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Yamashita vs Styer

G.R. No. L-129 December 19, 1945


Facts:
Petitioner Tomoyuki Yamashita, the commanding general of the 14th army group of the
Japanese Imperial Army in the Philippines, after his surrender became a prisoner of war of
the United States of America but was later removed from such status and placed in
confinement as an accused war criminal charged before an American Military Commission
constituted by respondent Lieutenant General Styer, Commanding General of the United
States Army Forces, Western Pacific.

Filing for habeas corpus and prohibition against respondent, he asks that he be reinstated to
his former status as prisoner of war, and that the Military Commission be prohibited from
further trying him. He questions, among others, the jurisdiction of said Military Commission.

Issue/s:
1. Should the petitions for habeas corpus and prohibition be granted in this case?

2. Was the Military Commission validly constituted by respondent, therefore having


jurisdiction over the war crimes?

Ruling: 1. NO. 2. YES.


1. A petition for habeas corpus is improper when release of petitioner is not sought. It seeks
no discharge of petitioner from confinement but merely his restoration to his former status as
a prisoner of war, to be interned, not confined. The relative difference as to the degree of
confinement in such cases is a matter of military measure, disciplinary in character, beyond
the jurisdiction of civil courts. Prohibition cannot issue against one not made party respondent.
Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The Military
Commission is not made party respondent in this case, and although it may be acting, as
alleged, without jurisdiction, no order may be issued in these case proceedings requiring it to
refrain from trying the petitioner.

The Court further ruled that it has no jurisdiction to entertain the petition even if the
commission be joined as respondent. As it has said, in Raquiza vs. Bradford (pp. 50,
61, ante), “. . . an attempt of our civil courts to exercise jurisdiction over the United States
Army before such period (state of war) expires, would be considered as a violation of this
country’s faith, which this Court should not be the last to keep and uphold.”

2. Under the laws of war, a military commander has an implied power to appoint and convene
a military commission. This is upon the theory that since the power to create a military
commission is an aspect of waging war, military commanders have that power unless
expressly withdrawn from them.
By the Articles of War, and especially Article 15, the Congress of the United States has
explicitly provided, so far as it may constitutionally do so, that military tribunals shall have
jurisdiction to try offenders or offenses against the laws of war in appropriate cases.
TOMOYUKI YAMASHITA, petitioner,

vs.

WILHELM D. STYER, Commanding General, United States Army Forces, Western Pacific, respondent.

Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner.

Maj. Robert M. Kerr for respondent.

Delgado, Dizon, Flores and Rodrigo appeared as amici curiae.

EN BANC

Facts:

Tomoyuki Yamashita was an erstwhile commanding general of the 14th army group of the Japanese
Imperial Army in the Philippines. He was charged before an American Military Commission with the
most monstrous crimes ever committed against the American and Filipino peoples.

Filed before the Court were petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer,
Commanding General of the United States Army Forces, Western Pacific.

It was alleged that General Yamashita, after his surrender, became a prisoner of war of the US but was
later removed from such status and placed in confinement as an accused charged for war crimes before
an American Military Commission constituted by respondent Lieutenant General Styer.

Petitioner wanted to be reinstated to his former status as prisoner of war, and that the Military
Commission be prohibited from further trying him.

Issues:

(1) That the Military Commission was not duly constituted, and, therefore, it is without jurisdiction;

(2) That the Philippines cannot be considered as an occupied territory, and the Military Commission
cannot exercise jurisdiction therein;
(3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing trial
against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1892, and therefore,
the Military Commission has no jurisdiction to try the petitioner;

(4) That there is against the petitioner no charge of an offense against the laws of war; and

(5) That the rules of procedure and evidence under which the Military Commission purports to be acting
denied the petitioner a fair trial.

Held:

The Court deemed that petition for habeas corpus is untenable.

The relative difference as to the degree of confinement in such cases is a matter of military measure,
disciplinary in character, beyond the jurisdiction of civil courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military
Commission is not made party respondent in this case, and although it may be acting, as alleged,
without jurisdiction, no order may be issued in these case proceedings requiring it to refrain from trying
the petitioner.

Constitutionality of the Military Commission

The Commission has been validly constituted by Lieutenant General Styer duly issued by General
Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in accordance in authority
vested in him and with radio communication from the Joint Chiefs of Staff.

Under paragraph 356 of the Rules of the Land Welfare a Military Commission for the trial and
punishment of the war criminals must be designated by the belligerent. And the belligerent's
representative in the present case is none other than the Commander in Chief of the United States Army
in the Pacific.
The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner
and over the offenses with which he is charged. It has jurisdiction over the person of the petitioner by
reason of his having fallen into the hands of the United States Army Forces. Under paragraph 347 of the
Rules of the Land Warfare, "the commanders ordering the commission of such acts, or under whose
authority they are committed by their troops, may be punished by the belligerent into whose hands
they may fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the United
States said:

From the very beginning of its history this Court has recognized and applied the law of war as including
that part of the law of nations which prescribes, for the conduct of war, the status rights and duties and
of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15,
Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have
jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition
to making rules for the government of our Armed Forces, has thus exercised its authority to define and
punish offenses against the law of nations by sanctioning, within constitutional limitations, the
jurisdiction of military commissions to try persons and offenses which, according to the rules and
precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.
(Ex parte Quirin, 317 U.S. 1, 27-28; 63 Sup. Ct., 2.)

