire or posses any legitimate power or right growing out or incident to such occupation.
Concretely, Japan in criminally invading the Philippines and occupying certain portions of its territory during the Pacific war, could
 69

not have nor exercise, in the legal sense — and only this sense should we speak here — with respect to this country and its citizens,
any more than could a burglar breaking through a man's house pretends to have or to exercise any legal power or right within that
house with respect either to the person of the owner or to his property. To recognize in the first instance any legal power or right on
the part of the invader, and in the second any legal power or right on the part of the burglar, the same as in case of a military
occupant in the course of a justifiable war, would be nothing short of legalizing the crime itself. It would be the most monstrous and
unpardonable contradiction to prosecute, condemn and hang the appropriately called war criminals of Germany, Italy, and Japan,
and at the same time recognize any lawfulness in their occupation invaded. And let it not be forgotten that the Philippines is a
member of the United Nations who have instituted and conducted the so-called war crimes trials. Neither should we lose sight of
the further fact that this government has a representative in the international commission currently trying the Japanese war
criminals in Tokyo. These facts leave no room for doubt that this government is in entire accord with the other United Nations in
considering the Pacific war started by Japan as a crime. Not only this, but this country had six years before the outbreak of the
Pacific war already renounced war as an instrument of national policy (Constitution, Article II, section 2), thus in consequence
adopting the doctrine of the Briand-Kellogg Pact.

Consequently, it is submitted that it would be absolutely wrong and improper for this Court to apply to the occupation by Japan of
certain areas of the Philippines during that war the rules and principles of international law which might be applicable to a military
occupation occurring in the course of a justifiable war. How can this Court recognize any lawfulness or validity in that occupation
when our own government has sent a representative to said international commission in Tokyo trying the Japanese "war criminals"
precisely for the "crimes against humanity and peace" committed by them during World War II of which said occupation was but
part and parcel? In such circumstances how could such occupation produce no less an effect than the suspension of the allegiance of
our people to their country and government?

(b) But even in the hypothesis — and not more than a mere hypothesis — that when Japan occupied the City of Manila and certain
other areas of the Philippines she was engaged in a justifiable war, still the theory of suspended allegiance would not hold good. The
continuance of the allegiance owed to a notion by its citizens is one of those high privileges of citizenship which the law of nations
denies to the occupant the power to interfere with.

. . . His (of occupant) rights are not, however, commensurate with his power. He is thus forbidden to take certain measures
which he may be able to apply, and that irrespective of their efficacy. The restrictions imposed upon him are in theory
designed to protect the individual in the enjoyment of some highly important privileges. These concern his allegiance to the
de jure sovereign, his family honor and domestic relations, religious convictions, personal service, and connection with or
residence in the occupied territory.

The Hague Regulations declare that the occupant is forbidden to compel the inhabitants to swear allegiance to the hostile
power. . . . (III Hyde, International Law, 2d revised ed., pp. 1898-1899.)

. . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance. Since the authority of the occupant is
not sovereignty, the inhabitants owe no temporary allegiance to him. . . . (II Oppenheim, International Law, pp. 341-344.)

The occupant's lack of the authority to exact an oath of allegiance from the inhabitants of the occupied territory is but a corollary of
the continuance of their allegiance to their own lawful sovereign. This allegiance does not consist merely in obedience to the laws of
the lawful sovereign, but more essentially consists in loyalty or fealty to him. In the same volume and pages of Oppenheim's work
above cited, after the passage to the effect that the inhabitants of the occupied territory owe no temporary allegiance to the
occupant it is said that "On the other hand, he may compel them to take an oath — sometimes called an 'oath of neutrality' — . . .
willingly to submit to his 'legitimate commands.' Since, naturally, such "legitimate commands" include the occupant's laws, it follows
that said occupant, where the rule is applicable, has the right to compel the inhabitants to take an oath of obedience to his laws; and
since according to the same rule, he cannot exact from the inhabitants an oath of obedience to his laws; and since, according to the
same rule, he cannot exact from the inhabitants an oath of allegiance, it follows that obedience to his laws, which he can exact from
them, does not constitute allegiance.
 70

(c) The theory of suspended allegiance is unpatriotic to the last degree. To say that when the one's country is unable to afford him in
its protection, he ceases to be bound to it by the sacred ties of allegiance, is to advocate the doctrine that precisely when his country
is in such distress, and therefore most needs his loyalty, he is absolved from the loyalty. Love of country should be something
permanent and lasting, ending only in death; loyalty should be its worth offspring. The outward manifestation of one or the other
may for a time be prevented or thwarted by the irresistible action of the occupant; but this should not in the least extinguish nor
obliterate the invisible feelings, and promptings of the spirit. And beyond the unavoidable consequences of the enemy's irresistible
pressure, those invisible feelings and promptings of the spirit of the people should never allow them to act, to speak, nor even to
think a whit contrary to their love and loyalty to the Fatherland. For them, indicted, to face their country and say to it that, because
when it was overrun and vanquished by the barbarous invader and, in consequence was disabled from affording them protection,
they were released from their sacred obligation of allegiance and loyalty, and could therefore freely adhere to its enemy, giving him
aid and comfort, incurring no criminal responsibility therefor, would only tend to aggravate their crime.

II. CHANGE OF SOVEREIGNTY

Article II, section 1, of the Constitution provides that "Sovereignty resides in the people and all government authority emanates from
them." The Filipino people are the self-same people before and after Philippine Independence, proclaimed on July 4, 1946. During
the life of the Commonwealth sovereignty resided in them under the Constitution; after the proclamation of independence that
sovereignty remained with them under the very same fundamental law. Article XVIII of the said Constitution stipulates that the
government established thereby shall be known as the Commonwealth of the Philippines; and that upon the final and complete
withdrawal of the sovereignty of the United States and the proclamation of Philippine independence, "The Commonwealth of the
Philippines shall thenceforth be known as the Republic of the Philippines." Under this provision the Government of the Philippines
immediately prior to independence was essentially to be the identical government thereafter — only the name of that government
was to be changed.

Both before and after the adoption of the Philippine Constitution the people of the Philippines were and are always the plaintiff in
all criminal prosecutions, the case being entitled: "The People of the Philippines vs. (the defendant or defendants)." This was already
true in prosecutions under the Revised Penal Code containing the law of treason. "The Government of the Philippines" spoken of in
article 114 of said Code merely represents the people of the Philippines. Said code was continued, along with the other laws, by
Article XVI, section 2, of the Constitution which constitutional provision further directs that "all references in such laws to the
Government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution" — of course, meaning the Commonwealth of the Philippines before, and the
Republic of the Philippines after, independence (Article XVIII). Under both governments sovereignty resided and resides in the
people (Article II, section 1). Said sovereignty was never transferred from that people — they are the same people who preserve it to
this day. There has never been any change in its respect.

If one committed treason againsts the People of the Philippines before July 4, 1946, he continues to be criminally liable for the crime
to the same people now. And if, following the literal wording of the Revised Penal Code, as continued by the Constitution, that
accused owed allegiance upon the commission of the crime to the "Government of the Philippines," in the textual words of the
Constitution (Article XVI, section 2, and XVIII) that was the same government which after independence became known as the
"Republic of the Philippines." The most that can be said is that the sovereignty of the people became complete and absolute after
independence — that they became, politically, fully of age, to use a metaphor. But if the responsibility for a crime against a minor is
not extinguished by the mere fact of his becoming of age, why should the responsibility for the crime of treason committed against
the Filipino people when they were not fully politically independent be extinguished after they acquire this status? The offended
party continues to be the same — only his status has changed.

PARAS, J., dissenting:

 71

During the long period of Japanese occupation, all the political laws of the Philippines were suspended. This is full harmony with the
generally accepted principles of the international law adopted by our Constitution(Article II, section 3) as a part of the law of the
Nation. Accordingly, we have on more than one occasion already stated that "laws of a political nature or affecting political relations,
. . . are considered as suspended or in abeyance during the military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil.,
113, 124), and that the rule "that laws of political nature or affecting political relations are considered suspended or in abeyance
during the military occupation, is intended for the governing of the civil inhabitants of the occupied territory." (Ruffy vs. Chief of
Staff, Philippine Army, 75, Phil., 875, 881.)

The principle is recognized by the United States of America, which admits that the occupant will naturally suspends all laws of a
political nature and all laws which affect the welfare and safety of his command, such action to be made known to the
inhabitants.(United States Rules of Land Welfare, 1940, Article 287.) As allegiance to the United States is an essential element in the
crime of treason under article 114 of the Revised Penal Code, and in view of its position in our political structure prior to the
independence of the Philippines, the rule as interpreted and practiced in the United States necessarily has a binding force and effect
in the Philippines, to the exclusion of any other construction followed elsewhere, such as may be inferred, rightly or wrongly, from
the isolated cases 1 brought to our attention, which, moreover, have entirely different factual bases.

Corresponding notice was given by the Japanese occupying army, first, in the proclamation of its Commander in chief of January 2,
1942, to the effect that as a "result of the Japanese Military operations, the sovereignty of the United States of America over the
Philippines has completely disappeared and the Army hereby proclaims the Military Administration under martial law over the
district occupied by the Army;" secondly, in Order No. 3 of the said Commander in Chief of February 20, 1942, providing that
"activities of the administrative organs and judicial courts in the Philippines shall be based upon the existing statutes, orders,
ordinances and customs until further orders provided that they are not inconsistent with the present circumstances under the
Japanese Military Administration;" and, thirdly, in the explanation to Order No. 3 reminding that "all laws and regulations of the
Philippines has been suspended since Japanese occupation," and excepting the application of "laws and regulations which are not
proper act under the present situation of the Japanese Military Administration," especially those "provided with some political
purposes."

The suspension of the political law during enemy occupation is logical, wise and humane. The latter phase outweighs all other
aspects of the principle aimed more or less at promoting the necessarily selfish motives and purposes of a military occupant. It thus
consoling to note that the powers instrumental in the crystallization of the Hague Conventions of 1907 did not forget to declare that
they were "animated by the desire to serve . . . the interest of the humanity and the over progressive needs of civilization," and that
"in case not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the
rule of the principles of international law, as they result from the usages established among civilized peoples, from the laws of
humanity, and the dictates of the public conscience." These saving statements come to the aid of the inhabitants in the occupied
territory in a situation wherein, even before the belligerent occupant "takes a further step and by appropriate affirmative action
undertakes to acquire the right of sovereignty for himself, . . . the occupant is likely to regard to himself as clothed with freedom to
endeavor to impregnate the people who inhabit the area concerned with his own political ideology, and to make that endeavor
successful by various forms of pressure exerted upon enemy officials who are permitted to retain the exercise of normal
governmental functions." (Hyde, International Law, Vol. III, Second Revised Edition, 1945, p. 1879.)

The inhabitants of the occupied territory should necessarily be bound to the sole authority of the invading power, whose interest
and requirements are naturally in conflict with those of the displaced government, if it is legitimate for the military occupant to
demand and enforce from the inhabitants such obedience as may be necessary for the security of his forces, for the maintenance of
law and order, and for the proper administration of the country (United States Rules of Land Warfare, 1940, article 297), and to
demand all kinds of services "of such a nature as not to involve the population in the obligation of taking part in military operations
against their own country" (Hague Regulations, article 52);and if, as we have in effect said, by the surrender the inhabitants pass
under a temporary allegiance to the government of the occupant and are bound by such laws, and such only, as it chooses to
recognize and impose, and the belligerent occupant `is totally independent of the constitution and the laws of the territory, since
occupation is an aim of warfare, and the maintenance and safety of his forces, and the purpose of war, stand in the foreground of
 72

his interest and must be promoted under all circumstances or conditions." (Peralta vs. Director of Prisons, 75 Phil., 285, 295), citing
United States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim, International Law, Vol. II. Sixth Edition, Revised, 1944,p. 432.)

He would be a bigot who cannot or would refuse to see the cruel result if the people in an occupied territory were required to obey
two antagonistic and opposite powers. To emphasize our point, we would adopt the argument, in a reverse order, of Mr. Justice
Hilado in Peralta vs. Director of Prisons (75 Phil., 285, 358), contained in the following passage:

To have bound those of our people who constituted the great majority who never submitted to the Japanese oppressors,
by the laws, regulations, processes and other acts of those two puppet governments, would not only have been utterly
unjust and downright illegal, but would have placed them in the absurd and impossible condition of being simultaneously
submitted to two mutually hostile governments, with their respective constitutional and legislative enactments and
institutions — on the one hand bound to continue owing allegiance to the United States and the Commonwealth
Government, and, on the other, to owe allegiance, if only temporary, to Japan.

The only sensible purpose of the treason law — which is of political complexion and taken out of the territorial law and penalized as
a new offense committed against the belligerent occupant, incident to a state of war and necessary for the control of the occupant
(Alcantara vs. Director of Prisons, 75 Phil., 494), — must be the preservation of the nation, certainly not its destruction or
extermination. And yet the latter is unwittingly wished by those who are fond of the theory that what is suspended is merely the
exercise of sovereignty by the de jure government or the latter's authority to impose penal sanctions or that, otherwise stated, the
suspension refers only to the military occupant. If this were to be the only effect, the rule would be a meaningless and superfluous
optical illusion, since it is obvious that the fleeing or displaced government cannot, even if it should want, physically assert its
authority in a territory actually beyond its reach, and that the occupant, on the other hand, will not take the absurd step of
prosecuting and punishing the inhabitants for adhering to and aiding it. If we were to believe the opponents of the rule in question,
we have to accept the absurd proposition that the guerrillas can all be prosecuted with illegal possession of firearms. It should be
borne in the mind that "the possession by the belligerent occupant of the right to control, maintain or modify the laws that are to
obtain within the occupied area is an exclusive one. The territorial sovereign driven therefrom, can not compete with it on an even
plane. Thus, if the latter attempt interference, its action is a mere manifestation of belligerent effort to weaken the enemy. It has no
bearing upon the legal quality of what the occupant exacts, while it retains control. Thus, if the absent territorial sovereign, through
some quasi-legislative decree, forbids its nationals to comply with what the occupant has ordained obedience to such command
within the occupied territory would not safeguard the individual from the prosecution by the occupant." (Hyde, International Law,
Vol. III, Second Revised Edition, 1945, p. 1886.)

As long as we have not outlawed the right of the belligerent occupant to prosecute and punish the inhabitants for "war treason" or
"war crimes," as an incident of the state of war and necessity for the control of the occupied territory and the protection of the army
of the occupant, against which prosecution and punishment such inhabitants cannot obviously be protected by their native
sovereign, it is hard to understand how we can justly rule that they may at the same time be prosecuted and punished for an act
penalized by the Revised Penal Code, but already taken out of the territorial law and penalized as a new offense committed against
the belligerent occupant.

In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution of the Commonwealth Government was
suspended during the occupation of the Philippines by the Japanese forces or the belligerent occupant at regular war with the
United States," and the meaning of the term "suspended" is very plainly expressed in the following passage (page 298):

No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwealth Constitution
relating to the rights of the accused under that Constitution, because the latter was not in force during the period of the
Japanese military occupation, as we have already stated. Nor may said Constitution be applied upon its revival at the time
of the re-occupation of the Philippines by the virtue of the priciple of postliminium, because "a constitution should operate
prospectively only, unless the words employed show a clear intention that it should have a retrospective effect," (Cooley's
 73

Constitutional Limitations, seventh edition, page 97, and a case quoted and cited in the foot-note), especially as regards
laws of procedure applied to cases already terminated completely.

In much the same way, we should hold that no treason could have been committed during the Japanese military occupation against
the United States or the Commonwealth Government, because article 114 of the Revised Penal Code was not then in force. Nor may
this penal provision be applied upon its revival at the time of the reoccupation of the Philippines by virtue of the principle
of postliminium, because of the constitutional inhibition against any ex post facto law and because, under article 22 of the Revised
Penal Code, criminal laws shall have a retroactive effect only in so far as they favor the accused. Why did we refuse to enforce the
Constitution, more essential to sovereignty than article 114 of the Revised Penal Code in the aforesaid of Peralta vs. Director of
Prisons if, as alleged by the majority, the suspension was good only as to the military occupant?

