G.R. No.

183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN

and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL
DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the
latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process
(OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents.

x--------------------------------------------x

G.R. No. 183752 October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor

of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep. MA.
ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of
Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL
(GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA,
MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the Presidential Adviser
on Peace Process,respondents.

x--------------------------------------------x

G.R. No. 183893 October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL
DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his
capacity as the present and duly appointed Presidential Adviser on the Peace Process; and/or
SEC. EDUARDO ERMITA, in his capacity as Executive Secretary. respondents.

x--------------------------------------------x

G.R. No. 183951 October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON.

ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his
capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA
JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS,
Congressman, 3rd Congressional District, and Members of the Sangguniang Panlalawigan of the
Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON.
FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS,
HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON.
JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL
[GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his
capacity as the Presidential Adviser of Peace Process, respondents.

x--------------------------------------------x

G.R. No. 183962 October 14, 2008

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,

vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL,
represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT
PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL, respondents.

x--------------------------------------------x

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.

x--------------------------------------------x

SEN. MANUEL A. ROXAS, petitioners-in-intervention.

x--------------------------------------------x

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioners-
in-intervention,

x--------------------------------------------x

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-

AKBAR,petitioners-in-intervention.

x--------------------------------------------x

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his

capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in-
intervention.

x-------------------------------------------x

RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao
Not Belonging to the MILF, petitioner-in-intervention.

x--------------------------------------------x

CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and

RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention.

x--------------------------------------------x

MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.

x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.

x--------------------------------------------x

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), respondent-in-

intervention.

x--------------------------------------------x

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace
process.While the facts surrounding this controversy center on the armed conflict in Mindanao between
the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has a bearing on
all areas in the country where there has been a long-standing armed conflict. Yet again, the Court is
tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds within which
the President may lawfully exercise her discretion, but it must do so in strict adherence to the
Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the
Chief Executive precisely to enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the
Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of
Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the late
Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur
Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF
away from an Islamic basis towards Marxist-Maoist orientations.1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon
motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-
AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began.
On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27,
1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same
contained, among others, the commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict, and
refrain from the use of threat or force to attain undue advantage while the peace negotiations on the
substantive agenda are on-going.2

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF
peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities
in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del
Norte.3 In response, then President Joseph Estrada declared and carried out an "all-out-war" against the
MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was
suspended and the government sought a resumption of the peace talks. The MILF, according to a leading
MILF member, initially responded with deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return
to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian
government, the parties signing on the same date the Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of
which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the
Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be
discussed further by the Parties in their next meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with
the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading
to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed
on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by
Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace
negotiator was taken over by Mohagher Iqbal.6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to
the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5,
2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument -
the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591,
183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain 7 and the
Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a petition,
docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order. 9 Invoking the right to information on matters of
public concern, petitioners seek to compel respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and
Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and
Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray
that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical
Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and
directing public respondents and their agents to cease and desist from formally signing the MOA-
AD.13 The Court also required the Solicitor General to submit to the Court and petitioners the official copy
of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R.
No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already
been signed, from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners
herein additionally implead Executive Secretary Eduardo Ermita as respondent.

The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep.
Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members 18 of the Sangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and
void and without operative effect, and that respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for
Prohibition,20docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently enjoining
respondents from formally signing and executing the MOA-AD and or any other agreement derived
therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its
Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-
intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President
Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the
Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del
Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member
Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo
Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance
Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development
(MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department
shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled against
it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents' motion
was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following
principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of Agreement (MOA); and
 (ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if
it is considered that consultation has become fait accompli with the finalization of the
draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel committed
grave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and
initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to information on matters of public concern
(1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactions
involving public interest (1987 Constitution, Article II, Sec. 28) including public consultation under
Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is
an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be
BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or
a juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS
ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION
OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the Government of
the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan
and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the
projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the
Government of the Republic of the Philippines.24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties
submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in favor of the
MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements
between the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed
on September 2, 1996 during the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in
Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and several international
law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter,
among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating
from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty device."

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple
dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first
referred to those lands where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or ineffective. 27 This way of viewing the
world, however, became more complex through the centuries as the Islamic world became part of the
international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-harb eventually
lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim territories.
For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to
countries which, though under a secular regime, maintained peaceful and cooperative relations with
Muslim States, having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on
the other hand, referred to countries which, though not bound by treaty with Muslim States, maintained
freedom of religion for Muslims.28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-
mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine
government - the Philippines being the land of compact and peace agreement - that partake of the nature
of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that sets out
understandings, obligations, and benefits for both parties which provides for a framework that elaborates
the principles declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and
starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles,
Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro people"
as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether mixed or of full
blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only "Moros"
as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What
this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested
exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to the
MOA-AD acknowledge that ancestral domain does not form part of the public domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to
be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw. The sultanates were described as states or "karajaan/kadatuan"
resembling a body politic endowed with all the elements of a nation-state in the modern sense.34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain
authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by
several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a
confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom
was supreme over the others.35

The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined territory and
with a system of government having entered into treaties of amity and commerce with foreign nations."

The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory,
particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to be
called "First Nation," hence, all of them are usually described collectively by the plural "First Nations." 36 To
that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" - suggesting its
exclusive entitlement to that designation - departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus
constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City.
Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in
the ARMM in the 2001 plebiscite.39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are
grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be
subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-
AD.40 Category B areas, also called "Special Intervention Areas," on the other hand, are to be subjected
to a plebiscite twenty-five (25) years from the signing of a separate agreement - the Comprehensive
Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within
its "internalwaters," defined as extending fifteen (15) kilometers from the coastline of the BJE area;42 that
the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the
baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and
that within these territorial waters, the BJE and the "Central Government" (used interchangeably with RP)
shall exercise joint jurisdiction, authority and management over all natural resources. 43 Notably, the
jurisdiction over the internal waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central
Government and the BJE, in favor of the latter, through production sharing and economic cooperation
agreement.44 The activities which the Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization of natural resources, regulation of shipping
and fishing activities, and the enforcement of police and safety measures.45 There is no similar provision
on the sharing of minerals and allowed activities with respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with
foreign countries and shall have the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include aggression against the GRP. The BJE may
also enter into environmental cooperation agreements.46

The external defense of the BJE is to remain the duty and obligation of the Central Government. The
Central Government is also bound to "take necessary steps to ensure the BJE's participation in
international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The
BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of
border agreements or protocols for environmental protection and equitable sharing of incomes and
revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral
domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the
BJE "as the party having control within its territorial jurisdiction." This right carries the proviso that, "in
times of national emergency, when public interest so requires," the Central Government may, for a fixed
period and under reasonable terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE.49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust
dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization
shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as
mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining
concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management
Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including
those issued by the present ARMM.51

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the "details for the effective
enforcement" and "the mechanisms and modalities for the actual implementation" of the MOA-AD. The
MOA-AD explicitly provides that the participation of the third party shall not in any way affect the status of
the relationship between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as "associative,"
characterized by shared authority and responsibility. And it states that the structure of governance is to be
based on executive, legislative, judicial, and administrative institutions with defined powers and functions
in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall
take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact. As will be discussed later, much of the present
controversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service,
electoral, financial and banking, education, legislation, legal, economic, police and internal security force,
judicial system and correctional institutions, the details of which shall be discussed in the negotiation of
the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF,
respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the
negotiating panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED BY"
Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY"
Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General
and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF"
Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim,
Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5,
2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces,
municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the strand
on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies.54 Courts decline to issue advisory
opinions or to resolve hypothetical or feigned problems, or mere academic questions. 55 The limitation of
the power of judicial review to actual cases and controversies defines the role assigned to the judiciary in
a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other
branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.
There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing
law and jurisprudence.57 The Court can decide the constitutionality of an act or treaty only when a proper
case between opposing parties is submitted for judicial determination.58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is
ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a prerequisite that something had
then been accomplished or performed by either branch before a court may come into the picture,60 and
the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action.61 He must show that he has sustained or is immediately in danger of sustaining some
direct injury as a result of the act complained of.62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the
present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and
legislative enactments as well as constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal that does not automatically create
legally demandable rights and obligations until the list of operative acts required have been duly
complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass
upon issues based on hypothetical or feigned constitutional problems or interests with no
concrete bases. Considering the preliminary character of the MOA-AD, there are no concrete acts
that could possibly violate petitioners' and intervenors' rights since the acts complained of
are mere contemplated steps toward the formulation of a final peace agreement. Plainly,
petitioners and intervenors' perceived injury, if at all, is merely imaginary and illusory apart from
being unfounded and based on mere conjectures. (Underscoring supplied)

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:

xxxx

d. Without derogating from the requirements of prior agreements, the Government stipulates to
conduct and deliver, using all possible legal measures, within twelve (12) months following the
signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in
the map as Category A attached herein (the "Annex"). The Annex constitutes an integral part of
this framework agreement. Toward this end, the Parties shall endeavor to complete the
negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15)
months from the signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-
AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
 Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come
into force upon the signing of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non-derogation of prior agreements and within
the stipulated timeframe to be contained in the Comprehensive Compact.64 (Underscoring
supplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel,
Jr. v. Aguirre,65 this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the
dispute is said to have ripened into a judicial controversy even without any other overt act.
Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial
duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is a coequal
of Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the
dispute becomes the duty and the responsibility of the courts.66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the
challenge to the constitutionality of the school's policy allowing student-led prayers and speeches before
games was ripe for adjudication, even if no public prayer had yet been led under the policy, because the
policy was being challenged as unconstitutional on its face.68

That the law or act in question is not yet effective does not negate ripeness. For example, in New York v.
United States,69 decided in 1992, the United States Supreme Court held that the action by the State of
New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for
adjudication even if the questioned provision was not to take effect until January 1, 1996, because the
parties agreed that New York had to take immediate action to avoid the provision's consequences. 70

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition are
remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.72 Mandamus is a remedy granted by law when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use or enjoyment of a right or office to which such other is entitled. 73 Certiorari, Mandamus and
Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials.74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on
February 28, 2001.75 The said executive order requires that "[t]he government's policy framework for
peace, including the systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order."76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the
MOA-AD without consulting the local government units or communities affected, nor informing them of the
proceedings. As will be discussed in greater detail later, such omission, by itself, constitutes a departure
by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD
provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework," implying an amendment of the Constitution to accommodate the MOA-
AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such act
constitutes another violation of its authority. Again, these points will be discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority, by
violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions
make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged
to have infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute.77

B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions." 78

Because constitutional cases are often public actions in which the relief sought is likely to affect other
persons, a preliminary question frequently arises as to this interest in the constitutional question raised. 79

When suing as a citizen, the person complaining must allege that he has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens
or penalties by reason of the statute or act complained of.80 When the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an interest in the execution of the laws. 81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed
or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of an
invalid or unconstitutional law.82 The Court retains discretion whether or not to allow a taxpayer's suit. 83

In the case of a legislator or member of Congress, an act of the Executive that injures the institution of
Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A
member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office.84

An organization may be granted standing to assert the rights of its members, 85 but the mere invocation by
the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the
rule of law does not suffice to clothe it with standing.86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of
its own, and of the other LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements
of the law authorizing intervention,88 such as a legal interest in the matter in litigation, or in the success of
either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal
attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,89 where technicalities of
procedure were brushed aside, the constitutional issues raised being of paramount public interest or of
transcendental importance deserving the attention of the Court in view of their seriousness, novelty and
weight as precedents.90 The Court's forbearing stance on locus standi on issues involving constitutional
issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the
other branches of government have kept themselves within the limits of the Constitution and the laws and
have not abused the discretion given them, has brushed aside technical rules of procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that
they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the
intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in the
ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus beyond
doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have
no standing as citizens and taxpayers for their failure to specify that they would be denied some right or
privilege or there would be wastage of public funds. The fact that they are a former Senator, an
incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence.
Considering their invocation of the transcendental importance of the issues at hand, however, the Court
grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation that the
issues involved in these petitions are of "undeniable transcendental importance" clothes them with added
basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate
and a citizen to enforce compliance by respondents of the public's constitutional right to be informed of
the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure
of either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a
taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan
chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal
interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy
group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim lawyers, allege that they stand to
be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-
AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to
clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfaction of all the
reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o
matter what the Supreme Court ultimately decides[,] the government will not sign the MOA." 92
In lending credence to this policy decision, the Solicitor General points out that the President had already
disbanded the GRP Peace Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a
magical formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise
moot and academic, if it finds that (a) there is a grave violation of the Constitution;95 (b) the situation is of
exceptional character and paramount public interest is involved; 96 (c) the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public; 97 and (d) the case
is capable of repetition yet evading review.98

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the
activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases
the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the
case and does not render the case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation. 99

The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial
review. The grounds cited above in David are just as applicable in the present cases as they were, not
only in David, but also in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the Court
similarly decided them on the merits, supervening events that would ordinarily have rendered the same
moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing
of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus
points," especially given its nomenclature, the need to have it signed or initialed by all the parties
concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus
points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to
amend and effect necessary changes to the existing legal framework for certain provisions of the
MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and provisions
of the MOA-AD, but to other on-going and future negotiations and agreements necessary for its
realization. The petitions have not, therefore, been rendered moot and academic simply by the public
disclosure of the MOA-AD,102 the manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant
part of the country's territory and the wide-ranging political modifications of affected LGUs. The
assertion that the MOA-AD is subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate controlling principles to
guide the bench, the bar, the public and, in this case, the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no
longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the
nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and
eventually cancelled was a stand-alone government procurement contract for a national broadband
network involving a one-time contractual relation between two parties-the government and a private
foreign corporation. As the issues therein involved specific government procurement policies and
standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the
factual circumstances being peculiar only to the transactions and parties involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to
carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said
Tripoli Agreement is the third such component to be undertaken following the implementation of
the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May
2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor
General, has stated that "no matter what the Supreme Court ultimately decides[,] the government will not
sign the MOA[-AD]," mootness will not set in in light of the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the
Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could
contain similar or significantly drastic provisions. While the Court notes the word of the Executive
Secretary that the government "is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured," it is minded to render
a decision on the merits in the present petitions to formulate controlling principles to guide the bench,
the bar, the public and, most especially, the government in negotiating with the MILF regarding
Ancestral Domain.

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet
evading review" can override mootness, "provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their issuance." They contend that the Court
must have jurisdiction over the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions
that need to be resolved.105 At all events, the Court has jurisdiction over most if not the rest of the
petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately
referred to as what it had done in a number of landmark cases.106 There is a reasonable expectation that
petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the
Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the
same problem in the future as respondents' actions are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having,
by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft
of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.

V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to
be resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other
relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the right to
information when they negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as provided in
Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may be provided by law. 107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and
inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987
Constitution, has been recognized as a self-executory constitutional right.109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records is
predicated on the right of the people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political
significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic perception by the public of the nation's
problems, nor a meaningful democratic decision-making if they are denied access to information of
general interest. Information is needed to enable the members of society to cope with the exigencies of
the times. As has been aptly observed: "Maintaining the flow of such information depends on protection
for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably
ceases." x x x111

In the same way that free discussion enables members of society to cope with the exigencies of their
time, access to information of general interest aids the people in democratic decision-making by giving
them a better perspective of the vital issues confronting the nation112 so that they may be able to criticize
and participate in the affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people.113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern 114 faces no
serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous
cases, the Court found that the regularity of real estate transactions entered in the Register of
Deeds,116 the need for adequate notice to the public of the various laws,117 the civil service eligibility of a
public employee,118 the proper management of GSIS funds allegedly used to grant loans to public
officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity of party-list
nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the
present cases is of public concern, involving as it does the sovereignty and territorial integrity of
the State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading to the
consummation of the contract. In not distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the

consummation of the transaction." Certainly, a consummated contract is not a requirement for
the exercise of the right to information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too late for the public to expose
its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which may
be grossly disadvantageous to the government or even illegal, becomes fait accompli. This
negates the State policy of full transparency on matters of public concern, a situation which the
framers of the Constitution could not have intended. Such a requirement will prevent the citizenry
from participating in the public discussion of any proposed contract, effectively truncating a basic
right enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right,
nor a retreat by the State of its avowed "policy of full disclosure of all its transactions involving
public interest."122 (Emphasis and italics in the original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of
public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest. 124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of
access to information on matters of public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.125

The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a
genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the
State to be accountable by following such policy.126 These provisions are vital to the exercise of the
freedom of expression and essential to hold public officials at all times accountable to the people. 127

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission
so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be
in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the
implementing law will have to be enacted by Congress, Mr. Presiding Officer. 128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is
enlightening.
 MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the
Gentleman correctly as having said that this is not a self-executing provision? It would require a
legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on national interest are modified by the clause
"as may be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and
Congress may provide for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately
influence the climate of the conduct of public affairs but, of course, Congress here may no
longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent
with this policy.129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute.
As Congress cannot revoke this principle, it is merely directed to provide for "reasonable safeguards."
The complete and effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-
hand, it is absurd to say that the broader130 right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions involving public interest is
not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of

communication between the government and the people. It is in the interest of the State that the channels
for free political discussion be maintained to the end that the government may perceive and be
responsive to the people's will.131Envisioned to be corollary to the twin rights to information and disclosure
is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to
participate? Will the government provide feedback mechanisms so that the people can
participate and can react where the existing media facilities are not able to provide full
feedback mechanisms to the government? I suppose this will be part of the government
implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses take
place. There is a message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public officials
but also network of private business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or credibility on the private network of
volunteers and voluntary community-based organizations. So I do not think we are afraid that
there will be another OMA in the making.132(Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the "marching
orders" to respondents. The mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3.133 The
preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of
civil society to the comprehensive peace process by institutionalizing the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and principles important to all Filipinos" and "shall be
defined not by the government alone, nor by the different contending groups only, but by all Filipinos as
one community."134 Included as a component of the comprehensive peace process is consensus-building
and empowerment for peace, which includes "continuing consultations on both national and local levels to
build consensus for a peace agenda and process, and the mobilization and facilitation of people's
participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing"
consultations, contrary to respondents' position that plebiscite is "more than sufficient
consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to
"[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek
relevant information, comments, recommendations as well as to render appropriate and timely reports on
the progress of the comprehensive peace process."137 E.O. No. 3 mandates the establishment of the NPF
to be "the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates,
peace partners and concerned sectors of society on both national and local levels, on the implementation
of the comprehensive peace process, as well as for government[-]civil society dialogue and consensus-
building on peace agenda and initiatives."138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation.
The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of
the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise
thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or
manner. It may, however, require him to comply with the law and discharge the functions within the
authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the
denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which they treat
the salient provisions of E.O. No. 3 on people's participation. Such disregard of the express mandate of
the President is not much different from superficial conduct toward token provisos that border on classic
lip service.140 It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty
enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises.
The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing
consultation and dialogue on both national and local levels. The executive order even recognizes the
exercise of the public's right even before the GRP makes its official recommendations or before the
government proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant
advice, information, comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their
unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally complying
with the Court's August 4, 2008 Resolution, without a prayer for the document's disclosure in camera, or
without a manifestation that it was complying therewith ex abundante ad cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require
all national agencies and offices to conduct periodic consultations with appropriate local government
units, non-governmental and people's organizations, and other concerned sectors of the community
before any project or program is implemented in their respective jurisdictions"142 is well-taken. The LGC
chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by government

authorities unlessthe consultations mentioned in Sections 2 (c) and 26 hereof are complied with,
and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas
where such projects are to be implemented shall not be evicted unless appropriate relocation
sites have been provided, in accordance with the provisions of the Constitution. 143 (Italics and
underscoring supplied)

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision of the
LGU apply only to national programs or projects which are to be implemented in a particular local
community. Among the programs and projects covered are those that are critical to the environment and
human ecology including those that may call for the eviction of a particular group of people residing in the
locality where these will be implemented.145 The MOA-AD is one peculiar program that unequivocally
and unilaterally vests ownership of a vast territory to the Bangsamoro people,146 which could
pervasively and drastically result to the diaspora or displacement of a great number of inhabitants
from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are
represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have,
under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies.147 The MOA-AD, an instrument recognizing ancestral domain, failed to
justify its non-compliance with the clear-cut mechanisms ordained in said Act,148 which entails, among
other things, the observance of the free and prior informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or compromise. The recognition
of the ancestral domain is the raison d'etre of the MOA-AD, without which all other stipulations or
"consensus points" necessarily must fail. In proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is
still subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends
the effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid, as
will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to be so if the country is to remain democratic, with
sovereignty residing in the people and all government authority emanating from them. 149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much in the oral
arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions. Respondents, nonetheless, counter that the
MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made.
The validity of this argument will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the
BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government
under present laws, and even go beyond those of the present ARMM. Before assessing some of the
specific powers that would have been vested in the BJE, however, it would be useful to turn first to a
general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and

paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most
clearly uses it to describe the envisioned relationship between the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity
shall be associative characterized by shared authority and responsibility with a structure of
governance based on executive, legislative, judicial and administrative institutions with defined
powers and functions in the comprehensive compact. A period of transition shall be established in
a comprehensive peace compact specifying the relationship between the Central Government
and the BJE. (Emphasis and underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more precisely in the
still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in
international law, and the MOA-AD - by its inclusion of international law instruments in its TOR- placed
itself in an international legal context, that concept of association may be brought to bear in
understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links.
In the basic model, one state, the associate, delegates certain responsibilities to the other,
the principal, while maintaining its international status as a state. Free associations
represent a middle ground between integration and independence. x x x150 (Emphasis and
underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia
(FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,151 are associated
states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S.
dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the
capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such
as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The
U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting
either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the
authority and obligation to defend them as if they were part of U.S. territory. The U.S. government,
moreover, has the option of establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country from having access to these
territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is understood as an
international association between sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each party may terminate the association
consistent with the right of independence. It has been said that, with the admission of the U.S.-associated
states to the UN in 1990, the UN recognized that the American model of free association is actually based
on an underlying status of independence.152

In international practice, the "associated state" arrangement has usually been used as a transitional
device of former colonies on their way to full independence. Examples of states that have passed
through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states. 153

Back to the MOA-AD, it contains many provisions which are consistent with the international legal
concept of association, specifically the following: the BJE's capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing
responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in
Philippine official missions bearing on negotiation of border agreements, environmental protection, and
sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be
consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the
status of an associated state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
"associative" relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies the
recognition of the associated entity as a state. The Constitution, however, does not contemplate any state
in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that
aims to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its
validity the amendment of constitutional provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous regions in
Muslim Mindanao and the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures, and other
relevant characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.

The BJE is a far more powerful

entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name
as it meets the criteria of a state laid down in the Montevideo Convention,154 namely, a permanent
population, a defined territory, a government, and a capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it - which has betrayed itself by its use of the concept of association - runs
counter to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the BJE
being itself contrary to the present Constitution, it is not surprising that many of the specific
provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the
Constitution and the laws.

Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be
effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for
the purpose, provided that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is
covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD would
still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present
geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for
inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and
Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the areas
under Categories A and B mentioned earlier in the overview. That the present components of the ARMM
and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not render
another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then
was their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and
national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

 (8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of
the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would
require an amendment that would expand the above-quoted provision. The mere passage of new
legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any
new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with
treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states:
"The BJE is free to enter into any economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x." Under our constitutional system, it is only the
President who has that power. Pimentel v. Executive Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the sole authority to negotiate
with other states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the
MOA-AD is to be effected. That constitutional provision states: "The State recognizes and promotes the
rights of indigenous cultural communities within the framework of national unity and development."
(Underscoring supplied) An associative arrangement does not uphold national unity. While there may be
a semblance of unity because of the associative ties between the BJE and the national government, the
act of placing a portion of Philippine territory in a status which, in international practice, has generally
been a preparation for independence, is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing
statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of
"Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its adjacent islands including Palawan
and the Sulu archipelago at the time of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The
freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring
supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the
Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous
peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples,
as follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino
citizens residing in the autonomous region who are:
 (a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish
them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political institutions."

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of
ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro
people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply agree
that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and historic
territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the
aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following
provisions thereof:

SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall
be done in accordance with the following procedures:

xxxx

b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by
the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with
the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including census
of all community members therein, shall be immediately undertaken by the Ancestral Domains
Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in
coordination with the community concerned and shall at all times include genuine involvement
and participation by the members of the communities concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or
community under oath, and other documents directly or indirectly attesting to the possession or
occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which
shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries entered

into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;
 8) Pictures and descriptive histories of traditional communal forests and hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers,

creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact based
thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with
technical descriptions, and a description of the natural features and landmarks embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and
a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the native
language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least
fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional
offices of the NCIP, and shall be published in a newspaper of general circulation once a week for
two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15)
days from date of such publication: Provided, That in areas where no such newspaper exists,
broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall
be deemed sufficient if both newspaper and radio station are not available;

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection
process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable
action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed
insufficient, the Ancestral Domains Office shall require the submission of additional evidence:
Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false
or fraudulent after inspection and verification: Provided, further, That in case of rejection, the
Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned,
containing the grounds for denial. The denial shall be appealable to the NCIP: Provided,
furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries
of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to
meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice
to its full adjudication according to the section below.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in order, for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the
Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the
release on bail of a detained alien of Russian descent whose deportation order had not been executed
even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples," understood not merely
as the entire population of a State but also a portion thereof. In considering the question of whether the
people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in
REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that "the right of a people
to self-determination is now so widely recognized in international conventions that the principle has
acquired a status beyond ‘convention' and is considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights 161 and the
International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of both
covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political
status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a unilateral
right of secession. A distinction should be made between the right of internal and external self-
determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-determination
of a people is normally fulfilled through internal self-determination - a people's pursuit of
its political, economic, social and cultural development within the framework of an
existing state. A right to external self-determination (which in this case potentially takes
the form of the assertion of a right to unilateral secession) arises in only the most extreme
of cases and, even then, under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from

the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or

integration with an independent State or the emergence into any other political status
freely determined by a peopleconstitute modes of implementing the right of self-determination
by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a framework
of respect for the territorial integrity of existing states. The various international documents
that support the existence of a people's right to self-determination also contain parallel
statements supportive of the conclusion that the exercise of such a right must be sufficiently
limited to prevent threats to an existing state's territorial integrity or the stability of relations
between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or
exploitation outside a colonial context, and - less definitely but asserted by a number of commentators - is
blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately held
that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign
domination, nor is it being deprived of the freedom to make political choices and pursue economic, social
and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial
institutions within Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS
QUESTION.163 There, Sweden presented to the Council of the League of Nations the question of whether
the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago
should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council,
before resolving the question, appointed an International Committee composed of three jurists to submit
an opinion on the preliminary issue of whether the dispute should, based on international law, be entirely
left to the domestic jurisdiction of Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of disposing of
national territory is essentially an attribute of the sovereignty of every State. Positive
International Law does not recognize the right of national groups, as such, to separate
themselves from the State of which they form part by the simple expression of a wish, any
more than it recognizes the right of other States to claim such a separation. Generally speaking,
the grant or refusal of the right to a portion of its population of determining its own
political fate by plebiscite or by some other method, is, exclusively, an attribute of the
sovereignty of every State which is definitively constituted. A dispute between two States
concerning such a question, under normal conditions therefore, bears upon a question which
International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any
other solution would amount to an infringement of sovereign rights of a State and would involve
the risk of creating difficulties and a lack of stability which would not only be contrary to the very
idea embodied in term "State," but would also endanger the interests of the international
community. If this right is not possessed by a large or small section of a nation, neither can it be
held by the State to which the national group wishes to be attached, nor by any other State.
(Emphasis and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is
left by international law to the domestic jurisdiction of Finland, thereby applying the exception rather than
the rule elucidated above. Its ground for departing from the general rule, however, was a very narrow
one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic
political transformation. The internal situation of Finland was, according to the Committee, so abnormal
that, for a considerable time, the conditions required for the formation of a sovereign State did not exist. In
the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was
disputed by a large section of the people, and it had, in fact, been chased from the capital and forcibly
prevented from carrying out its duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the relevant time period, a "definitively
constituted" sovereign state. The Committee, therefore, found that Finland did not possess the right to
withhold from a portion of its population the option to separate itself - a right which sovereign nations
generally have with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship
as well as international, regional, and state practices, to refer to groups with distinct cultures, histories,
and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger
governing society. These groups are regarded as "indigenous" since they are the living descendants of
pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples,
nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies
born of the forces of empire and conquest.164 Examples of groups who have been regarded as indigenous
peoples are the Maori of New Zealand and the aboriginal peoples of Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not have a
general right to independence or secession from those states under international law, 165 but they do have
rights amounting to what was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United
Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the
four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing the right to
autonomy or self-government, to wit:

Article 3
 Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right

to autonomy or self-government in matters relating to their internal and local affairs, as
well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions, while retaining their right to participate fully, if they so
choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been
understood as equivalent to "internal self-determination."166 The extent of self-determination provided for
in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted
hereunder:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or
destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct
peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories
or resources;

(c) Any form of forced population transfer which has the aim or effect of violating or
undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination
directed against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of education, employment,
vocational training and retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special measures to ensure
continuing improvement of their economic and social conditions. Particular attention shall be paid
to the rights and special needs of indigenous elders, women, youth, children and persons with
disabilities.
Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and
resources that they possess by reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources.
Such recognition shall be conducted with due respect to the customs, traditions and land tenure
systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples, unless
justified by a relevant public interest or otherwise freely agreed with or requested by the
indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned, through
appropriate procedures and in particular through their representative institutions, prior to using
their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the
development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed consent
prior to the approval of any project affecting their lands or territories and other resources,
particularly in connection with the development, utilization or exploitation of mineral, water or
other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural
or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties,
agreements and other constructive arrangements concluded with States or their successors and
to have States honour and respect such treaties, agreements and other constructive
arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of

indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate
measures, including legislative measures, to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as
embodying customary international law - a question which the Court need not definitively resolve here -
the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people,
through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even
the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application
by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples
their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will
provide protection for indigenous peoples against acts like the forced dispossession of their lands - a
function that is normally performed by police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights
less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it
upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate
States to grant indigenous peoples the near-independent status of an associated state. All the rights
recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people, group or
person any right to engage in any activity or to perform any act contrary to the Charter of the
United Nations or construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or political unity of sovereign
and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the
Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with
other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled
with the Constitution and the laws as presently worded. Respondents proffer, however, that the
signing of the MOA-AD alone would not have entailed any violation of law or grave abuse of discretion on
their part, precisely because it stipulates that the provisions thereof inconsistent with the laws shall not
take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on
GOVERNANCE quoted earlier, but which is reproduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable
it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come
into force upon signing of a Comprehensive Compact and upon effecting the necessary changes
to the legal framework with due regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into
force until the necessary changes to the legal framework are effected. While the word "Constitution" is
not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the
term "legal framework" is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the
MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions From The President dated March 1,
2001, which states that the "negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrityof the Republic of the Philippines." (Emphasis supplied) Establishing
an associative relationship between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit acknowledgment of an independent
status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the
suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3,
Section 5(c), which states that there shall be established Government Peace Negotiating Panels for
negotiations with different rebel groups to be "appointed by the President as her official emissaries to
conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These negotiating
panels are to report to the President, through the PAPP on the conduct and progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its
negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the
laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No.
3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and political reforms
which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,167 states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process
comprise the processes known as the "Paths to Peace". These component processes are
interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves

the vigorous implementation of various policies, reforms, programs and projects aimed at
addressing the root causes of internal armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address,

pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O.
authorized them to "think outside the box," so to speak. Hence, they negotiated and were set on signing
the MOA-AD that included various social, economic, and political reforms which cannot, however, all be
accommodated within the present legal framework, and which thus would require new legislation and
constitutional amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be
asked whether the President herself may exercise the power delegated to the GRP Peace Panel
under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the
course of peace negotiations, agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only to those solutions which the present
laws allow? The answer to this question requires a discussion of the extent of the President's power to
conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive
Secretary,168 in issue was the authority of the President to declare a state of rebellion - an authority which
is not expressly provided for in the Constitution. The Court held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There,
the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled
predecessor. The rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of executive power
and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered provisions
of the Constitution. This is so, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the President as a reaction to
the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief clause, but
not a diminution of the general grant of executive power.

Thus, the President's authority to declare a state of rebellion springs in the main from her
powers as chief executive and, at the same time, draws strength from her Commander-in-
Chief powers. x x x (Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief
Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to
promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and
suppress rebellion and lawless violence.169

As the experience of nations which have similarly gone through internal armed conflict will show,
however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-
reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form the core of
any post-conflict peace-building mission. As we have observed in Liberia and Haiti over the last
ten years, conflict cessation without modification of the political environment, even where state-
building is undertaken through technical electoral assistance and institution- or capacity-building,
is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return
to conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited
democracies.

The design of a constitution and its constitution-making process can play an important role in the
political and governance transition. Constitution-making after conflict is an opportunity to create a
common vision of the future of a state and a road map on how to get there. The constitution can
be partly a peace agreement and partly a framework setting up the rules by which the new
democracy will operate.170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm mechanisms for
demilitarization and demobilization is by linking them to new constitutional structures addressing
governance, elections, and legal and human rights institutions. 171

In the Philippine experience, the link between peace agreements and constitution-making has been
recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on
autonomous regions172 is the framers' intention to implement a particular peace agreement, namely, the
Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National
Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I will
reserve my right to ask them if they are not covered by the other speakers. I have only two
questions.

I heard one of the Commissioners say that local autonomy already exists in the Muslim
region; it is working very well; it has, in fact, diminished a great deal of the problems. So, my
question is: since that already exists, why do we have to go into something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is
right that certain definite steps have been taken to implement the provisions of the Tripoli
Agreement with respect to an autonomous region in Mindanao. This is a good first step,
but there is no question that this is merely a partial response to the Tripoli Agreement
itself and to the fuller standard of regional autonomy contemplated in that agreement, and
now by state policy.173(Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit
of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of
an on-going conflict between the Government and the MILF. If the President is to be expected to find
means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be
given the leeway to explore, in the course of peace negotiations, solutions that may require changes to
the Constitution for their implementation. Being uniquely vested with the power to conduct peace
negotiations with rebel groups, the President is in a singular position to know the precise nature of their
grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but she
may not be prevented from submitting them as recommendations to Congress, which could then, if it is
minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution,
to propose the recommended amendments or revision to the people, call a constitutional convention, or
submit to the electorate the question of calling such a convention.

While the President does not possess constituent powers - as those powers may be exercised only by
Congress, a Constitutional Convention, or the people through initiative and referendum - she may submit
proposals for constitutional change to Congress in a manner that does not involve the arrogation of
constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly submitting
proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which
was the body vested by the 1973 Constitution with the power to propose such amendments. President
Marcos, it will be recalled, never convened the interim National Assembly. The majority upheld the
President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the
people to act as he did, there being no interim National Assembly to propose constitutional amendments.
Against this ruling, Justices Teehankee and Muñoz Palma vigorously dissented. The Court's concern at
present, however, is not with regard to the point on which it was then divided in that controversial case,
but on that which was not disputed by either side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may
directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a
recognition that he would have upheld the President's action along with the majority had the President
convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee
opined:
 "Since the Constitution provides for the organization of the essential departments of government,
defines and delimits the powers of each and prescribes the manner of the exercise of such
powers, and the constituent power has not been granted to but has been withheld from the
President or Prime Minister, it follows that the President's questioned decrees proposing and
submitting constitutional amendments directly to the people (without the intervention of the
interim National Assembly in whom the power is expressly vested) are devoid of
constitutional and legal basis."176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of
conducting peace negotiations - may validly consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally implement them without the intervention of
Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose amendments
through initiative and referendum, the President may also submit her recommendations to the people, not
as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for
their independent consideration of whether these recommendations merit being formally proposed
through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions to the
people, for any further involvement in the process of initiative by the Chief Executive may vitiate its
character as a genuine "people's initiative." The only initiative recognized by the Constitution is that which
truly proceeds from the people. As the Court stated in Lambino v. COMELEC:177

"The Lambino Group claims that their initiative is the ‘people's voice.' However, the Lambino
Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition
with the COMELEC, that ‘ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group
thus admits that their ‘people's' initiative is an ‘unqualified support to the agenda' of the
incumbent President to change the Constitution. This forewarns the Court to be wary of
incantations of ‘people's voice' or ‘sovereign will' in the present initiative."

It will be observed that the President has authority, as stated in her oath of office,178 only to preserve and
defend the Constitution. Such presidential power does not, however, extend to allowing her to change the
Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure for constitutional amendments and
revision, her mere recommendation need not be construed as an unconstitutional act.

The foregoing discussion focused on the President's authority to propose constitutional amendments,
since her authority to propose new legislation is not in controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the
practice is usually done is in the yearly State of the Nation Address of the President to Congress.
Moreover, the annual general appropriations bill has always been based on the budget prepared by the
President, which - for all intents and purposes - is a proposal for new legislation coming from the
President.179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards

Given the limited nature of the President's authority to propose constitutional amendments, she cannot
guaranteeto any third party that the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to
Congress or the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be
reconciled with the present Constitution and laws "shall come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal framework." This stipulation does not
bear the marks of a suspensive condition - defined in civil law as a future and uncertain event - but of a
term. It is not a question of whether the necessary changes to the legal framework will be effected,
but when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph
goes on to state that the contemplated changes shall be "with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal
framework contemplated in the MOA-AD - which changes would include constitutional amendments, as
discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among the "prior
agreements" from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing details
for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the
legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's

authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and
the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus
points" found in the MOA-AD. Hence, it must be struck down as unconstitutional.

A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the
1996 final peace agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two
phases. Phase Icovered a three-year transitional period involving the putting up of new administrative
structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and
the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government through amendment or repeal of R.A. No.
6734, which was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-
AD virtually guarantees that the "necessary changes to the legal framework" will be put in
place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II]
shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law."

Concerns have been raised that the MOA-AD would have given rise to a binding international law
obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that
it may be considered either as a binding agreement under international law, or a unilateral declaration of
the Philippine government to the international community that it would grant to the Bangsamoro people all
the concessions therein stated. Neither ground finds sufficient support in international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as
signatories. In addition, representatives of other nations were invited to witness its signing in Kuala
Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of
a binding international agreement had it been signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord case) of the
Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace agreement signed on July
7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel
group with which the Sierra Leone Government had been in armed conflict for around eight years at the
time of signing. There were non-contracting signatories to the agreement, among which were the
Government of the Togolese Republic, the Economic Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra
Leone Government, another agreement was entered into by the UN and that Government whereby the
Special Court of Sierra Leone was established. The sole purpose of the Special Court, an international
court, was to try persons who bore the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30,
1996.

Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the RUF
with respect to anything done by them in pursuit of their objectives as members of that organization since
the conflict began.

In the Lomé Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among other
things, the participation of foreign dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is not a
treaty and that it can only create binding obligations and rights between the parties in municipal law, not
in international law. Hence, the Special Court held, it is ineffective in depriving an international court like it
of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to
assume and to argue with some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in addition to the parties to the
conflict, the document formalizing the settlement is signed by foreign heads of state or
their representatives and representatives of international organizations, means the
agreement of the parties is internationalized so as to create obligations in international
law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the mediator or
facilitator of the settlement, or persons or bodies under whose auspices the settlement took place
but who are not at all parties to the conflict, are not contracting parties and who do not claim any
obligation from the contracting parties or incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and the RUF
which has no status of statehood and is to all intents and purposes a faction within the
state. The non-contracting signatories of the Lomé Agreement were moral guarantors of
the principle that, in the terms of Article XXXIV of the Agreement, "this peace agreement is
implemented with integrity and in good faith by both parties". The moral guarantors
assumed no legal obligation. It is recalled that the UN by its representative appended,
presumably for avoidance of doubt, an understanding of the extent of the agreement to be
implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and obligations
regulated by international law so that a breach of its terms will be a breach determined under
international law which will also provide principle means of enforcement. The Lomé Agreement
created neither rights nor obligations capable of being regulated by international law. An
 agreement such as the Lomé Agreement which brings to an end an internal armed conflict
no doubt creates a factual situation of restoration of peace that the international
community acting through the Security Council may take note of. That, however, will not
convert it to an international agreement which creates an obligation enforceable in
international, as distinguished from municipal, law. A breach of the terms of such a peace
agreement resulting in resumption of internal armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a reversal of the factual situation of peace to
be visited with possible legal consequences arising from the new situation of conflict created.
Such consequences such as action by the Security Council pursuant to Chapter VII arise from the
situation and not from the agreement, nor from the obligation imposed by it. Such action cannot
be regarded as a remedy for the breach. A peace agreement which settles an internal armed
conflict cannot be ascribed the same status as one which settles an international armed
conflict which, essentially, must be between two or more warring States. The Lomé
Agreement cannot be characterised as an international instrument. x x x" (Emphasis, italics
and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international
organizations not parties to the Agreement would not have sufficed to vest in it a binding character under
international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the
Philippine State, binding under international law, that it would comply with all the stipulations stated
therein, with the result that it would have to amend its Constitution accordingly regardless of the true will
of the people. Cited as authority for this view is Australia v. France,181 also known as the Nuclear Tests
Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the
South Pacific. France refused to appear in the case, but public statements from its President, and similar
statements from other French officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss the case. 182 Those statements, the ICJ
held, amounted to a legal undertaking addressed to the international community, which required no
acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the
international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning legal or
factual situations, may have the effect of creating legal obligations. Declarations of this kind may
be, and often are, very specific. When it is the intention of the State making the declaration
that it should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being thenceforth legally
required to follow a course of conduct consistent with the declaration. An undertaking of
this kind, if given publicly, and with an intent to be bound, even though not made within the
context of international negotiations, is binding. In these circumstances, nothing in the nature of a
quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction
from other States, is required for the declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by
the State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a
certain position in relation to a particular matter with the intention of being bound-the
intention is to be ascertained by interpretation of the act. When States make statements by
which their freedom of action is to be limited, a restrictive interpretation is called for.
 xxxx

51. In announcing that the 1974 series of atmospheric tests would be the last, the French
Government conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume that other States might take
note of these statements and rely on their being effective. The validity of these statements
and their legal consequences must be considered within the general framework of the
security of international intercourse, and the confidence and trust which are so essential in the
relations among States. It is from the actual substance of these statements, and from the
circumstances attending their making, that the legal implications of the unilateral act must
be deduced. The objects of these statements are clear and they were addressed to the
international community as a whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers *270 that the President of the
Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to
the international community to which his words were addressed. x x x (Emphasis and
underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be
construed as a unilateral declaration only when the following conditions are present: the statements were
clearly addressed to the international community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements would be detrimental to the security of
international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the
ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement made by the President of Mali, in an interview by a
foreign press agency, that Mali would abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral
act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar
circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be taken of all
the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases,
the Court took the view that since the applicant States were not the only ones concerned
at the possible continuance of atmospheric testing by the French Government, that
Government's unilateral declarations had ‘conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests‘ (I.C.J. Reports 1974, p. 269, para.
51; p. 474, para. 53). In the particular circumstances of those cases, the French
Government could not express an intention to be bound otherwise than by unilateral
declarations. It is difficult to see how it could have accepted the terms of a negotiated
solution with each of the applicants without thereby jeopardizing its contention that its
conduct was lawful. The circumstances of the present case are radically different. Here,
there was nothing to hinder the Parties from manifesting an intention to accept the binding
character of the conclusions of the Organization of African Unity Mediation Commission
by the normal method: a formal agreement on the basis of reciprocity. Since no agreement
of this kind was concluded between the Parties, the Chamber finds that there are no grounds to
interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with
legal implications in regard to the present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the international community. The Philippine panel did not
draft the same with the clear intention of being bound thereby to the international community as a whole
or to any State, but only to the MILF. While there were States and international organizations involved,
one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the mere fact that in
addition to the parties to the conflict, the peace settlement is signed by representatives of states and
international organizations does not mean that the agreement is internationalized so as to create
obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such
commitments would not be detrimental to the security of international intercourse - to the trust and
confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina
Faso wherein, as already discussed, the Mali President's statement was not held to be a binding
unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel,
had it really been its intention to be bound to other States, to manifest that intention by formal agreement.
Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear
commitment to be legally bound to the international community, not just the MILF, and by an equally clear
indication that the signatures of the participating states-representatives would constitute an acceptance of
that commitment. Entering into such a formal agreement would not have resulted in a loss of face for the
Philippine government before the international community, which was one of the difficulties that prevented
the French Government from entering into a formal agreement with other countries. That the Philippine
panel did not enter into such a formal agreement suggests that it had no intention to be bound to the
international community. On that ground, the MOA-AD may not be considered a unilateral declaration
under international law.

The MOA-AD not being a document that can bind the Philippines under international law notwithstanding,
respondents' almost consummated act of guaranteeing amendments to the legal framework is, by
itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they
considered, as a solution to the Moro Problem, the creation of a state within a state, but in their
brazen willingness to guarantee that Congress and the sovereign Filipino people would give their
imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the
Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change is
not inconsistent with what, in international law, is known as Jus Cogens.184 Respondents, however, may
not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government units or
communities affected constitutes a departure by respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for
judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of transcendental
importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the
requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution
of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide
an exception to the "moot and academic" principle in view of (a) the grave violation of the Constitution
involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli
Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present
MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar
provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the
respondents' action in providing the Court and the petitioners with the official copy of the final draft of the
MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution
is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public
interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right to information necessitates that
its complementary provision on public disclosure derive the same self-executory nature, subject only to
reasonable safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the
highest order. In declaring that the right to information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial
character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or process of

communication between the government and the people. Corollary to these twin rights is the design for
feedback mechanisms. The right to public consultation was envisioned to be a species of these public
rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of the
people's right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local
levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on
the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations before any project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut
procedure for the recognition and delineation of ancestral domain, which entails, among other things, the
observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information or the
specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive
secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the
official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160,
and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal
to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned between
the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a
state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present
legal framework will not be effective until that framework is amended, the same does not cure its defect.
The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and
the Central Government is, itself, a violation of the Memorandum of Instructions From The President
dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be
put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers
vested only in Congress, a Constitutional Convention, or the people themselves through the process of
initiative, for the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding on
the Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already
a constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN
DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 is declared contrary to law and the Constitution.