Philippine jurisdiction to the case

Petitioner is charged before the Military Commission sitting at Manila with having permitted members
of his command "to commit brutal atrocities and other high crimes against the people of the United
States and of its allies and dependencies, particularly the Philippines," crimes and atrocities which in the
bills of particulars, are described as massacre and extermination of thousand and thousands of unarmed
noncombatant civilians by cruel and brutal means, including bayoneting of children and raping of young
girls, as well as devastation and destruction of public, or private, and religious property for no other
motive than pillage and hatred. These are offenses against the laws of the war as described in paragraph
347 of the Rules of Land Warfare.

It is maintained, however, that, according to the Regulations Governing the Trial of War Criminals in the
Pacific. "the Military Commission . . . shall have jurisdiction over all of Japan and other areas occupied by
the armed forces commanded by the Commander in Chief, United States Army Forces, Pacific"
(emphasis supplied), and the Philippines is not an occupied territory. The American Forces have
occupied the Philippines for the purpose of liberating the Filipino people from the shackles of Japanese
tyranny, and the creation of a Military Commission for the trial and punishment of Japanese war
criminals is an incident of such war of liberation.
Third Issue – Spain as “protecting power” of Japan

It is maintained that Spain, the "protecting power" of Japan, has not been given notice before trial was
begun against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1929. But
there is nothing in that Convention showing that notice is a prerequisite to the jurisdiction of Military
Commissions appointed by victorious belligerent. Upon the other hand, the unconditional surrender of
Japan and her acceptance of the terms of the Potsdam Ultimatum are a clear waiver of such a notice. It
may be stated, furthermore, that Spain has severed her diplomatic relation of Japan because of
atrocities committed by the Japanese troops against Spaniards in the Philippines. Apparently, therefore,
Spain has ceased to be the protecting power of Japan.

Dismissal of the petition

And, lastly, it is alleged that the rules of procedure and evidence being followed by the Military
Commission in the admission of allegedly immaterial or hearsay evidence, cannot divest the commission
of its jurisdiction and cannot be reviewed in a petition for the habeas corpus. (25 Am. Jur., 218; Collins
vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326)
EREMES KOOKOORITCHKIN, petitioner,
vs.
THE SOLICITOR GENERAL, oppositor.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor for appellant.
L. D. Lockwood and Manuel O. Chan for appellee.

PERFECTO, J.:

In August, 1941, appellee filed with the lower court a petition for naturalization, accompanied with
supporting affidavits of two citizens, copy of a declaration of intention sworn in July, 1940, and
proper notice of the hearing. The petition was finally set for hearing on December 18, 1941, but it
was held on that date because the province was invaded by the Japanese forces on December 14,
and the case remained pending until the records were destroyed during the military operations for
liberation in March, 1945. The case was declared reconstituted on May 10, 1947, and the evidence
was presented on August 28 and September 30, 1947. On the same day resolution was issued
granting the petition.

Although appellant was represented at the hearing and cross-examined the witnesses for the
petitioner, he did not file an opposition or presented any evidence.

The lower court made the findings of fact in the following paragraphs of its resolution:

Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions
of Commonwealth Act 473, as amended by Act 535.

The records shows that in August, 1941, he filed his petition for naturalization supported by
the affidavits of ex-Judge Jaime M. Reyes and Dr. Salvador Mariano, both residents of
Camarines Sur. In the preceding year, in July, 1940 to be precise, he filed his declaration of
intention to become a citizen of this country. Notice of the hearing was published as required
by law.

It was established at the hearing that the petitioner is a native-born Russian, having first
seen the light of day on November 4, 1897 in the old City of St. Petersburg, Russia. He grew
up as a citizen of the defunct Imperial Russian Government under the Czars. World War I
found him in the military service of this Government. In 1915 he volunteered for the Imperial
Russian navy and was sent to the Navy Aviation School. He fought with the Allies in the
Baltic Sea, was later transferred to the eastern front in Poland, and much later was sent as a
navy flier to Asia Minor. In the latter part of the war, but before the Russian capitulation, he
was transferred to the British Air Force under which he served for fourteen months. When
the revolution broke out in Russia in 1917, he joined the White Russian Army at Vladivostok
and fought against the Bolsheviks until 1922 when the White Russian Army was
overwhelmed by the Bolsheviks. As he refused to join the Bolshevik regime, he fled by sea
from Vladivostok to Shanghai and from this Chinese port he found his way to Manila, arriving
at this port as a member of a group of White Russians under Admiral Stark in March, 1923.
He stayed in Manila for about seven months, then moved to Olongapo, Zambales, where he
resided for about a year, and from this place he went to Iriga, Camarines Sur, where he
established his permanent residence since May, 1925. He has remained a resident of this
municipality, except for a brief period from 1942 to July, 1945, when by reason of his
underground activities he roamed mountains of Caramoan as a guerrilla officer. After
liberation he returned to Iriga where again he resides up to the present time.
The applicant is married to a Filipino by the name of Concepcion Segovia, with whom he has
one son named Ronald Kookooritchkin. He is at present studying in Saint Agnes Academy,
at Legaspi, Albay, a school duly recognized by the Government.

The applicant is shop superintendent of A. L. Ammen Transportation Company, with about


eighty Filipino employees working under him. He receives an annual salary of P13,200 with
free quarters and house allowance. He also owns stocks and bonds of this and other
companies.