The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports our position. As analyzed and described in United
States vs. Reiter (27 Fed. Cas., 773), that case "was decided by the Supreme Court of the United States — the court of highest human
authority on that subject — and as the decision was against the United States, and in favor of the authority of Great Britain, its
enemy in the war, and was made shortly after the occurrence of the war out of which it grew; and while no department of this
Government was inclined to magnify the rights of Great Britain or disparage those of its own government, there can be no suspicion
of bias in the mind of the court in favor of the conclusion at which it arrived, and no doubt that the law seemed to the court to
warrant and demand such a decision. That case grew out of the war of 1812, between the United States and Great Britain. It
appeared that in September, 1814, the British forces had taken the port of Castine, in the State of Maine, and held it in military
occupation; and that while it was so held, foreign goods, by the laws of the United States subject to duty, had been introduced into
that port without paying duties to the United States. At the close of the war the place by treaty restored to the United States, and
after that was done Government of the United States sought to recover from the persons so introducing the goods there while in
possession of the British, the duties to which by the laws of the United States, they would have been liable. The claim of the United
States was that its laws were properly in force there, although the place was at the time held by the British forces in hostility to the
United States, and the laws, therefore, could not at the time be enforced there; and that a court of the United States (the power of
that government there having since been restored) was bound so to decide. But this illusion of the prosecuting officer there was
dispelled by the court in the most summary manner. Mr. Justice Story, that great luminary of the American bench, being the organ
of the court in delivering its opinion, said: 'The single question is whether goods imported into Castine during its occupation by the
enemy are liable to the duties imposed by the revenue laws upon goods imported into the United States.. We are all of opinion that
the claim for duties cannot be sustained. . . . The sovereignty of the United States over the territory was, of course, suspended, and
the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and
submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance of the British Government, and
were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case no other laws could be
obligatory upon them. . . . Castine was therefore, during this period, as far as respected our revenue laws, to be deemed a foreign
port, and goods imported into it by the inhabitants were subjects to such duties only as the British Government chose to require.
Such goods were in no correct sense imported into the Unites States.' The court then proceeded to say, that the case is the same as
if the port of Castine had been foreign territory, ceded by treaty to the United States, and the goods had been imported there
previous to its cession. In this case they say there would be no pretense to say that American duties could be demanded; and upon
principles of public or municipal law, the cases are not distinguishable. They add at the conclusion of the opinion: 'The authorities
cited at the bar would, if there were any doubt, be decisive of the question. But we think it too clear to require any aid from
authority.' Does this case leave room for a doubt whether a country held as this was in armed belligerents occupation, is to be
governed by him who holds it, and by him alone? Does it not so decide in terms as plain as can be stated? It is asserted by the
Supreme Court of the United States with entire unanimity, the great and venerated Marshall presiding, and the erudite and
accomplished Story delivering the opinion of the court, that such is the law, and it is so adjudged in this case. Nay, more: it is even
adjudged that no other laws could be obligatory; that such country, so held, is for the purpose of the application of the law off its
former government to be deemed foreign territory, and that goods imported there (and by parity of reasoning other acts done
there) are in no correct sense done within the territory of its former sovereign, the United States."
 74

But it is alleged by the majority that the sovereignty spoken of in the decision of the United States vs. Rice should be construed to
refer to the exercise of sovereignty, and that, if sovereignty itself was meant, the doctrine has become obsolete after the adoption
of the Hague Regulations in 1907. In answer, we may state that sovereignty can have any important significance only when it may be
exercised; and, to our way of thinking, it is immaterial whether the thing held in abeyance is the sovereignty itself or its exercise,
because the point cannot nullify, vary, or otherwise vitiate the plain meaning of the doctrinal words "the laws of the United States
could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors."
We cannot accept the theory of the majority, without in effect violating the rule of international law, hereinabove adverted to, that
the possession by the belligerent occupant of the right to control, maintain or modify the laws that are to obtain within the occupied
area is an exclusive one, and that the territorial sovereign driven therefrom cannot compete with it on an even plane. Neither may
the doctrine in the United States vs. Rice be said to have become obsolete, without repudiating the actual rule prescribed and
followed by the United States, allowing the military occupant to suspend all laws of a political nature and even require public
officials and inhabitants to take an oath of fidelity (United States Rules of Land Warfare, 1940, article 309). In fact, it is a recognized
doctrine of American Constitutional Law that mere conquest or military occupation of a territory of another State does not operate
to annex such territory to occupying State, but that the inhabitants of the occupied district, no longer receiving the protection of
their native State, for the time being owe no allegiance to it, and, being under the control and protection of the victorious power,
owe to that power fealty and obedience. (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)

The majority have resorted to distinctions, more apparent than real, if not immaterial, in trying to argue that the law of treason was
obligatory on the Filipinos during the Japanese occupation. Thus it is insisted that a citizen or subject owes not a qualified and
temporary, but an absolute and permanent allegiance, and that "temporary allegiance" to the military occupant may be likened to
the temporary allegiance which a foreigner owes to the government or sovereign to the territory wherein he resides in return for
the protection he receives therefrom. The comparison is most unfortunate. Said foreigner is in the territory of a power not hostile to
or in actual war with his own government; he is in the territory of a power which has not suspended, under the rules of international
law, the laws of political nature of his own government; and the protections received by him from that friendly or neutral power is
real, not the kind of protection which the inhabitants of an occupied territory can expect from a belligerent army. "It is but
reasonable that States, when they concede to other States the right to exercise jurisdiction over such of their own nationals as are
within the territorial limits of such other States, should insist that States should provide system of law and of courts, and in actual
practice, so administer them, as to furnish substantial legal justice to alien residents. This does not mean that a State must or should
extend to aliens within its borders all the civil, or much less, all the political rights or privileges which it grants to its own citizens; but
it does mean that aliens must or should be given adequate opportunity to have such legal rights as are granted to them by the local
law impartially and judicially determined, and, when thus determined, protected." (Willoughby, The Fundamental Concepts of Public
Law [1931], p. 360.)

When it is therefore said that a citizen of a sovereign may be prosecuted for and convicted of treason committed in a foreign
country or, in the language of article 114 of the Revised Penal Code, "elsewhere," a territory other than one under belligerent
occupation must have been contemplated. This would make sense, because treason is a crime "the direct or indirect purpose of
which is the delivery, in whole or in part, of the country to a foreign power, or to pave the way for the enemy to obtain dominion
over the national territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and, very evidently, a territory already under
occupation can no longer be "delivered."

The majority likewise argue that the theory of suspended sovereignty or allegiance will enable the military occupant to legally recruit
the inhabitants to fight against their own government, without said inhabitants being liable for treason. This argument is not correct,
because the suspension does not exempt the occupant from complying with the Hague Regulations (article 52) that allows it to
demand all kinds of services provided that they do not involve the population "in the obligation of taking part military operations
against their own country." Neither does the suspension prevent the inhabitants from assuming a passive attitude, much less from
dying and becoming heroes if compelled by the occupant to fight against their own country. Any imperfection in the present state of
international law should be corrected by such world agency as the United Nations organizations.
 75

It is of common knowledge that even with the alleged cooperation imputed to the collaborators, an alarming number of Filipinos
were killed or otherwise tortured by the ruthless, or we may say savage, Japanese Army. Which leads to the conclusion that if the
Filipinos did not obey the Japanese commands and feign cooperation, there would not be any Filipino nation that could have been
liberated. Assuming that the entire population could go to and live in the mountains, or otherwise fight as guerrillas — after the
formal surrender of our and the American regular fighting forces, — they would have faced certain annihilation by the Japanese,
considering that the latter's military strength at the time and the long period during which they were left military unmolested by
America. In this connection, we hate to make reference to the atomic bomb as a possible means of destruction.

If a substantial number of guerrillas were able to survive and ultimately help in the liberation of the Philippines, it was because the
feigned cooperation of their countrymen enabled them to get food and other aid necessary in the resistance movement. If they
were able to survive, it was because they could camouflage themselves in the midst of the civilian population in cities and towns. It
is easy to argue now that the people could have merely followed their ordinary pursuits of life or otherwise be indifferent to the
occupant. The fundamental defect of this line of thought is that the Japanese assumed to be so stupid and dumb as not to notice any
such attitude. During belligerent occupation, "the outstanding fact to be reckoned with is the sharp opposition between the
inhabitants of the occupied areas and the hostile military force exercising control over them. At heart they remain at war with each
other. Fear for their own safety may not serve to deter the inhabitants from taking advantage of opportunities to interfere with the
safety and success of the occupant, and in so doing they may arouse its passions and cause to take vengeance in cruel fashion.
Again, even when it is untainted by such conduct, the occupant as a means of attaining ultimate success in its major conflict may,
under plea of military necessity, and regardless of conventional or customary prohibitions, proceed to utilize the inhabitants within
its grip as a convenient means of military achievement." (Hyde, International Law, Vol. III, Second Revised Edition [1945], p. 1912.) It
should be stressed that the Japanese occupation was not a matter of a few months; it extended over a little more than three years.
Said occupation was a fact, in spite of the "presence of guerrilla bands in barrios and mountains, and even in towns of the
Philippines whenever these towns were left by Japanese garrisons or by the detachments of troops sent on patrol to those places."
(Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.) The law of nations accepts belligerent occupation as a fact to be
reckoned with, regardless of the merits of the occupant's cause. (Hyde, International Law, Second Revised Edition [1945], Vol. III, p.
1879.)

Those who contend or fear that the doctrine herein adhere to will lead to an over-production of traitors, have a wrong and low
conception of the psychology and patriotism of their countrymen. Patriots are such after their birth in the first place, and no amount
of laws or judicial decisions can make or unmake them. On the other hand, the Filipinos are not so base as to be insensitive to the
thought that the real traitor is cursed everywhere and in all ages. Our patriots who fought and died during the last war, and the
brave guerrillas who have survived, were undoubtedly motivated by their inborn love of country, and not by such a thing as the
treason law. The Filipino people as a whole, passively opposed the Japanese regime, not out of fear of a treason statute but because
they preferred and will prefer the democratic and civilized way of life and American altruism to Japanese barbaric and totalitarian
designs. Of course, there are those who might at heart have been pro-Japanese; but they met and will unavoidably meet the
necessary consequences. The regular soldiers faced the risks of warfare; the spies and informers subjected themselves to the perils
of military operations, likely received summary liquidation or punishments from the guerrillas and the parties injured by their acts,
and may be prosecuted as war spies by the military authorities of the returning sovereign; those who committed other common
crimes, directly or through the Japanese army, may be prosecuted under the municipal law, and under this group even the spies and
informers, Makapili or otherwise, are included, for they can be made answerable for any act offensive to person or property; the
buy-and-sell opportunists have the war profits tax to reckon with. We cannot close our eyes to the conspicuous fact that, in the
majority of cases, those responsible for the death of, or injury to, any Filipino or American at the hands of the Japanese, were
prompted more by personal motives than by a desire to levy war against the United States or to adhere to the occupant. The alleged
spies and informers found in the Japanese occupation the royal road to vengeance against personal or political enemies. The recent
amnesty granted to the guerrillas for acts, otherwise criminal, committed in the furtherance of their resistance movement has in a
way legalized the penal sanctions imposed by them upon the real traitors.

It is only from a realistic, practical and common-sense point of view, and by remembering that the obedience and cooperation of the
Filipinos were effected while the Japanese were in complete control and occupation of the Philippines, when their mere physical
 76

presence implied force and pressure — and not after the American forces of liberation had restored the Philippine Government —
that we will come to realize that, apart from any rule of international law, it was necessary to release the Filipinos temporarily from
the old political tie in the sense indicated herein. Otherwise, one is prone to dismiss the reason for such cooperation and obedience.
If there were those who did not in any wise cooperate or obey, they can be counted by the fingers, and let their names adorn the
pages of Philippine history. Essentially, however, everybody who took advantage, to any extent and degree, of the peace and order
prevailing during the occupation, for the safety and survival of himself and his family, gave aid and comfort to the enemy.

Our great liberator himself, General Douglas MacArthur, had considered the laws of the Philippines ineffective during the
occupation, and restored to their full vigor and force only after the liberation. Thus, in his proclamation of October 23, 1944, he
ordained that "the laws now existing on the statute books of the Commonwealth of the Philippines . . . are in full force and effect
and legally binding upon the people in areas of the Philippines free of enemy occupation and control," and that "all laws . . . of any
other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control." Repeating what we have said in Co Kim Cham vs. Valdez Tan Keh and Dizon (75
Phil., 113, 133), "it is to be presumed that General Douglas MacArthur, who was acting as an agent or a representative of the
Government and the President of the United States, constitutional Commander-in-Chief of the United States Army, did not intend to
act against the principles of the law of nations asserted by the Supreme Court of the United States from the early period of its
existence, applied by the President of the United States, and later embodied in the Hague Conventions of 1907."

The prohibition in the Hague Conventions (Article 45) against "any pressure on the population to take oath to the hostile power,"
was inserted for the moral protection and benefit of the inhabitants, and does not necessarily carry the implication that the latter
continue to be bound to the political laws of the displaced government. The United States, a signatory to the Hague Conventions,
has made the point clear, by admitting that the military occupant can suspend all the laws of a political nature and even require
public officials and the inhabitants to take an oath of fidelity (United States Rules of Land Warfare, 1940, article 309), and as already
stated, it is a doctrine of American Constitutional Law that the inhabitants, no longer receiving the protection of their native state,
for the time being owe no allegiance to it, and, being under the control and protection of the victorious power, owe to that power
fealty and obedience. Indeed, what is prohibited is the application of force by the occupant, from which it is fair to deduce that the
Conventions do not altogether outlaw voluntary submission by the population. The only strong reason for this is undoubtedly the
desire of the authors of the Conventions to give as much freedom and allowance to the inhabitants as are necessary for their
survival. This is wise and humane, because the people should be in a better position to know what will save them during the military
occupation than any exile government.

"Before he was appointed prosecutor, Justice Jackson made a speech in which he warned against the use of judicial process for non
judicial ends, and attacked cynics who "see no reason why courts, just like other agencies, should not be policy weapons. If we want
to shoot Germans as a matter of policy, let it be done as such, said he, but don't hide the deed behind a court. If you are determined
to execute a man in any case there is no occasion for a trial; the word yields no respect for courts that are merely organized to
convict." Mussoloni may have got his just desserts, but nobody supposes he got a fair trial. . . . Let us bear that in mind as we go
about punishing criminals. There are enough laws on the books to convict guilty Nazis without risking the prestige of our legal
system. It is far, far better that some guilty men escape than that the idea of law be endangered. In the long run the idea of law is
our best defense against Nazism in all its forms." These passages were taken from the editorial appearing in the Life, May 28, 1945,
page 34, and convey ideas worthy of some reflection.

If the Filipinos in fact committed any errors in feigning cooperation and obedience during the Japanese military occupation, they
were at most — borrowing the famous and significant words of President Roxas — errors of the mind and not of the heart. We
advisedly said "feigning" not as an admission of the fallacy of the theory of suspended allegiance or sovereignty, but as an
affirmation that the Filipinos, contrary to their outward attitude, had always remained loyal by feeling and conscience to their
country.

Assuming that article 114 of the Revised Penal Code was in force during the Japanese military occupation, the present Republic of
the Philippines has no right to prosecute treason committed against the former sovereignty existing during the Commonwealth
 77

Government which was none other than the sovereignty of the United States. This court has already held that, upon a change of
sovereignty, the provisions of the Penal Code having to do with such subjects as treason, rebellion and sedition are no longer in
force (People vs. Perfecto, 43 Phil., 887). It is true that, as contended by the majority, section 1 of Article II of the Constitution of the
Philippines provides that "sovereignty resides in the people," but this did not make the Commonwealth Government or the Filipino
people sovereign, because said declaration of principle, prior to the independence of the Philippines, was subervient to and
controlled by the Ordinance appended to the Constitution under which, in addition to its many provisions essentially destructive of
the concept of sovereignty, it is expressly made clear that the sovereignty of the United States over the Philippines had not then
been withdrawn. The framers of the Constitution had to make said declaration of principle because the document was ultimately
intended for the independent Philippines. Otherwise, the Preamble should not have announced that one of the purposes of the
Constitution is to secure to the Filipino people and their posterity the "blessings of independence." No one, we suppose, will dare
allege that the Philippines was an independent country under the Commonwealth Government.

The Commonwealth Government might have been more autonomous than that existing under the Jones Law, but its non-sovereign
status nevertheless remained unaltered; and what was enjoyed was the exercise of sovereignty over the Philippines continued to be
complete.

The exercise of Sovereignty May be Delegated. — It has already been seen that the exercise of sovereignty is conceived of
as delegated by a State to the various organs which, collectively, constitute the Government. For practical political reasons
which can be easily appreciated, it is desirable that the public policies of a State should be formulated and executed by
governmental agencies of its own creation and which are not subject to the control of other States. There is, however,
nothing in a nature of sovereignty or of State life which prevents one State from entrusting the exercise of certain powers
to the governmental agencies of another State. Theoretically, indeed, a sovereign State may go to any extent in the
delegation of the exercise of its power to the governmental agencies of other States, those governmental agencies thus
becoming quoad hoc parts of the governmental machinery of the State whose sovereignty is exercised. At the same time
these agencies do not cease to be Instrumentalities for the expression of the will of the State by which they were originally
created.

By this allegation the agent State is authorized to express the will of the delegating State, and the legal hypothesis is that
this State possesses the legal competence again to draw to itself the exercise, through organs of its own creation, of the
powers it has granted. Thus, States may concede to colonies almost complete autonomy of government and reserve to
themselves a right of control of so slight and so negative a character as to make its exercise a rare and improbable
occurence; yet, so long as such right of control is recognized to exist, and the autonomy of the colonies is conceded to be
founded upon a grant and the continuing consent of the mother countries the sovereignty of those mother countries over
them is complete and they are to be considered as possessing only administrative autonomy and not political
independence. Again, as will be more fully discussed in a later chapter, in the so-called Confederate or Composite State, the
cooperating States may yield to the central Government the exercise of almost all of their powers of Government and yet
retain their several sovereignties. Or, on the other hand, a State may, without parting with its sovereignty of lessening its
territorial application, yield to the governing organs of particular areas such an amplitude of powers as to create of them
bodies-politic endowed with almost all of the characteristics of independent States. In all States, indeed, when of any
considerable size, efficiency of administration demands that certain autonomous powers of local self-government be
granted to particular districts. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75.).

The majority have drawn an analogy between the Commonwealth Government and the States of the American Union which, it is
alleged, preserve their own sovereignty although limited by the United States. This is not true for it has been authoritatively stated
that the Constituent States have no sovereignty of their own, that such autonomous powers as they now possess are had and
exercised by the express will or by the constitutional forbearance of the national sovereignty, and that the sovereignty of the United
States and the non-sovereign status of the individual States is no longer contested.
 78

It is therefore plain that the constituent States have no sovereignty of their own, and that such autonomous powers as they
now possess are had and exercised by the express will or by the constitutional forbearance of the national sovereignty. The
Supreme Court of the United States has held that, even when selecting members for the national legislature, or electing the
President, or ratifying proposed amendments to the federal constitution, the States act, ad hoc, as agents of the National
Government. (Willoughby, the Fundamental Concepts of Public Law [1931], p.250.)

This is the situation at the present time. The sovereignty of the United States and the non-sovereign status of the individual
States is no longer contested. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 251, 252.)

Article XVIII of the Constitution provides that "The government established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, the Commonwealth of the Philippines shall thenceforth be known as the Republic of the
Philippines." From this, the deduction is made that the Government under the Republic of the Philippines and under the
Commonwealth is the same. We cannot agree. While the Commonwealth Government possessed administrative autonomy and
exercised the sovereignty delegated by the United States and did not cease to be an instrumentality of the latter (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 74, 75), the Republic of the Philippines is an independent State not receiving its
power or sovereignty from the United States. Treason committed against the United States or against its instrumentality, the
Commonwealth Government, which exercised, but did not possess, sovereignty (id., p. 49), is therefore not treason against the
sovereign and independent Republic of the Philippines. Article XVIII was inserted in order, merely, to make the Constitution
applicable to the Republic.

Reliance is also placed on section 2 of the Constitution which provides that all laws of the Philippines Islands shall remain operative,
unless inconsistent therewith, until amended, altered, modified or repealed by the Congress of the Philippines, and on section 3
which is to the effect that all cases pending in courts shall be heard, tried, and determined under the laws then in force, thereby
insinuating that these constitutional provisions authorize the Republic of the Philippines to enforce article 114 of the Revised Penal
Code. The error is obvious. The latter article can remain operative under the present regime if it is not inconsistent with the
Constitution. The fact remains, however, that said penal provision is fundamentally incompatible with the Constitution, in that those
liable for treason thereunder should owe allegiance to the United States or the government of the Philippines, the latter being, as
we have already pointed out, a mere instrumentality of the former, whereas under the Constitution of the present Republic, the
citizens of the Philippines do not and are not required to owe allegiance to the United States. To contend that article 114 must be
deemed to have been modified in the sense that allegiance to the United States is deleted, and, as thus modified, should be applied
to prior acts, would be to sanction the enactment and application of an ex post facto law.