SO ORDERED.
G.R No. 187167 August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY
C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA
BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL
BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE
PAGASA BUENAVENTURA, EDAN MARRI CAÑETE, VANN ALLEN DELA CRUZ, RENE DELORINO,
PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III, 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,
vs.
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, 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 TO THE UNITED NATIONS,Respondents.

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act
No. 95221(RA 9522) adjusting the country’s 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.8 Complying 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 state’s 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 country’s waters
landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the country’s nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions. 13

In addition, petitioners contend that RA 9522’s 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 III’s
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 petition’s
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 country’s 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 country’s 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

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 Country’s
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 world’s 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:

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 treaty’s 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 9522’s 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 9522’s use of UNCLOS III’s 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.27Petitioners add that the KIG’s (and Scarborough Shoal’s) 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-à-vis the
Philippines’ obligations under UNCLOS III, belie this view.1avvphi1

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
III’s 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

Extent of maritime
area using RA 3046, Extent of maritime
as amended, taking area using RA 9522,
into account the taking into account
Treaty of Paris’ UNCLOS III (in
delimitation (in square nautical miles)
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 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 III’s limits.1avvphi1 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 State’s responsible
observance of its pacta sunt servanda obligation 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)

UNCLOS III and RA 9522 not

Incompatible with the Constitution’s
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 treaty’s
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-à-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.46 Separate islands 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."49 Article 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 251 ) 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 III55 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 country’s 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.

SO ORDERED.
G.R. No. L-21484 November 29, 1969

THE AGRICULTURAL CREDIT and COOPERATIVE FINANCING ADMINISTRATION

(ACCFA), petitioner,
vs.
ACCFA SUPERVISORS' ASSOCIATION, ACCFA WORKERS' ASSOCIATION, and THE COURT OF
INDUSTRIAL RELATIONS, respondents.

Deogracias E. Lerma and Esmeraldo U. Guloy for petitioner Agricultural Credit and Cooperative
Financing Administration.
Office of the Agrarian Counsel, Department of Justice for petitioner Agricultural Credit Administration
J. C. Espinas and Associates for respendents Confederation of Unions in Government Corporations
Offices, et al. Mariano B. Tuason for respondent Court of Industrial Relations.

MAKALINTAL, J.:

These are two separate appeals by certiorari from the decision dated March 25, 1963 (G.R. No. L-21484)
and the order dated May 21, 1964 (G.R. No. L-23605) as affirmed by the resolutions en banc, of the
Court of Industrial Relations, in Cases Nos. 3450-ULP and 1327-MC, respectively. The parties, except
the Confederation of Unions in Government Corporations and Offices (CUGCO), being practically the
same and the principal issues involved related, only one decision is now rendered in these two cases.

The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a government agency
created under Republic Act No. 821, as amended. Its administrative machinery was reorganized and its
name changed to Agricultural Credit Administration (ACA) under the Land Reform Code (Republic Act
No. 3844). On the other hand, the ACCFA Supervisors' Association (ASA) and the ACCFA Workers'
Association (AWA), hereinafter referred to as the Unions, are labor organizations composed of the
supervisors and the rank-and-file employees, respectively, in the ACCFA (now ACA).

G.R. No. L-21484

On September 4, 1961 a collective bargaining agreement, which was to be effective for a period of one
(1) year from July 1, 1961, was entered into by and between the Unions and the ACCFA. A few months
thereafter, the Unions started protesting against alleged violations and non-implementation of said
agreement. Finally, on October 25, 1962 the Unions declared a strike, which was ended when the strikers
voluntarily returned to work on November 26, 1962.

On October 30, 1962 the Unions, together with its mother union, the Confederation of Unions in
Government Corporations and Offices (CUGCO), filed a complaint with the Court of Industrial Relations
against the ACCFA (Case No. 3450-ULP) for having allegedly committed acts of unfair labor practice,
namely: violation of the collective bargaining agreement in order to discourage the members of the
Unions in the exercise of their right to self-organization, discrimination against said members in the matter
of promotions, and refusal to bargain. The ACCFA denied the charges and interposed as affirmative and
special defenses lack of jurisdiction of the CIR over the case, illegality of the bargaining contract,
expiration of said contract and lack of approval by the office of the President of the fringe benefits
provided for therein. Brushing aside the foregoing defenses, the CIR in its decision dated March 25, 1963
ordered the ACCFA:

1. To cease and desist from committing further acts tending to discourage the members of
complainant unions in the exercise of their right to self-organization;

2. To comply with and implement the provision of the collective bargaining contract executed on
September 4, 1961, including the payment of P30.00 a month living allowance;
 3. To bargain in good faith and expeditiously with the herein complainants.

The ACCFA moved to reconsider but was turned down in a resolution dated April 25, 1963 of the CIR en
banc. Thereupon it brought this appeal by certiorari.

The ACCFA raises the following issues in its petition, to wit:

1. Whether or not the respondent court has jurisdiction over this case, which in turn depends on
whether or not ACCFA exercised governmental or proprietary functions.

2. Whether or not the collective bargaining agreement between the petitioner and the respondent
union is valid; if valid, whether or not it has already lapsed; and if not, whether or not its (sic)
fringe benefits are already enforceable.

3. Whether or not there is a legal and/or factual basis for the finding of the respondent court that
the petitioner had committed acts of unfair labor practice.

4. Whether or not it is within the competence of the court to enforce the collective bargaining
agreement between the petitioner and the respondent unions, the same having already expired.

G.R. No. L-23605

During the pendency of the above mentioned case (G.R. No. L-21484), specifically on August 8, 1963,
the President of the Philippines signed into law the Agricultural Land Reform Code (Republic Act No.
3844), which among other things required the reorganization of the administrative machinery of the
Agricultural Credit and Cooperative Financing Administration (ACCFA) and changed its name to
Agricultural Credit Administration (ACA). On March 17, 1964 the ACCFA Supervisors' Association and the
ACCFA Workers' Association filed a petition for certification election with the Court of Industrial Relations
(Case No. 1327-MC) praying that they be certified as the exclusive bargaining agents for the supervisors
and rank-and-file employees, respectively, in the ACA. The trial Court in its order dated March 30, 1964
directed the Manager or Officer-in-Charge of the ACA to allow the posting of said order "for the
information of all employees and workers thereof," and to answer the petition. In compliance therewith,
the ACA, while admitting most of the allegations in the petition, denied that the Unions represented the
majority of the supervisors and rank-and-file workers, respectively, in the ACA. It further alleged that the
petition was premature, that the ACA was not the proper party to be notified and to answer the petition,
and that the employees and supervisors could not lawfully become members of the Unions, nor be
represented by them. However, in a joint manifestation of the Unions dated May 7, 1964, with the
conformity of the ACA Administrator and of the Agrarian Counsel in his capacity as such and as counsel
for the National Land Reform Council, it was agreed "that the union petitioners in this case represent the
majority of the employees in their respective bargaining units" and that only the legal issues raised would
be submitted for the resolution of the trial Court.

Finding the remaining grounds for ACA's opposition to the petition to be without merit, the trial Court in its
order dated May 21, 1964 certified "the ACCFA Workers' Association and the ACCFA Supervisors'
Association as the sole and exclusive bargaining representatives of the rank-and-file employees and
supervisors, respectively, of the Agricultural Credit Administration." Said order was affirmed by the CIR en
banc in its resolution dated August 24, 1964.

On October 2, 1964 the ACA filed in this Court a petition for certiorari with urgent motion to stay the CIR
order of May 21, 1964. In a resolution dated October 6, 1964, this Court dismissed the petition for "lack of
adequate allegations," but the dismissal was later reconsidered when the ACA complied with the formal
requirement stated in said resolution. As prayed for, this Court ordered the CIR to stay the execution of its
order of May 21, 1964.
In this appeal, the ACA in effect challenges the jurisdiction of the CIR to entertain the petition of the
Unions for certification election on the ground that it (ACA) is engaged in governmental functions. The
Unions join the issue on this single point, contending that the ACA forms proprietary functions.

Under Section 3 of the Agricultural Land Reform Code the ACA was established, among other
governmental agencies,1 to extend credit and similar assistance to agriculture, in pursuance of the policy
enunciated in Section 2 as follows:

SEC. 2. Declaration of Policy. — It is the policy of the State:

(1) To establish owner-cultivatorships and the economic family-size farm as the basis of
Philippine agriculture and, as a consequence, divert landlord capital in agriculture to industrial
development;

(2) To achieve a dignified existence for the small farmers free from pernicious institutional
restraints and practices;

(3) To create a truly viable social and economic structure in agriculture conducive to greater
productivity and higher farm incomes;

(4) To apply all labor laws equally and without discrimination to both industrial and agricultural
wage earners;

(5) To provide a more vigorous and systematic land resettlement program and public land
distribution; and

(6) To make the small farmers more independent, self-reliant and responsible citizens, and a
source of genuine strength in our democratic society.

The implementation of the policy thus enunciated, insofar as the role of the ACA therein is concerned, is
spelled out in Sections 110 to 118, inclusive, of the Land Reform Code. Section 110 provides that "the
administrative machinery of the ACCFA shall be reorganized to enable it to align its activities with the
requirements and objective of this Code and shall be known as the Agricultural Credit Administration."
Under Section 112 the sum of P150,000,000 was appropriated out of national funds to finance the
additional credit functions of the ACA as a result of the land reform program laid down in the Code.
Section 103 grants the ACA the privilege of rediscounting with the Central Bank, the Development Bank
of the Philippines and the Philippine National Bank. Section 105 directs the loaning activities of the ACA
"to stimulate the development of farmers' cooperatives," including those "relating to the production and
marketing of agricultural products and those formed to manage and/or own, on a cooperative basis,
services and facilities, such as irrigation and transport systems, established to support production and/or
marketing of agricultural products." Section 106 deals with the extension by ACA of credit to small
farmers in order to stimulate agricultural production. Sections 107 to 112 lay down certain guidelines to be
followed in connection with the granting of loans, such as security, interest and supervision of credit.
Sections 113 to 118, inclusive, invest the ACA with certain rights and powers not accorded to non-
governmental entities, thus:

SEC. 113. Auditing of Operations. — For the effective supervision of farmers' cooperatives, the
head of the Agricultural Credit Administration shall have the power to audit their operations,
records and books of account and to issue subpoena and subpoena duces tecum to compel the
attendance of witnesses and the production of books, documents and records in the conduct of
such audit or of any inquiry into their affairs. Any person who, without lawful cause, fails to obey
such subpoena or subpoena duces tecum shall, upon application of the head of Agricultural
Credit Administration with the proper court, be liable to punishment for contempt in the manner
provided by law and if he is an officer of the Association, to suspension or removal from office.
 SEC. 114. Prosecution of officials. — The Agricultural Credit Administration, through the
appropriate provincial or city fiscal, shall have the power to file and prosecute any and all actions
which it may have against any and all officials or employees of farmers' cooperatives arising from
misfeasance or malfeasance in office.

SEC. 115. Free Notarial Service. — Any justice of the peace, in his capacity as notary ex-officio,
shall render service free of charge to any person applying for a loan under this Code either in
administering the oath or in the acknowledgment of instruments relating to such loan.

SEC. 116. Free Registration of Deeds. — Any register of deeds shall accept for registration, free
of charge any instrument relative to a loan made under this Code.

SEC. 117. Writing-off Unsecured and Outstanding Loans. — Subject to the approval of the
President upon recommendation of the Auditor General, the Agricultural Credit Administration
may write-off from its books, unsecured and outstanding loans and accounts receivable which
may become uncollectible by reason of the death or disappearance of the debtor, should there be
no visible means of collecting the same in the foreseeable future, or where the debtor has been
verified to have no income or property whatsoever with which to effect payment. In all cases, the
writing-off shall be after five years from the date the debtor defaults.

SEC. 118. Exemption from Duties, Taxes and Levies. — The Agricultural Credit Administration is
hereby exempted from the payment of all duties, taxes, levies, and fees, including docket and
sheriff's fees, of whatever nature or kind, in the performance of its functions and in the exercise of
its powers hereunder.

The power to audit the operations of farmers' cooperatives and otherwise inquire into their affairs, as
given by Section 113, is in the nature of the visitorial power of the sovereign, which only a government
agency specially delegated to do so by the Congress may legally exercise.

On March 19, 1964 Executive Order No. 75 was promulgated. It is entitled: "Rendering in Full Force and
Effect the Plan of Reorganization Proposed by the Special Committee on Reorganization of Agencies for
Land Reform for the Administrative Machinery of the Agricultural Land Reform Code," and contains the
following pertinent provisions:

Section 3. The Land Reform Project Administration2 shall be considered a single organization and
the personnel complement of the member agencies including the legal officers of the Office of the
Agrarian Counsel which shall provide legal services to the LRPA shall be regarded as one
personnel pool from which the requirements of the operations shall be drawn and subject only to
the civil service laws, rules and regulations, persons from one agency may be freely assigned to
positions in another agency within the LRPA when the interest of the service so demands.

Section 4. The Land Reform Project Administration shall be considered as one organization with
respect to the standardization of job descriptions position classification and wage and salary
structures to the end that positions involving the same or equivalent qualifications and equal
responsibilities and effort shall have the same remuneration.

Section 5. The Civil Service laws, rules and regulations with respect to promotions, particularly in
the consideration of person next in rank, shall be made applicable to the Land Reform Project
Administration as a single agency so that qualified individuals in one member agency must be
considered in considering promotion to higher positions in another member agency.

The implementation of the land reform program of the government according to Republic Act No. 3844 is
most certainly a governmental, not a proprietary, function; and for that purpose Executive Order No. 75
has placed the ACA under the Land Reform Project Administration together with the other member
agencies, the personnel complement of all of which are placed in one single pool and made available for
assignment from one agency to another, subject only to Civil Service laws, rules and regulations, position
classification and wage structures.

The appointing authority in respect of the officials and employees of the ACA is the President of the
Philippines, as stated in a 1st indorsement by his office to the Chairman of the National Reform Council
dated May 22, 1964, as follows:

Appointments of officials and employees of the National Land Reform Council and its agencies
may be made only by the President, pursuant to the provisions of Section 79(D) of the Revised
Administrative Code. In accordance with the policy and practice, such appointments should be
prepared for the signature of the Executive Secretary, "By Authority ofthe President". 3

When the Agricultural Reform Code was being considered by the Congress, the nature of the ACA was
the subject of the following exposition on the Senate floor:

Senator Tolentino: . . . . "The ACA is not going to be a profit making institution. It is supposed to
be a public service of the government to the lessees and farmer-owners of the lands that may be
bought after expropriation from owners. It is the government here that is the lender. The
government should not exact a higher interest than what we are telling a private landowner now
in his relation to his tenants if we give to their farmers a higher rate of interest . . . ." (pp. 17 & 18,
Senate Journal No. 16, July 3, 1963)

The reason is obvious, to pinpoint responsibility for many losses in the government, in order to avoid
irresponsible lending of government money — to pinpoint responsibility for many losses . . . .

Senator Manglapus: ". . . But assuming that hypothesis, that is the reason why we are
appropriating P150,000,000.00 for the Agricultural Credit Administration which will go to
intensified credit operations on the barrio level . . ." (p. 3, Senate Journal No. 7).

That it is the reason why we are providing for the expansion of the ACCFA and the weeding out of the
cooperative activity of the ACCFA and turning this over to the Agricultural Productivity Commission, so
that the Agricultural Credit Administration will concentrate entirely on the facilitation of credit on the barrio
level with the massive support of 150 million provided by the government. . . . (pp. 4 & 5 of Senate
Journal No. 7, July 3, 1963)

. . . But by releasing them from this situation, we feel that we are putting them in a much better condition
than that in which they are found by providing them with a business-like way of obtaining credit, not
depending on a paternalistic system but one which is business-like — that is to say, a government office,
which on the barrio level will provide them that credit directly . . . . (p. 40, Senate Journal No. 7, July 3,
1963) (emphasis supplied).

The considerations set forth above militate quite strongly against the recognition of collective bargaining
powers in the respondent Unions within the context of Republic Act No. 875, and hence against the grant
of their basic petition for certification election as proper bargaining units. The ACA is a government office
or agency engaged in governmental, not proprietary functions. These functions may not be strictly what
President Wilson described as "constituent" (as distinguished from "ministrant"), 4 such as those relating to
the maintenance of peace and the prevention of crime, those regulating property and property rights,
those relating to the administration of justice and the determination of political duties of citizens, and
those relating to national defense and foreign relations. Under this traditional classification, such
constituent functions are exercised by the State as attributes of sovereignty, and not merely to promote
the welfare, progress and prosperity of the people — these letter functions being ministrant he exercise of
which is optional on the part of the government.
The growing complexities of modern society, however, have rendered this traditional classification of the
functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private
enterprise and initiative and which the government was called upon to enter optionally, and only "because
it was better equipped to administer for the public welfare than is any private individual or group of
individuals,"5 continue to lose their well-defined boundaries and to be absorbed within activities that the
government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the
times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of
economic forces. Here of course this development was envisioned, indeed adopted as a national policy,
by the Constitution itself in its declaration of principle concerning the promotion of social justice.

It was in furtherance of such policy that the Land Reform Code was enacted and the various agencies,
the ACA among them, established to carry out its purposes. There can be no dispute as to the fact that
the land reform program contemplated in the said Code is beyond the capabilities of any private
enterprise to translate into reality. It is a purely governmental function, no less than, say, the
establishment and maintenance of public schools and public hospitals. And when, aside from the
governmental objectives of the ACA, geared as they are to the implementation of the land reform program
of the State, the law itself declares that the ACA is a government office, with the formulation of policies,
plans and programs vested no longer in a Board of Governors, as in the case of the ACCFA, but in the
National Land Reform Council, itself a government instrumentality; and that its personnel are subject to
Civil Service laws and to rules of standardization with respect to positions and salaries, any vestige of
doubt as to the governmental character of its functions disappears.

In view of the foregoing premises, we hold that the respondent Unions are not entitled to the certification
election sought in the Court below. Such certification is admittedly for purposes of bargaining in behalf of
the employees with respect to terms and conditions of employment, including the right to strike as a
coercive economic weapon, as in fact the said unions did strike in 1962 against the ACCFA (G.R. No. L-
21824).6 This is contrary to Section 11 of Republic Act No. 875, which provides:

SEC. 11. Prohibition Against Strike in the Government — The terms and conditions of
employment in the Government, including any political subdivision or instrumentality thereof, are
governed by law and it is declared to be the policy of this Act that employees therein shall not
strike for the purposes of securing changes or modification in their terms and conditions of
employment. Such employees may belong to any labor organization which does not impose the
obligation to strike or to join in strike: Provided, However, that this section shall apply only to
employees employed in governmental functions of the Government including but not limited to
governmental corporations.7

With the reorganization of the ACCFA and its conversion into the ACA under the Land Reform Code and
in view of our ruling as to the governmental character of the functions of the ACA, the decision of the
respondent Court dated March 25, 1963, and the resolution en banc affirming it, in the unfair labor
practice case filed by the ACCFA, which decision is the subject of the present review in G. R. No. L-
21484, has become moot and academic, particularly insofar as the order to bargain collectively with the
respondent Unions is concerned.

What remains to be resolved is the question of fringe benefits provided for in the collective bargaining
contract of September 4, 1961. The position of the ACCFA in this regard is that the said fringe benefits
have not become enforceable because the condition that they should first be approved by the Office of
the President has not been complied with. The Unions, on the other hand, contend that no such condition
existed in the bargaining contract, and the respondent Court upheld this contention in its decision.

It is to be listed that under Section 3, Article XIV, of the agreement, the same "shall not become effective
unless and until the same is duly ratified by the Board of Governors of the Administration." Such approval
was given even before the formal execution of the agreement, by virtue of "Resolution No. 67, Regular
Meeting No. 7, FY 1960-61, held on August 17, 1961," but with the proviso that "the fringe benefits
contained therein shall take effect only if approved by the office of the President." The condition is,
therefore, deemed to be incorporated into the agreement by reference.

On October 23, 1962 the Office of the President, in a letter signed by the Executive Secretary, expressed
its approval of the bargaining contract "provided the salaries and benefits therein fixed are not in conflict
with applicable laws and regulations, are believed to be reasonable considering the exigencies of the
service and the welfare of the employees, and are well within the financial ability of the particular
corporation to bear."

On July 1, 1963 the ACCFA management and the Unions entered into an agreement for the
implementation of the decision of the respondent Court concerning the fringe benefits, thus:

In the meantime, only Cost of Living Adjustment, Longevity Pay, and Night Differential Benefits
accruing from July 1, 1961 to June 30, 1963 shall be paid to all employees entitled thereto, in the
following manner:

A) The sum of P180,000 shall be set aside for the payment of:

1) Night differential benefits for Security Guards.

2) Cost of Living Adjustment and Longevity Pay.

3) The unpaid balance due employees on Item A (1) and (2) this paragraph shall be paid in
monthly installments as finances permit but not beyond December 20, 1963.

3. All benefits accruing after July 1, 1963, shall be allowed to accumulate but payable only after
all benefits accruing up to June 30, 1963, as per CIR decision hereinabove referred to shall have
been settled in full; provided, however, that commencing July 1, 1963 and for a period of only two
(2) months thereafter (during which period the ACCFA and the Unions shall negotiate a new
Collective Bargaining Agreement) the provisions of the September 4, 1961 Collective Bargaining
Agreement shall be temporarily suspended, except as to Cost of Living Adjustment and "political"
or non-economic privileges and benefits thereunder.

On July 24, 1963 the ACCFA Board of Governors ratified the agreement thus entered into, pursuant to
the provision thereof requiring such ratification, but with the express qualification that the same was
"without prejudice to the pending appeal in the Supreme Court . . . in Case No. 3450-ULP." The payment
of the fringe benefits agreed upon, to our mind, shows that the same were within the financial capability of
the ACCFA then, and hence justifies the conclusion that this particular condition imposed by the Office of
the President in its approval of the bargaining contract was satisfied.

We hold, therefore, that insofar as the fringe benefits already paid are concerned, there is no reason to
set aside the decision of the respondent Court, but that since the respondent Unions have no right to the
certification election sought by them nor, consequently, to bargain collectively with the petitioner, no
further fringe benefits may be demanded on the basis of any collective bargaining agreement.