The applicant speaks and writes English and the Bicol dialect. Socially he intermingles with
the Filipinos, attending parties, dances and other social functions with his wife. He has a
good moral character and believes in the principles underlying the Philippine Constitution. He
has never been accused of any crime. On the other hand, he has always conducted himself
in a proper and irreproachable manner during his entire period of residence in Camarines
Sur, in his relations with the constituted authorities as well as with the community.

Although he could have lived in ease by maintaining good relations with the enemy by
reason of his being Russian-born during the years preceding the declaration of war by
Russia against Japan, the applicant of his own volition chose to cast his lot with the guerrilla
movement and fought the enemy in several encounters in the Province of Camarines Sur.
He belonged to the guerrilla outfit of Colonel Padua with rank of major. Upon the arrival of
the forces of liberation he was attached to the American Army from April to June, 1945.

Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to


the present Communist Government of Russia. He is, therefore, a stateless refugee in this
country, belonging to no State, much less to the present Government of the land of his birth
to which he is uncompromisingly opposed. He is not against organized government or
affiliated with any association which upholds and teaches doctrine opposing all organized
governments. He does not believe in the necessity or propriety of violence, personal assault
or assassination for the success or predominance of his ideas. Neither is he a polygamist or
a believer in the practice of polygamy. He is not suffering from any mental alienation or
incurable contagious disease.

Appellant assigns four errors in the appealed resolution. We will consider them separately.

Appellant claims that the lower court erred in not finding that the declaration of intention to become a
Filipino citizen filed by appellee is invalid and insufficient as a basis for the petition of naturalization.
The question calls for the application of the following provision of section 5 of the Revised
Naturalization Law:

No declaration shall be valid until entry for permanent residence has been established and a
certificate showing the date, place and manner of his arrival has been issued.

Appellant alleges that no documentary or testimonial evidence was introduced to establish the fact
that appellee had lawfully been admitted into the Philippines for permanent residence.

In the reconstituted declaration (page 11, record on appeal) the following can be read:
I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the
attached certificate of arrival or landing certificate of residence.

The records of the Bureau of Justice, where the declarations of intention to become a Filipino citizen
were filed, had been lost or destroyed during the battle for the liberation of Manila, and the certificate
alluded to has not been reconstituted.

Appellant's contention that attachment of the certificate of arrival is essential to the validity of a
declaration finds no support in the wordings of the law, as the above-quoted section 5 of
Commonwealth Act no. 473 uses the words "has been issued.

Appellee suggests that we would not consider the question here raised by appellant, the latter
having failed to raise it in lower court and points out that there is testimonial evidence showing
appellee's arrival March, 1923, and that he was lawfully admitted for permanent residence, and the
testimony of petitioner has not been refuted. Appellee's alleges that the office of the President has
certified that it is a matter of record that petitioner was one of the Russian refugees who entered the
Philippines under the command of Admiral Stark, the facts regarding arrival of the latter fleet being a
matter of common knowledge, widely publicized in the newspapers at the time, of which this Court
may properly take judicial notice under section 5 of Rule 123. When the fleet entered the Philippine
waters, it was met by a Governor General Wood who, later, took the matter up with the authorities in
Washington in lengthy correspondence, and the 1,200 persons manning the fleet were allowed to
land and to remain in the Philippines or proceed to other countries, except about 800 who were
allowed to go to the United States and given free transportation on the naval transport "Merritt." The
ships of the fleet were sold in the Philippines.

The undisputed fact that the petitioner has been continuously residing in the Philippines for about 25
years, without having been molested by the authorities, who are presumed to have been regularly
performing their duties and would have arrested petitioner if his residence is illegal, as rightly
contended by appellee, can be taken as evidence that he is enjoying permanent residence legally.
That a certificate of arrival has been issued is a fact that should be accepted upon the petitioner's
undisputed statement in his declaration of July, 1940, that the certificate cannot be supposed that
the receiving official would have accepted the declaration without the certificate mentioned therein
as attached thereto.

We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law, failure to
reconstitute the certificate of arrival notwithstanding. What an unreconstituted document intended to
prove may be shown by other competent evidence.

II

The second assignment of error touches upon two questions, that the lower court erred (1) in not
finding that appellee has not established a legal residence in the Philippines, and (2) in not finding
that he cannot speak and write any of the principal Philippine languages.

The first question has already been disposed of in the above discussion. Perusal of the testimonies
on record leads to the conclusion that petitioner has shown legal residence in the Philippines for a
continuous period of not less than ten years as required by section 2 of Commonwealth Act No. 473.

As to the next question, appellant alleges that in the oral test at the hearing, it was demonstrated
that petitioner has only a smattering of Bicol, the Filipino language that petitioner alleges to know,
and he cannot speak it as he was not able to translate from English to Bicol questions asked by the
court and the provincial fiscal, although, in the continuation of the hearing on September 30, 1947,
"surprisingly enough, he succeeded answering correctly in Bicol the questions propounded by his
counsel, however, he fumbled and failed to give the translation of such a common word as 'love'
which the fiscal asked of him.

The lower court made the finding of fact that applicant speaks and writes English and Bicol and there
seems to be no question about the competency of the judge who made the pronouncement,
because he has shown by the appealed resolution and by his questions propounded to appellee,
that he has command of both English and Bicol.