In reply to the contention of the respondent that the Supreme Court of the United States has held in the case of Bradford vs. Chase
National Bank (24 Fed. Supp., 38), that the Philippines had a sovereign status, though with restrictions, it is sufficient to state that
said case must be taken in the light of a subsequent decision of the same court in Cincinnati Soap Co. vs. United States (301 U.S.,
308), rendered in May, 1937, wherein it was affirmed that the sovereignty of the United States over the Philippines had not been
withdrawn, with the result that the earlier case only be interpreted to refer to the exercise of sovereignty by the Philippines as
delegated by the mother country, the United States.

No conclusiveness may be conceded to the statement of President Roosevelt on August 12, 1943, that "the United States in practice
regards the Philippines as having now the status as a government of other independent nations--in fact all the attributes of complete
and respected nationhood," since said statement was not meant as having accelerated the date, much less as a formal proclamation
of, the Philippine Independence as contemplated in the Tydings-McDuffie Law, it appearing that (1) no less also than the President
of the United States had to issue the proclamation of July 4, 1946, withdrawing the sovereignty of the United States and recognizing
Philippine Independence; (2) it was General MacArthur, and not President Osmeña who was with him, that proclaimed on October
23, 1944, the restoration of the Commonwealth Government; (3) the Philippines was not given official participation in the signing of
the Japanese surrender; (4) the United States Congress, and not the Commonwealth Government, extended the tenure of office of
the President and Vice-President of the Philippines.
 79

The suggestion that as treason may be committed against the Federal as well as against the State Government, in the same way
treason may have been committed against the sovereignty of the United States as well as against the sovereignty of the Philippine
Commonwealth, is immaterial because, as we have already explained, treason against either is not and cannot be treason against
the new and different sovereignty of the Republic of the Philippines.

Footnotes

PARAS, J., dissenting:

1
English case of De Jager vs. Attorney General of Naval; Belgian case of Auditeur Militaires vs. Van Dieren; cases of Petain,
Laval and Quisling.
 80

EN BANC

G.R. No. 206510 September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of
Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES,
JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk
VF A Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya,
GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A.
AFRICA, THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his capacity as Commanding Officer of the
USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the Philippines,
HON. ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office
of the President, . HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON JESUS P. P AJE,
Secretary, Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer
in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA, Commandant, Philippine Coast Guard,
COMMODORE ENRICO EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant
of Armed Forces of the Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan 2013
Exercise Co-Director, Respondents.

DECISION

VILLARAMA, JR, J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary Environmental Protection
Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases (Rules),
involving violations of environmental laws and regulations in relation to the grounding of the US military ship USS Guardian over the
Tubbataha Reefs.

Factual Background

The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language which means "long reef exposed at
low tide." Tubbataha is composed of two huge coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a
smaller coral structure about 20 kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of Palawan.1

In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by President Corazon C. Aquino on
August 11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at the
heart of the Coral Triangle, the global center of marine biodiversity.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization (UNESCO) as a World
Heritage Site. It was recognized as one of the Philippines' oldest ecosystems, containing excellent examples of pristine reefs and a
high diversity of marine life. The 97,030-hectare protected marine park is also an important habitat for internationally threatened
and endangered marine species. UNESCO cited Tubbataha's outstanding universal value as an important and significant natural
habitat for in situ conservation of biological diversity; an example representing significant on-going ecological and biological
processes; and an area of exceptional natural beauty and aesthetic importance. 2
 81

On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the "Tubbataha Reefs Natural Park (TRNP) Act
of 2009" "to ensure the protection and conservation of the globally significant economic, biological, sociocultural, educational and
scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present and future generations." Under the "no-take"
policy, entry into the waters of TRNP is strictly regulated and many human activities are prohibited and penalized or fined, including
fishing, gathering, destroying and disturbing the resources within the TRNP. The law likewise created the Tubbataha Protected Area
Management Board (TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP.

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the US Embassy in the
Philippines requested diplomatic clearance for the said vessel "to enter and exit the territorial waters of the Philippines and to arrive
at the port of Subic Bay for the purpose of routine ship replenishment, maintenance, and crew liberty." 4 On January 6, 2013, the ship
left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1âwphi1

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia. On January 17, 2013 at
2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80
miles east-southeast of Palawan. No cine was injured in the incident, and there have been no reports of leaking fuel or oil.

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the incident in a press
statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the Department of Foreign Affairs (DFA)
on February 4, "reiterated his regrets over the grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario that the
United States will provide appropriate compensation for damage to the reef caused by the ship."6 By March 30, 2013, the US Navy-
led salvage team had finished removing the last piece of the grounded ship from the coral reef.

On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective sector/organization and
others, including minors or generations yet unborn, filed the present petition agairtst Scott H. Swift in his capacity as Commander of
the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US Marine
Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US respondents"); President Benigno S. Aquino III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive Secretary Paquito
Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje (Department of Environment and
Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-Palawan), and Major General
Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine respondents."

The Petition

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause and continue to cause
environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental,
Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced
and healthful ecology. They also seek a directive from this Court for the institution of civil, administrative and criminal suits for acts
committed in violation of environmental laws and regulations in connection with the grounding incident.

Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067: unauthorized entry
(Section 19); non-payment of conservation fees (Section 21 ); obstruction of law enforcement officer (Section 30); damages to the
reef (Section 20); and destroying and disturbing resources (Section 26[g]). Furthermore, petitioners assail certain provisions of the
Visiting Forces Agreement (VFA) which they want this Court to nullify for being unconstitutional.

The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit: WHEREFORE, in view of the foregoing,
Petitioners respectfully pray that the Honorable Court: 1. Immediately issue upon the filing of this petition a Temporary
Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in particular,
 82

a. Order Respondents and any person acting on their behalf, to cease and desist all operations over the Guardian grounding
incident;

b. Initially demarcating the metes and bounds of the damaged area as well as an additional buffer zone;

c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the absence of clear guidelines,
duties, and liability schemes for breaches of those duties, and require Respondents to assume responsibility for prior and
future environmental damage in general, and environmental damage under the Visiting Forces Agreement in particular.

d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and limited commercial activities
by fisherfolk and indigenous communities near or around the TRNP but away from the damaged site and an additional
buffer zone;

2. After summary hearing, issue a Resolution extending the TEPO until further orders of the Court;

3. After due proceedings, render a Decision which shall include, without limitation:

a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v. Romulo, "to forthwith
negotiate with the United States representatives for the appropriate agreement on [environmental guidelines and
environmental accountability] under Philippine authorities as provided in Art. V[] of the VFA ... "

b. Direct Respondents and appropriate agencies to commence administrative, civil, and criminal proceedings against erring
officers and individuals to the full extent of the law, and to make such proceedings public;

c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction over erring U.S. personnel
under the circumstances of this case;

d. Require Respondents to pay just and reasonable compensation in the settlement of all meritorious claims for damages
caused to the Tubbataha Reef on terms and conditions no less severe than those applicable to other States, and damages
for personal injury or death, if such had been the case;

e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the collection and production of
evidence, including seizure and delivery of objects connected with the offenses related to the grounding of the Guardian;

f. Require the authorities of the Philippines and the United States to notify each other of the disposition of all cases,
wherever heard, related to the grounding of the Guardian;

g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or post salvage plan or plans,
including cleanup plans covering the damaged area of the Tubbataha Reef absent a just settlement approved by the
Honorable Court;

h. Require Respondents to engage in stakeholder and LOU consultations in accordance with the Local Government Code
and R.A. 10067;

i. Require Respondent US officials and their representatives to place a deposit to the TRNP Trust Fund defined under
Section 17 of RA 10067 as a bona .fide gesture towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate the areas affected by the grounding of the Guardian in light of
Respondents' experience in the Port Royale grounding in 2009, among other similar grounding incidents;
 83

k. Require Respondents to regularly publish on a quarterly basis and in the name of transparency and accountability such
environmental damage assessment, valuation, and valuation methods, in all stages of negotiation;

l. Convene a multisectoral technical working group to provide scientific and technical support to the TPAMB;

m. Order the Department of Foreign Affairs, Department of National Defense, and the Department of Environment and
Natural Resources to review the Visiting Forces Agreement and the Mutual Defense Treaty to consider whether their
provisions allow for the exercise of erga omnes rights to a balanced and healthful ecology and for damages which follow
from any violation of those rights;

n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the damaged areas of TRNP;

o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for violating the preemptory norm of nondiscrimination incorporated
as part of the law of the land under Section 2, Article II, of the Philippine Constitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and

4. Provide just and equitable environmental rehabilitation measures and such other reliefs as are just and equitable under
the premises.7 (Underscoring supplied.)

Since only the Philippine respondents filed their comment 8 to the petition, petitioners also filed a motion for early resolution and
motion to proceed ex parte against the US respondents.9

Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and ocular inspection and production orders,
respondents assert that: ( 1) the grounds relied upon for the issuance of a TEPO or writ of Kalikasan have become fait accompli as
the salvage operations on the USS Guardian were already completed; (2) the petition is defective in form and substance; (3) the
petition improperly raises issues involving the VFA between the Republic of the Philippines and the United States of America; and (
4) the determination of the extent of responsibility of the US Government as regards the damage to the Tubbataha Reefs rests
exdusively with the executive branch.

The Court's Ruling

As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present petition.

Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically, it is "a party's personal and substantial
interest in a case where he has sustained or will sustain direct injury as a result" of the act being challenged, and "calls for more than
just a generalized grievance."11 However, the rule on standing is a procedural matter which this Court has relaxed for non-traditional
plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the subject matter of the
controversy is of transcendental importance, of overreaching significance to society, or of paramount public interest.12

In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to "a balanced and healthful ecology
which, for the first time in our constitutional history, is solemnly incorporated in the fundamental law." We declared that the right to
a balanced and healthful ecology need not be written in the Constitution for it is assumed, like other civil and polittcal rights
 84

guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with
intergenerational implications.1âwphi1 Such right carries with it the correlative duty to refrain from impairing the environment. 14

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not only do ordinary citizens
have legal standing to sue for the enforcement of environmental rights, they can do so in representation of their own and future
generations. Thus:

Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that
they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of
nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-
shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the
present a:: well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a
sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the
generations to come.15 (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet unborn, is now enshrined in
the Rules which allows the filing of a citizen suit in environmental cases. The provision on citizen suits in the Rules "collapses the
traditional rule on personal and direct interest, on the principle that humans are stewards of nature."16

Having settled the issue of locus standi, we shall address the more fundamental question of whether this Court has jurisdiction over
the US respondents who did not submit any pleading or manifestation in this case.

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the State,17is expressly
provided in Article XVI of the 1987 Constitution which states:

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit, as follows:

The rule that a state may not be sued without its consent, now · expressed in Article XVI, Section 3, of the 1987 Constitution, is one
of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II, Section
2. x x x.

Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine
of incorporation. Under this doctrine, as accepted by the majority of states, such principles are deemed incorporated in the law of
every civilized state as a condition and consequence of its membership in the society of nations. Upon its admission to such society,
the state is automatically obligated to comply with these principles in its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that ''there can be
no legal right against the authority which makes the law on which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There
are other practical reasons for the enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals and
cannot assert jurisdiction over one another. A contrary disposition would, in the language of a celebrated case, "unduly vex the
peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
 85

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against
such officials will require the state itself to perform an affirmative act to satisfy the same,. such as the appropriation of the amount
needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been
formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state may move to dismiss the comp.taint on the
ground that it has been filed without its consent. 19 (Emphasis supplied.)

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states from the jurisdiction of local
courts, as follows:

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law then
closely identified with the personal immunity of a foreign sovereign from suit and, with the emergence of democratic states, made
to attach not just to the person of the head of state, or his representative, but also distinctly to the state itself in its sovereign
capacity. If the acts giving rise to a suit arc those of a foreign government done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign
from suit without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is
not accorded for the benefit of an individual but for the State, in whose service he is, under the maxim -par in parem, non habet
imperium -that all states are soverr~ign equals and cannot assert jurisdiction over one another. The implication, in broad terms, is
that if the judgment against an official would rec 1uire the state itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the state
itself, although it has not been formally impleaded.21 (Emphasis supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an immunity from the observance
of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.22

In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino employed at Clark Air Base
who was arrested following a buy-bust operation conducted by two officers of the US Air Force, and was eventually dismissed from
his employment when he was charged in court for violation of R.A. No. 6425. In a complaint for damages filed by the said employee
against the military officers, the latter moved to dismiss the case on the ground that the suit was against the US Government which
had not given its consent. The RTC denied the motion but on a petition for certiorari and prohibition filed before this Court, we
reversed the RTC and dismissed the complaint. We held that petitioners US military officers were acting in the exercise of their
official functions when they conducted the buy-bust operation against the complainant and thereafter testified against him at his
trial. It follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable
to their principal, which has not given its consent to be sued.

This traditional rule of State immunity which exempts a State from being sued in the courts of another State without the former's
consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and governmental acts (Jure imperil") from
private, commercial and proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State immunity extends only
to acts Jure imperii. The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs. 24

In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:
 86

It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the
rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc.,
et al. : "Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not
acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for
the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while
claiming to act for the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or
under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the
State may not be sued without its consent." The rationale for this ruling is that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.

xxxx

The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation
usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of
law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with
malice and in bad faith, or beyond the scope of his authority or jurisdiction. 26 (Emphasis supplied.) In this case, the US respondents
were sued in their official capacity as commanding officers of the US Navy who had control and supervision over the USS Guardian
and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was committed
while they we:re performing official military duties. Considering that the satisfaction of a judgment against said officials will require
remedial actions and appropriation of funds by the US government, the suit is deemed to be one against the US itself. The principle
of State immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of the US in this case, when
its warship entered a restricted area in violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the matter
within the ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception to this rule
in cases where they fail to comply with the rules and regulations of the coastal State regarding passage through the latter's internal
waters and the territorial sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-standing policy the US
considers itself bound by customary international rules on the "traditional uses of the oceans" as codified in UNCLOS, as can be
gleaned from previous declarations by former Presidents Reagan and Clinton, and the US judiciary in the case of United States v.
Royal Caribbean Cruise Lines, Ltd.27

The international law of the sea is generally defined as "a body of treaty rules arid customary norms governing the uses of the sea,
the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. It is a branch of public international law,
regulating the relations of states with respect to the uses of the oceans." 28 The UNCLOS is a multilateral treaty which was opened for
signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force on
November 16, 1994 upon the submission of the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare clausum) and the principle of
freedom of the high seas (mare liberum).29 The freedom to use the world's marine waters is one of the oldest customary principles
of international law.30 The UNCLOS gives to the coastal State sovereign rights in varying degrees over the different zones of the sea
which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives
coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located. 31
 87

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty, subject to the UNCLOS and
other rules of international law. Such sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.32

In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity subject to the following
exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and
disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea
immediately.

Article 31
Responsibility of the flag State for damage caused by a warship

or other government ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by
a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State
concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.

Article 32
Immunities of warships and other government ships operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of
warships and other government ships operated for non-commercial purposes. (Emphasis supplied.) A foreign warship's unauthorized
entry into our internal waters with resulting damage to marine resources is one situation in which the above provisions may apply.
But what if the offending warship is a non-party to the UNCLOS, as in this case, the US?

An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite this the US, the world's leading
maritime power, has not ratified it.

While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S. delegation ultimately voted against
and refrained from signing it due to concerns over deep seabed mining technology transfer provisions contained in Part XI. In a
remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS member states cooperated over the succeeding
decade to revise the objection.able provisions. The revisions satisfied the Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994, President Clinton transmitted UNCLOS and the Part XI implementing
agreement to the Senate requesting its advice and consent. Despite consistent support from President Clinton, each of his
successors, and an ideologically diverse array of stakeholders, the Senate has since withheld the consent required for the President
to internationally bind the United States to UNCLOS.

While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th Congresses, its progress
continues to be hamstrung by significant pockets of political ambivalence over U.S. participation in international institutions. Most
recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full Senate consideration among his
highest priorities. This did not occur, and no Senate action has been taken on UNCLOS by the 112th Congress. 34

Justice Carpio invited our attention to the policy statement given by President Reagan on March 10, 1983 that the US will "recognize
the rights of the other , states in the waters off their coasts, as reflected in the convention [UNCLOS], so long as the rights and
 88

freedom of the United States and others under international law are recognized by such coastal states", and President Clinton's
reiteration of the US policy "to act in a manner consistent with its [UNCLOS] provisions relating to traditional uses of the oceans and
to encourage other countries to do likewise." Since Article 31 relates to the "traditional uses of the oceans," and "if under its policy,
the US 'recognize[s] the rights of the other states in the waters off their coasts,"' Justice Carpio postulates that "there is more reason
to expect it to recognize the rights of other states in their internal waters, such as the Sulu Sea in this case."

As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN CLOS was centered on its
disagreement with UN CLOS' regime of deep seabed mining (Part XI) which considers the oceans and deep seabed commonly owned
by mankind," pointing out that such "has nothing to do with its [the US'] acceptance of customary international rules on navigation."

It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the ratification of the UNCLOS, as
shown by the following statement posted on its official website:

The Convention is in the national interest of the United States because it establishes stable maritime zones, including a maximum
outer limit for territorial seas; codifies innocent passage, transit passage, and archipelagic sea lanes passage rights; works against
"jurisdictiomtl creep" by preventing coastal nations from expanding their own maritime zones; and reaffirms sovereign immunity of
warships, auxiliaries anJ government aircraft.

xxxx

Economically, accession to the Convention would support our national interests by enhancing the ability of the US to assert its
sovereign rights over the resources of one of the largest continental shelves in the world. Further, it is the Law of the Sea Convention
that first established the concept of a maritime Exclusive Economic Zone out to 200 nautical miles, and recognized the rights of
coastal states to conserve and manage the natural resources in this Zone. 35

We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean that the US will disregard the rights
of the Philippines as a Coastal State over its internal waters and territorial sea. We thus expect the US to bear "international
responsibility" under Art. 31 in connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed,
it is difficult to imagine that our long-time ally and trading partner, which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation to compensate the damage caused by its warship while
transiting our internal waters. Much less can we comprehend a Government exercising leadership in international affairs, unwilling
to comply with the UNCLOS directive for all nations to cooperate in the global task to protect and preserve the marine environment
as provided in Article 197, viz:

Article 197
Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international
organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional
features.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the said treaty upholds the
immunity of warships from the jurisdiction of Coastal States while navigating the.latter's territorial sea, the flag States shall be
required to leave the territorial '::;ea immediately if they flout the laws and regulations of the Coastal State, and they will be liable
for damages caused by their warships or any other government vessel operated for non-commercial purposes under Article 31.
 89

Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke federal statutes in the US
under which agencies of the US have statutorily waived their immunity to any action. Even under the common law tort claims,
petitioners asseverate that the US respondents are liable for negligence, trespass and nuisance.