The decisions and orders appealed from are set aside and/or modified in accordance with the foregoing
pronouncements. No costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Castro, Teehankee and Barredo, JJ., concur.
Zaldivar, J., concurs in the result.
Separate Opinions

FERNANDO, J., concurring:

The decision reached by this Court so ably given expression in the opinion of Justice Makalintal,
characterized with vigor, clarity and precision, represents what for me is a clear tendency not to be
necessarily bound by our previous pronouncements on what activities partake of a nature that is
governmental.1 Of even greater significance, there is a definite rejection of the "constituent-ministrant"
criterion of governmental functions, followed in Bacani v. National Coconut Corporation. 2 That indeed is
cause for gratification. For me at least, there is again full adherence to the basic philosophy of the
Constitution as to the extensive and vast power lodged in our government to cope with the social and
economic problems that even now sorely beset us. There is therefore full concurrence on my part to the
opinion of the Court, distinguished by its high quality of juristic craftsmanship. I feel however that the
matter is of such vital importance that a separate concurring opinion is not inappropriate. It will also serve
to give expression to my view, which is that of the Court likewise, that our decision today does not pass
upon the rights of labor employed in instrumentalities of the state discharging governmental functions.

1. In the above Bacani decision, governmental functions are classified into constituent and ministrant.
"The former are those which constitute the very bonds of society and are compulsory in nature; the latter
are those that are undertaken only by way of advancing the general interests of society, and are merely
optional. President Wilson enumerates the constituent functions as follows: '(1) The keeping of order and
providing for the protection of persons and property from violence and robbery. (2) The fixing of the legal
relations between man and wife and between parents and children. (3) The regulation of the holding,
transmission, and interchange of property, and the determination of its liabilities for debt or for crime. (4)
The determination of contract rights between individuals. (5) The definition and punishment of crime. (6)
The administration of justice in civil cases. (7) The determination of the political duties, privileges, and
relations of citizens. (8) Dealings of the state with foreign powers: the preservation of the state from
external danger or encroachment and the advancement of its international interests.' "3

The ministrant functions were then enumerated, followed by a statement of the basis that would justify
engaging in such activities. Thus: "The most important of the ministrant functions are: public works, public
education, public charity, health and safety regulations, and regulations of trade and industry. The
principles determining whether or not a government shall exercise certain of these optional functions are:
(1) that a government should do for the public welfare those things which private capital would not
naturally undertake and (2) that a government should do these things which by its very nature it is better
equipped to administer for the public welfare than is any private individual or group of individuals."4

Reference is made in the Bacani decision to the first of the many publications of Justice Malcolm on the
Philippine government, which appeared in 1916,5 adopting the formulation of the then Professor, later
President, Woodrow Wilson of the United States, in a textbook on political science the first edition of
which was published in 1898. The Wilson classification reflected the primacy of the dominant laissez-
faire concept carried into the sphere of government.

A most spirited defense of such a view was given by former President Hadley of Yale in a series of three
lectures delivered at Oxford University in 1914. According to President Hadley: "I shall begin with a
proposition which may sound somewhat startling, but which I believe to be literally true. The whole
American political and social system is based on industrial property right, far more completely than has
ever been the case in any European country. In every nation of Europe there has been a certain amount
of traditional opposition between the government and the industrial classes. In the United States no such
tradition exists. In the public law of European communities industrial freeholding is a comparatively recent
development. In the United States, on the contrary, industrial freeholding is the foundation on which the
whole social order has been established and built up."6
The view is widely accepted that such a fundamental postulate did influence American court decisions on
constitutional law. As was explicitly stated by Justice Cardozo, speaking of that era: "Laissez-faire was
not only a counsel of caution which statesmen would do well to heed. It was a categorical imperative
which statesmen as well as judges, must obey."7 For a long time, legislation tending to reduce economic
inequality foundered on the rock that was the due process clause, enshrining as it did the liberty of
contract. To cite only one instance, the limitation of employment in bakeries to sixty hours a week and ten
hours a day under a New York statute was stricken down for being tainted with a due process objection in
Lochner v. New York.8 It provoked one of the most vigorous dissents of Justice Holmes, who was
opposed to the view that the United States Constitution did embody laissez-faire. Thus: "General
propositions do not decide concrete cases. The decision will depend on a judgment or intuition more
subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will
carry us far toward the end. Every opinion tends to become a law. I think that the word 'liberty,' in the 14th
Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it
can be said that a rational and fair man necessarily would admit that the statute proposed would infringe
fundamental principles as they have been understood by the traditions of our people and our law. It does
not need research to show that no such sweeping condemnation can be passed upon the statute before
us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could
not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of
work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to
discuss." It was not until 1908, in Muller v. Oregon,9 that the American Supreme Court held valid a ten-
hour maximum for women workers in laundries and not until 1917 in Bunting v. Oregon10 that such a
regulatory ten-hour law applied to men and women passed the constitutional test.

Similarly, state legislation fixing minimum wages was deemed offensive to the due process clause in a
1923 decision in Adkins v. Children's Hospital.11 Only in 1937, in the leading case of West Coast Hotel v.
Parrish,12 was the Adkins case overruled and a minimum wage law New York statute upheld. The same
unsympathetic attitude arising from the laissez-faire concept was manifest in decisions during such
period, there being the finely-spun distinctions in the Wolff Packing Co. v. Court of Industrial
Relations13 decision, as to when certain businesses could be classified as affected with public interest to
justify state regulation as to prices. After eleven years, in 1934, in Nebbia v. New York,14 the air of
unreality was swept away by this explicit pronouncement from the United States Supreme Court: "The
phrase 'affected with a public interest' can, in the nature of things, mean no more than that an industry, for
adequate reason, is subject to control for the public good."

It is thus apparent that until the administration of President Roosevelt, the laissez-faire principle resulted
in the contraction of the sphere where governmental entry was permissible. The object was to protect
property even if thereby the needs of the general public would be left unsatisfied. This was emphatically
put forth in a work of former Attorney General, later Justice, Jackson, citing an opinion of Judge Van
Orsdel. Thus: "It should be remembered that of the three fundamental principles which underlie
government, and for which government exists, the protection of life, liberty, and property, the chief of
these is property . . . ."15 The above excerpt from Judge Van Orsdel forms part of his opinion in Children's
Hospital v. Adkins, when decided by the Circuit Court of Appeals.16

Nonetheless, the social and economic forces at work in the United States to which the new deal
administration of President Roosevelt was most responsive did occasion, as of 1937, greater receptivity
by the American Supreme Court to a philosophy less rigid in its obeisance to property rights. Earlier
legislation deemed offensive to the laissez-faire concept had met a dismal fate. Their nullity during his
first term could, more often than not, be expected.17

As a matter of fact, even earlier, in 1935, Professor Coker of Yale, speaking as a historian, could already
discern a contrary drift. Even then he could assert that the range of governmental activity in the United
States had indeed expanded. According to him: "Thus both liberals and conservatives approve wide and
varied governmental intervention; the latter condemning it, it is true, when the former propose it, but
endorsing it, after it has become a fixed part of the status quo, as so beneficial in its effects that no more
of it is needed. Our history for the last half-century shows that each important governmental intervention
we have adopted has been called socialistic or communistic by contemporary conservatives, and has
later been approved by equally conservative men who now accept it both for its proved benefits and for
the worthy traditions it has come to represent. Both liberal and conservative supporters of our large-scale
business under private ownership advocate or concede the amounts and kinds of governmental limitation
and aid which they regard as necessary to make the system work efficiently and humanely. Sooner or
later, they are willing to have government intervene for the purpose of preventing the system from being
too oppressive to the masses of the people, protecting it from its self-destructive errors, and coming to its
help in other ways when it appears not to be able to take care of itself."18

At any rate, by 1943, the United States was reconciled to laissez-faire having lost its dominance. In the
language of Justice Jackson in the leading case of West Virginia State Board of Education v.
Barnette:19 "We must transplant these rights to a soil in which the laissez-faire concept or principle of non-
interference has withered at least as to economic affairs, and social advancements are increasingly
sought through closer integration of society and through expanded and strengthened governmental
controls."

2. The influence exerted by American constitutional doctrines unavoidable when the Philippines was still
under American rule notwithstanding, an influence that has not altogether vanished even after
independence, the laissez-faire principle never found full acceptance in this jurisdiction, even during the
period of its full flowering in the United States. Moreover, to erase any doubts, the Constitutional
Convention saw to it that our fundamental law embodies a policy of the responsibility thrust on
government to cope with social and economic problems and an earnest and sincere commitment to the
promotion of the general welfare through state action. It would thus follow that the force of any legal
objection to regulatory measures adversely affecting property rights or to statutes organizing public
corporations that may engage in competition with private enterprise has been blunted. Unless there be a
clear showing of any invasion of rights guaranteed by the Constitution, their validity is a foregone
conclusion. No fear need be entertained that thereby spheres hitherto deemed outside government
domain have been enchroached upon. With our explicit disavowal of the "constituent-ministrant" test, the
ghost of the laissez-faire concept no longer stalks the juridical stage.

As early as 1919, in the leading case of Rubi V. Provincial Board of Mindoro, 20 Justice Malcolm already
had occasion to affirm: "The doctrines of laissez-faire and of unrestricted freedom of the individual, as
axioms of economic and political theory, are of the past. The modern period has shown a widespread
belief in the amplest possible demonstration of governmental activity. The Courts unfortunately have
sometimes seemed to trail after the other two branches of the Government in this progressive march."

It was to be expected then that when he spoke for the Court in Government of the Philippine Islands v.
Springer,21 a 1927 decision, he found nothing objectionable in the government itself organizing and
investing public funds in such corporations as the National Coal Co., the Phil. National Bank, the National
Petroleum Co., the National Development Co., the National Cement Co. and the National Iron Co. There
was not even a hint that thereby the laissez-faire concept was not honored at all. It is true that Justice
Malcolm concurred with the majority in People v. Pomar,22 a 1924 opinion, which held invalid under the
due process clause a provision providing for maternity leave with pay thirty days before and thirty days
after confinement. It could be that he had no other choice as the Philippines was then under the United
States, and only recently the year before, the above-cited case of Adkins v. Children's Hospital,23 in line
with the laissez-faire principle, did hold that a statute providing for minimum wages was constitutionally
infirm on the same ground.

Our constitution which took effect in 1935, upon the inauguration of the Commonwealth of the Philippines,
erased whatever doubts there might be on that score. Its philosophy is antithetical to the laissez-
faire concept. Delegate, later President, Manuel Roxas, one of the leading members of the Constitutional
Convention, in answer precisely to an objection of Delegate Jose Reyes of Sorsogon, who noted the "vast
extensions in the sphere of governmental functions" and the "almost unlimited power to interfere in the
affairs of industry and agriculture as well as to compete with existing business" as "reflections of the
fascination exerted by [the then] current tendencies" in other jurisdictions, 24 spoke thus: "My answer is
that this constitution has a definite and well defined philosophy, not only political but social and economic.
A constitution that in 1776 or in 1789 was sufficient in the United States, considering the problems they
had at that time, may not now be sufficient with the growing and ever-widening complexities of social and
economic problems and relations. If the United States of America were to call a constitutional convention
today to draft a constitution for the United States, does any one doubt that in the provisions of that
constitution there will be found definite declarations of policy as to economic tendencies; that there will be
matters which are necessary in accordance with the experience of the American people during these
years when vast organizations of capital and trade have succeeded to a certain degree to control the life
and destiny of the American people? If in this constitution the gentleman will find declarations of
economic policy, they are there because they are necessary to safeguard the interests and welfare of the
Filipino people because we believe that the days have come when in self-defense, a nation may provide
in its constitution those safeguards, the patrimony, the freedom to grow, the freedom to develop national
aspirations and national interests, not to be hampered by the artificial boundaries which a constitutional
provision automatically imposes."25

Delegate Roxas continued further: "The government is the creature of the people and the government
exercises its powers and functions in accordance with the will and purposes of the people. That is the first
principle, the most important one underlying this document. Second, the government established in this
document is, in its form, in our opinion, the most adapted to prevailing conditions, circumstances and the
political outlook of the Filipino people. Rizal said, 'Every people has the kind of government that they
deserve.' That is just another form of expressing the principle in politics enunciated by the French
philosophers when they said: 'Every people has the right to establish the form of government which they
believe is most conducive to their welfare and their liberty.' Why have we preferred the government that is
established in this draft? Because it is the government with which we are familiar. It is the form of
government fundamentally such as it exists today; because it is the only kind of government that our
people understand; it is the kind of government we have found to be in consonance with our experience,
with the necessary modification, capable of permitting a fair play of social forces and allowing the people
to conduct the affairs of that government."26

One of the most prominent delegates, a leading intellectual, former President Rafael Palma of the
University of the Philippines, stressed as a fundamental principle in the draft of the Constitution the
limitation on the right to property. He pointed out that the then prevailing view allowed the accumulation of
wealth in one family down to the last remote descendant, resulting in a grave disequilibrium and bringing
in its wake extreme misery side by side with conspicuous luxury. He did invite attention to the few
millionaires at one extreme with the vast masses of Filipinos deprived of the necessities of life at the
other. He asked the Convention whether the Filipino people could long remain indifferent to such a
deplorable situation. For him to speak of a democracy under such circumstances would be nothing but an
illusion. He would thus emphasize the urgent need to remedy the grave social injustice that had produced
such widespread impoverishment, thus recognizing the vital role of government in this sphere.27

Another delegate, Tomas Confesor of Iloilo, was quite emphatic in his assertion for the need of a social
justice provision which is a departure from the laissez-faire principle. Thus: "Take the case of the tenancy
system in the Philippines. You have a tenant. There are hundreds of thousands of tenants working day in
and day out, cultivating the fields of their landlords. He puts all his time, all his energy, the labor and the
assistance of his wife and children, in cultivating a piece of ground for his landlord but when the time
comes for the partition of the products of his toil what happens? If he produces 25 cavanes of rice, he
gets only perhaps five and the twenty goes to the landlord. Now can he go to court? Has he a chance to
go to court in order to secure his just share of the products of his toil? No. Under our present regime of
law, under our present regime of justice, you do not give that to the poor tenant. Gentlemen, you go to the
Cagayan Valley and see the condition under which those poor farmers are being exploited day in and day
out. Can they go to court under our present regime of justice, of liberty, or democracy? The other day,
workmen were shot by the police just because they wanted to increase or they desired that their wages
be increased from thirty centavos a day to forty or fifty centavos. Is it necessary to spill human blood just
to secure an increase of ten centavos in the daily wages of an ordinary laborer? And yet under our
present regime of social justice, liberty and democracy, these things are happening; these things, I say,
are happening. Are those people getting any justice? No. They cannot get justice now from our courts.
For this reason, I say it is necessary that we insert 'social justice' here and that social justice must be
established by law. Proper legal provisions, proper legal facilities must be provided in order that there be
a regime not of justice alone, because we have that now and we are seeing the oppression arising from
such a regime. Consequently, we must emphasize the term 'social justice'."28

Delegate Ventenilla of Pangasinan reflected the attitude of the Convention as to why laissez-faire was no
longer acceptable. After speaking of times having changed, he proceeded: "Since then new problems
have arisen. The spiritual mission of government has descended to the level of the material. Then its
function was primarily to soothe the aching spirit. Now, it appears, it must also appease hunger. Now that
we may read history backwards, we know for instance, that the old theory of 'laissez-faire' has
degenerated into 'big business affairs' which are gradually devouring the rights of the people — the same
rights intended to be guarded and protected by the system of constitutional guaranties. Oh, if the Fathers
were now alive to see the changes that the centuries have wrought in our life! They might contemplate
the sad spectacle of organized exploitation greedily devouring the previous rights of the individual. They
might also behold the gradual disintegration of society, the fast disappearance of the bourgeois — the
middle class, the backbone of the nation — and the consequent drifting of the classes toward the
opposite extremes — the very rich and the very poor."29

Shortly after the establishment of the Commonwealth, the then Justice Jose P. Laurel, himself one of the
foremost delegates of the Constitutional Convention, in a concurring opinion, later quoted with approval in
the leading case of Antamok Goldfields Mining Co. v. Court of Industrial Relations,30 decided in 1940,
explained clearly the need for the repudiation of the laissez-faire doctrine. Thus: "It should be observed at
the outset that our Constitution was adopted in the midst of surging unrest and dissatisfaction resulting
from economic and social distress which was threatening the stability of governments the world over.
Alive to the social and economic forces at work, the framers of our Constitution boldly met the problems
and difficulties which faced them and endeavored to crystallize, with more or less fidelity, the political,
social and economic propositions of their age, and this they did, with the consciousness that the political
and philosophical aphorism of their generation will, in the language of a great jurist, 'be doubted by the
next and perhaps entirely discarded by the third.' . . . Embodying the spirit of the present epoch, general
provisions were inserted in the Constitution which are intended to bring about the needed social and
economic equilibrium between component elements of society through the application of what may be
termed as the justitia communis advocated by Grotius and Leibnits many years ago to be secured
through the counterbalancing of economic and social forces and opportunities which should be regulated,
if not controlled, by the State or placed, as it were, in custodia societatis. 'The promotion of social justice
to insure the well-being and economic security of all the people' was thus inserted as vital principle in our
Constitution. ... ."31 In the course of such concurring opinion and after noting the changes that have taken
place stressing that the policy of laissez-faire had indeed given way to the assumption by the government
of the right to intervene although qualified by the phrase "to some extent", he made clear that the doctrine
in People v. Pomar no longer retain, "its virtuality as a living principle."32

3. It must be made clear that the objection to the "constituent-ministrant" classification of governmental
functions is not to its formulation as such. From the standpoint of law as logic, it is not without merit. It has
neatness and symmetry. There are hardly any loose ends. It has the virtue of clarity. It may be said in its
favor likewise that it reflects all-too-faithfully the laissez-faire notion that government cannot extend its
operation outside the maintenance of peace and order, protection against external security, and the
administration of justice, with private rights, especially so in the case of property, being safeguarded and
a hint that the general welfare is not to be entirely ignored.

It must not be lost sight of though that logic and jural symmetry while undoubtedly desirable are not the
prime consideration. This is especially so in the field of public law. What was said by Holmes, almost nine
decades ago, carry greater conviction now. "The life of the law has not been logic; it has been
experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public
policy avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a
good deal more to do than the syllogism in determining the rules by which men should be
governed."33 Then too, there was the warning of Geny cited by Cardozo that undue stress or logic may
result in confining the entire system of positive law, "within a limited number of logical categories,
predetermined in essence, immovable in basis, governed by inflexible dogmas," thus rendering it
incapable of responding to the ever varied and changing exigencies of life.34,

It is cause enough for concern if the objection to the Bacani decision were to be premised on the score
alone that perhaps there was fidelity to the requirements of logic and jural symmetry carried to excess.
What appears to me much more deplorable is that it did fail to recognize that there was a repudiation of
the laissez-faire concept in the Constitution. As was set forth in the preceding pages, the Constitution is
distinguished precisely by a contrary philosophy. The regime of liberty if provided for, with the realization
that under the then prevalent social and economic conditions, it may be attained only through a
government with its sphere of activity ranging far and wide, not excluding matters hitherto left to the
operation of free enterprise. As rightfully stressed in our decision today in line with what was earlier
expressed by Justice Laurel, the government that we have established has as a fundamental principle the
promotion of social justice.35 The same jurist gave it a comprehensive and enduring definition as the
"promotion of the welfare of all the people, the adoption by the government of measures calculated to
insure economic stability of all the component elements of society, through the maintenance of a proper
economic and social equilibrium in the interrelations of the members of the community, constitutionally,
through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of
powers underlying the existence of all governments in the time honored principle of salus populi
estsuprema lex."36

There is thus from the same distinguished pen, this time writing for the Court, a reiteration of the view of
the laissez-faire doctrine being repugnant to the fundamental law. It must be added though that the
reference to extra-constitutional measures being allowable must be understood in the sense that there is
no infringement of specific constitutional guarantees. Otherwise, the judiciary will be hard put to sustain
their validity if challenged in an appropriate legal proceeding.

The regime of liberty contemplated in the Constitution with social justice as a fundamental principle to
reinforce the pledge in the preamble of promoting the general welfare reflects traditional concepts of a
democratic policy infused with an awareness of the vital and pressing need for the government to assume
a much more active and vigorous role in the conduct of public affairs. The framers of our fundamental law
were as one in their strongly-held belief that thereby the grave and serious infirmity then confronting our
body-politic, on the whole still with us now, of great inequality of wealth and mass poverty, with the great
bulk of our people ill-clad, ill-housed, ill-fed, could be remedied. Nothing else than communal effort,
massive in extent and earnestly engaged in, would suffice.

To paraphrase Laski, with the necessary modification in line with such worthy constitutional ends, we look
upon the state as an organization to promote the happiness of individuals, its authority as a power bound
by subordination to that purpose, liberty while to be viewed negatively as absence of restraint impressed
with a positive aspect as well to assure individual self-fulfillment in the attainment of which greater
responsibility is thrust on government; and rights as boundary marks defining areas outside its
domain.37 From which it would follow as Laski so aptly stated that it is the individual's "happiness and not
its well-being [that is] the criterion by which its behavior [is] to be judged. His interests, and not its power,
set the limits to the authority it [is] entitled to exercise."38 We have under such a test enlarged its field of
competence. 4. With the decision reached by us today, the government is freed from the compulsion
exerted by the Bacani doctrine of the "constituent-ministrant" test as a criterion for the type of activity in
which it may engage. Its constricting effect is consigned to oblivion. No doubts or misgivings need assail
us that governmental efforts to promote the public weal, whether through regulatory legislation of vast
scope and amplitude or through the undertaking of business activities, would have to face a searching
and rigorous scrutiny. It is clear that their legitimacy cannot be challenged on the ground alone of their
being offensive to the implications of the laissez-faire concept. Unless there be a repugnancy then to the
limitations expressly set forth in the Constitution to protect individual rights, the government enjoys a
much wider latitude of action as to the means it chooses to cope with grave social and economic
problems that urgently press for solution. For me, at least, that is to manifest deference to the philosophy
of our fundamental law. Hence my full concurrence, as announced at the outset.

5. The opinion of Justice Makalintal contains this footnote: "It must be stated, however, that we do not
here decide the question — not at issue in this case — of whether or not a labor organization composed
employees discharging governmental functions, which is allowed under the legal provision just quoted,
provided such organization does not impose the obligation to strike or to join in strike, may petition for a
certification election and compel the employer to bargain collectively with it for purposes other than to
secure changes or conditions in the terms and conditions of employment."

With such an affirmation as to the scope of our decision there being no holding on the vexing question of
the effects on the rights of labor in view of the conclusion reached that the function engaged in is
governmental in character, I am in full agreement. The answer to such a vital query must await another
day.
G.R. No. L-25843 July 25, 1974

MELCHORA CABANAS, plaintiff-appellee,

vs.
FRANCISCO PILAPIL, defendant-appellant.

Seno, Mendoza & Associates for plaintiff-appellee.

Emilio Benitez, Jr. for defendant-appellant.