The law has not set a specific standard of the principal Philippine languages. A great number of
standards can be set. There are experts in English who say that Shakespeare has used in his works
15,000 different English words, and the King's Bible about 10,000, while about 5,000 are used by the
better educated persons and about 3,000 by the average individual. While there may be persons
ambitious enough to have a command of the about 600,000 words recorded in the Webster's
International Dictionary, there are authorities who would reduce basic English to a few hundred
words. Perhaps less than one hundred well selected words will be enough for the ordinary purposes
of daily life.

There is a reason to believe that the lower court's pronouncement is well taken considering the fact
that, after he was liberated in 1942 from the Japanese in the Naga prison, petitioner joined the
guerrilla in the Bicol region, took part in encounters and skirmishes against the Japanese, and
remained with the guerrilla until the Americans liberated the Bicol provinces. If appellee with his
smattering of Bicol was able to get along with his Bicol comrades in the hazardous life of the
resistance movement, we believe that his knowledge of the language satisfies the requirement of the
law.

But appellant contends that there is no piece of positive evidence to support petitioner's allegation
that he can write too in the Bicol language. There, is, however, on record circumstantial evidence
from which it can be concluded that petitioner ought to know also how to write Bicol. We know that
Bicol, as all the important Philippine languages, uses the same alphabet used in English, and it is
much easier to write Bicol than English, because it is phonetic. Vowels and consonants have in them
single and not interchangeable phonetic values, while English words deviate very often from the
basic sounds of the alphabet. The ability to write cannot be denied to a person like petitioner, who
has undergone the exacting technical training to be able to render services as flier in the Russian
Naval Squadron in the Baltic Sea and in the British Air Forces during the first World War. The
difference between the Cyrillic alphabet, as now used by Russians, and our Roman alphabet, cannot
weigh much to deny petitioner the ability to use the latter. A person who has shown the command of
English which can be seen in his testimony on record can easily make use of an alphabet of twenty
or more letters universally used in this country where he has been residing continuously for 25
years.

III

Appellant contends that the lower court erred in finding appellee stateless and not a Russian citizen
and in not finding that he has failed to establish that he is not disqualified for Philippine citizenship
under section 4 (h) of the Revised Naturalization Law.

It is contended that petitioner failed to show that under the laws of Russia, appellee has lost his
Russian citizenship and failed to show that Russia grants to Filipinos the right to become a
naturalized citizens or subjects thereof. The controversy centers on the question as to whether
petitioner is a Russian citizen or is stateless.
Petitioner testified categorically that he is not a Russian citizen and that he has no citizenship. His
testimony supports the lower court's pronouncement that petitioner is a stateless refugee in this
country.

Appellant points out that petitioner stated in his petition for naturalization that he is citizen or subject
of the Empire of Russia, but the Empire of Russia has ceased to exist since the Czars were
overthrown in 1917 by the Bolshevists, and the petitioner disclaims allegiance or connection with the
Soviet Government established after the overthrow of the Czarist Government.

We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's testimony,
besides being uncontradicted, is supported by the well-known fact that the ruthlessness of modern
dictatorship has scattered throughout the world a large number of stateless refugees or displaced
persons, without country and without flag. The tyrannical intolerance of said dictatorships toward all
opposition induced them to resort to beastly oppression, concentration camps and blood purges, and
it is only natural that the not-so-fortunate ones who were able to escape to foreign countries should
feel the loss of all bonds of attachment to the hells which were formerly their fatherland's. Petitioner
belongs to that group of stateless refugees.

Knowing, as all cultured persons all over the world ought to know, the history, nature and character
of the Soviet dictatorship, presently the greatest menace to humanity and civilization, it would be
technically fastidious to require further evidence of petitioner's claim that he is stateless than his
testimony that he owes no allegiance to the Russian Communist Government and, is because he
has been at war with it, he fled from Russia to permanently reside in the Philippines. After finding in
this country economic security in a remunerative job, establishing a family by marrying a Filipina with
whom he has a son, and enjoying for 25 years the freedoms and blessings of our democratic way of
life, and after showing his resolution to retain the happiness he found in our political system to the
extent of refusing to claim Russian citizenship even to secure his release from the Japanese and of
casting his lot with that of our people by joining the fortunes and misfortunes of our guerrillas, it
would be beyond comprehension to support that the petitioner could feel any bond of attachment to
the Soviet dictatorship.

IV

The fourth and last assignment of error need not be discussed, it being only a sequel of the other
assignments and has necessarily been disposed of in their discussion.
SHIGENORI KURODA, petitioner, vs. Major General RAFAEL JALANDONI, Brigadier General
CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel
PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT,
respondents.\ MORAN, C.J.: (1949)\Nature: En Banc Decision

Doctrine: Rules and regulations of the Hague and Geneva conventions form part of and are wholly
based on the generally accepted principals of international law. They form part of the law of our
nation even if the Philippines was not a signatory to the conventions embodying them, for our
Constitution has been deliberately general and extensive in its scope and is not confined to the
recognition of rules and principles of international law as contained in treaties to which our
government may have been or shall be a signatory.