We are not persuaded.

The VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines to promote
"common security interests" between the US and the Philippines in the region. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. 36 The invocation of
US federal tort laws and even common law is thus improper considering that it is the VF A which governs disputes involving US
military ships and crew navigating Philippine waters in pursuance of the objectives of the agreement.

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to special civil actions such as the
present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal case
against a person charged with a violation of an environmental law is to be filed separately:

SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.

In any case, it is our considered view that a ruling on the application or non-application of criminal jurisdiction provisions of the VF A
to US personnel who may be found responsible for the grounding of the USS Guardian, would be premature and beyond the
province of a petition for a writ of Kalikasan. We also find it unnecessary at this point to determine whether such waiver of State
immunity is indeed absolute. In the same vein, we cannot grant damages which have resulted from the violation of environmental
laws. The Rules allows the recovery of damages, including the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the same violation of an environmental law. 37

Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of Kalikasan, to wit:

SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment
granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in
violation of environmental laws resulting in environmental destruction or damage;

(b) Directing the respondent public official, govemment agency, private person or entity to protect, preserve, rehabilitate or
restore the environment;

(c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with
the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the
execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners.
(Emphasis supplied.)
 90

We agree with respondents (Philippine officials) in asserting that this petition has become moot in the sense that the salvage
operation sought to be enjoined or restrained had already been accomplished when petitioners sought recourse from this Court. But
insofar as the directives to Philippine respondents to protect and rehabilitate the coral reef stn icture and marine habitat adversely
affected by the grounding incident are concerned, petitioners are entitled to these reliefs notwithstanding the completion of the
removal of the USS Guardian from the coral reef. However, we are mindful of the fact that the US and Philippine governments both
expressed readiness to negotiate and discuss the matter of compensation for the damage caused by the USS Guardian. The US
Embassy has also declared it is closely coordinating with local scientists and experts in assessing the extent of the damage and
appropriate methods of rehabilitation.

Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be gleaned from the following
provisions, mediation and settlement are available for the consideration of the parties, and which dispute resolution methods are
encouraged by the court, to wit:

RULE3

xxxx

SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the parties if they have settled the
dispute; otherwise, the court shall immediately refer the parties or their counsel, if authorized by their clients, to the Philippine
Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal
researcher for mediation.

Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of referral to mediation.

The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.

SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-trial. Before the scheduled date
of continuance, the court may refer the case to the branch clerk of court for a preliminary conference for the following purposes:

(a) To assist the parties in reaching a settlement;

xxxx

SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels under oath, and they shall remain
under oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may issue a consent
decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the
right of the people to a balanced and healthful ecology.

xxxx

SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or settle in accordance with law at
any stage of the proceedings before rendition of judgment. (Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port Royal, ran aground about half
a mile off the Honolulu Airport Reef Runway and remained stuck for four days. After spending $6.5 million restoring the coral reef,
the US government was reported to have paid the State of Hawaii $8.5 million in settlement over coral reef damage caused by the
grounding.38
 91

To underscore that the US government is prepared to pay appropriate compensation for the damage caused by the USS Guardian
grounding, the US Embassy in the Philippines has announced the formation of a US interdisciplinary scientific team which will
"initiate discussions with the Government of the Philippines to review coral reef rehabilitation options in Tubbataha, based on
assessments by Philippine-based marine scientists." The US team intends to "help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate Philippine government entities, non-governmental organizations,
and scientific experts from Philippine universities."39

A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief that may be obtained
under a judgment rendered in a citizens' suit under the Rules, viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs which shall include the protection,
preservation or rehabilitation of the environment and the payment of attorney's fees, costs of suit and other litigation expenses. It
may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be
borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of the court.1âwphi1

In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and rehabilitation measures
through diplomatic channels. Resolution of these issues impinges on our relations with another State in the context of common
security interests under the VFA. It is settled that "[t]he conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative-"the political" --departments of the government, and the propriety of what may be
done in the exercise of this political power is not subject to judicial inquiry or decision."40

On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of the VFA and to nullify
certain immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 41 the VFA was duly concurred in by the Philippine Senate and
has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United
States government. The VF A being a valid and binding agreement, the parties are required as a matter of international law to abide
by its terms and provisions.42 The present petition under the Rules is not the proper remedy to assail the constitutionality of its
provisions. WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

See Concurring Opinion

MARIA LOURDES P. A. SERENO
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
 92

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

(On official leave)

BIENVENIDO L. REYES
JOSE CATRAL MENDOZA*
Associate Justice
Associate Justice

See Separate Concurring Opinion

ESTELA M. PERLAS-BERNABE
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice

(No Part)
FRANCIS H. JARDELEZA**
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution, it is hereby certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* On official leave.
** No part.
1
T ubbataha Reefs Natural Park - <http://tubbatahareef org>.
2
Id.
3
"AN ACT ESTABLISHING THE TUBBATAHA REEFS NATURAL PARK IN THE PROVINCE OF PALAWAN AS A PROTECTED AREA
UNDER THE NIPAS ACT (R.A. 7586) AND THE STRATEGIC ENVIRONMENTAL PLAN (SEP) FOR PALAWAN ACT (R.A. 7611),
PROVIDING FOR ITS MANAGEMENT AND FOR OTHER PURPOSES."
4
Rollo, pp. 194-199.
5
< http://manila.usembassy.gov/pressphotoreleases2013/navy-commander-expresses-regret-concerning-uss-guardian-
grounding.html>.
6
"Joint Statement Between The Philippines And The United States On The USS Guardian Grounding On Tubbatata Reef,"
February 5, 2013. Accessed. at US Embassy website -
<http://manila.usembassy.gov/jointstatementguardiantubbataha.html>.
7
Rollo, pp. 89-92.
8
Id. at 156-191. In a letter dated 27 May 2013, the DFA's Office of Legal Affairs informed this Court that it has received from
the Embassy of the United States the Notice sent by this Court, with a request to return the same. It said that the US
Embassy "asserts that it is not an agent for the service of process upon the individuals named in court documents, and that
the transmission of the Court documents should have been done through diplomatic channels." (Id. at 255.)
 93

9
Id. at 215-247.
10
Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David v. Macapagal-Arroyo, 522
Phil. 705, 755 (2006).
11
Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005), citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 6I8, 632-
633 (2000).
12
Biraogo v. Philippine Truth Commission of2010, G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 151, citing
Social Justice Society (SJS) v. Dangerous Drugs Board, et al., 591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department
of Energy, 346 Phil. 321 (1997) and De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
13
G.R. No. 101083, July 30, 1993, 224 SCRA 792.
14
Id. at 804-805.
15
Id. at 802-803.
16
See ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES ..
17
Air Transportation Office v. Ramos, G.R. No. 159402, February 23, 2011, 644 SCRA 36, 41.
18
261 Phil. 777 (1990).
19
Id. at 790-792.
20
445 Phil. 250 (2003).
21
Id. at 269-270. Citations omitted.
22
Id. at 268, citing J.L. Brierly, "The Law of Nations," Oxford University Press, 6th Edition, 1963, p. 244.
23
Supra note 18, at 788-789 & 797.
24
United States of America v. Ruiz, 221 Phil. 179, 182-183 & 184 (1985).
25
G.R. No. 90314, November 27, 1990, 191 SCRA 713.
26
Id. at 727-728.
27
24 F Supp. 2d 155, 159 (D.P.R. 1997).
28
Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1.
29
Bertrand Theodor L. Santos, "Untangling a Tangled Net of Confusion: Reconciling the Philippine Fishery Poaching Law and
the UNCLOS' World Bulletin, Vol. 18: 83-116 (July-December 2002), p. 96.
30
Anne Bardin, "Coastal State's Jurisdiction Over Foreign Vessels" 14 Pace Int'!. Rev. 27, 28 (2002).
31
Id. at 29.
32
Art. 2, UNCLOS.
33
Art. 29 of UNCLOS defines warship as "a ship belonging to the armed forces of a State bearing the external marks
distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the
State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under
regular armed forces discipline."
34
Commander Robert C. "Rock" De Tolve, JAGC, USN, "At What Cost? Americas UNCLOS Allergy in the Time of 'Lav.fare'", 61
Naval L. Rev. 1, 3 (2012).
35
<http://www.jag.navy.mil/organizationlcode10lawofthesea.htm>.
36
See BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623, 652 (2000).
37
Rule 10, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES.
38
USS Port Royal (CG73)" - <http://navysite.de/cg/cg73.html>; "USS Port Royal Returns to Homeport", Navy Military Home
Page, Story Number NNS0902 l l-02 Release Date: 2/11/2009 6:00 AM -
<http://www.navymillsubmit/display.asp?story_id=42502>; "Navy, state reach settlement on USS Port Royal damage'',
posted Feb. 05, 2011 8:26 AM - <http:/!www.hawaiinewsnow.com!story/13974224/navystate-reach-settlement-on-uss-
port-royal-reef-damage>.
39
<http://manila.usembassy.gov/usgtargetedassistancetubbataha. html>.
40
Vinuya v. Romulo, G.R. No. 162230, April 28, 2010, 619 SCRA 533, 559, citing Detjen v. Central Leather Co., 246 U.S. 297,
302 (1918).
41
Supra note 36.
42
Nicolas v. Secretary Romulo, et al., 598 Phil. 262. 280 & 285.
 94

EN BANC

G.R. No. 185572

February 7, 2012
CHINA NATIONAL MACHINERY & EQUIPMENT CORP. (GROUP), Petitioner,

Versus

HON. CESAR D. SANTAMARIA, in his official capacity as Presiding Judge of Branch 145, Regional Trial Court of Makati City, HERMINIO
HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROGER R. RAYEL, ROMEL R. BAGARES, CHRISTOPHER FRANCISCO C. BOLASTIG, LEAGUE OF
URBAN POOR FOR ACTION (LUPA), KILUSAN NG MARALITA SA MEYCAUAYAN (KMM-LUPA CHAPTER), DANILO M. CALDERON,
VICENTE C. ALBAN, MERLYN M. VAAL, LOLITA S. QUINONES, RICARDO D. LANOZO, JR., CONCHITA G. GOZO, MA. TERESA D. ZEPEDA,
JOSEFINA A. LANOZO, and SERGIO C. LEGASPI, JR., KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), EDY CLERIGO, RAMMIL
DINGAL, NELSON B. TERRADO, CARMEN DEUNIDA, and EDUARDO LEGSON, Respondents.

DECISION
SERENO, J.:
This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Preliminary
Injunction assailing the 30 September 2008 Decision and 5 December 2008 Resolution of the Court of Appeals (CA) in CAG.R. SP
No. 103351. [1]
On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG), represented by its chairperson,
Ren Hongbin, entered into a Memorandum of Understanding with the North Luzon Railways Corporation (Northrail), represented by
its president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway line from Manila to San Fernando, La Union
(the Northrail Project).[2]
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines (DOF)
entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to extend Preferential Buyers Credit to the
Philippine government to finance the Northrail Project. [3] The Chinese government designated EXIM Bank as the lender, while the
Philippine government named the DOF as the borrower. [4] Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not
exceeding USD 400,000,000 in favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per annum.[5]
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose
Isidro Camacho (Sec. Camacho) informing him of CNMEGs designation as the Prime Contractor for the Northrail Project. [6]
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section I, Phase I of the North
Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement).[7] The contract price for the Northrail
Project was pegged at USD 421,050,000.[8]
On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial agreement Buyer Credit
Loan Agreement No. BLA 04055 (the Loan Agreement).[9] In the Loan Agreement, EXIM Bank agreed to extend Preferential Buyers
Credit in the amount of USD 400,000,000 in favor of the Philippine government in order to finance the construction of Phase I of the
Northrail Project.[10]
On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with Urgent Motion for
Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory
and Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the DOF, the Department of Budget and
Management, the National Economic Development Authority and Northrail. [11] The case was docketed as Civil Case No. 06-203 before
the Regional Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint, respondents alleged
that the Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184
(R.A. No. 9184), otherwise known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as
the Government Auditing Code; and (d) Executive Order No. 292, otherwise known as the Administrative Code. [12]
 95

RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance of injunctive reliefs. [13] On 29
March 2006, CNMEG filed an Urgent Motion for Reconsideration of this Order. [14] Before RTC Br. 145 could rule thereon, CNMEG filed
a Motion to Dismiss dated 12 April 2006, arguing that the trial court did not have jurisdiction over (a) its person, as it was an agent of
the Chinese government, making it immune from suit, and (b) the subject matter, as the Northrail Project was a product of an executive
agreement.[15]
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to Dismiss and setting the case for summary
hearing to determine whether the injunctive reliefs prayed for should be issued. [16] CNMEG then filed a Motion for
Reconsideration,[17] which was denied by the trial court in an Order dated 10 March 2008. [18] Thus, CNMEG filed before the CA a
Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008. [19]
In the assailed Decision dated 30 September 2008, the appellate court dismissed the Petition for Certiorari. [20] Subsequently,
CNMEG filed a Motion for Reconsideration,[21] which was denied by the CA in a Resolution dated 5 December 2008. [22] Thus, CNMEG
filed the instant Petition for Review on Certiorari dated 21 January 2009, raising the following issues: [23]
Whether or not petitioner CNMEG is an agent of the sovereign Peoples Republic of China.

Whether or not the Northrail contracts are products of an executive agreement between two sovereign
states.

Whether or not the certification from the Department of Foreign Affairs is necessary under the foregoing
circumstances.

Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii.

Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower court.

Whether or not the Northrail Project is subject to competitive public bidding.

Whether or not the Court of Appeals ignored the ruling of this Honorable Court in the Neri case.

CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of jurisdiction. It likewise requests this Court
for the issuance of a TRO and, later on, a writ of preliminary injunction to restrain public respondent from proceeding with the disposition
of Civil Case No. 06-203.
The crux of this case boils down to two main issues, namely:
1. Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.
2. Whether the Contract Agreement is an executive agreement, such that it cannot be questioned by or before a
local court.

First issue: Whether CNMEG is entitled to immunity

This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,[24] to wit:
There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the
courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or
acts jure gestionis. (Emphasis supplied; citations omitted.)

xxx xxx xxx

 96

The restrictive theory came about because of the entry of sovereign states into purely commercial activities
remotely connected with the discharge of governmental functions. This is particularly true with respect to the
Communist states which took control of nationalized business activities and international trading.

In JUSMAG v. National Labor Relations Commission,[25] this Court affirmed the Philippines adherence to the restrictive theory as
follows:
The doctrine of state immunity from suit has undergone further metamorphosis. The view evolved that the
existence of a contract does not, per se, mean that sovereign states may, at all times, be sued in local courts. The
complexity of relationships between sovereign states, brought about by their increasing commercial activities,
mothered a more restrictive application of the doctrine.

xxx xxx xxx

As it stands now, the application of the doctrine of immunity from suit has
been restricted to sovereign or governmental activities (jure imperii). The mantle of state immunity cannot be extended
to commercial, private and proprietary acts (jure gestionis).[26] (Emphasis supplied.)

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved whether the
entity claiming immunity performs governmental, as opposed to proprietary, functions. As held in United States of America v. Ruiz [27]
The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may
be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to
be sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of
its sovereign functions.[28]

A. CNMEG is engaged in a proprietary activity.

A threshold question that must be answered is whether CNMEG performs governmental or proprietary functions. A thorough
examination of the basic facts of the case would show that CNMEG is engaged in a proprietary activity.
The parties executed the Contract Agreement for the purpose of constructing the Luzon Railways, viz:[29]
WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to Malolos, section I,
Phase I of Philippine North Luzon Railways Project (hereinafter referred to as THE PROJECT);

AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis, including design,
manufacturing, supply, construction, commissioning, and training of the Employers personnel;

AND WHEREAS the Loan Agreement of the Preferential Buyers Credit between Export-Import Bank
of China and Department of Finance of Republic of the Philippines;

NOW, THEREFORE, the parties agree to sign this Contract for the Implementation of the Project.

The above-cited portion of the Contract Agreement, however, does not on its own reveal whether the construction of the
Luzon railways was meant to be a proprietary endeavor. In order to fully understand the intention behind and the purpose of the
entire undertaking, the Contract Agreement must not be read in isolation. Instead, it must be construed in conjunction with three
other documents executed in relation to the Northrail Project, namely: (a) the Memorandum of Understanding dated 14 September
2002 between Northrail and CNMEG;[30] (b) the letter of Amb. Wang dated 1 October 2003 addressed to Sec. Camacho; [31] and (c) the
Loan Agreement.[32]
 97

1. Memorandum of Understanding dated 14 September 2002

The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought the construction of the Luzon
Railways as a proprietary venture. The relevant parts thereof read:
WHEREAS, CNMEG has the financial capability, professional competence and technical expertise to assess
the state of the [Main Line North (MLN)] and recommend implementation plans as well as undertake its
rehabilitation and/or modernization;

WHEREAS, CNMEG has expressed interest in the rehabilitation and/or modernization of the MLN from
Metro Manila to San Fernando, La Union passing through the provinces of Bulacan, Pampanga, Tarlac,
Pangasinan and La Union (the Project);

WHEREAS, the NORTHRAIL CORP. welcomes CNMEGs proposal to undertake a Feasibility Study (the
Study) at no cost to NORTHRAIL CORP.;

WHEREAS, the NORTHRAIL CORP. also welcomes CNMEGs interest in undertaking the Project with
Suppliers Credit and intends to employ CNMEG as the Contractor for the Project subject to compliance with
Philippine and Chinese laws, rules and regulations for the selection of a contractor;

WHEREAS, the NORTHRAIL CORP. considers CNMEGs proposal advantageous to the Government of the
Republic of the Philippines and has therefore agreed to assist CNMEG in the conduct of the aforesaid Study;

xxx xxx xxx

II. APPROVAL PROCESS

2.1 As soon as possible after completion and presentation of the Study in accordance with Paragraphs 1.3
and 1.4 above and in compliance with necessary governmental laws, rules, regulations and procedures
required from both parties, the parties shall commence the preparation and negotiation of the terms
and conditions of the Contract (the Contract) to be entered into between them on the implementation
of the Project. The parties shall use their best endeavors to formulate and finalize a Contract with a
view to signing the Contract within one hundred twenty (120) days from CNMEGs presentation of the
Study.[33] (Emphasis supplied)

Clearly, it was CNMEG that initiated the undertaking, and not the Chinese government. The Feasibility Study was conducted
not because of any diplomatic gratuity from or exercise of sovereign functions by the Chinese government, but was plainly a business
strategy employed by CNMEG with a view to securing this commercial enterprise.