FERNANDO, J.:p

The disputants in this appeal from a question of law from a lower court decision are the mother and the
uncle of a minor beneficiary of the proceeds of an insurance policy issued on the life of her deceased
father. The dispute centers as to who of them should be entitled to act as trustee thereof. The lower court
applying the appropriate Civil Code provisions decided in favor of the mother, the plaintiff in this case.
Defendant uncle appealed. As noted, the lower court acted the way it did following the specific mandate
of the law. In addition, it must have taken into account the principle that in cases of this nature the welfare
of the child is the paramount consideration. It is not an unreasonable assumption that between a mother
and an uncle, the former is likely to lavish more care on and pay greater attention to her. This is all the
more likely considering that the child is with the mother. There are no circumstances then that did militate
against what conforms to the natural order of things, even if the language of the law were not as clear. It
is not to be lost sight of either that the judiciary pursuant to its role as an agency of the State as parens
patriae, with an even greater stress on family unity under the present Constitution, did weigh in the
balance the opposing claims and did come to the conclusion that the welfare of the child called for the
mother to be entrusted with such responsibility. We have to affirm.

The appealed decision made clear: "There is no controversy as to the facts. "1 The insured, Florentino
Pilapil had a child, Millian Pilapil, with a married woman, the plaintiff, Melchora Cabanas. She was ten
years old at the time the complaint was filed on October 10, 1964. The defendant, Francisco Pilapil, is the
brother of the deceased. The deceased insured himself and instituted as beneficiary, his child, with his
brother to act as trustee during her minority. Upon his death, the proceeds were paid to him. Hence this
complaint by the mother, with whom the child is living, seeking the delivery of such sum. She filed the
bond required by the Civil Code. Defendant would justify his claim to the retention of the amount in
question by invoking the terms of the insurance policy. 2

After trial duly had, the lower court in a decision of May 10, 1965, rendered judgment ordering the
defendant to deliver the proceeds of the policy in question to plaintiff. Its main reliance was on Articles
320 and 321 of the Civil Code. The former provides: "The father, or in his absence the mother, is the legal
administrator of the property pertaining to the child under parental authority. If the property is worth more
than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of
First Instance."3 The latter states: "The property which the unemancipated child has acquired or may
acquire with his work or industry, or by any lucrative title, belongs to the child in ownership, and in
usufruct to the father or mother under whom he is under parental authority and whose company he lives;
...4

Conformity to such explicit codal norm is apparent in this portion of the appealed decision: "The insurance
proceeds belong to the beneficiary. The beneficiary is a minor under the custody and parental authority of
the plaintiff, her mother. The said minor lives with plaintiff or lives in the company of the plaintiff. The said
minor acquired this property by lucrative title. Said property, therefore, belongs to the minor child in
ownership, and in usufruct to the plaintiff, her mother. Since under our law the usufructuary is entitled to
possession, the plaintiff is entitled to possession of the insurance proceeds. The trust, insofar as it is in
conflict with the above quoted provision of law, is pro tanto null and void. In order, however, to protect the
rights of the minor, Millian Pilapil, the plaintiff should file an additional bond in the guardianship
proceedings, Sp. Proc. No. 2418-R of this Court to raise her bond therein to the total amount of
P5,000.00."5

It is very clear, therefore, considering the above, that unless the applicability of the two cited Civil Code
provisions can be disputed, the decision must stand. There is no ambiguity in the language employed.
The words are rather clear. Their meaning is unequivocal. Time and time again, this Court has left no
doubt that where codal or statutory norms are cast in categorical language, the task before it is not one of
interpretation but of application.6 So it must be in this case. So it was in the appealed decision.

1. It would take more than just two paragraphs as found in the brief for the defendant-appellant7 to blunt
the force of legal commands that speak so plainly and so unqualifiedly. Even if it were a question of
policy, the conclusion will remain unaltered. What is paramount, as mentioned at the outset, is the welfare
of the child. It is in consonance with such primordial end that Articles 320 and 321 have been worded.
There is recognition in the law of the deep ties that bind parent and child. In the event that there is less
than full measure of concern for the offspring, the protection is supplied by the bond required. With the
added circumstance that the child stays with the mother, not the uncle, without any evidence of lack of
maternal care, the decision arrived at can stand the test of the strictest scrutiny. It is further fortified by the
assumption, both logical and natural, that infidelity to the trust imposed by the deceased is much less in
the case of a mother than in the case of an uncle. Manresa, commenting on Article 159 of the Civil Code
of Spain, the source of Article 320 of the Civil Code, was of that view: Thus "El derecho y la obligacion de
administrar el Patrimonio de los hijos es una consecuencia natural y lógica de la patria potestad y de la
presunción de que nadie cuidará de los bienes de acquéllos con mas cariño y solicitude que los padres.
En nuestro Derecho antiguo puede decirse que se hallaba reconocida de una manera indirecta aquelia
doctrina, y asi se desprende de la sentencia del Tribunal Supremeo de 30 de diciembre de 1864, que se
refiere a la ley 24, tit. XIII de la Partida 5. De la propia suerte aceptan en general dicho principio los
Codigos extranjeros, con las limitaciones y requisitos de que trataremos mis adelante."8

2. The appealed decision is supported by another cogent consideration. It is buttressed by its adherence
to the concept that the judiciary, as an agency of the State acting as parens patriae, is called upon
whenever a pending suit of litigation affects one who is a minor to accord priority to his best interest. It
may happen, as it did occur here, that family relations may press their respective claims. It would be more
in consonance not only with the natural order of things but the tradition of the country for a parent to be
preferred. it could have been different if the conflict were between father and mother. Such is not the case
at all. It is a mother asserting priority. Certainly the judiciary as the instrumentality of the State in its role
of parens patriae, cannot remain insensible to the validity of her plea. In a recent case, 9 there is this
quotation from an opinion of the United States Supreme Court: "This prerogative of parens patriae is
inherent in the supreme power of every State, whether that power is lodged in a royal person or in the
legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible
monarchs to the great detriment of the people and the destruction of their liberties." What is more, there is
this constitutional provision vitalizing this concept. It reads: "The State shall strengthen the family as a
basic social institution." 10 If, as the Constitution so wisely dictates, it is the family as a unit that has to be
strengthened, it does not admit of doubt that even if a stronger case were presented for the uncle, still
deference to a constitutional mandate would have led the lower court to decide as it did.

WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against defendant-appellant.

Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J., took no part.

G.R. No. L-5 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of
Manila, respondents.1

Marcelino Lontok for petitioner.

P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.

FERIA, J.:

This petition for mandamus in which petitioner prays that the respondent judge of the lower court be
ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated under the
regime of the so-called Republic of the Philippines established during the Japanese military occupation of
these Islands.

The respondent judge refused to take cognizance of and continue the proceedings in said case on the
ground that the proclamation issued on October 23, 1944, by General Douglas MacArthur had the effect
of invalidating and nullifying all judicial proceedings and judgements of the court of the Philippines under
the Philippine Executive Commission and the Republic of the Philippines established during the Japanese
military occupation, and that, furthermore, the lower courts have no jurisdiction to take cognizance of and
continue judicial proceedings pending in the courts of the defunct Republic of the Philippines in the
absence of an enabling law granting such authority. And the same respondent, in his answer and
memorandum filed in this Court, contends that the government established in the Philippines during the
Japanese occupation were no de facto governments.

On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next day their
Commander in Chief proclaimed "the Military Administration under law over the districts occupied by the
Army." In said proclamation, it was also provided that "so far as the Military Administration permits, all the
laws now in force in the Commonwealth, as well as executive and judicial institutions, shall continue to be
effective for the time being as in the past," and "all public officials shall remain in their present posts and
carry on faithfully their duties as before."

A civil government or central administration organization under the name of "Philippine Executive
Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief of
the Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was
instructed to proceed to the immediate coordination of the existing central administrative organs and
judicial courts, based upon what had existed therefore, with approval of the said Commander in Chief,
who was to exercise jurisdiction over judicial courts.

The Chairman of the Executive Commission, as head of the central administrative organization, issued
Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in which the
Supreme Court, Court of Appeals, Courts of First Instance, and the justices of the peace and municipal
courts under the Commonwealth were continued with the same jurisdiction, in conformity with the
instructions given to the said Chairman of the Executive Commission by the Commander in Chief of
Japanese Forces in the Philippines in the latter's Order No. 3 of February 20, 1942, concerning basic
principles to be observed by the Philippine Executive Commission in exercising legislative, executive and
judicial powers. Section 1 of said Order provided that "activities of the administration organs and judicial
courts in the Philippines shall be based upon the existing statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial
change was effected thereby in the organization and jurisdiction of the different courts that functioned
during the Philippine Executive Commission, and in the laws they administered and enforced.

On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur issued a
proclamation to the People of the Philippines which declared:

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

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

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

On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General
MacArthur, on behalf of the Government of the United States, solemnly declared "the full powers and
responsibilities under the Constitution restored to the Commonwealth whose seat is here established as
provided by law."

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

We shall now proceed to consider the first question, that is, whether or not under the rules of international
law the judicial acts and proceedings of the courts established in the Philippines under the Philippine
Executive Commission and the Republic of the Philippines were good and valid and remained good and
valid even after the liberation or reoccupation of the Philippines by the United States and Filipino forces.

1. It is a legal truism in political and international law that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto government are good and valid. The question to be
determined is whether or not the governments established in these Islands under the names of the
Philippine Executive Commission and Republic of the Philippines during the Japanese military occupation
or regime were de facto governments. If they were, the judicial acts and proceedings of those
governments remain good and valid even after the liberation or reoccupation of the Philippines by the
American and Filipino forces.

There are several kinds of de facto governments. The first, or government de facto in a proper legal
sense, is that government that gets possession and control of, or usurps, by force or by the voice of the
majority, the rightful legal governments and maintains itself against the will of the latter, such as the
government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector.
The second is that which is established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war, and which is denominated a government of paramount force,
as the cases of Castine, in Maine, which was reduced to British possession in the war of 1812, and
Tampico, Mexico, occupied during the war with Mexico, by the troops of the United States. And the third
is that established as an independent government by the inhabitants of a country who rise in insurrection
against the parent state of such as the government of the Southern Confederacy in revolt not concerned
in the present case with the first kind, but only with the second and third kinds of de facto governments.

Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in the
case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government, called
also by publicists a government de facto, but which might, perhaps, be more aptly denominated a
government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained
by active military power with the territories, and against the rightful authority of an established and lawful
government; and (2), that while it exists it necessarily be obeyed in civil matters by private citizens who,
by acts of obedience rendered in submission to such force, do not become responsible, or wrongdoers,
for those acts, though not warranted by the laws of the rightful government. Actual governments of this
sort are established over districts differing greatly in extent and conditions. They are usually administered
directly by military authority, but they may be administered, also, civil authority, supported more or less
directly by military force. . . . One example of this sort of government is found in the case of Castine, in
Mine, reduced to British possession in the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like
example is found in the case of Tampico, occupied during the war with Mexico, by the troops of the
United States . . . Fleming vs. Page (9 Howard, 614). These were cases of temporary possessions of
territory by lawfull and regular governments at war with the country of which the territory so possessed
was part."

The powers and duties of de facto governments of this description are regulated in Section III of the
Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899 on
the same subject of said Section III provides "the authority of the legislative power having actually passed
into the hands of the occupant, the latter shall take steps in his power to reestablish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the
country."

According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is
burdened with the duty to insure public order and safety during his military occupation, he possesses all
the powers of a de factogovernment, and he can suspended the old laws and promulgate new ones and
make such changes in the old as he may see fit, but he is enjoined to respect, unless absolutely
prevented by the circumstances prevailing in the occupied territory, the municipal laws in force in the
country, that is, those laws which enforce public order and regulate social and commercial life of the
country. On the other hand, laws of a political nature or affecting political relations, such as, among
others, the right of assembly, the right to bear arms, the freedom of the press, and the right to travel freely
in the territory occupied, are considered as suspended or in abeyance during the military occupation.
Although the local and civil administration of justice is suspended as a matter of course as soon as a
country is militarily occupied, it is not usual for the invader to take the whole administration into his own
hands. In practice, the local ordinary tribunals are authorized to continue administering justice; and judges
and other judicial officers are kept in their posts if they accept the authority of the belligerent occupant or
are required to continue in their positions under the supervision of the military or civil authorities
appointed, by the Commander in Chief of the occupant. These principles and practice have the sanction
of all publicists who have considered the subject, and have been asserted by the Supreme Court and
applied by the President of the United States.

The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2, p.
444): "The right of one belligerent to occupy and govern the territory of the enemy while in its military
possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do
not look to the Constitution or political institutions of the conqueror, for authority to establish a government
for the territory of the enemy in his possession, during its military occupation, nor for the rules by which
the powers of such government are regulated and limited. Such authority and such rules are derived
directly from the laws war, as established by the usage of the of the world, and confirmed by the writings
of publicists and decisions of courts — in fine, from the law of nations. . . . The municipal laws of a
conquered territory, or the laws which regulate private rights, continue in force during military occupation,
excepts so far as they are suspended or changed by the acts of conqueror. . . . He, nevertheless, has all
the powers of a de facto government, and can at his pleasure either change the existing laws or make
new ones."

And applying the principles for the exercise of military authority in an occupied territory, which were later
embodied in the said Hague Conventions, President McKinley, in his executive order to the Secretary of
War of May 19,1898, relating to the occupation of the Philippines by United States forces, said in part:
"Though the powers of the military occupant are absolute and supreme, and immediately operate upon
the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect
private rights of person and property and provide for the punishment of crime, are considered as
continuing in force, so far as they are compatible with the new order of things, until they are suspended or
superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed
to remain in force and to be administered by the ordinary tribunals, substantially as they were before the
occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion.
The judges and the other officials connected with the administration of justice may, if they accept the
authority of the United States, continue to administer the ordinary law of the land as between man and
man under the supervision of the American Commander in Chief." (Richardson's Messages and Papers
of President, X, p. 209.)

As to "de facto" government of the third kind, the Supreme Court of the United States, in the same case of
Thorington vs. Smith, supra, recognized the government set up by the Confederate States as a de
factogovernment. In that case, it was held that "the central government established for the insurgent
States differed from the temporary governments at Castine and Tampico in the circumstance that its
authority did no originate in lawful acts of regular war; but it was not, on the account, less actual or less
supreme. And we think that it must be classed among the governments of which these are examples. . . .

In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States, discussing
the validity of the acts of the Confederate States, said: "The same general form of government, the same
general laws for the administration of justice and protection of private rights, which had existed in the
States prior to the rebellion, remained during its continuance and afterwards. As far as the Acts of the
States do not impair or tend to impair the supremacy of the national authority, or the just rights of citizens
under the Constitution, they are, in general, to be treated as valid and binding. As we said in
Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The existence of a state of insurrection and war did
not loosen the bonds of society, or do away with civil government or the regular administration of the
laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected,
contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property
regulated, precisely as in the time of peace. No one, that we are aware of, seriously questions the validity
of judicial or legislative Acts in the insurrectionary States touching these and kindered subjects, where
they were not hostile in their purpose or mode of enforcement to the authority of the National
Government, and did not impair the rights of citizens under the Constitution'. The same doctrine has been
asserted in numerous other cases."

And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured or
was done in respect of such matters under the authority of the laws of these local de facto governments
should not be disregarded or held to be invalid merely because those governments were organized in
hostility to the Union established by the national Constitution; this, because the existence of war between
the United States and the Confederate States did not relieve those who are within the insurrectionary
lines from the necessity of civil obedience, nor destroy the bonds of society nor do away with civil
government or the regular administration of the laws, and because transactions in the ordinary course of
civil society as organized within the enemy's territory although they may have indirectly or remotely
promoted the ends of the de facto or unlawful government organized to effect a dissolution of the Union,
were without blame 'except when proved to have been entered into with actual intent to further invasion or
insurrection:'" and "That judicial and legislative acts in the respective states composing the so-called
Confederate States should be respected by the courts if they were not hostile in their purpose or mode of
enforcement to the authority of the National Government, and did not impair the rights of citizens under
the Constitution."

In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized by
Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil
government established by the military forces of occupation and therefore a de facto government of the
second kind. It was not different from the government established by the British in Castine, Maine, or by
the United States in Tampico, Mexico. As Halleck says, "The government established over an enemy's
territory during the military occupation may exercise all the powers given by the laws of war to the
conqueror over the conquered, and is subject to all restrictions which that code imposes. It is of little
consequence whether such government be called a military or civil government. Its character is the same
and the source of its authority the same. In either case it is a government imposed by the laws of war,
and so far it concerns the inhabitants of such territory or the rest of the world, those laws alone determine
the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive Commission was
a civil and not a military government and was run by Filipinos and not by Japanese nationals, is of no
consequence. In 1806, when Napoleon occupied the greater part of Prussia, he retained the existing
administration under the general direction of a french official (Langfrey History of Napoleon, 1, IV, 25);
and, in the same way, the Duke of Willington, on invading France, authorized the local authorities to
continue the exercise of their functions, apparently without appointing an English superior. (Wellington
Despatches, XI, 307.). The Germans, on the other hand, when they invaded France in 1870, appointed
their own officials, at least in Alsace and Lorraine, in every department of administration and of every
rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed., p. 505, note 2.)

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

Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino who,
taking advantage of the withdrawal of the American forces from the Islands, and the occupation thereof
by the Japanese forces of invasion, had organized an independent government under the name with the
support and backing of Japan, such government would have been considered as one established by the
Filipinos in insurrection or rebellion against the parent state or the Unite States. And as such, it would
have been a de facto government similar to that organized by the confederate states during the war of
secession and recognized as such by the by the Supreme Court of the United States in numerous cases,
notably those of Thorington vs. Smith, Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and
similar to the short-lived government established by the Filipino insurgents in the Island of Cebu during
the Spanish-American war, recognized as a de facto government by the Supreme Court of the United
States in the case of McCleod vs. United States (299 U. S., 416). According to the facts in the last-named
case, the Spanish forces evacuated the Island of Cebu on December 25, 1898, having first appointed a
provisional government, and shortly afterwards, the Filipinos, formerly in insurrection against Spain, took
possession of the Islands and established a republic, governing the Islands until possession thereof was
surrendered to the United States on February 22, 1898. And the said Supreme Court held in that case
that "such government was of the class of de facto governments described in I Moore's International Law
Digest, S 20, . . . 'called also by publicists a government de facto, but which might, perhaps, be more
aptly denominated a government of paramount force . . '." That is to say, that the government of a country
in possession of belligerent forces in insurrection or rebellion against the parent state, rests upon the
same principles as that of a territory occupied by the hostile army of an enemy at regular war with the
legitimate power.

The governments by the Philippine Executive Commission and the Republic of the Philippines during the
Japanese military occupation being de facto governments, it necessarily follows that the judicial acts and
proceedings of the courts of justice of those governments, which are not of a political complexion, were
good and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international law,
remained good and valid after the liberation or reoccupation of the Philippines by the American and
Filipino forces under the leadership of General Douglas MacArthur. According to that well-known principle
in international law, the fact that a territory which has been occupied by an enemy comes again into the
power of its legitimate government of sovereignty, "does not, except in a very few cases, wipe out the
effects of acts done by an invader, which for one reason or another it is within his competence to do.
Thus judicial acts done under his control, when they are not of a political complexion, administrative acts
so done, to the extent that they take effect during the continuance of his control, and the various acts
done during the same time by private persons under the sanction of municipal law, remain good. Were it
otherwise, the whole social life of a community would be paralyzed by an invasion; and as between the
state and the individuals the evil would be scarcely less, — it would be hard for example that payment of
taxes made under duress should be ignored, and it would be contrary to the general interest that the
sentences passed upon criminals should be annulled by the disappearance of the intrusive government ."
(Hall, International Law, 7th ed., p. 518.) And when the occupation and the abandonment have been each
an incident of the same war as in the present case, postliminy applies, even though the occupant has
acted as conqueror and for the time substituted his own sovereignty as the Japanese intended to do
apparently in granting independence to the Philippines and establishing the so-called Republic of the
Philippines. (Taylor, International Law, p. 615.)

That not only judicial but also legislative acts of de facto governments, which are not of a political
complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant, is
confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which
declares null and void all laws, regulations and processes of the governments established in the
Philippines during the Japanese occupation, for it would not have been necessary for said proclamation
to abrogate them if they were invalid ab initio.

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

It is true that the commanding general of a belligerent army of occupation, as an agent of his government,
may not unlawfully suspend existing laws and promulgate new ones in the occupied territory, if and when
the exigencies of the military occupation demand such action. But even assuming that, under the law of
nations, the legislative power of a commander in chief of military forces who liberates or reoccupies his
own territory which has been occupied by an enemy, during the military and before the restoration of the
civil regime, is as broad as that of the commander in chief of the military forces of invasion and
occupation (although the exigencies of military reoccupation are evidently less than those of occupation),
it is to be presumed that General Douglas MacArthur, who was acting as an agent or a representative of
the Government and the President of the United States, constitutional commander in chief of the United
States Army, did not intend to act against the principles of the law of nations asserted by the Supreme
Court of the United States from the early period of its existence, applied by the Presidents of the United
States, and later embodied in the Hague Conventions of 1907, as above indicated. It is not to be
presumed that General Douglas MacArthur, who enjoined in the same proclamation of October 23, 1944,
"upon the loyal citizens of the Philippines full respect and obedience to the Constitution of the
Commonwealth of the Philippines," should not only reverse the international policy and practice of his
own government, but also disregard in the same breath the provisions of section 3, Article II, of our
Constitution, which provides that "The Philippines renounces war as an instrument of national policy, and
adopts the generally accepted principles of international law as part of the law of the Nation."

Moreover, from a contrary construction great inconvenience and public hardship would result, and great
public interests would be endangered and sacrificed, for disputes or suits already adjudged would have to
be again settled accrued or vested rights nullified, sentences passed on criminals set aside, and criminals
might easily become immune for evidence against them may have already disappeared or be no longer
available, especially now that almost all court records in the Philippines have been destroyed by fire as a
consequence of the war. And it is another well-established rule of statutory construction that where great
inconvenience will result from a particular construction, or great public interests would be endangered or
sacrificed, or great mischief done, such construction is to be avoided, or the court ought to presume that
such construction was not intended by the makers of the law, unless required by clear and unequivocal
words. (25 R. C. L., pp. 1025, 1027.)

The mere conception or thought of possibility that the titular sovereign or his representatives who
reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or proceedings of
the tribunals which the belligerent occupant had the right and duty to establish in order to insure public
order and safety during military occupation, would be sufficient to paralyze the social life of the country or
occupied territory, for it would have to be expected that litigants would not willingly submit their litigation to
courts whose judgements or decisions may afterwards be annulled, and criminals would not be deterred
from committing crimes or offenses in the expectancy that they may escaped the penalty if judgments
rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of the courts of justice
during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force of
law, issued by the President of the Philippines on March 10, 1945, by virtue of the emergency legislative
power vested in him by the Constitution and the laws of the Commonwealth of the Philippines. Said
Executive order abolished the Court of Appeals, and provided "that all case which have heretofore been
duly appealed to the Court of Appeals shall be transmitted to the Supreme Court final decision." This
provision impliedly recognizes that the judgments and proceedings of the courts during the Japanese
military occupation have not been invalidated by the proclamation of General MacArthur of October 23,
because the said Order does not say or refer to cases which have been duly appealed to said court prior
to the Japanese occupation, but to cases which had therefore, that is, up to March 10, 1945, been duly
appealed to the Court of Appeals; and it is to be presumed that almost all, if not all, appealed cases
pending in the Court of Appeals prior to the Japanese military occupation of Manila on January 2, 1942,
had been disposed of by the latter before the restoration of the Commonwealth Government in 1945;
while almost all, if not all, appealed cases pending on March 10, 1945, in the Court of Appeals were from
judgments rendered by the Court of First Instance during the Japanese regime.