Facts:
- A Military commission was empaneled under the authority of Executive Order 68 of the President
of the Philippines, which was issued on July 29, 1947. This is an act establishing a national war crimes
office and prescribing rules and regulation governing the trial of accused war criminals.
- Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The Philippines from 1943-1944, is charged before a
military commission convened by the Chief of Staff of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his duties as such command, permitting them to
commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the
Imperial Japanese Forces in violation of the laws and customs of war".
- Melville Hussey and Robert Port, American lawyers, were appointed prosecutors in behalf of USA.
- Kuroda challenges the legality of the EO No. 68 and the personality as prosecutors of Hussey and
Port.
- Kuroda’s arguments were: (1)EO No. is illegal on the gound that ut wiolates not only the provisions
of our constitutional law but also our local laws; (2) Military Commission has no Jurisdiction to try
him for acts committed in violation of the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only in 1947 and, therefore, he is
charged with “crime” not based on law, national or international; and (3) Hussey and Port have no
personality as prosecutors in this case because they are not qualified to practice law in Philippines
in accordance with our Rules of court and the appointment of said attorneys as prosecutors is
violative of our national sovereignty.

Issues/Held: (1) WON EO No. 68 is valid and constitutional? [Yes it is a valid because it is based on
the generally accepted principles of international law which form part of our laws.]
(2) WON rules and regulations of the Hague and Geneva Conventions form part of the law of the
nation even if Philippines was not a signatory to the conventions embodying them? [Yes, they form
part of our laws.]
(3) WON the American lawyers could participate in the prosecution of this case? [Yes, they can.]

Ratio: (1) The order is valid and constitutional. Article 2 of our Constitution provides in its section 3,
that- The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the nation.

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

The promulgation of said executive order is an exercise by the President of his power as Commander
in chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer.
Consequently, the President as Commander in Chief is fully empowered to consummate this
unfinished aspect of war namely the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.

(2) Rules and regulations of the Hague and Geneva conventions form part of and are wholly based on
the generally accepted principals of international law. In fact, these rules and principles were
accepted by the two belligerent nations, the United States and Japan, who were signatories to the two
Conventions. Such rule and principles therefore form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them, for our Constitution has
been deliberately general and extensive in its scope and is not confined to the recognition of
rules and principles of international law as contained in treaties to which our government
may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines
was under the sovereignty of United States and thus we were equally bound together with the United
States and with Japan to the right and obligation contained in the treaties between the belligerent
countries.

(3) There is nothing in said executive order which requires that counsel appearing before said
commission must be attorneys qualified to practice law in the Philippines in accordance with the
Rules of Court. Respondent Military Commission is a special military tribunal governed by a special
law and not by the Rules of court which govern ordinary civil court. Secondly, the appointment of the
two American attorneys is not violative of our nation sovereignty. It is only fair and proper that
United States, which has submitted the vindication of crimes against her government and her people
to a tribunal of our nation, should be allowed representation in the trial of those very crimes. If there
has been any relinquishment of sovereignty it has not been by our government but by the United
States Government which has yielded to us the trial and punishment of her enemies.
Salonga vs. Executive Secretary (2009)

Doctrine: The VFA is constitutional for being an implementing agreement of the RP-US Military Defense Treaty which
has been ratified & concurred by both US & Philippine Senates. Also, the VFA provisions regarding the detention &
custody of foreign military forces are not in violation of the Constitutional mandate about the Court’s exclusive
power of promulgating rules of procedure. On the other hand, the Romulo-Kenney agreement is void for not being
in accord with the VFA.

Facts:
1. Daniel Smith
a. Member of the US Armed Forces
b. Charged with the crime of rape against a Filipina (Suzette Nicolas, 22-year old unmarried woman)
2. Trial of the accused
a. Pursuant to the Visiting Forces Agreement (VFA) between the Philippines and the US, the US was
granted custody of defendant Smith pending the proceedings
b. Trial was transferred from RTC Zambales to RTC Makati for security purposes
c. During trial, the US Government faithfully complied to their obligation of bringing Smith to the trial
court every time his presence was required
3. RTC Makati decision – Smith is guilty beyond reasonable doubt of the crime of rape
a. Pursuant to Article V, par. 10, of the VFA – Smith shall serve his sentence in a facility that shall be
agreed upon by the Philippine and US authorities.
b. Pending this agreement, Smith is ordered to be temporarily committed to the Makati city jail
4. Romulo-Kenney Agreement
a. This is the agreement pursuant to Art. V, par. 10, of the VFA
b. It has been agreed upon by Kristie Kenney (representative of US) and Alberto Romulo
(representative of the Philippines) that Smith shall be detained at the 1 st floor, Rowe (JUSMAG)
Building, US Embassy Compound in a room of approximately 10x12 square feet
i. The Philippine police & jail authorities shall have access to the place of detention in order
to ensure the compliance of the US with the terms of the VFA
c. Dec. 29, 2006 – Smith was taken out of the Makati jail by Philippine law enforcement agents (acting
upon the orders of DILG) and brought to the US Embassy
5. The matter was brought to the CA, which dismissed the petition for having become moot. Hence, the
present action.