2. Letter dated 1 October 2003

That CNMEG, and not the Chinese government, initiated the Northrail Project was confirmed by Amb. Wang in his letter dated 1
October 2003, thus:
1. CNMEG has the proven competence and capability to undertake the Project as evidenced
by the ranking of 42 given by the ENR among 225 global construction companies.

2. CNMEG already signed an MOU with the North Luzon Railways Corporation last September
14, 2000 during the visit of Chairman Li Peng. Such being the case, they have already established an initial working
relationship with your North Luzon Railways Corporation. This would categorize CNMEG as the state
corporation within the Peoples Republic of China which initiated our Governments involvement in the Project.
 98

3. Among the various state corporations of the Peoples Republic of China, only CNMEG has
the advantage of being fully familiar with the current requirements of the Northrail Project having already
accomplished a Feasibility Study which was used as inputs by the North Luzon Railways Corporation in the
approvals (sic) process required by the Republic of the Philippines.[34] (Emphasis supplied.)

Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or regular course of its business as a global
construction company. The implementation of the Northrail Project was intended to generate profit for CNMEG, with the Contract
Agreement placing a contract price of USD 421,050,000 for the venture.[35] The use of the term state corporation to refer to CNMEG was
only descriptive of its nature as a government-owned and/or -controlled corporation, and its assignment as the Primary Contractor
did not imply that it was acting on behalf of China in the performance of the latters sovereign functions. To imply otherwise would
result in an absurd situation, in which all Chinese corporations owned by the state would be automatically considered as performing
governmental activities, even if they are clearly engaged in commercial or proprietary pursuits.

3. The Loan Agreement

CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the Northrail Project was signed by the
Philippine and Chinese governments, and its assignment as the Primary Contractor meant that it was bound to perform a governmental
function on behalf of China. However, the Loan Agreement, which originated from the same Aug 30 MOU, belies this reasoning, viz:
Article 11. xxx (j) Commercial Activity The execution and delivery of this Agreement by the Borrower
constitute, and the Borrowers performance of and compliance with its obligations under this Agreement will
constitute, private and commercial acts done and performed for commercial purposes under the laws of the Republic
of the Philippines and neither the Borrower nor any of its assets is entitled to any immunity or privilege (sovereign
or otherwise) from suit, execution or any other legal process with respect to its obligations under this Agreement, as
the case may be, in any jurisdiction. Notwithstanding the foregoing, the Borrower does not waive any immunity with
respect of its assets which are (i) used by a diplomatic or consular mission of the Borrower and (ii) assets of a military
character and under control of a military authority or defense agency and (iii) located in the Philippines and dedicated
to public or governmental use (as distinguished from patrimonial assets or assets dedicated to commercial use).
(Emphasis supplied.)

(k) Proceedings to Enforce Agreement In any proceeding in the Republic of the Philippines to enforce this
Agreement, the choice of the laws of the Peoples Republic of China as the governing law hereof will be recognized and
such law will be applied. The waiver of immunity by the Borrower, the irrevocable submissions of the Borrower to the
non-exclusive jurisdiction of the courts of the Peoples Republic of China and the appointment of the Borrowers Chinese
Process Agent is legal, valid, binding and enforceable and any judgment obtained in the Peoples Republic of China will
be if introduced, evidence for enforcement in any proceedings against the Borrower and its assets in the Republic of
the Philippines provided that (a) the court rendering judgment had jurisdiction over the subject matter of the action in
accordance with its jurisdictional rules, (b) the Republic had notice of the proceedings, (c) the judgment of the court
was not obtained through collusion or fraud, and (d) such judgment was not based on a clear mistake of fact or law.[36]

Further, the Loan Agreement likewise contains this express waiver of immunity:
15.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives, any immunity to which it or
its property may at any time be or become entitled, whether characterized as sovereign immunity or otherwise, from
any suit, judgment, service of process upon it or any agent, execution on judgment, set-off, attachment prior to
judgment, attachment in aid of execution to which it or its assets may be entitled in any legal action or proceedings
with respect to this Agreement or any of the transactions contemplated hereby or hereunder. Notwithstanding the
foregoing, the Borrower does not waive any immunity in respect of its assets which are (i) used by a diplomatic or
consular mission of the Borrower, (ii) assets of a military character and under control of a military authority or defense
 99

agency and (iii) located in the Philippines and dedicated to a public or governmental use (as distinguished from
patrimonial assets or assets dedicated to commercial use).[37]

Thus, despite petitioners claim that the EXIM Bank extended financial assistance to Northrail because the bank was mandated
by the Chinese government, and not because of any motivation to do business in the Philippines,[38] it is clear from the foregoing
provisions that the Northrail Project was a purely commercial transaction.
Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government, while the Contract
Agreement was between Northrail and CNMEG. Although the Contract Agreement is silent on the classification of the legal nature of the
transaction, the foregoing provisions of the Loan Agreement, which is an inextricable part of the entire undertaking, nonetheless reveal
the intention of the parties to the Northrail Project to classify the whole venture as commercial or proprietary in character.
Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of Understanding dated 14
September 2002, Amb. Wangs letter dated 1 October 2003, and the Loan Agreement would reveal the desire of CNMEG to construct
the Luzon Railways in pursuit of a purely commercial activity performed in the ordinary course of its business.

B. CNMEG failed to adduce evidence that it is immune from suit under

Chinese law.

Even assuming arguendo that CNMEG performs governmental functions, such claim does not automatically vest it with
immunity. This view finds support in Malong v. Philippine National Railways, in which this Court held that (i)mmunity from suit is
determined by the character of the objects for which the entity was organized.[39]
In this regard, this Courts ruling in Deutsche Gesellschaft Fr Technische Zusammenarbeit (GTZ) v. CA[40] must be examined.
In Deutsche Gesellschaft, Germany and the Philippines entered into a Technical Cooperation Agreement, pursuant to which both signed
an arrangement promoting the Social Health InsuranceNetworking and Empowerment (SHINE) project. The two governments named
their respective implementing organizations: the Department of Health (DOH) and the Philippine Health Insurance Corporation (PHIC) for
the Philippines, and GTZ for the implementation of Germanys contributions. In ruling that GTZ was not immune from suit, this Court held:
The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted in several
indisputable facts. The SHINE project was implemented pursuant to the bilateral agreements between the
Philippine and German governments. GTZ was tasked, under the 1991 agreement, with the implementation of the
contributions of the German government. The activities performed by GTZ pertaining to the SHINE project are
governmental in nature, related as they are to the promotion of health insurance in the Philippines. The fact that
GTZ entered into employment contracts with the private respondents did not disqualify it from invoking immunity
from suit, as held in cases such as Holy See v. Rosario, Jr., which set forth what remains valid doctrine:

Certainly, the mere entering into a contract by a foreign state with a private party cannot
be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether
the foreign state is engaged in the activity in the regular course of business. If the foreign state is
not engaged regularly in a business or trade, the particular act or transaction must then be tested
by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an
act jure imperii, especially when it is not undertaken for gain or profit.

Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG that GTZ was not
performing proprietary functions notwithstanding its entry into the particular employment contracts. Yet there is an
equally fundamental premise which GTZ and the OSG fail to address, namely: Is GTZ, by conception, able to enjoy
the Federal Republics immunity from suit?

The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section 9,
Article XVI of the Constitution, which states that the State may not be sued without its consent. Who or what consists
of the State? For one, the doctrine is available to foreign States insofar as they are sought to be sued in the courts
of the local State, necessary as it is to avoid unduly vexing the peace of nations.
 100

If the instant suit had been brought directly against the Federal Republic of Germany, there would be no
doubt that it is a suit brought against a State, and the only necessary inquiry is whether said State had consented to
be sued. However, the present suit was brought against GTZ. It is necessary for us to understand what precisely are
the parameters of the legal personality of GTZ.
Counsel for GTZ characterizes GTZ as the implementing agency of the Government of the Federal Republic
of Germany, a depiction similarly adopted by the OSG. Assuming that the characterization is correct, it does not
automatically invest GTZ with the ability to invoke State immunity from suit. The distinction lies in whether the
agency is incorporated or unincorporated.

xxx xxx xxx

State immunity from suit may be waived by general or special law. The special law can take the form of the
original charter of the incorporated government agency. Jurisprudence is replete with examples of incorporated
government agencies which were ruled not entitled to invoke immunity from suit, owing to provisions in their
charters manifesting their consent to be sued.

xxx xxx xxx

It is useful to note that on the part of the Philippine government, it had designated two entities, the Department
of Health and the Philippine Health Insurance Corporation (PHIC), as the implementing agencies in behalf of the
Philippines. The PHIC was established under Republic Act No. 7875, Section 16 (g) of which grants the corporation the
power to sue and be sued in court. Applying the previously cited jurisprudence, PHIC would not enjoy immunity from suit
even in the performance of its functions connected with SHINE, however, (sic) governmental in nature as (sic) they may
be.

Is GTZ an incorporated agency of the German government? There is some mystery surrounding that
question. Neither GTZ nor the OSG go beyond the claim that petitioner is the implementing agency of the
Government of the Federal Republic of Germany. On the other hand, private respondents asserted before the
Labor Arbiter that GTZ was a private corporation engaged in the implementation of development projects. The
Labor Arbiter accepted that claim in his Order denying the Motion to Dismiss, though he was silent on that point in
his Decision. Nevertheless, private respondents argue in their Comment that the finding that GTZ was a private
corporation was never controverted, and is therefore deemed admitted. In its Reply, GTZ controverts that finding,
saying that it is a matter of public knowledge that the status of petitioner GTZ is that of the implementing agency,
and not that of a private corporation.

In truth, private respondents were unable to adduce any evidence to substantiate their claim that GTZ was a
private corporation, and the Labor Arbiter acted rashly in accepting such claim without explanation. But neither has
GTZ supplied any evidence defining its legal nature beyond that of the bare descriptive implementing agency. There
is no doubt that the 1991 Agreement designated GTZ as the implementing agency in behalf of the German
government. Yet the catch is that such term has no precise definition that is responsive to our concerns. Inherently,
an agent acts in behalf of a principal, and the GTZ can be said to act in behalf of the German state. But that is as far
as implementing agency could take us. The term by itself does not supply whether GTZ is incorporated or
unincorporated, whether it is owned by the German state or by private interests, whether it has juridical personality
independent of the German government or none at all.

xxx xxx xxx

 101

Again, we are uncertain of the corresponding legal implications under German law surrounding a private
company owned by the Federal Republic of Germany. Yet taking the description on face value, the apparent
equivalent under Philippine law is that of a corporation organized under the Corporation Code but owned by the
Philippine government, or a government-owned or controlled corporation without original charter. And it bears
notice that Section 36 of the Corporate Code states that [e]very corporation incorporated under this Code has the
power and capacity x x x to sue and be sued in its corporate name.

It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself has not been
vested or has been specifically deprived the power and capacity to sue and/or be sued. Yet in the proceedings below
and before this Court, GTZ has failed to establish that under German law, it has not consented to be sued despite it
being owned by the Federal Republic of Germany. We adhere to the rule that in the absence of evidence to the
contrary, foreign laws on a particular subject are presumed to be the same as those of the Philippines, and following
the most intelligent assumption we can gather, GTZ is akin to a governmental owned or controlled corporation
without original charter which, by virtue of the Corporation Code, has expressly consented to be sued. At the very
least, like the Labor Arbiter and the Court of Appeals, this Court has no basis in fact to conclude or presume that GTZ
enjoys immunity from suit.[41] (Emphasis supplied.)

Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot claim immunity from suit, even if it
contends that it performs governmental functions. Its designation as the Primary Contractor does not automatically grant it immunity,
just as the term implementing agency has no precise definition for purposes of ascertaining whether GTZ was immune from suit. Although
CNMEG claims to be a government-owned corporation, it failed to adduce evidence that it has not consented to be sued under Chinese
law. Thus, following this Courts ruling in Deutsche Gesellschaft, in the absence of evidence to the contrary, CNMEG is to be presumed to
be a government-owned and -controlled corporation without an original charter. As a result, it has the capacity to sue and be sued under
Section 36 of the Corporation Code.

C. CNMEG failed to present a certification from the Department of

Foreign Affairs.

In Holy See,[42] this Court reiterated the oft-cited doctrine that the determination by the Executive that an entity is entitled to
sovereign or diplomatic immunity is a political question conclusive upon the courts, to wit:
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said
defendant is entitled to immunity.

xxx xxx xxx

In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign
Office conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190
SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity.
In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a
telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs
to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo
City, Zambales, a suggestion to respondent Judge. The Solicitor General embodied the suggestion in a Manifestation
and Memorandum as amicus curiae.
 102

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this
Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioners claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus
Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In
cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own
determination as to the nature of the acts and transactions involved.[43] (Emphasis supplied.)

The question now is whether any agency of the Executive Branch can make a determination of immunity from suit, which may be
considered as conclusive upon the courts. This Court, in Department of Foreign Affairs (DFA) v. National Labor Relations Commission
(NLRC),[44] emphasized the DFAs competence and authority to provide such necessary determination, to wit:
The DFAs function includes, among its other mandates, the determination of persons and institutions
covered by diplomatic immunities, a determination which, when challenge, (sic) entitles it to seek relief from the
court so as not to seriously impair the conduct of the country's foreign relations. The DFA must be allowed to plead
its case whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before
the international community. When international agreements are concluded, the parties thereto are deemed to
have likewise accepted the responsibility of seeing to it that their agreements are duly regarded. In our country,
this task falls principally of (sic) the DFA as being the highest executive department with the competence and
authority to so act in this aspect of the international arena.[45] (Emphasis supplied.)

Further, the fact that this authority is exclusive to the DFA was also emphasized in this Courts ruling in Deutsche Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative for petitioners to
secure from the Department of Foreign Affairs a certification of respondents diplomatic status and entitlement to
diplomatic privileges including immunity from suits. The requirement might not necessarily be imperative.
However, had GTZ obtained such certification from the DFA, it would have provided factual basis for its claim of
immunity that would, at the very least, establish a disputable evidentiary presumption that the foreign party is
indeed immune which the opposing party will have to overcome with its own factual evidence. We do not see why
GTZ could not have secured such certification or endorsement from the DFA for purposes of this case. Certainly, it
would have been highly prudential for GTZ to obtain the same after the Labor Arbiter had denied the motion to
dismiss. Still, even at this juncture, we do not see any evidence that the DFA, the office of the executive branch in
charge of our diplomatic relations, has indeed endorsed GTZs claim of immunity. It may be possible that GTZ tried,
but failed to secure such certification, due to the same concerns that we have discussed herein.

Would the fact that the Solicitor General has endorsed GTZs claim of States immunity from suit before
this Court sufficiently substitute for the DFA certification? Note that the rule in public international law quoted
in Holy See referred to endorsement by the Foreign Office of the State where the suit is filed, such foreign office
in the Philippines being the Department of Foreign Affairs. Nowhere in the Comment of the OSG is it manifested
that the DFA has endorsed GTZs claim, or that the OSG had solicited the DFAs views on the issue. The arguments
raised by the OSG are virtually the same as the arguments raised by GTZ without any indication of any special and
distinct perspective maintained by the Philippine government on the issue. The Comment filed by the OSG does
not inspire the same degree of confidence as a certification from the DFA would have elicited. [46] (Emphasis
supplied.)

In the case at bar, CNMEG offers the Certification executed by the Economic and Commercial Office of the Embassy of the
Peoples Republic of China, stating that the Northrail Project is in pursuit of a sovereign activity.[47] Surely, this is not the kind of certification
that can establish CNMEGs entitlement to immunity from suit, as Holy Seeunequivocally refers to the determination of the Foreign Office
of the state where it is sued.
 103

Further, CNMEG also claims that its immunity from suit has the executive endorsement of both the OSG and the Office of the
Government Corporate Counsel (OGCC), which must be respected by the courts. However, as expressly enunciated in Deutsche
Gesellschaft, this determination by the OSG, or by the OGCC for that matter, does not inspire the same degree of confidence as a DFA
certification. Even with a DFA certification, however, it must be remembered that this Court is not precluded from making an inquiry into
the intrinsic correctness of such certification.

D. An agreement to submit any dispute to arbitration may be

construed as an implicit waiver of immunity from suit.

In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by implication of state immunity. In the
said law, the agreement to submit disputes to arbitration in a foreign country is construed as an implicit waiver of immunity from suit.
Although there is no similar law in the Philippines, there is reason to apply the legal reasoning behind the waiver in this case.
The Conditions of Contract,[48] which is an integral part of the Contract Agreement,[49] states:
33. SETTLEMENT OF DISPUTES AND ARBITRATION

33.1. Amicable Settlement

Both parties shall attempt to amicably settle all disputes or controversies arising from this Contract before the
commencement of arbitration.

33.2. Arbitration

All disputes or controversies arising from this Contract which cannot be settled between the Employer and the
Contractor shall be submitted to arbitration in accordance with the UNCITRAL Arbitration Rules at present in force and
as may be amended by the rest of this Clause. The appointing authority shall be Hong
Kong International Arbitration Center. The place of arbitration shall be in Hong Kong at Hong Kong International
Arbitration Center (HKIAC).

Under the above provisions, if any dispute arises between Northrail and CNMEG, both parties are bound to submit the matter
to the HKIAC for arbitration. In case the HKIAC makes an arbitral award in favor of Northrail, its enforcement in the Philippines would be
subject to the Special Rules on Alternative Dispute Resolution (Special Rules). Rule 13 thereof provides for the Recognition and
Enforcement of a Foreign Arbitral Award. Under Rules 13.2 and 13.3 of the Special Rules, the party to arbitration wishing to have an
arbitral award recognized and enforced in the Philippines must petition the proper regional trial court (a) where the assets to be attached
or levied upon is located; (b) where the acts to be enjoined are being performed; (c) in the principal place of business in the Philippines
of any of the parties; (d) if any of the parties is an individual, where any of those individuals resides; or (e) in the National Capital Judicial
Region.
From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded immunity from suit. Thus, the courts have
the competence and jurisdiction to ascertain the validity of the Contract Agreement.