The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it is
said that an occupier's acts are valid and under international law should not be abrogated by the
subsequent conqueror, it must be remembered that no crucial instances exist to show that if his acts
should be reversed, any international wrong would be committed. What does happen is that most matters
are allowed to stand by the restored government, but the matter can hardly be put further than this."
(Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this quotion the
respondent judge "draws the conclusion that whether the acts of the occupant should be considered valid
or not, is a question that is up to the restored government to decide; that there is no rule of international
law that denies to the restored government to decide; that there is no rule of international law that denies
to the restored government the right of exercise its discretion on the matter, imposing upon it in its stead
the obligation of recognizing and enforcing the acts of the overthrown government."

There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier,
such as the laws, regulations and processes other than judicial of the government established by the
belligerent occupant. But in view of the fact that the proclamation uses the words "processes of any other
government" and not "judicial processes" prisely, it is not necessary to determine whether or not General
Douglas MacArthur had power to annul and set aside all judgments and proceedings of the courts during
the Japanese occupation. The question to be determined is whether or not it was his intention, as
representative of the President of the United States, to avoid or nullify them. If the proclamation had,
expressly or by necessary implication, declared null and void the judicial processes of any other
government, it would be necessary for this court to decide in the present case whether or not General
Douglas MacArthur had authority to declare them null and void. But the proclamation did not so provide,
undoubtedly because the author thereof was fully aware of the limitations of his powers as Commander in
Chief of Military Forces of liberation or subsequent conqueror.

Not only the Hague Regulations, but also the principles of international law, as they result from the
usages established between civilized nations, the laws of humanity and the requirements of the public of
conscience, constitute or from the law of nations. (Preamble of the Hague Conventions; Westlake,
International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or Conventions
which we have already quoted in discussing the first question, imposes upon the occupant the obligation
to establish courts; and Article 23 (h), section II, of the same Conventions, which prohibits the belligerent
occupant "to declare . . . suspended . . . in a Court of Law the rights and action of the nationals of the
hostile party," forbids him to make any declaration preventing the inhabitants from using their courts to
assert or enforce their civil rights. (Decision of the Court of Appeals of England in the case of
Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to establish courts
of justice in the territory occupied, and forbidden to prevent the nationals thereof from asserting or
enforcing therein their civil rights, by necessary implication, the military commander of the forces of
liberation or the restored government is restrained from nullifying or setting aside the judgments rendered
by said courts in their litigation during the period of occupation. Otherwise, the purpose of these precepts
of the Hague Conventions would be thwarted, for to declare them null and void would be tantamount to
suspending in said courts the right and action of the nationals of the territory during the military
occupation thereof by the enemy. It goes without saying that a law that enjoins a person to do something
will not at the same time empower another to undo the same. Although the question whether the
President or commanding officer of the United States Army has violated restraints imposed by the
constitution and laws of his country is obviously of a domestic nature, yet, in construing and applying
limitations imposed on the executive authority, the Supreme Court of the United States, in the case of
Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from general rules of international
law and from fundamental principles known wherever the American flag flies."

In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command of
the forces of the United States in South Carolina after the end of the Civil War, wholly annulling a decree
rendered by a court of chancery in that state in a case within its jurisdiction, was declared void, and not
warranted by the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year
(15 id., 14), which defined the powers and duties of military officers in command of the several states then
lately in rebellion. In the course of its decision the court said; "We have looked carefully through the acts
of March 2, 1867 and July 19, 1867. They give very large governmental powers to the military
commanders designated, within the States committed respectively to their jurisdiction; but we have found
nothing to warrant the order here in question. . . . The clearest language would be necessary to satisfy us
that Congress intended that the power given by these acts should be so exercised. . . . It was an arbitrary
stretch of authority, needful to no good end that can be imagined. Whether Congress could have
conferred the power to do such an act is a question we are not called upon to consider. It is an unbending
rule of law that the exercise of military power, where the rights of the citizen are concerned, shall never be
pushed beyond what the exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4
Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject
before us from the standpoint indicated, we hold that the order was void."

It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which declared
that "all laws, regulations and processes of any other government in the Philippines than that of the said
Commonwealth are null and void without legal effect in areas of the Philippines free of enemy occupation
and control," has not invalidated the judicial acts and proceedings, which are not a political complexion, of
the courts of justice in the Philippines that were continued by the Philippine Executive Commission and
the Republic of the Philippines during the Japanese military occupation, and that said judicial acts and
proceedings were good and valid before and now good and valid after the reoccupation of liberation of
the Philippines by the American and Filipino forces.

3. The third and last question is whether or not the courts of the Commonwealth, which are the same as
those existing prior to, and continued during, the Japanese military occupation by the Philippine Executive
Commission and by the so-called Republic of the Philippines, have jurisdiction to continue now the
proceedings in actions pending in said courts at the time the Philippine Islands were reoccupied or
liberated by the American and Filipino forces, and the Commonwealth Government was restored.

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

Following these practice and precepts of the law of nations, Commander in Chief of the Japanese Forces
proclaimed on January 3, 1942, when Manila was occupied, the military administration under martial law
over the territory occupied by the army, and ordered that "all the laws now in force in the Commonwealth,
as well as executive and judicial institutions, shall continue to be affective for the time being as in the
past," and "all public officials shall remain in their present post and carry on faithfully their duties as
before." When the Philippine Executive Commission was organized by Order No. 1 of the Japanese
Commander in Chief, on January 23, 1942, the Chairman of the Executive Commission, by Executive
Orders Nos. 1 and 4 of January 30 and February 5, respectively, continued the Supreme Court, Court of
Appeals, Court of First Instance, and justices of the peace of courts, with the same jurisdiction in
conformity with the instructions given by the Commander in Chief of the Imperial Japanese Army in Order
No. 3 of February 20, 1942. And on October 14, 1943 when the so-called Republic of the Philippines was
inaugurated, the same courts were continued with no substantial change in organization and jurisdiction
thereof.

If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation
had been continued during the Japanese military administration, the Philippine Executive Commission,
and the so-called Republic of the Philippines, it stands to reason that the same courts, which had become
reestablished and conceived of as having in continued existence upon the reoccupation and liberation of
the Philippines by virtue of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may
continue the proceedings in cases then pending in said courts, without necessity of enacting a law
conferring jurisdiction upon them to continue said proceedings. As Taylor graphically points out in
speaking of said principles "a state or other governmental entity, upon the removal of a foreign military
force, resumes its old place with its right and duties substantially unimpaired. . . . Such political
resurrection is the result of a law analogous to that which enables elastic bodies to regain their original
shape upon removal of the external force, — and subject to the same exception in case of absolute
crushing of the whole fibre and content." (Taylor, International Public Law, p. 615.)

The argument advanced by the respondent judge in his resolution in support in his conclusion that the
Court of First Instance of Manila presided over by him "has no authority to take cognizance of, and
continue said proceedings (of this case) to final judgment until and unless the Government of the
Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of the courts
of the now defunct Republic of the Philippines, and the cases commenced and the left pending therein," is
"that said courts were a government alien to the Commonwealth Government. The laws they enforced
were, true enough, laws of the Commonwealth prior to Japanese occupation, but they had become the
laws — and the courts had become the institutions — of Japan by adoption (U.S. vs.Reiter. 27 F. Cases,
No. 16146), as they became later on the laws and institutions of the Philippine Executive Commission
and the Republic of the Philippines."

The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions of the
country occupied if continued by the conqueror or occupant, become the laws and the courts, by
adoption, of the sovereign nation that is militarily occupying the territory. Because, as already shown,
belligerent or military occupation is essentially provisional and does not serve to transfer the sovereignty
over the occupied territory to the occupant. What the court said was that, if such laws and institutions are
continued in use by the occupant, they become his and derive their force from him, in the sense that he
may continue or set them aside. The laws and institution or courts so continued remain the laws and
institutions or courts of the occupied territory. The laws and the courts of the Philippines, therefore, did
not become, by being continued as required by the law of nations, laws and courts of Japan. The
provision of Article 45, section III, of the Hague Conventions of 1907 which prohibits any compulsion of
the population of occupied territory to swear allegiance to the hostile power, "extends to prohibit
everything which would assert or imply a change made by the invader in the legitimate sovereignty. This
duty is neither to innovate in the political life of the occupied districts, nor needlessly to break the
continuity of their legal life. Hence, so far as the courts of justice are allowed to continue administering the
territorial laws, they must be allowed to give their sentences in the name of the legitimate sovereign "
(Westlake, Int. Law, Part II, second ed., p. 102). According to Wheaton, however, the victor need not
allow the use of that of the legitimate government. When in 1870, the Germans in France attempted to
violate that rule by ordering, after the fall of the Emperor Napoleon, the courts of Nancy to administer
justice in the name of the "High German Powers occupying Alsace and Lorraine," upon the ground that
the exercise of their powers in the name of French people and government was at least an implied
recognition of the Republic, the courts refused to obey and suspended their sitting. Germany originally
ordered the use of the name of "High German Powers occupying Alsace and Lorraine," but later offered
to allow use of the name of the Emperor or a compromise. (Wheaton, International Law, War, 7th English
ed. 1944, p. 244.)

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

As courts are creatures of statutes and their existence defends upon that of the laws which create and
confer upon them their jurisdiction, it is evident that such laws, not being a political nature, are not
abrogated by a change of sovereignty, and continue in force "ex proprio vigore" unless and until repealed
by legislative acts. A proclamation that said laws and courts are expressly continued is not necessary in
order that they may continue in force. Such proclamation, if made, is but a declaration of the intention of
respecting and not repealing those laws. Therefore, even assuming that Japan had legally acquired
sovereignty over these Islands, which she had afterwards transferred to the so-called Republic of the
Philippines, and that the laws and the courts of these Islands had become the courts of Japan, as the
said courts of the laws creating and conferring jurisdiction upon them have continued in force until now, it
necessarily follows that the same courts may continue exercising the same jurisdiction over cases
pending therein before the restoration of the Commonwealth Government, unless and until they are
abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government.
As a consequence, enabling laws or acts providing that proceedings pending in one court be continued
by or transferred to another court, are not required by the mere change of government or sovereignty.
They are necessary only in case the former courts are abolished or their jurisdiction so change that they
can no longer continue taking cognizance of the cases and proceedings commenced therein, in order that
the new courts or the courts having jurisdiction over said cases may continue the proceedings. When the
Spanish sovereignty in the Philippine Islands ceased and the Islands came into the possession of the
United States, the "Audiencia" or Supreme Court was continued and did not cease to exist, and
proceeded to take cognizance of the actions pending therein upon the cessation of the Spanish
sovereignty until the said "Audiencia" or Supreme Court was abolished, and the Supreme Court created
in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of the Islands
during the Spanish regime continued taking cognizance of cases pending therein upon the change of
sovereignty, until section 65 of the same Act No. 136 abolished them and created in its Chapter IV the
present Courts of First Instance in substitution of the former. Similarly, no enabling acts were enacted
during the Japanese occupation, but a mere proclamation or order that the courts in the Island were
continued.

On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing
the civil jurisdiction of the provost courts created by the military government of occupation in the
Philippines during the Spanish-American War of 1898, the same section 78 provided for the transfer of all
civil actions then pending in the provost courts to the proper tribunals, that is, to the justices of the peace
courts, Court of First Instance, or Supreme Court having jurisdiction over them according to law. And later
on, when the criminal jurisdiction of provost courts in the City of Manila was abolished by section 3 of Act
No. 186, the same section provided that criminal cases pending therein within the jurisdiction of the
municipal court created by Act No. 183 were transferred to the latter.

That the present courts as the same courts which had been functioning during the Japanese regime and,
therefore, can continue the proceedings in cases pending therein prior to the restoration of the
Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already quoted
in support of our conclusion in connection with the second question. Said Executive Order provides"(1)
that the Court of Appeals created and established under Commonwealth Act No. 3 as amended, be
abolished, as it is hereby abolished," and "(2) that all cases which have heretofore been duly appealed to
the Court of Appeals shall be transmitted to the Supreme Court for final decision. . . ." In so providing, the
said Order considers that the Court of Appeals abolished was the same that existed prior to, and
continued after, the restoration of the Commonwealth Government; for, as we have stated in discussing
the previous question, almost all, if not all, of the cases pending therein, or which had theretofore (that is,
up to March 10, 1945) been duly appealed to said court, must have been cases coming from the Courts
of First Instance during the so-called Republic of the Philippines. If the Court of Appeals abolished by the
said Executive Order was not the same one which had been functioning during the Republic, but that
which had existed up to the time of the Japanese occupation, it would have provided that all the cases
which had, prior to and up to that occupation on January 2, 1942, been dully appealed to the said Court of
Appeals shall be transmitted to the Supreme Court for final decision.

It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the
proceedings in cases, not of political complexion, pending therein at the time of the restoration of the
Commonwealth Government.

Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has
jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves civil rights
of the parties under the laws of the Commonwealth Government, pending in said court at the time of the
restoration of the said Government; and that the respondent judge of the court, having refused to act and
continue him does a duty resulting from his office as presiding judge of that court, mandamus is the
speedy and adequate remedy in the ordinary course of law, especially taking into consideration the fact
that the question of jurisdiction herein involved does affect not only this particular case, but many other
cases now pending in all the courts of these Islands.

In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the
respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and
continue to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement as to
costs. So ordered.

Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

Separate Opinions

DE JOYA, J., concurring:

The principal question involved in this case is the validity of the proceedings held in civil case No. 3012, in
the Court of First Instance of the City of Manila, under the now defunct Philippine Republic, during
Japanese occupation; and the effect on said proceedings of the proclamation of General Douglas
MacArthur, dated October 23, 1944. The decision of this question requires the application of principles of
International Law, in connection with the municipal law in force in this country, before and during
Japanese occupation.

Questions of International Law must be decided as matters of general law (Juntington vs. Attril, 146 U.S.,
657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and International Law is no alien in this Tribunal, as, under the
Constitution of the Commonwealth of the Philippines, it is a part of the fundamental law of the land (Article
II, section 3).

As International Law is an integral part of our laws, it must be ascertained and administered by this Court,
whenever questions of right depending upon it are presented for our determination, sitting as an
international as well as a domestic Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46
Law. Ed., 838).

Since International Law is a body of rules actually accepted by nations as regulating their mutual
relations, the proof of the existence of a given rule is to be found in the consent of nations to abide by that
rule; and this consent is evidenced chiefly by the usages and customs of nations, and to ascertain what
these usages and customs are, the universal practice is to turn to the writings of publicists and to the
decisions of the highest courts of the different countries of the world (The Habana, 175 U.S., 677; 20 Sup.
Cit., 290; 44 Law. ed., 320).

But while usage is the older and original source of International Law, great international treaties are a
later source of increasing importance, such as The Hague Conventions of 1899 and 1907.

The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declares that:

ARTICLE XLII. Territory is considered occupied when it is actually placed under the authority of
the hostile army.

The occupation applies only to be territory where such authority is established, and in a position
to assert itself.

ARTICLE XLIII. The authority of the legitimate power having actually passed into the hands of the
occupant, the later shall take all steps in his power to reestablish and insure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in force in the
country. (32 Stat. II, 1821.)

The above provisions of the Hague Convention have been adopted by the nations giving adherence to
them, among which is United States of America (32 Stat. II, 1821).

The commander in chief of the invading forces or military occupant may exercise governmental authority,
but only when in actual possession of the enemy's territory, and this authority will be exercised upon
principles of international Law (New Orleans vs. Steamship Co, [1874], 20 Wall., 387; Kelly vs. Sanders
[1878], 99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57 Law Ed., 1260; II Oppenheim
of International Law, section 167).

There can be no question that the Philippines was under Japanese military occupation, from January,
1942, up to the time of the reconquest by the armed forces of the United States of the Island of Luzon, in
February, 1945.

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

It is, therefore, evident that the establishment of the government under the so-called Philippine Republic,
during Japanese occupation, respecting the laws in force in the country, and permitting the local courts to
function and administer such laws, as proclaimed in the City of Manila, by the Commander in Chief of the
Japanese Imperial Forces, on January 3, 1942, was in accordance with the rules and principles of
International Law.

If the military occupant is thus in duly bound to establish in the territory under military occupation
governmental agencies for the preservation of peace and order and for the proper administration of
justice, in accordance with the laws in force within territory it must necessarily follow that the judicial
proceedings conducted before the courts established by the military occupant must be considered legal
and valid, even after said government establish by the military occupant has been displaced by the
legitimate government of the territory.

Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely settling
the rights of private parties actually within their jurisdiction, not tending to defeat the legal rights of citizens
of the United States, nor in furtherance of laws passed in aid of the rebellion had been declared valid and
binding (Cock vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Coleman vs. Tennessee, 97 U. S., 509; 24
Law. ed., 118; Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United
States, 20 id., 459; Texas vs. White, 7 id., 700; Ketchum vs. Buckley [1878], 99 U.S., 188); and the
judgment of a court of Georgia rendered in November, 1861, for the purchase money of slaves was held
valid judgment when entered, and enforceable in 1871(French vs. Tumlin, 10 Am. Law. Reg. [N.S.], 641;
Fed. Case, No. 5104).

Said judgments rendered by the courts of the states constituting the Confederate States of America were
considered legal and valid and enforceable, even after the termination of the American Civil War,
because they had been rendered by the courts of a de facto government. The Confederate States were
a de facto government in the sense that its citizens were bound to render the government obedience in
civil matters, and did not become responsible, as wrong-doers, for such acts of obedience
(Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law. ed., 361).

In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held — "It is now settled law in this
court that during the late civil war the same general form of government, the same general law for the
administration of justice and the protection of private rights, which had existed in the States prior to the
rebellion, remained during its continuance and afterwards. As far as the acts of the States did not impair
or tend to impair the supremacy of the national authority, or the just and legal rights of the citizens, under
the Constitution, they are in general to be treated as valid and binding." (William vs. Bruffy, 96 U.S., 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700.)

The government established in the Philippines, during Japanese occupation, would seem to fall under the
following definition of de facto government given by the Supreme Court of the United States:

But there is another description of government, called also by publicists, a government de facto,
but which might, perhaps, be more aptly denominateda government of paramount force. Its
distinguishing characteristics are (1) that its existence is maintained by active military power
 within the territories, and against the rightful authority of an established and lawful government;
and (2) that while it exists it must necessarily be obeyed in civil matters by private citizens who,
by acts of obedience rendered in submission to such force, do not become responsible, as wrong
doers, for those acts, though not warranted by the laws of the rightful government. Actual
government of this sort are established over districts differing greatly in extent and conditions.
They are usually administered directly by military authority, but they may be administered, also,
by civil authority, supported more or less directly by military force. (Macleod vs. United States
[1913] 229 U.S., 416.)

The government established in the Philippines, under the so-called Philippine Republic, during Japanese
occupation, was and should be considered as a de facto government; and that the judicial proceedings
conducted before the courts which had been established in this country, during said Japanese
occupation, are to be considered legal and valid and enforceable, even after the liberation of this country
by the American forces, as long as the said judicial proceedings had been conducted, under the laws of
the Commonwealth of the Philippines.

The judicial proceedings involved in the case under consideration merely refer to the settlement of
property rights, under the provisions of the Civil Code, in force in this country under the Commonwealth
government, before and during Japanese occupation.

Now, petitioner contends that the judicial proceedings in question are null and void, under the provisions
of the proclamation issued by General Douglas MacArthur, dated October 23, 1944; as said proclamation
"nullifies all the laws, regulations and processes of any other government of the Philippines than that of
the Commonwealth of the Philippines."

In other words, petitioner demands a literal interpretation of said proclamation issued by General Douglas
MacArthur, a contention which, in our opinion, is untenable, as it would inevitably produce judicial chaos
and uncertainties.

When an act is susceptible of two or more constructions, one of which will maintain and the others
destroy it, the courts will always adopt the former (U. S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed., 1004;
Board of Supervisors of Granada County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5 Sup. Ct.
Rep., 125; In re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46 Phil., 385). The
judiciary, always alive to the dictates of national welfare, can properly incline the scales of its decisions in
favor of that solution which will most effectively promote the public policy (Smith, Bell & Co.,
Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible construction. General terms
should be so limited in their application as not lead to injustice, oppression or an absurd consequence. It
will always, therefore, be presumed that the legislature intended exceptions to its language, which would
avoid results of this character. The reason of the law in such cases should prevail over its letter (U.
S. vs.Kirby, 7 Wall. [U.S.], 482; 19 Law. ed., 278; Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup.
Ct., 511; 36 Law. ed., 226; Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed.,
643; 3 Ann. Cas., 765; In re Allen, 2 Phil., 630). The duty of the court in construing a statute, which is
reasonably susceptible of two constructions to adopt that which saves is constitutionality, includes the
duty of avoiding a construction which raises grave and doubtful constitutional questions, if it can be
avoided (U. S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836).

According to the rules and principles of International Law, and the legal doctrines cited above, the judicial
proceedings conducted before the courts of justice, established here during Japanese military occupation,
merely applying the municipal law of the territory, such as the provisions of our Civil Code, which have no
political or military significance, should be considered legal, valid and binding.

It is to be presumed that General Douglas MacArthur is familiar with said rules and principles, as
International Law is an integral part of the fundamental law of the land, in accordance with the provisions
of the Constitution of the United States. And it is also to be presumed that General MacArthur his acted,
in accordance with said rules and principles of International Law, which have been sanctioned by the
Supreme Court of the United States, as the nullification of all judicial proceedings conducted before our
courts, during Japanese occupation would lead to injustice and absurd results, and would be highly
detrimental to the public interests.

For the foregoing reasons, I concur in the majority opinion.

PERFECTO, J., dissenting:

Law must be obeyed. To keep the bonds of society, it must not be evaded. On its supremacy depends
the stability of states and nations. No government can prevail without it. The preservation of the human
race itself hinges in law.

Since time immemorial, man has relied on law as an essential means of attaining his purposes, his
objectives, his mission in life. More than twenty-two centuries before the Christian Era, on orders of the
Assyrian King Hammurabi, the first code was engrave in black diorite with cunie form characters. Nine
centuries later Emperor Hung Wu, in the cradle of the most ancient civilization, compiled the Code of the
Great Ming. The laws of Manu were written in the verdic India. Moses received at Sinai the ten
commandments. Draco, Lycurgus, Solon made laws in Greece. Even ruthless Genghis Khan used laws
to keep discipline among the nomad hordes with which he conquered the greater part of the European
and Asiastic continents.