Procedure:
1. RTC Makati - Smith was convicted of the crime rape
2. CA – to question the Romulo-Kenney agreement; petition dismissed
3. SC – petitions for certiorari, as special civil actions and/or for review of the CA decision

Issue/s:
1. WON the VFA is void and unconstitutional – No
2. WON the VFA provision on cases of offenses committed by the members of the US Armed Forces in the
Philippines violates Art. VIII, Sec. 5(5) (“...providing for the exclusive power of this Court to adopt rules of
procedure for all courts in the Philippines”)- No
3. WON the Romulo-Kenney Agreement is in accord of the VFA – No
4. WON the VFA is affected by the US SC decision on Medellin vs. Texas - No

Held/Ratio:
1. The VFA is constitutional.
a. The petitioners contend that the issue is of primordial importance involving the sovereignty of the
Republic, as well as the mandate of the Constitution
b. The SC upheld the constitutionality of the VFA for the following reasons:
i. The SC, in Bayan vs. Zamora, has already resolved in favour of the constitutionality of the
VFA.
1. The VFA was duly concurred in by the Philippine senate and has been recognized
as a treaty by the US. Thus, it follows the Constitutional mandate that an
agreement concerning Military Bases shall only be allowed “under a treaty duly
concurred in by the Senate ... and recognized as a treaty by the other contracting
state” (Art. XVIII, Sec. 25)
2. Though the VFA was not submitted for advice and consent of the US Senate, it is
still a binding international agreement or treaty recognized by the US
a. Only policymaking agreements are submitted to the US Senate
b. Those that carry out or further implement policymaking agreements are
submitted to Congress under the provisions of Case-Zablocki Act.
Submission of this kind of agreement to the US Senate is not necessary.
c. The RP-US Military Defense Treaty is the policymaking agreement,
while the VFA is its implementing agreement. The RP-US Military
Defense Treaty has been ratified & concurred by both Philippine & US
senates.
2. Art. VIII, Sec 5 (5) is not violated
a. Equal protection clause is not violated due to the presence of substantial basis for a different
treatment of a member of foreign military allowed to enter the Philippine territory
b. Rule on international law – a foreign military allowed to enter one’s territory is immune from local
jurisdiction, except to the extent agreed upon
i. The issue does not involve the adoption of rules of procedure. Rather, it is the question
of extraterritorial immunity based on what has been agreed upon by the contracting
States. Nothing in the Constitution prohibits such.
3. The Romulo-Kenney is not in accord with the VFA
a. The VFA provides for a different treatment between detention and custody
i. Detention – in a facility agreed by both States BUT shall be “by Philippine authorities”
b. Romulo-Kenney agreement is in violation of the VFA because the detention agreed upon is not “by
Philippine authorities”
4. The VFA is different from the subject matter of the Medellin vs. Texas case
a. In Medellin vs. Texas, the US SC held that “treaties entered into by the US are not automatically
part of their domestic law unless these treaties are self-executing or there is an implementing
legislation to make them enforceable”.
b. VFA vs Vienna Convention on Consular Relations & the Avena decision of the International Court
of Justice (subject matter of the Medellin decision)
i. VFA – (1) self- executing agreement because the parties intend its provisions to be
enforceable and (2) it is covered by implementing legislation which is the Case-Zablocki
Act
1. These two characteristics are absent in the subject matter of the Medellin
decision
Public International Law: Plaridel M. Abaya vs. Hon.
Secretary Hermogenes E. Ebdane, Jr.G. R. No. 167919
February 14, 2007
G. R. No. 167919
February 14, 2007
Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.

FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways
(DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante
Soriquez. This resolution recommended the award to China Road & Bridge Corporation of the contract
for the implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818
kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine
Government pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs
Secretary Siazon, in behalf of their respective governments.

ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a
kind of a treaty.

HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27,
1999 between the Japanese Government and the Philippine Government is an executive agreement.
An “exchange of notes” is a record of a routine agreement that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being in
the possession of the one signed by the representative of the other.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding,
modus vivendi and exchange of notes all are refer to international instruments binding at international
law.
Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their mutual
relations. Therefore, they are regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.

What the petitioners wanted was that Foreign funded projects also undergo the procurement process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for foreign
funded projects (IRR-B) of the procurement law If we recall the decision of the Abaya vs Ebdane was
used by the DOJ when the DOTC Secretary was asking for an opinion from the former, during the ZTE
controversy.as ruled by the Supreme Court in Abaya v. Ebdane, an exchange of notes is considered a
form of an executive agreement, which becomes binding through executive action without need of a
vote by the
Senate and that (like treaties and conventions, it is an international instrument binding at international
law,
The second issue involves an examination of the coverage of Republic Act No. 9184, otherwise known as
the “Government Procurement Reform Act”. Section 4 of the said Act provides that it shall
apply to: … the Procurement of infrastructure Projects, Goods and Consulting Services, regardless of
source of funds, whether local or foreign, by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned and/or -controlled corporations and
local government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or
international or executive agreement affecting the subject matter of this Act to which the Philippine
government is a signatory shall be observed.
DBM-PS v. Kolonwel Trading,
G.R. No. 175608
June 8, 2007

FACTS:
In 2005, DepEd requested the services of the Department of Budget and Management Procurement
Service (DBM-PS) to undertake a procurement project that is to be jointly funded by the World Bank (WB),
and the Asian Development Bank (ADB). The Executive Director of the Government Procurement Policy
Board (GPPB) stated that the "procurement for MAKABAYAN (social studies) textbooks that is to be
sourced from the World Bank Loan shall conform to the procurement standards of said foreign lending
institution.
The DBM-PS Inter-Agency Bids and Awards Committee (IABAC) called for a bidding for the
supply of the Makabayan textbooks and manuals for different level of grades. First is for Sibika in Grades
1-3; Hekasi for Grades 4-6; and Araling Panlipunan for Years I-IV. The bidders were:

 Watana Phanit Printing & Publishing Co., Ltd., of Thailand (Watana),


 Petitioner Vibal Publishing House, Inc., (Vibal),
 Daewoo International Corporation of South Korea (Daewoo) and
 Respondent Kolonwel.