Second issue: Whether the Contract Agreement is an executive agreement

Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty as follows:
[A]n international agreement concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that the former (a) does not
require legislative concurrence; (b) is usually less formal; and (c) deals with a narrower range of subject matters.[50]
 104

Despite these differences, to be considered an executive agreement, the following three requisites provided under the Vienna
Convention must nevertheless concur: (a) the agreement must be between states; (b) it must be written; and (c) it must governed by
international law. The first and the third requisites do not obtain in the case at bar.

A. CNMEG is neither a government nor a government agency.

The Contract Agreement was not concluded between the Philippines and China, but between Northrail and CNMEG.[51] By the
terms of the Contract Agreement, Northrail is a government-owned or -controlled corporation, while CNMEG is a corporation duly
organized and created under the laws of the Peoples Republic of China.[52]Thus, both Northrail and CNMEG entered into the Contract
Agreement as entities with personalities distinct and separate from the Philippine and Chinese governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese government. As previously discussed, the fact that Amb. Wang,
in his letter dated 1 October 2003,[53]described CNMEG as a state corporation and declared its designation as the Primary Contractor in
the Northrail Project did not mean it was to perform sovereign functions on behalf of China. That label was only descriptive of its nature
as a state-owned corporation, and did not preclude it from engaging in purely commercial or proprietary ventures.

B. The Contract Agreement is to be governed by Philippine law.

Article 2 of the Conditions of Contract,[54] which under Article 1.1 of the Contract Agreement is an integral part of the latter,
states:
APPLICABLE LAW AND GOVERNING LANGUAGE

The contract shall in all respects be read and construed in accordance with the laws of the Philippines.

The contract shall be written in English language. All correspondence and other documents pertaining to the
Contract which are exchanged by the parties shall be written in English language.

Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties have effectively conceded
that their rights and obligations thereunder are not governed by international law.
It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the nature of an executive
agreement. It is merely an ordinary commercial contract that can be questioned before the local courts.
WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp. (Group) is not entitled to
immunity from suit, and the Contract Agreement is not an executive agreement. CNMEGs prayer for the issuance of a TRO and/or Writ of
Preliminary Injunction is DENIED for being moot and academic.This case is REMANDED to the Regional Trial Court of Makati, Branch
145, for further proceedings as regards the validity of the contracts subject of Civil Case No. 06-203.

No pronouncement on costs of suit.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

ESTELA M. PERLAS-BERNABE
 105

Associate Justice
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

[1]
China National Machinery & Equipment Corporation (Group) v. Hon. Cesar D. Santamaria, et al.
[2]
Petition, rollo, Vol. I, p. 25; Memorandum of Understanding dated 14 September 2002, rollo, Vol. I, pp. 400-406.
[3]
Petition, rollo, Vol. I, pp. 25-26; Memorandum of Understanding dated 30 August 2003, rollo, Vol. I, pp. 308-310, 407-409.
[4]
Id.
[5]
Memorandum of Understanding dated 30 August 2003, rollo, Vol. I, pp. 308-310, 407-409.
[6]
Petition, rollo, Vol. I, p. 26; Letter dated 1 October 2003, rollo, Vol. I, pp. 311-312.
[7]
Contract Agreement, rollo, Vol. I, pp. 126-130, 412-414.
[8]
Memorandum of Agreement dated December 2003, rollo, Vol. I, pp. 198-201.
[9]
Loan Agreement, rollo, Vol. I, pp. 242-282.
[10]
Id.
[11]
Complaint, rollo, Vol. I, pp. 102-125.
[12]
Id.
[13]
Order dated 17 March 2006, rollo, Vol. I, pp. 290-291.
[14]
Urgent Motion for Reconsideration, rollo, Vol. I, pp. 292-307
[15]
Motion to Dismiss, rollo, Vol. I, pp. 324-369.
[16]
Omnibus Order dated 15 May 2007, rollo, Vol. I, pp. 648-658.
[17]
Motion for Reconsideration, rollo, Vol. I, pp. 663-695.
[18]
Order dated 10 March 2008, rollo, Vol. I, p. 737.
[19]
Petition for Certiorari, rollo, Vol. I, pp. 738-792.
[20]
CA Decision, rollo, Vol. I, pp. 81-99.
[21]
Motion for Reconsideration, rollo, Vol. I, pp. 971-1001.
[22]
CA Resolution, rollo, Vol. I, pp. 100-102.
[23]
Petition, rollo, Vol. I, pp. 27-28.
[24]
G.R. No. 101949, 1 December 1994, 238 SCRA 524, 535.
[25]
G.R. No. 108813, 15 December 1994, 239 SCRA 224.
[26]
Id. at 231-232.
[27]
221 Phil. 179 (1985).
[28]
Id. at 184.
[29]
Contract Agreement, rollo, Vol. I, pp. 127, 413.
[30]
Supra note 2.
[31]
Supra note 6.
[32]
Supra note 9.
[33]
Supra note 2, at 400-402.
[34]
Supra note 6.
[35]
Supra note 8.
[36]
Supra note 9, at 260-261.
 106

[37]
Id. at 268-269.
[38]
Petition, rollo, Vol. I, p. 47.
[39]
222 Phil 381, 384 (1985).
[40]
G.R. No. 152318, 16 April 2009, 585 SCRA 150.
[41]
Id. at 165-173.
[42]
Supra note 24.
[43]
Id. at 531-533.
[44]
330 Phil 573 (1996).
[45]
Id. at 587-588.
[46]
Supra note 40, at 174-175.
[47]
Petition, rollo, Vol. I, p. 30.
[48]
Conditions of Contract, rollo, Vol. I, pp. 202-241, 415-455.
[49]
Supra note 7. Clause 1.1 of the Contract Agreement provides:
The following documents shall constitute the Contract between the Employer and the Contractor, and each shall be read and
construed as an integral part of the Contract:
(1) Contract Agreement
(2) Amendments, if any to the Contract documents agreed by the Parties
(3) Conditions of Contract
(4) Technical Documents
(5) Preliminary Engineering Design including Bill of Quantities
(6) Technical Specification
[50]
G.R. No. 159618, 1 February 2011, 641 SCRA 244, 258-259.
[51]
Supra note 7.
[52]
Id.
[53]
Supra note 6.
[54]
Supra note 48.
 107

EN BANC

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES
ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders dated June 20, 1991
and September 19, 1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-183, while the Order
dated September 19, 1991 denied the motion for reconsideration of the June 20,1991 Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the Philippines by the
Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A, Transfer Certificate of Title
No. 390440) located in the Municipality of Parañaque, Metro Manila and registered in the name of petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108 and 265388
respectively and registered in the name of the Philippine Realty Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned
his rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the parties has the
responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties was the sale by petitioner of Lot
5-A to Tropicana Properties and Development Corporation (Tropicana).

On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro Manila for
annulment of the sale of the three parcels of land, and specific performance and damages against petitioner, represented by the
Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).
 108

The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, agreed to sell to Ramon Licup
Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the agreement to sell was made on the condition that earnest
money of P100,000.00 be paid by Licup to the sellers, and that the sellers clear the said lots of squatters who were then occupying
the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the property to
private respondent and informed the sellers of the said assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos
that the sellers fulfill their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private respondent of
the squatters' refusal to vacate the lots, proposing instead either that private respondent undertake the eviction or that the earnest
money be returned to the latter; (6) private respondent counterproposed that if it would undertake the eviction of the squatters,
the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos returned the
earnest money of P100,000.00 and wrote private respondent giving it seven days from receipt of the letter to pay the original
purchase price in cash; (8) private respondent sent the earnest money back to the sellers, but later discovered that on March 30,
1989, petitioner and the PRC, without notice to private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds
of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate of title over the lots were
cancelled, transferred and registered in the name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to it and
thus enriched itself at the expense of private respondent; (10) private respondent demanded the rescission of the sale to Tropicana
and the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply with the terms of the
contract to sell and has actually made plans to develop the lots into a townhouse project, but in view of the sellers' breach, it lost
profits of not less than P30,000.000.00.

Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on the one hand, and
Tropicana on the other; (2) the reconveyance of the lots in question; (3) specific performance of the agreement to sell between it
and the owners of the lots; and (4) damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for lack of jurisdiction based
on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition to the motion was filed by private
respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss after finding that petitioner
"shed off [its] sovereign immunity by entering into the business contract in question" (Rollo, pp. 20-21).

On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a "Motion for a Hearing for
the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a Jurisdictional Defense." So as to facilitate the
determination of its defense of sovereign immunity, petitioner prayed that a hearing be conducted to allow it to establish certain
facts upon which the said defense is based. Private respondent opposed this motion as well as the motion for reconsideration.

On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration until after trial on the
merits and directing petitioner to file its answer (Rollo, p. 22).

Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign immunity only on its own
behalf and on behalf of its official representative, the Papal Nuncio.

On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs, claiming that it has a legal
interest in the outcome of the case as regards the diplomatic immunity of petitioner, and that it "adopts by reference, the
allegations contained in the petition of the Holy See insofar as they refer to arguments relative to its claim of sovereign immunity
from suit" (Rollo, p. 87).

Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the resolution of this Court,
both parties and the Department of Foreign Affairs submitted their respective memoranda.
 109

II

A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule 65 of the Revised
Rules of Court can be availed of to question the order denying petitioner's motion to dismiss. The general rule is that an order
denying a motion to dismiss is not reviewable by the appellate courts, the remedy of the movant being to file his answer and to
proceed with the hearing before the trial court. But the general rule admits of exceptions, and one of these is when it is very clear in
the records that the trial court has no alternative but to dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582
[1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to
require the parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality or legal interest of the Department of Foreign Affairs
to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign
court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion," where the foreign state or the international organization
sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the
Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a
"suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a
certification to that effect instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit
of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the
courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just
sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of
Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo
City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation and
Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to
intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioner's claim
of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their
private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United
States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office,
the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved.

III

The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state enjoying sovereign
immunity. On the other hand, private respondent insists that the doctrine of non-suability is not anymore absolute and that
petitioner has divested itself of such a cloak when, of its own free will, it entered into a commercial transaction for the sale of a
parcel of land located in the Philippines.
 110

A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state is in order.

Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was considered a
subject of International Law. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of
108.7 acres, the position of the Holy See in International Law became controversial (Salonga and Yap, Public International Law 36-37
[1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and sovereign
jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, to send its
own diplomats to foreign countries, and to enter into treaties according to International Law (Garcia, Questions and Problems In
International Law, Public and Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible
independence and of guaranteeing to it indisputable sovereignty also in the field of international relations" (O'Connell, I
International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the
Vatican City. Some writers even suggested that the treaty created two international persons — the Holy See and Vatican City
(Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must be made in a
sense different from that in which it is applied to other states (Fenwick, International Law 124-125 [1948]; Cruz, International Law 37
[1991]). In a community of national states, the Vatican City represents an entity organized not for political but for ecclesiastical
purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the
Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the
demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a
sense an "international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant implication — that it is possible for any entity
pursuing objects essentially different from those pursued by states to be invested with international personality (Kunz, The Status of
the Holy See in International Law, 46 The American Journal of International Law 308 [1952]).

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the
Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador,
the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957 (Rollo, p. 87). This appears to be
the universal practice in international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted principles of International
Law. Even without this affirmation, such principles of International Law are deemed incorporated as part of the law of the land as a
condition and consequence of our admission in the society of nations (United States of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the
 111

newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be considered
as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976, which defines a commercial activity as
"either a regular course of commercial conduct or a particular commercial transaction or act." Furthermore, the law declared that
the "commercial character of the activity shall be determined by reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a "commercial activity" as any particular transaction, act or conduct or any regular
course of conduct that by reason of its nature, is of a "commercial character."

The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign immunity, has
created problems of its own. Legal treatises and the decisions in countries which follow the restrictive theory have difficulty in
characterizing whether a contract of a sovereign state with a private party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected
with the discharge of governmental functions. This is particularly true with respect to the Communist states which took control of
nationalized business activities and international trading.

This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a
foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of
public bidding for the repair of a wharf at a United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change
of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with private parties as acts jure gestionis:
(1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry
shop at the John Hay Air Station in Baguio City, to cater to American servicemen and the general public (United States of America v.
Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States
of America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general public is
undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment contract with the cook in
the discharge of its proprietary function, the United States government impliedly divested itself of its sovereign immunity from suit.

In the absence of legislation defining what activities and transactions shall be considered "commercial" and as constituting acts jure
gestionis, we have to come out with our own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only
be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of
business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by
its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not
undertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States of America, like any other state, will be deemed to have impliedly
waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the
contract involves its sovereign or governmental capacity that no such waiver may be implied.
 112

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the said
transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal
of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in
the Philippines. Private respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial
purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The right of a foreign
sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic
mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the
receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the
envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with
all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character.
Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for
petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still occupying the lot, and that
they stubbornly refuse to leave the premises, has been admitted by private respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the pleadings,
particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this case was sufficiently
established by the Memorandum and Certification of the Department of Foreign Affairs. As the department tasked with the conduct
of the Philippines' foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the
Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic
mission or embassy in this country (Rollo, pp. 156-157). The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and affirmed by the
executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in
conducting the country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic
Migration Commission and in World Health Organization, we abide by the certification of the Department of Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to establish the facts alleged
by petitioner in its motion. In view of said certification, such procedure would however be pointless and unduly circuitous (Ortigas &
Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25, 1994).

IV

Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and
Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause
through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first
task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office
shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See
 113

(Young, Remedies of Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:

By taking up the case of one of its subjects and by reporting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its
subjects, respect for the rules of international law (The Mavrommatis Palestine Concessions, 1 Hudson, World
Court Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner is DISMISSED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Padilla, J., took no part.

Feliciano, J., is on leave.

 114

EN BANC

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES
ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders dated June 20, 1991
and September 19, 1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-183, while the Order
dated September 19, 1991 denied the motion for reconsideration of the June 20,1991 Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the Philippines by the
Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A, Transfer Certificate of Title
No. 390440) located in the Municipality of Parañaque, Metro Manila and registered in the name of petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108 and 265388
respectively and registered in the name of the Philippine Realty Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned
his rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the parties has the
responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties was the sale by petitioner of Lot
5-A to Tropicana Properties and Development Corporation (Tropicana).

On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro Manila for
annulment of the sale of the three parcels of land, and specific performance and damages against petitioner, represented by the
Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).
 115

The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, agreed to sell to Ramon Licup
Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the agreement to sell was made on the condition that earnest
money of P100,000.00 be paid by Licup to the sellers, and that the sellers clear the said lots of squatters who were then occupying
the same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the property to
private respondent and informed the sellers of the said assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos
that the sellers fulfill their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private respondent of
the squatters' refusal to vacate the lots, proposing instead either that private respondent undertake the eviction or that the earnest
money be returned to the latter; (6) private respondent counterproposed that if it would undertake the eviction of the squatters,
the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos returned the
earnest money of P100,000.00 and wrote private respondent giving it seven days from receipt of the letter to pay the original
purchase price in cash; (8) private respondent sent the earnest money back to the sellers, but later discovered that on March 30,
1989, petitioner and the PRC, without notice to private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds
of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that the sellers' transfer certificate of title over the lots were
cancelled, transferred and registered in the name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to it and
thus enriched itself at the expense of private respondent; (10) private respondent demanded the rescission of the sale to Tropicana
and the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply with the terms of the
contract to sell and has actually made plans to develop the lots into a townhouse project, but in view of the sellers' breach, it lost
profits of not less than P30,000.000.00.

Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on the one hand, and
Tropicana on the other; (2) the reconveyance of the lots in question; (3) specific performance of the agreement to sell between it
and the owners of the lots; and (4) damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for lack of jurisdiction based
on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition to the motion was filed by private
respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss after finding that petitioner
"shed off [its] sovereign immunity by entering into the business contract in question" (Rollo, pp. 20-21).

On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a "Motion for a Hearing for
the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a Jurisdictional Defense." So as to facilitate the
determination of its defense of sovereign immunity, petitioner prayed that a hearing be conducted to allow it to establish certain
facts upon which the said defense is based. Private respondent opposed this motion as well as the motion for reconsideration.

On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration until after trial on the
merits and directing petitioner to file its answer (Rollo, p. 22).

Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign immunity only on its own
behalf and on behalf of its official representative, the Papal Nuncio.

On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs, claiming that it has a legal
interest in the outcome of the case as regards the diplomatic immunity of petitioner, and that it "adopts by reference, the
allegations contained in the petition of the Holy See insofar as they refer to arguments relative to its claim of sovereign immunity
from suit" (Rollo, p. 87).

Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the resolution of this Court,
both parties and the Department of Foreign Affairs submitted their respective memoranda.
 116

II

A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule 65 of the Revised
Rules of Court can be availed of to question the order denying petitioner's motion to dismiss. The general rule is that an order
denying a motion to dismiss is not reviewable by the appellate courts, the remedy of the movant being to file his answer and to
proceed with the hearing before the trial court. But the general rule admits of exceptions, and one of these is when it is very clear in
the records that the trial court has no alternative but to dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582
[1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to
require the parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality or legal interest of the Department of Foreign Affairs
to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign
court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion," where the foreign state or the international organization
sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the
Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a
"suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a
certification to that effect instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit
of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the
courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just
sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of
Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo
City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation and
Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to
intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioner's claim
of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their
private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United
States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office,
the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved.

III

The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state enjoying sovereign
immunity. On the other hand, private respondent insists that the doctrine of non-suability is not anymore absolute and that
petitioner has divested itself of such a cloak when, of its own free will, it entered into a commercial transaction for the sale of a
parcel of land located in the Philippines.
 117

A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state is in order.

Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was considered a
subject of International Law. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of
108.7 acres, the position of the Holy See in International Law became controversial (Salonga and Yap, Public International Law 36-37
[1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and sovereign
jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, to send its
own diplomats to foreign countries, and to enter into treaties according to International Law (Garcia, Questions and Problems In
International Law, Public and Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible
independence and of guaranteeing to it indisputable sovereignty also in the field of international relations" (O'Connell, I
International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the
Vatican City. Some writers even suggested that the treaty created two international persons — the Holy See and Vatican City
(Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must be made in a
sense different from that in which it is applied to other states (Fenwick, International Law 124-125 [1948]; Cruz, International Law 37
[1991]). In a community of national states, the Vatican City represents an entity organized not for political but for ecclesiastical
purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the
Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the
demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a
sense an "international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant implication — that it is possible for any entity
pursuing objects essentially different from those pursued by states to be invested with international personality (Kunz, The Status of
the Holy See in International Law, 46 The American Journal of International Law 308 [1952]).