Animal and plants species must follow the mendelian heredity rules and other biological laws to survive.
Thanks to them, the chalk cliffs of the infusoria show the marvel of an animal so tiny as to be
imperceptible to the naked eye creating a whole mountain. Even the inorganic world has to conform the
law. Planets and stars follow the laws discovered by Kepler, known as the law-maker of heavens. If,
endowed with rebellious spirit, they should happen to challenge the law of universal gravity, the
immediate result would be cosmic chaos. The tiny and twinkling points of light set above us on the velvet
darkness of the night will cease to inspire us with dreams of more beautiful and happier worlds.

Again we are called upon to do our duty. Here is a law that we must apply. Shall we shrink? Shall we
circumvent it ? Can we ignore it?

The laws enacted by the legislators shall be useless if courts are not ready to apply them. It is actual
application to real issues which gives laws the breath of life.

In the varied and confused market of human endeavor there are so many things that might induce us to
forget the elementals. There are so many events, so many problem, so many preoccupations that are
pushing among themselves to attract our attention, and we might miss the nearest and most familiar
things, like the man who went around his house to look for a pencil perched on one of his ears.

THE OCTOBER PROCLAMATION

In October, 1944, the American Armed Forces of Liberation landed successfully in Leyte.

When victory in islands was accomplished, after the most amazing and spectacular war operations,
General of the Army Douglas MacArthur as a commander in Chief of the American Army, decided to
reestablish, in behalf of the United States, the Commonwealth Government.
Then he was confronted with the question as to what policy to adopt in regards to the official acts of the
governments established in the Philippines by the Japanese regime. He might have thought of
recognizing the validity of some of said acts, but, certainly, there were acts which he should declare null
and void, whether against the policies of the American Government, whether inconsistent with military
strategy and operations, whether detrimental to the interests of the American or Filipino peoples, whether
for any other strong or valid reasons.

But, which to recognize, and which not? He was not in a position to gather enough information for a safe
basis to distinguished and classify which acts must be nullified, and which must validated. At the same
time he had to take immediate action. More pressing military matters were requiring his immediate
attention. He followed the safe course: to nullify all the legislative, executive, and judicial acts and
processes under the Japanese regime. After all, when the Commonwealth Government is already
functioning, with proper information, he will be in a position to declare by law, through its Congress, which
acts and processes must be revived and validated in the public interest.

So on October 23, 1944, the Commander in Chief issued the following proclamation:

GENERAL HEADQUARTERS

SOUTHWEST PACIFIC AREA

OFFICE OF THE COMMANDER IN CHIEF

PROCLAMATION

To the People of the Philippines:

WHEREAS, the military forces under my command have landed in the Philippines soil as a
prelude to the liberation of the entire territory of the Philippines; and

WHEREAS, the seat of the Government of the Commonwealth of the Philippines has been re-
established in the Philippines under President Sergio Osmeña and the members of his cabinet;
and

WHEREAS, under enemy duress, a so-called government styled as the "Republic of the
Philippines" was established on October 14, 1943, based upon neither the free expression of the
people's will nor the sanction of the Government of the United States, and is purporting to
exercise Executive, Judicial and Legislative powers of government over the people;

Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander in Chief of
the military forces committed to the liberation of the Philippines, do hereby proclaim and declare:

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

2. The laws now existing on the statute books of the Commonwealth of the Philippines
and the regulation promulgated pursuant thereto are in full force and effect and legally
binding upon the people in areas of the Philippines free of enemy occupation and control;
and
 3. That all laws, regulations and processes of any other government in the Philippines
than that of the said Commonwealth are null and void and without legal effect in areas of
the Philippines free enemy occupation and control; and

I do hereby announce my purpose progressively to restore and extend to the people of the
Philippines the sacred right of government by constitutional process under the regularly
constituted Commonwealth Government as rapidly as the several occupied areas are liberated to
the military situation will otherwise permit;

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts of
their duly constituted government whose seat is now firmly re-established on Philippine soil.

October 23, 1944.

DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief

IS THE OCTOBER PROCLAMATION LAW?

In times of war the Commander in Chief of an army is vested with extraordinary inherent powers, as a
natural result of the nature of the military operations aimed to achieve the purposes of his country in the
war, victory being paramount among them.

Said Commander in Chief may establish in the occupied or reoccupied territory, under his control, a
complete system of government; he may appoint officers and employees to manage the affairs of said
government; he may issue proclamations, instructions, orders, all with the full force of laws enacted by a
duly constituted legislature; he may set policies that should be followed by the public administration
organized by him; he may abolish the said agencies. In fact, he is the supreme ruler and law-maker of the
territory under his control, with powers limited only by the receipts of the fundamental laws of his country.

California, or the port of San Francisco, had been conquered by the arms of the United States as
early as 1846. Shortly afterward the United States had military possession of all upper California.
Early in 1847 the President, as constitutional commander in chief of the army and navy,
authorized the military and naval commander of our forces in California to exercise the belligerent
rights of a conqueror, and form a civil government for the conquered country, and to impose
duties on imports and tonnage as military contributions for the support of the government, and of
the army which has the conquest in possession. . . Cross of Harrison, 16 Howard, 164, 189.)

In May, 1862, after the capture of New Orleans by the United States Army, General Butler, then
in command of the army at that place, issued a general order appointing Major J. M. Bell,
volunteer aide-de-camp, of the division staff, provost judge of the city, and directed that he should
be obeyed and respected accordingly. The same order appointed Capt. J. H. French provost
marshal of the city, the Capt. Stafford deputy provost marshal. A few days after this order the
Union Bank lent to the plaintiffs the sum of $130,000, and subsequently, the loan not having been
repaid, brought suit before the provost judge to recover the debt. The defense was taken that the
judge had no jurisdiction over the civil cases, but judgement was given against the borrowers,
and they paid the money under protest. To recover it back is the object of the present suit, and
the contention of the plaintiffs is that the judgement was illegal and void, because the Provost
Court had no jurisdiction of the case. The judgement of the District Court was against the
plaintiffs, and this judgement was affirmed by the Supreme Court of the State. To this affirmance
error is now assigned.
The argument of the plaintiffs in error is that the establishment of the Provost Court, the
appointment of the judge, and his action as such in the case brought by the Union Bank against
them were invalid, because in violation of the Constitution of the United States, which vests the
judicial power of the General government in one Supreme Court and in such inferior courts as
Congress may from time to time ordain and establish, and under this constitutional provision they
were entitled to immunity from liability imposed by the judgment of the Provost Court. Thus, it is
claimed, a Federal question is presented, and the highest court of the State having decided
against the immunity claimed, our jurisdiction is invoked.

Assuming that the case is thus brought within our right to review it, the controlling question is
whether the commanding general of the army which captured New Orleans and held it in May
1862, had authority after the capture of the city to establish a court and appoint a judge with
power to try and adjudicate civil causes. Did the Constitution of the United States prevent the
creation of the civil courts in captured districts during the war of the rebellion, and their creation
by military authority?

This cannot be said to be an open question. The subject came under the consideration by this
court in The Grapeshot, where it was decided that when, during the late civil war, portions of the
insurgent territory were occupied by the National forces, it was within the constitutional authority
of the President, as commander in chief, to establish therein provisional courts for the hearing
and determination of all causes arising under the laws of the States or of the United States, and it
was ruled that a court instituted by President Lincoln for the State of Louisiana, with authority to
hear, try, and determine civil causes, was lawfully authorized to exercise such jurisdiction. Its
establishment by the military authority was held to be no violation of the constitutional provision
that "the judicial power of the United States shall be vested in one Supreme Court and in such
inferior courts as the Congress may form time to time ordain and establish." That clause of the
Constitution has no application to the abnormal condition of conquered territory in the occupancy
of the conquering, army. It refers only to courts of United States, which military courts are not. As
was said in the opinion of the court, delivered by Chief Justice Chase, in The Grapeshot, "It
became the duty of the National government, wherever the insurgent power was overthrown, and
the territory which had been dominated by it was occupied by the National forces, to provide, as
far as possible, so long as the war continued, for the security of the persons and property and for
the administration of justice. The duty of the National government in this respect was no other
than that which devolves upon a regular belligerent, occupying during war the territory of another
belligerent. It was a military duty, to be performed by the President, as Commander in Chief, and
instructed as such with the direction of the military force by which the occupation was held."

Thus it has been determined that the power to establish by military authority courts for the
administration of civil as well as criminal justice in portions of the insurgent States occupied by
the National forces, is precisely the same as that which exists when foreign territory has been
conquered and is occupied by the conquerors. What that power is has several times been
considered. In Leitensdorfer & Houghton vs. Webb, may be found a notable illustration. Upon the
conquest of New Mexico, in 1846, the commanding officer of the conquering army, in virtue of the
power of conquest and occupancy, and with the sanction and authority of the President, ordained
a provisional government for the country. The ordinance created courts, with both civil and
criminal jurisdiction. It did not undertake to change the municipal laws of the territory, but it
established a judicial system with a superior or appellate court, and with circuit courts, the
jurisdiction of which declared to embrace, first, all criminal causes that should not otherwise
provided for by law; and secondly, original and exclusive cognizance of all civil cases not
cognizable before the prefects and alcades. But though these courts and this judicial system were
established by the military authority of the United States, without any legislation of Congress, this
court ruled that they were lawfully established. And there was no express order for their
establishment emanating from the President or the Commander in Chief. The ordinance was the
act of the General Kearney the commanding officer of the army occupying the conquered
territory.
 In view of these decisions it is not to be questioned that the Constitution did not prohibit the
creation by the military authority of court for the trial of civil causes during the civil war in
conquered portions of the insurgent States. The establishment of such courts is but the exercise
of the ordinary rights of conquest. The plaintiffs in error, therefore, had no constitutional immunity
against subjection to the judgements of such courts. They argue, however, that if this be
conceded, still General Butler had no authority to establish such a court; that the President alone,
as a Commander in Chief, had such authority. We do not concur in this view. General Butler was
in command of the conquering and the occupying army. He was commissioned to carry on the
war in Louisina. He was, therefore, invested with all the powers of making war, so far as they
were denied to him by the Commander in Chief, and among these powers, as we have seen, was
of establishing courts in conquered territory. It must be presumed that he acted under the orders
of his superior officer, the President, and that his acts, in the prosecution of the war, were the acts
of his commander in chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)

There is no question, therefore, that when General of the Army Douglas MacArthur issued on October
Proclamation, he did it in the legitimate exercise of his powers. He did it as the official representative of
the supreme authority of the United States of America. Consequently, said proclamation is legal, valid,
and binding.

Said proclamation has the full force of a law. In fact, of a paramount law. Having been issued in the
exercise of the American sovereignty, in case of conflict, it can even supersede, not only the ordinary
laws of the Commonwealth of the Philippines, but also our Constitution itself while we remain under the
American flag.

"PROCESS" IN THE OCTOBER PROCLAMATION

In the third section of the dispositive part of the October Proclamation, it is declared that all laws,
regulations and processes of any other government in the Philippines than that of the Commonwealth,
are null and void.

Does the word "processes" used in the proclamation include judicial processes?

In its broadest sense, process is synonymous with proceedings or procedures and embraces all the steps
and proceedings in a judicial cause from it commencement to its conclusion.

PROCESS. In Practice. — The means of compelling a defendant to appear in court after suing
out the original writ, in civil, and after indictment, in criminal cases.

The method taken by law to compel a compliance with the original writ or command as of the
court.

A writ, warrant, subpoena, or other formal writing issued by authority law; also the means of
accomplishing an end, including judicial proceedings; Gollobitch vs. Rainbow, 84 la., 567; 51 N.
W., 48; the means or method pointed out by a statute, or used to acquire jurisdiction of the
defendants, whether by writ or notice. Wilson vs.R. Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St.
Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.)

A. Process generally. 1. Definition. — As a legal term process is a generic word of every

comprehensive signification and many meanings. It is broadest sense it is equivalent to, or
synonymous with, "proceedings" or "procedure," and embraces all the steps and proceedings in a
cause from its commencement to its conclusion. Sometimes the term is also broadly defined as
the means whereby a court compels a compliance with it demands. "Process" and "writ" or "writs"
are synonymous in the sense that every writ is a process, and in a narrow sense of the term
"process" is limited to judicial writs in an action, or at least to writs or writings issued from or out of
court, under the seal thereof, and returnable thereto; but it is not always necessary to construe
the term so strictly as to limit it to a writ issued by a court in the exercise of its ordinary
jurisdiction; the term is sometimes defined as a writ or other formal writing issued by authority of
law or by some court, body, or official having authority to issue it; and it is frequently used to
designate a means, by writ or otherwise , of acquiring jurisdiction of defendant or his property, or
of bringing defendant into, or compelling him to appear in, court to answer.

As employed in the statutes the legal meaning of the word "process" varies according to the
context, subject matter, and spirit of the statute in which it occurs. In some jurisdictions codes or
statutes variously define "process" as signifying or including: A writ or summons issued in the
course of judicial proceedings; all writs, warrants, summonses, and orders of courts of justice or
judicial officers; or any writ, declaration, summons, order, or subpoena whereby any action, suit
or proceeding shall be commenced, or which shall be issued in or upon any action, suit or
proceeding. (50 C. J., PP. 441, 442.)

The definition of "process" given by Lord Coke comprehends any lawful warrant, authority, or
proceeding by which a man may be arrested. He says: "Process of law is two fold, namely, by the
King's writ, or by proceeding and warrant, either in deed or in law, without writ."
(People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.)

Baron Comyn says that process, in a large acceptance, comprehends the whole proceedings
after the original and before judgement; but generally it imports the writs which issue out of any
court to bring the party to answer, or for doing execution, and all process out of the King's court
ought to be in the name of the King. It is called "process" because it proceeds or goes upon
former matter, either original or judicial. Gilmer, vs.Bird 15 Fla., 410, 421. (34 Words and
Phrases, permanent edition, 1940 edition, p. 147.)

In a broad sense the word "process" includes the means whereby a court compels the
appearance of the defendant before it, or a compliance with it demands, and any every writ, rule
order, notice, or decree, including any process of execution that may issue in or upon any action,
suit, or legal proceedings, and it is not restricted to mesne process. In a narrow or restricted
sense it is means those mandates of the court intending to bring parties into court or to require
them to answer proceedings there pending. (Colquitt Nat. Bank vs. Poitivint, 83 S. E., 198, 199;
15 Ga. App., 329. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.)

A "process" is an instrument in an epistolary from running in the name of the sovereign of a state
and issued out of a court of justice, or by a judge thereof, at the commencement of an action or at
any time during its progress or incident thereto, usually under seal of the court, duly attested and
directed to some municipal officer or to the party to be bound by it, commanding the commission
of some act at or within a specified time, or prohibiting the doing of some act. The cardinal
requisites are that the instrument issue from a court of justice, or a judge thereof; that it run in the
name of the sovereign of the state; that it be duly attested, but not necessarily by the judge,
though usually, but not always, under seal; and that it be directed to some one commanding or
prohibiting the commission of an act. Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70
Kan., 43. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.)

Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is largely taken for all
proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to
the end; secondly, that is termed the "process" by which a man is called into any temporal court,
because the beginning or principal part thereof, by which the rest is directed or taken. Strictly, it is
a proceeding after the original, before the judgement. A policy of fire insurance contained the
condition that if the property shall be sold or transferred, or any change takes place in title or
possession, whether by legal process or judicial decree or voluntary transfer or convenience, then
and in every such case the policy shall be void. The term "legal process," as used in the policy,
means what is known as a writ; and, as attachment or execution on the writs are usually
 employed to effect a change of title to property, they are or are amongst the processes
contemplated by the policy. The words "legal process" mean all the proceedings in an action or
proceeding. They would necessarily embrace the decree, which ordinarily includes the
proceedings. Perry vs. Lorillard Fire Ins. Co., N. Y., 6 Lans., 201, 204. See, also,
Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words and Phrases, permanent edition, 1940 edition,
p. 148.)

"Process" in a large acceptation, is nearly synonymous with "proceedings," and means the entire
proceedings in an action, from the beginning to the end. In a stricter sense, it is applied to the
several judicial writs issued in an action. Hanna vs. Russell, 12 Minn., 80, 86 (Gil., 43, 45). (34
Words and Phrases, permanent edition, 1940, edition 149.)

The term "process" as commonly applied, intends that proceeding by which a party is called into
court, but it has more enlarged signification, and covers all the proceedings in a court, from the
beginning to the end of the suit; and, in this view, all proceedings which may be had to bring
testimony into court, whether viva voceor in writing, may be considered the process of the court.
Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id.

"Process" in its broadest sense comprehends all proceedings to the accomplishment of an end,
including judicial proceedings. Frequently its signification is limited to the means of bringing a
party in court. In the Constitution process which at the common law would have run in the name
of the king is intended. In the Code process issued from a court is meant. McKenna vs. Cooper,
101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn., 80. (Gil., 43 ); Black Com.
279; Bou vs. Law. Dict. (34 Words and Phrases, permanent edition 1940 edition, p. 149.)

"Judicial process" includes the mandate of a court to its officers, and a means whereby courts
compel the appearance of parties, or compliance with its commands, and includes a
summons. Ex parte Hill, 51 So., 786, 787; 165 Ala., 365.

"Judicial process" comprehends all the acts of then court from the beginning of the proceeding to
its end, and in a narrower sense is the means of compelling a defendant to appear in court after
suing out the original writ in civil case and after the indictment in criminal cases, and in every
sense is the act of the court and includes any means of acquiring jurisdiction and includes
attachment, garnishment, or execution, and also a writ. Blair vs. Maxbass Security Bank of
Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and Phrases, permanent edition 1940
edition, p. 328.)

There is no question that the word process, as used in the October Proclamation, includes all judicial
processes or proceedings.

The intention of the author of the proclamation of including judicial processes appears clearly in the
preamble of the document.

The second "Whereas," states that so-called government styled as the "Republic of the Philippines,"
based upon neither the free expression of the people's will nor the sanction of the Government of the
United States, and is purporting to the exercise Executive, Judicial, and Legislative powers of government
over the people."

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

THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY

THE INTENTION OF THE AUTHOR

The October Proclamation is written in such a way that it is impossible to make a mistake as to the
intention of its author.

Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of the United
States, the following:

When the words in their literal sense have a plain meaning, courts must be very cautious in
allowing their imagination to give them a different one. Guild vs. Walter, 182 Mass., 225, 226
(1902)

Upon questions of construction when arbitrary rule is involved, it is always more important to
consider the words and the circumstances than even strong analogies decisions. The successive
neglect of a series of small distinctions, in the effort to follow precedent, is very liable to end in
perverting instruments from their plain meaning. In no other branch of the law (trusts) is so much
discretion required in dealing with authority. . . . There is a strong presumption in favor of giving
them words their natural meaning, and against reading them as if they said something else, which
they are not fitted to express. (Merrill vs. Preston, 135 Mass., 451, 455 (1883).

When the words of an instrument are free from ambiguity and doubt, and express plainly, clearly and
distinctly the sense of the framer, there is no occasion to resort to other means of interpretation. It is not
allowable to interpret what needs no interpretation.

Very strong expression have been used by the courts to emphasize the principle that they are to derive
their knowledge of the legislative intention from the words or language of the statute itself which the
legislature has used to express it. The language of a statute is its most natural guide. We are not liberty to
imagine an intent and bind the letter to the intent.

The Supreme Court of the United States said: "The primary and general rule of statutory construction is
that the intent of the law-maker is to be found in the language that he has used. He is presumed to know
the meaning of the words and the rules of grammar. The courts have no function of legislation, and simply
seek to ascertain the will of the legislator. It is true that there are cases in which the letter of the statute is
not deemed controlling, but the cases are few and exceptional and only arise where there are cogent
reasons for believing that the letter does not fully and accurately disclose the intent. No mere ommission,
no mere failure to provide for contingencies, which it may seem wise should have specifically provided for
will justify any judicial addition to the language of the statute." (United States vs. Goldenberg, 168 U. S.,
95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)

That the Government of the Commonwealth of the Philippines shall be the sole and only government in
our country; that our laws are in full force and effect and legally binding; that "all laws, regulations and
processes of any other government are null and void and without legal effect", are provisions clearly,
distinctly, unmistakably expressed in the October Proclamation, as to which there is no possibility of error,
and there is absolutely no reason in trying to find different meanings of the plain words employed in the
document.

As we have already seen, the annulled processes are precisely judicial processes, procedures and
proceedings, including the one which is under our consideration.
 THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY

Although, as we have already stated, there is no possible mistakes as to the meaning of the words
employed in the October Proclamation, and the text of the document expresses, in clear-cut sentences,
the true purposes of its author, it might not be amiss to state here what was the policy intended to be
established by said proclamation.

It is a matter of judicial knowledge that in the global war just ended on September 2, 1945, by the
signatures on the document of unconditional surrender affixed by representatives of the Japanese
government, the belligerents on both sides resorted to what may call war weapons of psychological
character.

So Japan, since its military forces occupied Manila, had waged an intensive campaign propaganda,
intended to destroy the faith of the Filipino people in America, to wipe out all manifestations of American
or occidental civilization, to create interest in all things Japanese, which the imperial officers tried to
present as the acme of oriental culture, and to arouse racial prejudice among orientals and occidentals, to
induce the Filipinos to rally to the cause of Japan, which she tried to make us believe is the cause of the
inhabitants of all East Asia.

It is, then, natural that General MacArthur should take counter-measures to neutralize or annul completely
all vestiges of Japanese influence, specially those which might jeopardize in any way his military
operations and his means of achieving the main objective of the campaign of the liberation, that is, to
restore in our country constitutional processes and the high ideals constitute the very essence of
democracy.

It was necessary to free, not only our territory, but also our spiritual patrimony. It was necessary, not only
to restore to us the opportunity of enjoying the physical treasures which a beneficent Providence
accumulated on this bountiful land, the true paradise in the western Pacific, but to restore the full play of
our ideology, that wonderful admixture of sensible principles of human conduct, bequeathed to us by our
Malayan ancestors, the moral principles of the Christianity assimilated by our people from teachers of
Spain, and the common-sense rules of the American democratic way of life.

It was necessary to free that ideology from any Japanese impurity.

Undoubtedly, the author of the proclamation thought that the laws, regulations, and processes of all the
branches of the governments established under the Japanese regime, if allowed to continue and to have
effect, might be a means of keeping and spreading in our country the Japanese influence, with the same
deadly effects as the mines planted by the retreating enemy.

The government offices and agencies which functioned during the Japanese occupation represented a
sovereignty and ideology antagonistic to the sovereignty and ideology which MacArthur's forces sought to
restore in our country.

Under chapter I of the Japanese Constitution, it is declared that Japan shall reigned and governed by a
line Emperors unbroken for ages eternal (Article 1); that the Emperor is sacred and inviolable (Article 3);
that he is the head of the Empire, combining in himself the rights of the sovereignty (Article 4); that he
exercises the legislative power (Article 5); that he gives sanction to laws, and orders to be promulgated
and executed (Article 6);that he has the supreme command of the Army and Navy (Article 11); that he
declares war, makes peace, and concludes treaties (Article 13).