DBM-PS IABAC then released Resolution (Res.) No. 001-2006 which disqualified Watana and
Vibal for an allege Conflict of Interest. It also disqualified Kolonwel on grounds of failure in cover
stock testing.

Thereafter the World Bank’s Regional Senior Economist, Ms. Rekha Menon wrote a letter to
DepEd claiming to reconsider and review their finding on Conflict of Interest pertaining to Watana and
Vibal. Thus in Res. No. 001-2006-A, IABAC awarded the contract in the following:

 Vibal - Sibika 1 & 3 and HekaSi 5;


 Watana - Sibika 2 and HeKaSi 4 & 5 and
 Daewoo - Sibika 3.

During such time, respondent moved to have the finding of DBM-PS IABAC reconsidered.
However, the IABAC denied the reconsideration. On September 8, 2006 it sought to have the decision
reconsidered, but was again denied. Aggrieved, Kolonwel filed with the RTC of Manila a special civil
action for certiorari and TRO of the contract.
In response, Petitioner Vibal filed a motion to dismiss on the ground that Kolonwel pursued
judicial relief without first complying with the protest procedure prescribed by Republic Act (R.A.)
No. 9184 Government Procurement Reform Act. On December 4, 2006 the RTC ruled in favor of Kolonwel
annulling Resolution (Res.) No. 001-2006 and Res. No. 001-2006-A. Hence this petition.
ISSUE:
1. Whether RTC erred in assuming jurisdiction over the case despite respondent Kolonwel’s failure to
observe the protest mechanism provided under Sec. 55 in relation to Secs. 57 and 58 of R.A. No. 9184

HELD:
1. Yes.
Kolonwel admits that it failed to follow the procedure in RA 9814 because the government had
not issued the Implementing Rules and Regulations (IRR) of R.A. No. 9184 to render the protest
mechanism of the law operative for foreign-funded projects.
Under Sec. 55 in relation to Secs. 57 and 58 of R.A. No. 9184 the following is the procedure:
 Sec. 55. Protest on Decision of the BAC.- Decisions of the BAC [Bids and Awards Committee] in
all stages of procurement may be protested to the head of the procuring entity. Decisions of the
BAC may be protested by filing a verified position paper and paying a non-refundable protest fee.
The amount of the protest fee and the periods during which the protest may be filed and
resolved shall be specific in the IRR.

 Sec. 57. Non-interruption of the Bidding Process. In no case shall any process taken from any
decision treated in this Article stay or delay the bidding process. Protests must first be resolved
before any award is made.

 Sec. 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the
protests contemplated in this Article shall have been completed. Cases that are filed in violation
of the processspecified in this article shall be dismissed for lack of jurisdiction. The [RTC] shall
have jurisdiction over final decisions of the head of the procuring entity

Sec. 55 of R.A. No. 9184 sets three (3) requirements: (1) The protest must be in writing, in the form
of a verified position paper; (2) the protest must be submitted to the head of the procuring entity; and (3)
the payment of a non-refundable protest fee. Under Sec. 58 that it is necessary for the procedure to be
followed BEFORE THE COURTS ACQUIRE JURISDICTION.
In this case, RESPONDENT FAILED to follow the prescribed procedure since in its appeal,
respondent did not send a letter-request was addressed to the head of the procuring entity as prescribed in
Sec. 55. Without compliance to Sec. 55, it is as if there was no appeal interposed. Subsequently, considering
that the respondent’s petition in RTC Manila was actually filed in violation of the protest process court
could not have lawfully acquired jurisdiction over the subject matter of this case. In fact, Section 58, supra,
of R.A. No. 9184 emphatically states that cases filed in violation of the protest process therein provided
shall be dismissed for lack of jurisdiction. Ignoring this administrative remedy would be to defy the law
itself.
There may perhaps be room for relaxing the prescription on protest if a bona fide attempt to comply
with legal requirements had been made. In this case though the only defense given by respondent was the
absence of an IRR for foreign- funded projects. that contributed to its failure to follow.
However, the court believes that there was already an existing IRR-A released last 2003.
Additionally, we also held in Abaya v. Ebdane that there really should be no reason why the policy behind
the procedure for protest cannot be applied, even analogously, to foreign-funded procurement projects, such
as those in this case. Indeed, there is no discernable justification why a different procedure should obtain
with respect to foreign-funded procurement undertakings as opposed to a locally funded project, and
certainly there is no concrete foundation in R.A. 9184 to indicate that Congress intended such a variance in
the protest procedure.
Additionally, the Court wishes to note that IABAC did err when it considered World Bank’s
standards for procurement given that Sec. 4 of RA 9184 require that “Any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed.” Thus it was also in keeping with the doctrine of pacta sunt servanda that
IABAC properly complied with its obligation.
Suplico vs NEDA (2008)

FACTS:

 OSG filed a manifestation stating its position that the cases questioning the validity of the ZTE-
NBN project should be dismissed in light of the Government’s decision not to continue with the
said project. According to the OSG, at that point, there is no more justiciable controversy for the
SC to resolve.
o The original cases filed by petitioners sought to annul and set aside the validity of the
award of the contract to ZTE Corporation, alleging that the contract was awarded
without the necessary public bidding.
 Petitioners in this case opposed said motion saying, among others, that there is no sufficient
proof to conclude that the project had been permanently scrapped in that the desistance of the
Government as to the project is a mere verbal request. The indorsement which allegedly
contained the express desistance of the Government was not even attached to the OSG’s
motion and that even if it were, it was a self-serving manifestation. (They also said that the
PGMA administration has never been known for candor and that it has a very nasty habit of not
keeping its word.)
 OSG filed a supplemental motion reiterating its position that there must be an actual case or
controversy in the case for the Court to have the power to decide the same. OSG also attached
the transcript of the meeting between the State leaders during which the decision of the
Philippines not to continue with the project.
 The court issued a TRO enjoining the parties from pursuing or transacting the ZTE-NBN Project.

ISSUES + RULING:

WON the cases should be dismissed for being moot and academic (YES)
 It clearly appears that when PGMA, acting in her official capacity during the meeting held in
China, informed China’s president (as shown in the Notes of the Meeting) that the Philippine
Government had decided not to continue with the Project for several reasons and constraints,
there is no doubt that the reliefs as prayed for in the 3 cases mentioned above had also become
moot.
 The court has no alternative but to take judicial notice of this official act of the President of the
Philippines.
 It is simply impossible for the Court to annul and set aside the award of the ZTE-DOTC
Broadband Deal without any evidence to support a prior actual finding pointing to any violation
of the law.

DISPOSITION: Dismissed.
(Relevant) Justice Carpio’s Dissent:
Position of J. Carpio: That the ZTE Supply Contract is void from the beginning, thus, the decision of the
government not to continue with the project had no legal effect on the status of the contract and did
not moot the petitions. (That still, the court may still make a pronouncement that the award itself is void
despite the decision of the government not to continue. Court’s duty is to strike down the award for
being unconstitutional.)
 Not only are the legal issues in this case “capable of repetition yet evading review,” the ZTE
Supply contract is capable of being resurrected.
 The petitions assail that the contract is void from the beginning for 2 reasons:
1. The contract has no appropriation from congress violating Sec 29(2) Art 6 of the
Constitution
2. The absence of public bidding violates the Government Procurement Reform Act
 The simple answer to these questions is that the ZTE Supply Contract is void from the beginning
because in fact, there was no appropriation law allowing it and there was no public bidding held.
 Absence of an appropriation law:
o Aside from the Constitution, the Admin Code expressly prohibits the entering into
contracts involving the expenditure of public funds unless two prior requirements are
satisfied: (1) appropriation law and (2) a certification by the proper accounting official
and auditor that the funds are available. Any contract entered into contrary to the
requirements is void. The Government Auditing Code has the same mandate.
o It is quite evident that the said requirements are conditions sine qua non for the
execution of government contracts. Failure to comply means failure to perfect the
contract.
o The ZTE Supply contract does not comply with the 2 requirements.
 Absence of Public Bidding:
o The Government Procurement Reform Act requires public bidding in all procurement of
infrastructure, goods and services. Such requirement applies to government
procurements regardless of source of funds, whether local or foreign. Hence, the
requirement of public bidding applies to foreign-funded contracts like the ZTE Supply
Contract.
o The government admits that there was not public bidding for the supply contract. They
do not even claim that the contract falls under any of the exceptions to public bidding
under Art 16 of the Government Procurement Reform Act.
o Instead, ZTE claims that being part of an executive agreement, the contract is exempt
under the last sentence of Sec 4 of the Act: “Any treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippines is a
signatory shall be observed.”
 There is no provision in the Executive Agreement that requires the conduct of
competitive public bidding before the award of the NBN project, or any project
envisioned in the RP-China MNOU for that matter. The subsequent exchange of
notes between China and the Philippines clearly shows that ZTE was chosen as
the contractor for the NBN Project.
o ZTE Corporation’s argument will hold water if an executive agreement (RP-China
Agreement) can amend a mandatory statutory requirement of public bidding in the
Government Procurement Reform Act. (ISSUE: WON an executive agreement [ZTE
Contract] can amend or repeal a law [Govt Procurement Reform Act] NO)
o Admittedly, an executive agreement has the force and effect of law just like
implementing rules of executive agencies. However, just like implementing rules,
executive agreements cannot amend or repeal prior law but must comply with the
laws they implement.
 Only a treaty, upon ratification by the Senate, acquires the status of a
municipal law. Thus, a treaty may amend or repeal a prior law and vice-versa.
Hence, a treaty may change state policy embodied in a prior law.
 Examples: International agreements involving political issues or changes
of national policy and those involving international arrangements of a
permanent character
 An executive agreement, being an exclusive act of the Executive branch, does
not have the status of a municipal law. Acting alone, the executive has no law-
making power. While the Executive does possess rule-making power, such
power must be exercises consistent with the law it seeks to implement.
 Examples: international agreements embodying adjustments of detail
carrying out well-established national policies and traditions and those
involving arrangements of a more or less temporary nature
o Lastly, an executive agreement is generally governed by international law. In this case,
however the ZTE Contract itself provides that it shall be governed by Philippine law.
Thus, by that, the ZTE contract is not an executive agreements but simply a
commercial contract, which must comply with the public bidding mandated by the
governing Philippine law.