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the
Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador,
the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957 (Rollo, p. 87). This appears to be
the universal practice in international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted principles of International
Law. Even without this affirmation, such principles of International Law are deemed incorporated as part of the law of the land as a
condition and consequence of our admission in the society of nations (United States of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the
 118

newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be considered
as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976, which defines a commercial activity as
"either a regular course of commercial conduct or a particular commercial transaction or act." Furthermore, the law declared that
the "commercial character of the activity shall be determined by reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a "commercial activity" as any particular transaction, act or conduct or any regular
course of conduct that by reason of its nature, is of a "commercial character."

The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign immunity, has
created problems of its own. Legal treatises and the decisions in countries which follow the restrictive theory have difficulty in
characterizing whether a contract of a sovereign state with a private party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected
with the discharge of governmental functions. This is particularly true with respect to the Communist states which took control of
nationalized business activities and international trading.

This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a
foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of
public bidding for the repair of a wharf at a United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change
of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with private parties as acts jure gestionis:
(1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry
shop at the John Hay Air Station in Baguio City, to cater to American servicemen and the general public (United States of America v.
Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States
of America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general public is
undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment contract with the cook in
the discharge of its proprietary function, the United States government impliedly divested itself of its sovereign immunity from suit.

In the absence of legislation defining what activities and transactions shall be considered "commercial" and as constituting acts jure
gestionis, we have to come out with our own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only
be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of
business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by
its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not
undertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States of America, like any other state, will be deemed to have impliedly
waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the
contract involves its sovereign or governmental capacity that no such waiver may be implied.
 119

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the said
transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal
of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in
the Philippines. Private respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial
purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The right of a foreign
sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic
mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the
receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the
envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with
all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character.
Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for
petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still occupying the lot, and that
they stubbornly refuse to leave the premises, has been admitted by private respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the pleadings,
particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this case was sufficiently
established by the Memorandum and Certification of the Department of Foreign Affairs. As the department tasked with the conduct
of the Philippines' foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the
Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic
mission or embassy in this country (Rollo, pp. 156-157). The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and affirmed by the
executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in
conducting the country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic
Migration Commission and in World Health Organization, we abide by the certification of the Department of Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to establish the facts alleged
by petitioner in its motion. In view of said certification, such procedure would however be pointless and unduly circuitous (Ortigas &
Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25, 1994).

IV

Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and
Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause
through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first
task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office
shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See
 120

(Young, Remedies of Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:

By taking up the case of one of its subjects and by reporting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its
subjects, respect for the rules of international law (The Mavrommatis Palestine Concessions, 1 Hudson, World
Court Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner is DISMISSED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Padilla, J., took no part.

Feliciano, J., is on leave.

 121

THIRD DIVISION

AIR TRANSPORTATION OFFICE, G.R. No. 159402

Petitioner,
Present:

BRION, Acting Chairperson,**

- versus - BERSAMIN,
ABAD,***
VILLARAMA, JR., and
SERENO, JJ.
SPOUSES DAVID* and
ELISEA RAMOS, Promulgated:
Respondents. February 23, 2011
x-----------------------------------------------------------------------------------------x

RESOLUTION

BERSAMIN, J.:

The States immunity from suit does not extend to the petitioner because it is an agency of the State engaged in an enterprise that is
far from being the States exclusive prerogative.

Under challenge is the decision promulgated on May 14, 2003,[1] by which the Court of Appeals (CA) affirmed with
modification the decision rendered on February 21, 2001 by the Regional Trial Court, Branch 61 (RTC), in Baguio City in favor of the
respondents.[2]
Antecedents

Spouses David and Elisea Ramos (respondents) discovered that a portion of their land registered under Transfer Certificate of Title No.
T-58894 of the Baguio City land records with an area of 985 square meters, more or less, was being used as part of the runway and
running shoulder of the Loakan Airport being operated by petitioner Air Transportation Office (ATO). On August 11, 1995, the
respondents agreed after negotiations to convey the affected portion by deed of sale to the ATO in consideration of the amount
of P778,150.00. However, the ATO failed to pay despite repeated verbal and written demands.

Thus, on April 29, 1998, the respondents filed an action for collection against the ATO and some of its officials in the RTC
(docketed as Civil Case No. 4017-R and entitled Spouses David and Elisea Ramos v. Air Transportation Office, Capt. Panfilo Villaruel,
Gen. Carlos Tanega, and Mr. Cesar de Jesus).

In their answer, the ATO and its co-defendants invoked as an affirmative defense the issuance of Proclamation No. 1358,
whereby President Marcos had reserved certain parcels of land that included the respondents affected portion for use of
the Loakan Airport. They asserted that the RTC had no jurisdiction to entertain the action without the States consent considering that
the deed of sale had been entered into in the performance of governmental functions.
On November 10, 1998, the RTC denied the ATOs motion for a preliminary hearing of the affirmative defense.

After the RTC likewise denied the ATOs motion for reconsideration on December 10, 1998, the ATO commenced a special
civil action for certiorari in the CA to assail the RTCs orders. The CA dismissed the petition for certiorari, however, upon its finding that
the assailed orders were not tainted with grave abuse of discretion. [3]
 122

Subsequently, February 21, 2001, the RTC rendered its decision on the merits,[4] disposing:

WHEREFORE, the judgment is rendered ORDERING the defendant Air Transportation Office to pay the plaintiffs
DAVID and ELISEA RAMOS the following: (1) The amount of P778,150.00 being the value of the parcel of land
appropriated by the defendant ATO as embodied in the Deed of Sale, plus an annual interest of 12% from August
11, 1995, the date of the Deed of Sale until fully paid; (2) The amount of P150,000.00 by way of moral damages
and P150,000.00 as exemplary damages; (3) the amount of P50,000.00 by way of attorneys fees plus P15,000.00
representing the 10, more or less, court appearances of plaintiffs counsel; (4) The costs of this suit.

SO ORDERED.

In due course, the ATO appealed to the CA, which affirmed the RTCs decision on May 14, 2003,[5] viz:

IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED, with MODIFICATION that the
awarded cost therein is deleted, while that of moral and exemplary damages is reduced to P30,000.00 each, and
attorneys fees is lowered to P10,000.00.
No cost.
SO ORDERED.

Hence, this appeal by petition for review on certiorari.

Issue

The only issue presented for resolution is whether the ATO could be sued without the States consent.

Ruling

The petition for review has no merit.

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the State, is expressly
provided in Article XVI of the 1987 Constitution, viz:

Section 3. The State may not be sued without its consent.

The immunity from suit is based on the political truism that the State, as a sovereign, can do no wrong. Moreover, as the
eminent Justice Holmes said in Kawananakoa v. Polyblank:[6]

The territory [of Hawaii], of course, could waive its exemption (Smith v. Reeves, 178 US 436, 44 L ed 1140, 20 Sup.
Ct. Rep. 919), and it took no objection to the proceedings in the cases cited if it could have done so. xxx But in the
case at bar it did object, and the question raised is whether the plaintiffs were bound to yield. Some doubts have
been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the
answer has been public property since before the days of Hobbes. Leviathan, chap. 26, 2. A sovereign is exempt
from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that
there can be no legal right as against the authority that makes the law on which the right depends. Car on peut
bien recevoir loy d'autruy, mais il est impossible par nature de se donner loy. Bodin, Republique, 1, chap. 8, ed. 1629,
p. 132; Sir John Eliot, De Jure Maiestatis, chap. 3. Nemo suo statuto ligatur necessitative. Baldus, De Leg. et Const.
Digna Vox, 2. ed. 1496, fol. 51b, ed. 1539, fol. 61.[7]
 123

Practical considerations dictate the establishment of an immunity from suit in favor of the State. Otherwise, and the State is
suable at the instance of every other individual, government service may be severely obstructed and public safety endangered because
of the number of suits that the State has to defend against. [8] Several justifications have been offered to support the adoption of the
doctrine in the Philippines, but that offered in Providence Washington Insurance Co. v. Republic of the Philippines[9] is the most
acceptable explanation, according to Father Bernas, a recognized commentator on Constitutional Law, [10] to wit:

[A] continued adherence to the doctrine of non-suability is not to be deplored for as against the inconvenience
that may be caused private parties, the loss of governmental efficiency and the obstacle to the performance of its
multifarious functions are far greater if such a fundamental principle were abandoned and the availability of judicial
remedy were not thus restricted. With the well-known propensity on the part of our people to go to court, at the
least provocation, the loss of time and energy required to defend against law suits, in the absence of such a basic
principle that constitutes such an effective obstacle, could very well be imagined.

An unincorporated government agency without any separate juridical personality of its own enjoys immunity from suit
because it is invested with an inherent power of sovereignty. Accordingly, a claim for damages against the agency cannot prosper;
otherwise, the doctrine of sovereign immunity is violated.[11] However, the need to distinguish between an unincorporated
government agency performing governmental function and one performing proprietary functions has arisen. The immunity has been
upheld in favor of the former because its function is governmental or incidental to such function; [12] it has not been upheld in favor of
the latter whose function was not in pursuit of a necessary function of government but was essentially a business. [13]

Should the doctrine of sovereignty immunity or non-suability of the State be extended to the ATO?

In its challenged decision,[14] the CA answered in the negative, holding:

On the first assignment of error, appellants seek to impress upon Us that the subject contract of sale partook
of a governmental character. Apropos, the lower court erred in applying the High Courts ruling in National Airports
Corporation vs. Teodoro (91 Phil. 203 [1952]), arguing that in Teodoro, the matter involved the collection of landing
and parking fees which is a proprietary function, while the case at bar involves the maintenance and operation of
aircraft and air navigational facilities and services which are governmental functions.

We are not persuaded.

Contrary to appellants conclusions, it was not merely the collection of landing and parking fees which was
declared as proprietary in nature by the High Court in Teodoro, but management and maintenance of airport
operations as a whole, as well. Thus, in the much later case of Civil Aeronautics Administration vs. Court of Appeals
(167 SCRA 28 [1988]), the Supreme Court, reiterating the pronouncements laid down in Teodoro, declared that the
CAA (predecessor of ATO) is an agency not immune from suit, it being engaged in functions pertaining to a private
entity. It went on to explain in this wise:

xxx

The Civil Aeronautics Administration comes under the category of a private entity. Although
not a body corporate it was created, like the National Airports Corporation, not to maintain a
necessary function of government, but to run what is essentially a business, even if revenues be not
its prime objective but rather the promotion of travel and the convenience of the travelling public. It
is engaged in an enterprise which, far from being the exclusive prerogative of state, may, more than
the construction of public roads, be undertaken by private concerns. [National Airports Corp. v.
Teodoro, supra, p. 207.]
 124

xxx

True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec. Order
365 (Reorganizing the Civil Aeronautics Administration and Abolishing the National Airports
Corporation). Republic Act No. 776 (Civil Aeronautics Act of the Philippines), subsequently enacted
on June 20, 1952, did not alter the character of the CAAs objectives under Exec. Order 365. The
pertinent provisions cited in the Teodoro case, particularly Secs. 3 and 4 of Exec. Order 365, which
led the Court to consider the CAA in the category of a private entity were retained substantially in
Republic Act 776, Sec. 32(24) and (25). Said Act provides:

Sec. 32. Powers and Duties of the Administrator. Subject to the general control and supervision
of the Department Head, the Administrator shall have among others, the following powers and
duties:

xxx
(24) To administer, operate, manage, control, maintain and develop the Manila International
Airport and all government-owned aerodromes except those controlled or operated by the Armed
Forces of the Philippines including such powers and duties as: (a) to plan, design, construct, equip,
expand, improve, repair or alter aerodromes or such structures, improvement or air navigation
facilities; (b) to enter into, make and execute contracts of any kind with any person, firm, or public or
private corporation or entity;

(25) To determine, fix, impose, collect and receive landing fees, parking space fees, royalties
on sales or deliveries, direct or indirect, to any aircraft for its use of aviation gasoline, oil and
lubricants, spare parts, accessories and supplies, tools, other royalties, fees or rentals for the use of
any of the property under its management and control.

xxx

From the foregoing, it can be seen that the CAA is tasked with private or non-governmental
functions which operate to remove it from the purview of the rule on State immunity from suit. For
the correct rule as set forth in the Teodoro case states:

xxx

Not all government entities, whether corporate or non-corporate, are immune from
suits. Immunity from suits is determined by the character of the objects for which the entity was
organized. The rule is thus stated in Corpus Juris:

Suits against State agencies with relation to matters in which they have assumed
to act in private or non-governmental capacity, and various suits against certain
corporations created by the state for public purposes, but to engage in matters
partaking more of the nature of ordinary business rather than functions of a
governmental or political character, are not regarded as suits against the state. The
latter is true, although the state may own stock or property of such a corporation for
by engaging in business operations through a corporation, the state divests itself so
far of its sovereign character, and by implication consents to suits against the
 125

corporation. (59 C.J., 313) [National Airports Corporation v. Teodoro, supra, pp. 206-
207; Italics supplied.]

This doctrine has been reaffirmed in the recent case of Malong v. Philippine National
Railways [G.R. No. L-49930, August 7, 1985, 138 SCRA 63], where it was held that the Philippine
National Railways, although owned and operated by the government, was not immune from suit as
it does not exercise sovereign but purely proprietary and business functions. Accordingly, as the CAA
was created to undertake the management of airport operations which primarily involve proprietary
functions, it cannot avail of the immunity from suit accorded to government agencies performing
strictly governmental functions.[15]

In our view, the CA thereby correctly appreciated the juridical character of the ATO as an agency of the Government not
performing a purely governmental or sovereign function, but was instead involved in the management and maintenance of
the Loakan Airport, an activity that was not the exclusive prerogative of the State in its sovereign capacity. Hence, the ATO had no
claim to the States immunity from suit. We uphold the CAs aforequoted holding.

We further observe the doctrine of sovereign immunity cannot be successfully invoked to defeat a valid claim for
compensation arising from the taking without just compensation and without the proper expropriation proceedings being first
resorted to of the plaintiffs property.[16] Thus, in De los Santos v. Intermediate Appellate Court,[17] the trial courts dismissal based on
the doctrine of non-suability of the State of two cases (one of which was for damages) filed by owners of property where a road 9
meters wide and 128.70 meters long occupying a total area of 1,165 square meters and an artificial creek 23.20 meters wide and
128.69 meters long occupying an area of 2,906 square meters had been constructed by the provincial engineer of Rizal and a private
contractor without the owners knowledge and consent was reversed and the cases remanded for trial on the merits. The Supreme
Court ruled that the doctrine of sovereign immunity was not an instrument for perpetrating any injustice on a citizen. In exercising the
right of eminent domain, the Court explained, the State exercised its jus imperii, as distinguished from its proprietary rights, or jus
gestionis; yet, even in that area, where private property had been taken in expropriation without just compensation being paid, the
defense of immunity from suit could not be set up by the State against an action for payment by the owners.

Lastly, the issue of whether or not the ATO could be sued without the States consent has been rendered moot by the passage
of Republic Act No. 9497, otherwise known as the Civil Aviation Authority Act of 2008.

R.A. No. 9497 abolished the ATO, to wit:

Section 4. Creation of the Authority. There is hereby created an independent regulatory body with quasi-
judicial and quasi-legislative powers and possessing corporate attributes to be known as the Civil Aviation Authority
of the Philippines (CAAP), herein after referred to as the Authority attached to the Department of Transportation
and Communications (DOTC) for the purpose of policy coordination. For this purpose, the existing Air
transportation Office created under the provisions of Republic Act No. 776, as amended is hereby abolished.
xxx

Under its Transitory Provisions, R.A. No. 9497 established in place of the ATO the Civil Aviation Authority of the Philippines (CAAP),
which thereby assumed all of the ATOs powers, duties and rights, assets, real and personal properties, funds, and revenues, viz:

CHAPTER XII
TRANSITORTY PROVISIONS
Section 85. Abolition of the Air Transportation Office. The Air Transportation Office (ATO) created under
Republic Act No. 776, a sectoral office of the Department of Transportation and Communications (DOTC), is hereby
abolished.
 126

All powers, duties and rights vested by law and exercised by the ATO is hereby transferred to the Authority.

All assets, real and personal properties, funds and revenues owned by or vested in the different offices of
the ATO are transferred to the Authority. All contracts, records and documents relating to the operations of the
abolished agency and its offices and branches are likewise transferred to the Authority. Any real property owned
by the national government or government-owned corporation or authority which is being used and utilized as
office or facility by the ATO shall be transferred and titled in favor of the Authority.
Section 23 of R.A. No. 9497 enumerates the corporate powers vested in the CAAP, including the power to sue and be sued,
to enter into contracts of every class, kind and description, to construct, acquire, own, hold, operate, maintain, administer and lease
personal and real properties, and to settle, under such terms and conditions most advantageous to it, any claim by or against it. [18]

With the CAAP having legally succeeded the ATO pursuant to R.A. No. 9497, the obligations that the ATO had incurred by virtue of the
deed of sale with the Ramos spouses might now be enforced against the CAAP.

WHEREFORE, the Court denies the petition for review on certiorari, and affirms the decision promulgated by the Court of Appeals.

No pronouncement on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice
Acting Chairperson

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

ATTESTATION
 127

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

ARTURO D. BRION
Associate Justice
Acting Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the
above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

*
David Ramos died on October 14, 2001, before the assailed decision was promulgated. He was substituted by his children Cherry
Ramos, Joseph David Ramos and Elsie Grace R. Dizon pursuant to a resolution of the CA promulgated on April 23, 2003 (see rollo, p.
136).
**
Acting Chairperson in lieu of Justice Conchita Carpio Morales who is on leave per Special Order No. 925 dated January 24, 2011.
***
Additional member per Special Order No. 926 dated January 24, 2011.
[1]
Rollo, pp. 25-35; penned by Associate Justice Conrado M. Vasquez (later Presiding Justice, now retired), and concurred in by
Associate Justice Mercedes Gozo-Dadole (retired) and Associate Justice Rosmari D. Carandang,
[2]
Id., pp. 80-87; penned by Judge Antonio C. Reyes.
[3]
Id.
[4]
Id.
[5]
Id., pp. 25-35.
[6]
205 US 349, 353 (1907).
[7]
Bold emphasis supplied.
[8]
Veterans Manpower and Protective Services, Inc. v. Court of Appeals, G.R. No. 91359, Sept. 25, 1992, 214 SCRA 286, 294; Republic
v. Purisima, No. L-36084, Aug. 31, 1977, 78 SCRA 470, 473.
[9]
L-26386, Sept. 30, 1969, 29 SCRA 598, 601-602.
[10]
Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Edition, p. 1269.
[11]
Metropolitan Transportation Service v. Paredes, 79 Phil. 819 (1948).
[12]
E.g., Angat River Irrigation System, et. al. v. Angat River Workers Union, et. al., 102 Phil. 789 (1957).
[13]
E.g., National Airports Corporation v. Teodoro, Sr. and Phil. Airlines Inc., 91 Phil. 203 (1952).
[14]
Rollo, pp. 25-35.
[15]
Id., pp. 29-32.
[16]
Republic v. Sandiganbayan, G.R. No. 90478, Nov. 2, 1991, 204 SCRA 212, 231; Ministerio v. Court of First Instance of Cebu, No. L-
31635, Aug. 31, 1971, 40 SCRA 464; Santiago v. Republic, No. L-48214, Dec. 19, 1978, 87 SCRA 294.
[17]
G.R. Nos. 71998-99, June 2, 1993, 223 SCRA 11.
[18]
Section 23. Corporate Powers. The Authority, acting through the Board, shall have the following corporate powers:

(a) To succeed in its corporate name, to sue and be sued in such corporate name xxx.
 128

xxx
(c) To enter into, make, perform and carry out contracts of every class, kind and description, which are necessary or incidental
to the realization of its purposes, with any person, domestic or foreign private firm, or corporation, local or national government office,
agency and with international institutions or foreign government;
xxx
(e) To construct, acquire, own, hold, operate, maintain, administer and lease personal and real properties, including buildings,
machinery, equipment, other infrastructure, agricultural land, and its improvements, property rights, and interest therein x x x
xxx
(i) To settle, under such terms and conditions most advantageous to it, any claim by or against it;
xxx
 129

EN BANC

PROF. MERLIN M. MAGALLONA, G.R No. 187167

AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. Present:
ROQUE, JR., AND UNIVERSITY OF
THE PHILIPPINES COLLEGE OF CORONA, C.J.,
LAW STUDENTS, ALITHEA CARPIO,
BARBARA ACAS, VOLTAIRE VELASCO, JR.,
ALFERES, CZARINA MAY LEONARDO-DE CASTRO,
ALTEZ, FRANCIS ALVIN ASILO, BRION,
SHERYL BALOT, RUBY AMOR PERALTA,
BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,
ROMINA BERNARDO, VALERIE DEL CASTILLO,
PAGASA BUENAVENTURA, EDAN ABAD,
MARRI CAETE, VANN ALLEN VILLARAMA, JR.,
DELA CRUZ, RENE DELORINO, PEREZ,
PAULYN MAY DUMAN, SHARON MENDOZA, and
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.
GIRLIE FERRER, RAOULLE OSEN
FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT,
MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE
TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III,
Petitioners,

- versus -
HON. EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT
OF BUDGET AND MANAGEMENT,
 130

HON. DIONY VENTURA, IN HIS

CAPACITY AS ADMINISTRATOR OF
THE NATIONAL MAPPING &
RESOURCE INFORMATION
AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE
PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES Promulgated:
TO THE UNITED NATIONS,
Respondents. July 16, 2011
x -----------------------------------------------------------------------------------------x

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 9522 1 (RA 9522)
adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the Philippines as an archipelagic
State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS
I),4 codifying, among others, the sovereign right of States parties over their territorial sea, the breadth of which, however, was left
undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the
need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the
Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines
of archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended continental
shelf.8Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
regimes of islands whose islands generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as citizens, taxpayers or x x x legislators,9 as
the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime
territory, and logically, the reach of the Philippine states sovereign power, in violation of Article 1 of the 1987
Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters
landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security,
contravening the countrys nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions.13
 131

In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands not only results in the loss of a
large maritime area but also prejudices the livelihood of subsistence fishermen. 14 To buttress their argument of territorial
diminution, petitioners facially attack RA 9522 for what it excluded and included its failure to reference either the Treaty of Paris or
Sabah and its use of UNCLOS IIIs framework of regime of islands to determine the maritime zones of the KIG and the Scarborough
Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions compliance with the case or
controversy requirement for judicial review grounded on petitioners alleged lack of locus standi and (2) the propriety of the writs of
certiorari and prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the countrys
compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that
RA 9522 does not undermine the countrys security, environment and economic interests or relinquish the Philippines claim over
Sabah.

Respondents also question the normative force, under international law, of petitioners assertion that what Spain ceded to
the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area
drawn under the Treaty of Paris.

We left unacted petitioners prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of certiorari
and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522
unconstitutional.

On the Threshold Issues

Petitioners Possess Locus

Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither
infringement of legislative prerogative15 nor misuse of public funds,16 occasioned by the passage and implementation of RA 9522.
Nonetheless, we recognize petitioners locus standi as citizens with constitutionally sufficient interest in the resolution of the merits
of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar
nature of RA 9522, it is understandably difficult to find other litigants possessing a more direct and specific interest to bring the suit,
thus satisfying one of the requirements for granting citizenship standing. 17
 132

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test
the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of
certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of
judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners. 18

Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial
review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes,19 and indeed, of acts of other branches of government.20 Issues of constitutional import are sometimes
crafted out of statutes which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life of
this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-
compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool

to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory

Petitioners submit that RA 9522 dismembers a large portion of the national territory 21 because it discards the pre-UNCLOS III
demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national
territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the
Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris technical
description, Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris. 22

Petitioners theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others,
sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III
delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating
the conduct of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic States graduated authority
over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints
along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure
the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any
clearer:
 133

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic
zone and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic
zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47.
(Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent
of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of
the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of
sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the
contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56)
and continental shelf (Article 77).

Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the rectangular
area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522
because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the
boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the outermost islands and drying
reefs of the archipelago.24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of
territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion,
cession and prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply
with the treatys terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III,
and are instead governed by the rules on general international law.26

RA 9522s Use of the Framework

of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines, and to measure the
breadth of the applicable maritime zones of the KIG, weakens our territorial claim over that area. 27 Petitioners add that the KIGs
(and Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the loss of about 15,000 square nautical
miles of territorial waters, prejudicing the livelihood of subsistence fishermen. 28 A comparison of the configuration of the baselines
drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text
of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped
by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of
one baseline (and thus comply with UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522,
the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim
over the KIG, assuming that baselines are relevant for this purpose.

Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522 is similarly unfounded both in
fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the Philippines total maritime space
(covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table
below:29
 134

Extent of maritime area using RA 3046, as Extent of maritime area using RA

amended, taking into account the Treaty of Paris 9522, taking into account UNCLOS III
delimitation (in square nautical miles) (in square nautical miles)

Internal or
archipelagic waters 166,858 171,435

Territorial Sea 274,136 32,106

Exclusive Economic
Zone 382,669

TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the
waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are overlapping exclusive
economic zones of opposite or adjacent States, there will have to be a delineation of maritime boundaries in accordance with
UNCLOS III.30

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not
enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines continued claim of sovereignty and
jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as Regime of Islands under the Republic of the Philippines consistent with Article
121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal
effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of
UNCLOS III requires that [t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of
the archipelago. Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall not exceed 100 nautical miles,
save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31

Although the Philippines has consistently claimed sovereignty over the KIG 32 and the Scarborough Shoal for several
decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago,33 such
that any straight baseline loped around them from the nearest basepoint will inevitably depart to an appreciable extent from the
general configuration of the archipelago.

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the foregoing
during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be
 135

accused of violating the provision of international law which states: The drawing of such baseline shall not depart
to any appreciable extent from the general configuration of the archipelago. So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line
which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough
Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na
sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural
configuration of the archipelago.34 (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to shorten this baseline, and
in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of
its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III].
As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06 nautical
miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which states that The
length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the baselines
system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey methods.
Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were later found to
be located either inland or on water, not on low-water line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to classify
the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of the Philippines consistent with Article 121 36 of
UNCLOS III manifests the Philippine States responsible observance of its pacta sunt servandaobligation under UNCLOS III. Under
Article 121 of UNCLOS III, any naturally formed area of land, surrounded by water, which is above water at high tide, such as
portions of the KIG, qualifies under the category of regime of islands, whose islands generate their own applicable maritime zones. 37

Statutory Claim Over Sabah under

RA 5446 Retained

Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in North Borneo is also
untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in
this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
 136

UNCLOS III and RA 9522 not

Incompatible with the Constitutions
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally converts internal waters
into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including
overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime
pollution hazards, in violation of the Constitution.38

Whether referred to as Philippine internal waters under Article I of the Constitution 39 or as archipelagic waters under UNCLOS III
(Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space
over it and the submarine areas underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed
and subsoil.

1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless of
their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed
and subsoil, and the resources contained therein.
xxxx

4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect
the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its
sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein.
(Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the
territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious
international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political
branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes passage. 40 Indeed, bills drawing nautical highways for sea
lanes passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent
passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary international law, 43 thus automatically incorporated in the
corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised
in accordance with customary international law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea
lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are subject, in their territorial sea, to
the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights
through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to
their territorial sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by their
baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III. 46Separate islands
 137

generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States
territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III. 47

Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State
Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which,
absent enabling legislation, do not embody judicially enforceable constitutional rights x x x. 49Article II provisions serve as guides in
formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution.
Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the
present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating
to the protection of marine wealth (Article XII, Section 2, paragraph 2 51) and subsistence fishermen (Article XIII, Section 752), are not
violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to
the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the
international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to
UNCLOS III, the international community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space the
exclusive economic zone in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively
exploit the resources found within this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522. 54 We
have looked at the relevant provision of UNCLOS III 55 and we find petitioners reading plausible. Nevertheless, the prerogative of
choosing this option belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very steep price.
Absent an UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally
acceptable baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-
fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and
submarine areas around our archipelago; and second, it weakens the countrys case in any international dispute over Philippine
maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA
9522, allows an internationally-recognized delimitation of the breadth of the Philippines maritime zones and continental shelf. RA
9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution
and our national interest.

WHEREFORE, we DISMISS the petition.

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.
 138

RENATO C. CORONA
Chief Justice

1Entitled An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the
Archipelagic Baselines of the Philippines, and for Other Purposes.
2 Entitled An Act to Define the Baselines of the Territorial Sea of the Philippines.
3 The third Whereas Clause of RA 3046 expresses the import of treating the Philippines as an archipelagic State:
WHEREAS, all the waters around, between, and connecting the various islands of the Philippine
archipelago, irrespective of their width or dimensions, have always been considered as necessary appurtenances
of the land territory, forming part of the inland waters of the Philippines.
4 One of the four conventions framed during the first United Nations Convention on the Law of the Sea in Geneva, this treaty,
excluding the Philippines, entered into force on 10 September 1964.
5 UNCLOS III entered into force on 16 November 1994.
6 The Philippines signed the treaty on 10 December 1982.
7 Article 47, paragraphs 1-3, provide:
1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of
the outermost islands and drying reefs of the archipelago provided that within such baselines are included
the main islands and an area in which the ratio of the area of the water to the area of the land, including
atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent
of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum
length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago. (Emphasis supplied)
xxxx
8UNCLOS III entered into force on 16 November 1994. The deadline for the filing of application is mandated in Article 4, Annex II:
Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond
200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical
data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal
State shall at the same time give the names of any Commission members who have provided it with scientific and technical
advice. (Underscoring supplied)
In a subsequent meeting, the States parties agreed that for States which became bound by the treaty before 13 May 1999 (such as
the Philippines) the ten-year period will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009,
barely met the deadline.
9 Rollo, p. 34.
10Which provides: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein,
and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form
part of the internal waters of the Philippines.
11Entered into between the Unites States and Spain on 10 December 1898 following the conclusion of the Spanish-American War.
Under the terms of the treaty, Spain ceded to the United States the archipelago known as the Philippine Islands lying within
its technical description.
12 The Treaty of Washington, between Spain and the United States (7 November 1900), transferring to the US the islands of
Cagayan, Sulu, and Sibutu and the US-Great Britain Convention (2 January 1930) demarcating boundary lines between the
Philippines and North Borneo.
 139

13 Article II, Section 7, Section 8, and Section 16.

14 Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the Constitution.
15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).
16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165 Phil. 303 (1976).
17Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May
1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring). The two other factors are: the character of funds or assets
involved in the controversy and a clear disregard of constitutional or statutory prohibition. Id.
18. Rollo, pp. 144-147.
19See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (dismissing a petition for certiorari and prohibition
assailing the constitutionality of Republic Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v.
COMELEC, G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare unconstitutional
Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the writs of certiorari and prohibition
declaring unconstitutional portions of Republic Act No. 9189).
20See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008, 549
SCRA 77 (granting a writ of certiorari against the Philippine Senate and nullifying the Senate contempt order issued against
petitioner).
21 Rollo, p. 31.
22Respondents state in their Comment that petitioners theory has not been accepted or recognized by either the United States or
Spain, the parties to the Treaty of Paris. Respondents add that no State is known to have supported this proposition. Rollo,
p. 179.
23UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner Magallona himself defined as a body of
treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. x x x x (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997]) (Italicization
supplied).
24 Following Article 47 (1) of UNCLOS III which provides:
An archipelagic State may draw straight archipelagic baselines joining the outermost points of
the outermost islands and drying reefs of the archipelago provided that within such baselines are
included the main islands and an area in which the ratio of the area of the water to the area of the land,
including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied)
25 Under the United Nations Charter, use of force is no longer a valid means of acquiring territory.
26 The last paragraph of the preamble of UNCLOS III states that matters not regulated by this Convention continue to be governed
by the rules and principles of general international law.
27 Rollo, p. 51.
28 Id. at 51-52, 64-66.
29 Based on figures respondents submitted in their Comment (id. at 182).
30 Under Article 74.
31 See note 7.
32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.
33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123 nautical west of Zambales.
34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).
35 Rollo, p. 159.
36 Section 2, RA 9522.
37 Article 121 provides: Regime of islands.
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land
territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or
continental shelf.
 140

38 Rollo, pp. 56-57, 60-64.

39Paragraph 2, Section 2, Article XII of the Constitution uses the term archipelagic waters separately from territorial sea. Under
UNCLOS III, an archipelagic State may have internal waters such as those enclosed by closing lines across bays and mouths
of rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: Where the establishment of a straight
baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had
not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those
waters. (Emphasis supplied)
40 Mandated under Articles 52 and 53 of UNCLOS III:
Article 52. Right of innocent passage.
1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent
passage through archipelagic waters, in accordance with Part II, section 3.
2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend
temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such
suspension is essential for the protection of its security. Such suspension shall take effect only after
having been duly published. (Emphasis supplied)

Article 53. Right of archipelagic sea lanes passage.

1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the
continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters
and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and
air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the
rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious
and unobstructed transit between one part of the high seas or an exclusive economic zone and another
part of the high seas or an exclusive economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial
sea and shall include all normal passage routes used as routes for international navigation or overflight
through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal
navigational channels, provided that duplication of routes of similar convenience between the same entry
and exit points shall not be necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the
entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall
not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such
ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the
nearest points on islands bordering the sea lane.
6. An archipelagic State which designates sea lanes under this article may also prescribe traffic
separation schemes for the safe passage of ships through narrow channels in such sea lanes.
7. An archipelagic State may, when circumstances require, after giving due publicity thereto,
substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes
previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to generally accepted
international regulations.
9. In designating or substituting sea lanes or prescribing or substituting traffic separation
schemes, an archipelagic State shall refer proposals to the competent international organization with a
view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as
may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or
substitute them.
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10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation
schemes designated or prescribed by it on charts to which due publicity shall be given.
11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic
separation schemes established in accordance with this article.
12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea
lanes passage may be exercised through the routes normally used for international navigation. (Emphasis
supplied)
41Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN
THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS
EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND
PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN.
42 The relevant provision of UNCLOS III provides:
Article 17. Right of innocent passage.
Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of
innocent passage through the territorial sea. (Emphasis supplied)

Article 19. Meaning of innocent passage.

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the
coastal State. Such passage shall take place in conformity with this Convention and with other rules of
international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or
security of the coastal State if in the territorial sea it engages in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political
independence of the coastal State, or in any other manner in violation of the principles of international
law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the
coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs,
fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or
installations of the coastal State;
(l) any other activity not having a direct bearing on passage

Article 21. Laws and regulations of the coastal State relating to innocent passage.
1. The coastal State may adopt laws and regulations, in conformity with the provisions of this
Convention and other rules of international law, relating to innocent passage through the territorial sea,
in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
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(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the prevention, reduction and
control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction, manning or equipment of
foreign ships unless they are giving effect to generally accepted international rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply
with all such laws and regulations and all generally accepted international regulations relating to the
prevention of collisions at sea.
43The right of innocent passage through the territorial sea applies only to ships and not to aircrafts (Article 17, UNCLOS III). The right
of innocent passage of aircrafts through the sovereign territory of a State arises only under an international agreement. In
contrast, the right of innocent passage through archipelagic waters applies to both ships and aircrafts (Article 53 (12),
UNCLOS III).
44Following Section 2, Article II of the Constitution: Section 2. The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis supplied)
45Archipelagic sea lanes passage is essentially the same as transit passage through straits to which the territorial sea of continental
coastal State is subject. R.R. Churabill and A.V. Lowe, The Law of the Sea 127 (1999).
46 Falling under Article 121 of UNCLOS III (see note 37).
47 Within the exclusive economic zone, other States enjoy the following rights under UNCLOS III:

Article 58. Rights and duties of other States in the exclusive economic zone.
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant
provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of
the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to
these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and
pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic
zone in so far as they are not incompatible with this Part.
xxxx

Beyond the exclusive economic zone, other States enjoy the freedom of the high seas, defined under UNCLOS III as follows:

Article 87. Freedom of the high seas.

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is
exercised under the conditions laid down by this Convention and by other rules of international law. It
comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international
law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
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2. These freedoms shall be exercised by all States with due regard for the interests of other
States in their exercise of the freedom of the high seas, and also with due regard for the rights under this
Convention with respect to activities in the Area.
48 See note 13.
49 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Taada v. Angara, 338 Phil. 546, 580-581 (1997).
50 G.R. No. 101083, 30 July 1993, 224 SCRA 792.
51 The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens.
52The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the
communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through
appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The
State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of
marine and fishing resources.
53This can extend up to 350 nautical miles if the coastal State proves its right to claim an extended continental shelf (see UNCLOS III,
Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77).
54 Rollo, pp. 67-69.
55Article 47 (1) provides: An archipelagic State may draw straight archipelagic baselines joining the outermost points of the
outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and
an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
(Emphasis supplied)