There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a people
which as confessed in a book we have at our desk, written by a Japanese, insists in doing many things
precisely in a way opposite to that followed by the rest of the world.
It is the ideology of a people which insists in adopting the policy of self-delusion; that believes that their
Emperor is a direct descendant of gods and he himself is a god, and that the typhoon which occured on
August 14, 1281, which destroyed the fleet with which Kublai Khan tried to invade Japan was the divine
wind of Ise; that defies the heinous crime of the ronin, the 47 assassins who, in order to avenge the death
of their master Asano Naganori, on February 3, 1703, entered stealthily into the house of Yoshinaka Kiro
and killed him treacherously.

It is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant from suicide, and on
September 13, 1912, on the occasion of the funeral of Emperor Meiji, induced General Maresuke Nogi
and his wife to practice the abhorrent "junshi", and example of which is offered to us in the following
words of a historian:

When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that, following the
occasion, his attendants were assembled to from the hito-bashira (pillar-men) to gird the grave.
They were buried alive in circle up to the neck around the thomb and "for several days they died
not, but wept and wailed day night. At last they died not, but wept and wailed day night. At last
they did not rotted. Dogs and cows gathered and ate them." (Gowen, an Outline of History of
Japan, p. 50.)

The practice shows that the Japanese are the spiritual descendants of the Sumerians, the ferocious
inhabitants of Babylonia who, 3500 years B. C., appeared in history as the first human beings to honor
their patesis by killing and entombing with him his window, his ministers, and notable men and women of
his kingdom, selected by the priests to partake of such abominable honor. (Broduer, The Pageant of
Civilization, pp. 62-66.)

General MacArthur sought to annul completely the officials acts of the governments under the Japanese
occupation, because they were done at the shadow of the Japanese dictatorship, the same which
destroyed the independence of Korea, the "Empire of Morning Frehsness"; they violated the territorial
integrity of China, invaded Manchuria, and initiated therein the deceitful system of puppet governments,
by designating irresponsible Pu Yi as Emperor of Manchukuo; they violated the trusteeship granted by the
Treaty of Versailles by usurping tha mandated islands in the Pacific; they initiated that they call China
Incident, without war declaration, and, therefore, in complete disregard of an elemental international duty;
they attacked Pearl Harbor treacherously, and committed a long series of the flagrant violations of
international law that have logically bestowed on Japan the title of the bandit nation in the social world.

The conduct of the Japanese during the occupation shows a shocking an anchronism of a modern world
power which seems to be re-incarnation of one whose primitive social types of pre-history, whose proper
place must be found in an archeological collection. It represents a backward jump in the evolution of
ethical and juridical concepts, a reversion that, more than a simple pathological state, represents a
characteristics and well defined case of sociological teratology.

Since they entered the threshold of our capital, the Japanese had announced that for every one of them
killed they would kill ten prominent Filipinos. They promised to respect our rights by submitting us to the
wholesale and indiscriminate slapping, tortures, and atrocious massacres. Driving nails in the cranium,
extraction of teeth and eyes, burnings of organs, hangings, diabolical zonings, looting of properties,
establishments of redlight districts, machine gunning of women and children, interment of alive persons,
they are just mere preludes of the promised paradised that they called "Greater East Asia Co-Prosperity
Sphere".

They promised religious liberty by compelling all protestant sects to unite, against the religious scruples
and convictions of their members, in one group, and by profaning convents, seminaries, churches, and
other cult centers of the Catholics, utilizing them as military barracks, munitions dumps, artillery base,
deposits of bombs and gasoline, torture chambers and zone, and by compelling the government officials
and employees to face and to bow in adoration before that caricature of divinity in the imperial palace of
Tokyo.

The Japanese offered themselves to be our cultural mentors by depriving us of the use of our schools
and colleges, by destroying our books and other means of culture, by falsifying the contents of school
texts, by eliminating free press, the radio, all elemental principles of civilized conduct, by establishing
classes of rudimentary Japanese so as to reduce the Filipinos to the mental level of the rude Japanese
guards, and by disseminating all kinds of historical, political, and cultural falsehoods.

Invoking our geographical propinquity and race affinity, they had the insolence of calling us their brothers,
without the prejuce of placing of us in the category of slaves, treating the most prominent Filipinos in a
much lower social and political category than that of the most ignorant and brutal subject of the Emperor.

The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and tortured during
investigations. In the prosecuting attorney's offices, no one was safe. When the Japanese arrested a
person, the lawyer who dared to intercede was also placed under arrest. Even courts were not free from
their dispotic members. There were judges who had to trample laws and shock their conscience in order
not to disgust a Nipponese.

The most noble of all professions, so much so that the universities of the world could not conceive of
higher honor that may be conferred than that of Doctor of Laws, became the most despised. It was
dangerous to practice the profession by which faith in the effectiveness of law is maintained; citizens feel
confident in the protection of their liberties, honor, and dignity; the weak may face the powerful; the lowest
citizen is not afraid of the highest official; civil equality becomes reality; justice is admnistered with more
efficiency; and democracy becomes the best system of government and the best guaranty for the welfare
and happiness of the individual human being. In fact, the profession of law was annulled, and the best
lawyers for the unfortunate prisoners in Fort Santiago and other centers of torture were the military police,
concubines, procurers, and spies, the providers of war materials and shameful pleasures, and the
accomplices in fraudulent transactions, which were the specialty of many naval and military Japanese
officers.

The courts and Filipino government officials were completely helpless in the question of protecting the
constitutional liberties and fundamental rights of the citizens who happen to be unfortunate enough to fall
under the dragnet of the hated kempei. Even the highest government officials were not safe from arrest
and imprisonment in the dreaded military dungeons, where torture or horrible death were always awaiting
the defenseless victim of the Japanese brutality.

May any one be surprised if General MacArthur decided to annul all the judicial processes?

The evident policy of the author of the October Proclamation can be seen if we take into consideration the
following provisions of the Japanese Constitution:

ART. 57. The Judicature shall be exercised by the Courts of Law according to law, in the name of
the Emperor.

ART. 61. No suit at law, which relates to rights alleged to have been infringed by the illegal
measures of the executive authority .. shall be taken cognizance of by a Court of Law.

INTERNATIONAL LAW

Nobody dared challenge the validity of the October Proclamation.

Nobody dared challenge the authority of the military Commander in Chief who issued it.
Certainly not because of the awe aroused by the looming figure of General of the Army Douglas
MacArthur, the Allied Supreme Commander, the military hero, the greatest American general, the
Liberator of the Philippines, the conqueror of Japan, the gallant soldier under whose authority the
Emperor of the Japan, who is supposed to rule supreme for ages as a descendant of gods, is receiving
orders with the humility of a prisoner of war.

No challenge has been hurled against the proclamation or the authority of the author to issue it, because
everybody acknowledges the full legality of its issuance.

But because the proclamation will affect the interest and the rights of a group of individuals, and to protect
the same, a way is being sought to neutralize the effect of the proclamation.

The way found is to invoke international law. The big and resounding word is considered as a shibboleth
powerful enough to shield the affected persons from the annulling impact.

Even then, international law is not invoked to challenge the legality or authority of the proclamation, but
only to construe it in a convenient way so that judicial processes during the Japanese occupation, through
an exceptional effort of the imagination, might to segregated from the processes mentioned in the
proclamation.

An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science. On the
country, it is developing incessantly, it is perpetually changing in forms. In each turn it advances or
recedes, according to the vicissitudes of history, and following the monotonous rythm of the ebb and rise
of the tide of the sea.

Le driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se
developpe sans cesse, il change eternellement de formes; tour il avance et il recule, selon less
vicissitudes de histoire et suivan un rhythm monotone qui est comme le flux et le reflux d'un mer.
(M. Revon, De l'existence du driot international sous la republique romain.)

Another author has this to say:

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

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

The characteristic plasticity of law is very noticeable, much more than in any other department, in
international law.

In a certain matters it is clear we have made substantial progress, but in other points, he (M.
Revon) maintains, we have retrograded; for example, in the middle ages the oath was not always
respected as faithfully as in ancient Rome; and nearer our own times, in the seventeenth century,
Grotius proclaims the unquestioned right of the belligerents to massacre the women and the
 children of the enemy; and in our more modern age the due declaration of war which Roman
always conformed to has not been invariably observed. (Coleman Philippson, The International
Law and Custom of Ancient Greece and Rome, Vol. I, p. 209.)

Now let us see if any principle of international law may effect the enforcement of the October
Proclamation.

In this study we should be cautioned not to allow ourselves to be deluded by generalities and vagueness
which are likely to lead us easily to error, in view of the absence of codification and statutory provisions.

Our Constitution provides:

The Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the Nation. (Sec. 3, Art. II.)

There being no codified principles of international law, or enactments of its rules, we cannot rely on
merely legal precepts.

With the exception of international conventions and treaties and, just recently, the Charter of the United
Nations, adopted in San Francisco Conference on June 26, 1945, we have to rely on unsystemized
judicial pronouncements and reasonings and on theories, theses, and propositions that we may find in the
works of authors and publicists.

Due to that characteristic pliability and imprecision of international law, the drafters of our Constitution had
to content themselves with "generally accepted principles."

We must insists, therefore, that the principles should be specific and unmistakably defined and that there
is definite and conclusive evidence to the effect that they generally accepted among the civilized nations
of the world and that they belong to the current era and no other epochs of history.

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

THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW

Is there any principle of international law that may effect the October Proclamation?

We tried in vain to find out in the majority opinion anything as to the existence of any principle of
international law under which the authority of General MacArthur to issue the proclamation can effectively
be challenged.

No principle of international law has been, or could be invoked as a basis for denying the author of the
document legal authority to issue the same or any part thereof.

We awaited in vain for any one to dare deny General MacArthur the authority, under international law, to
declare null and void and without effect, not only the laws and regulations of the governments under the
Japanese regime, but all the processes of said governments, including judicial processes.
If General MacArthur, as commander in Chief of the American Armed Forces of Liberation, had authority,
full and legal, to issue the proclamation, the inescapable result will be the complete viodance and nullity
of all judicial processes, procedures, and proceedings of all courts under the Japanese regime.

But those who are sponsoring the cause of said judicial processes try to achieve their aim, not by direct
means, but by following a tortuous side-road.

They accept and recognize the full authority of the author of the proclamation to issue it and all its parts,
but they maintain that General MacArthur did not and could not have in mind the idea of nullifying the
judicial processes during the Japanese occupation, because that will be in violation of the principles of
international law.

If we follow the reasoning of the majority opinion we will have to reach the conlusion that the world
"processes" does not appear at all in the October Proclamation.

It is stated more than once, and reiterated with dogmatic emphasis, that under the principles of
international law the judicial processes under an army occupation cannot be invalidated.

But we waited in vain for the specific principle of international law, only one of those alluded to, to be
pointed out to us.

If the law exist, it can be pointed out. If the principle exists, it can stated specifically. The word is being
used very often in plural, principles, but we need only one to be convinced.

The imagined principles are so shrouded in a thick maze of strained analogies and reasoning, that we
confess our inability even to have a fleeting glimpse at them through their thick and invulnerable
wrappers.

At every turn international law, the blatant words, are haunting us with the deafening bray of a trumpet,
but after the transient sound has fled away, absorbed by the resiliency of the vast atmosphere, the
announced principles, which are the very soul of international law, would disappear too with the lighting
speed of a vanishing dream.

WEAKNESS OF THE MAJORITY POSITION

In the majority opinion three questions are propounded: first, whether judicial acts and proceedings during
the Japanese occupation are valid even after liberation; second whether the October Proclamation had
invalidated all judgement and judicial proceedings under the Japanese regime; and third, whether the
present courts of the Commonwealth may continue the judicial proceedings pending at the time of
liberation.

As regards the first question, it is stated that it is a legal tourism in political and international law that all
acts of a de facto government are good and valid, that the governments established during the Japanese
occupation. that is, the Philippine Executive Commission and the Republic of the Philippines, were de
facto governments, and that it necessarily follows that the judicial acts and proceedings of the courts of
those governments, "which are not of a political complexion," were good and valid, and by virtue of the
principle of postliminium, remain good and valid after the liberation.

In the above reasoning we will see right away how the alleged legal truism in political and international
law, stated as a premise in a sweeping way, as an absolute rule, is immediately qualified by the exception
as to judicial acts and proceedings which are of a "political complexion."
So it is the majority itself which destroys the validity of what it maintains as a legal truism in political and
international law, by stating from the beginning of the absolute proposition that all acts and proceedings of
the legislative, executive, and judicial departments of a de facto governments are good and valid.

It is be noted that no authority, absolutely no authority, has been cited to support the absolute and
sweeping character of the majority proposition as stated in their opinion.

No authority could be cited, because the majority itself loses faith in the validity of such absolute and
sweeping proposition, by establishing an unexplained exception as regards the judicial acts and
proceedings of a "political complexion."

Besides, it is useless to try to find in the arguments of the majority anything that may challenge the power,
the authority of a de jure government to annul the official acts of a de facto government, or the legal and
indisputable authority of the restored legitimate government to refuse to recognize the official acts,
legislative, executive and judicial, of the usurping government, once the same is ousted.

As to the second question, the majority argues that the judicial proceedings and judgments of the de
factogovernments under the Japanese regime being good and valid, "it should be presumed that it was
not, and could not have been, the intention of General Douglas MacArthur to refer to judicial processes,
when he used the last word in the October Proclamation, and that it only refers to government processes
other than judicial processes or court proceedings."

The weakness and absolute ineffectiveness of the argument are self-evident.

It is maintained that when General MacArthur declared the processes of the governments under the
Japanese regime null and void, he could not refer to judicial processes, because the same are valid and
remained so under the legal truism announced by the majority to the effect that, under political and
international law, all official acts of a de facto government, legislative, executive or judicial, are valid.

But we have seen already how the majority excepted from said legal truism the judicial processes of
"political complexion."

And now it is stated that in annulling the processes of the governments under Japanese occupation,
General MacArthur referred to "processes other than judicial processes."

That is, the legislative and executive processes.

But, did not the majority maintain that all acts and proceedings of legislative and executive departments of
a de factogovernments are good and valid? Did it not maintain that they are so as a "legal truism in
political and international law?"

Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial
processes because they are good and valid in accordance with international law, why should the same
reasoning not apply to legislative and executive processes?

Why does the majority maintain that, notwithstanding the fact that, according that said legal truism,
legislative and executive official acts of de facto governments are good and valid, General MacArthur
referred to the latter in his annulling proclamation, but not to judicial processes?

If the argument is good so as to exclude judicial processes from the effect of the October Proclamation,
we can see no logic in considering it bad with respect to legislative and executive processes.
If the argument is bad with respect to legislative and executive processes, there is no logic in holding that
it is not good with respect to judicial processes.

Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General
MacArthur did not declare null and void any processes, at all, whether legislative processes, executive
processes, or judicial processes, and that the word "processes" used by him in the October Proclamation
is a mere surplusage or an ornamental literary appendix.

The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but a
mere legal pretense that cannot stand the least analysis or the test of logic.

A great legal luminary admonished that we must have courage to unmasks pretense if we are to reach a
peace that will abide beyond the fleeting hour.

It is admitted that the commanding general of a belligerent army of occupation as an agent of his
government, "may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory if and when exigencies of the military occupation demand such action," but it is doubted whether
the commanding general of the army of the restored legitimate government can exercise the same broad
legislative powers.

We beg to disagree with a theory so unreasonable and subversive.

We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an
invading army, or of a usurping army, should enjoy greater legal authority during the illegal, and in the
case of the Japanese, iniquitous and bestial occupation, than the official representative of the legitimate
government, once restored in the territory wrested from the brutal invaders and aggressors. We cannot
agree with such legal travesty.

Broad and unlimited powers are granted and recognized in the commanding general of an army of
invasion, but the shadow of the vanishing alleged principle of international law is being brandished to gag,
manacle, and make completely powerless the commander of an army of liberation to wipe out the official
acts of the government for usurpation, although said acts might impair the military operation or neutralize
the public policies of the restored legitimate government.

We are not unmindful of the interest of the persons who might be adversely affected by the annulment of
the judicial processes of the governments under the Japanese regime, but we cannot help smiling when
we hear that chaos will reign or that the world will sink.

It is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed that the
President, in the exercise of his constitutional powers of pardon and amnesty, had in the past released
many criminals from imprisonment. And let us not forget that due to human limitations, in all countries,
under all governments, in peace or in war, there were, there are, and there will always be unpunished
criminals, and that situation never caused despair to any one.

We can conceive of inconveniences and hardships, but they are necessary contributions to great and
noble purposes. Untold sacrifices were always offered to attain high ideals and in behalf of worthy
causes.

We cannot refrain from feeling a paternal emotion for those who are trembling with all sincerity because
of the belief that the avoidance of judicial proceedings of the governments under the Japanese regime
"would paralyze the social life of the country." To allay such fear we must remind them that the country
that produced many great hereos and martyrs; that contributed some of highest morals figures that
humanity has ever produced in all history; which inhabited by a race which was able to traverse in
immemorial times the vast expanses of the Indian Ocean and the Pacific with inadequate means of
navigation, and to inhabit in many islands so distantly located, from Madagascar to the eastern Pacific;
which made possible the wonderful resistance of Bataan and Corregidor, can not have a social life so frail
as to be easily paralyzed by the annulment of some judicial proceedings. The Japanese vandalisms
during the last three years of nightmares and bestial oppression, during the long period of our national
slavery, and the wholesale massacres and destructions in Manila and many other cities and
municipalities and populated areas, were not able to paralyze the social life of our people. Let us not loss
faith so easily in the inherent vitality of the social life of the people and country of Rizal and Mabini.

It is insinuated that because of the thought that the representative of the restored sovereign power may
set aside all judicial processes of the army of occupation, in the case to courts of a future invasions,
litigants will not summit their cases to courts whose judgement may afterwards be annulled, and criminals
would not be deterred from committing offenses in the expectancy that they may escape penalty upon
liberation of the country. We hope that Providence will never allow the Philippines to fall again under the
arms of an invading army, but if such misfortune will happen, let the October Proclamation serve as a
notice to the ruthless invaders that the official acts of the government of occupation will not merit any
recognition from the legitimate government, especially if they should not conduct themselves, as
exemplified by the Japanese, in accordance with the rules of action of a civilized state.

One conclusive evidence of the untenableness of the majority position is the fact that it had to resort to
Executive Order No. 37, issued on March 10, 1945, providing "that all cases that have heretofore been
appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision." The far-
fetched theory is advanced that this provision impliedly recognizes the court processes during the
Japanese military occupation, on the false assumption that it refers to the Court of Appeals existing
during the Japanese regime. It is self-evident that the Executive Order could have referred only to the
Commonwealth Court of Appeals, which is the one declared abolished in said order. Certainly no one will
entertain the absurd idea that the President of the Philippines could have thought of abolishing the Court
of Appeals under the government during the Japanese occupation. Said Court of Appeals disappeared
with the ouster of the Japanese military administration from which it derived its existence and powers. The
Court of Appeals existing on March 10, 1945, at the time of the issuance of Executive Order No. 37, was
the Commonwealth Court of Appeals and it was the only one that could be abolished.

Without discussing the correctness of principle stated the majority opinion quotes from Wheaton the
following: "Moreover when it is said that occupier's acts are valid and under international law should not
be abrogated by the subsequent conqueror, it must be remembered that on crucial instances exist to
show that if his acts should be reversed, any international wrong would be committed. What does happen
is that most matters are allowed to stand by the stored government, but the matter can hardly be put
further than this." (Wheaton, International Law, War, 7th English edition of 1944, p. 245)

Then it says that there is no doubt that the subsequent conqueror has the right to abrogate most of the
acts of the occupier, such as the laws, regulations and processes other than the judicial of the
government established by the belligerent occupant.

It is evident that the statement just quoted is a complete diversion from the principle stated in the in an
unmistakable way by Wheaton, who says in definite terms that "it must be remembered that no crucial
instances exist to show that if his acts (the occupant's) should be reversed, any international wrong would
be committed."

It can be clearly seen that Wheaton does not make any distinction or point out any exception.

But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting the
right of the restored government to annul "most of the acts of the occupier" and "processes other than
judicial."
The statement made by the respondent judge after quoting the above-mentioned principle, as stated by
Wheaton, to the effect that whether the acts of military occupant should be considered valid or not, is a
question that is up to the restored government to decide, and that there is no rule of international law that
denies to the restored government the right to exercise its discretion on the matter, is quoted without
discussion in the majority opinion.

As the statement is not disputed, wee are entitled to presume that it is concurred in and, therefore, the
qualifications made in the statement in the majority opinion seem to completely groundless.

THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF THE
LEGITIMATE GOVERNMENT

The majority opinion is accumulating authorities to show the many duties imposed by international law on
the military occupant of an invaded country.

And from said duties it is deduced that the legitimate government, once restored in his own territory, is
bound to respect all the official acts of the government established by the usurping army, except judicial
processes political complexion.

The reasoning calls for immediate opposition. It is absolutely contrary to all principles of logic.

Between the duties imposed in the military occupant and the legal prerogatives of the legitimate
government there are no logical relationship or connection that might bind the ones with the others.

The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the
legitimate government necessarily validate the measures adopted by the said occupant in the
performance of this duty, if the legitimate government believes his duty to annul them for weighty
reasons?

The military occupant is duty bound to establish courts of justice. Why should the legitimate government
validate the acts of said courts, if it is convinced that said courts were absolutely powerless, as was the
case during the Japanese occupation, to stop the horrible abuses of the military police, to give relief to the
victims of zoning and Fort Santiago tortures, to protect the fundamental human rights of the Filipinos —
life, property, and personal freedom?

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

PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS

The invading military occupant is duty bound to establish and maintain courts of justice in the invaded
territory, for the protection of the inhabitants thereof. It is presumed that the restored legitimate
government will respect the acts of said courts of the army of occupation. Therefore, it is a principle of
international law that said acts are valid and should be respected by the legitimate government. It is
presumed that General MacArthur is acquainted with such principle, discovered or revealed through
presumptive operations, and it is presumed that he had not the intention of declaring null and void the
judicial processes of the government during the Japanese regime. Therefore, his October Proclamation,
declaring null and void and without effect "all processes" of said governments, in fact, did not annul the
Japanese regime judicial processes.

So run the logic of the majority.

They don't mind the that General MacArthur speaks in the October Proclamation as follows:

NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-in-Chief of the
military forces committed to the liberation of the Philippines, do hereby proclaim and declare:

xxx xxx xxx

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

General MacArthur says categorically "all processes", but the majority insists on reading differently, that,
is: "NOT ALL processes." The majority presume, suppose, against the unequivocal meaning of simple
and well known words, that when General MacArthur said "all processes", in fact, he said "not all
processes", because it is necessary, by presumption, by supposition, to exclude judicial processes.

If where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to
foresee the consequences of such so stubborn attitude, but it is possible to understand how they reached
the unacceptable possible conclusion which we cannot be avoid opposing and exposing.

Are we to adopt and follow the policy of deciding cases submitted to our consideration, by presumption
and suppositions putting aside truths and facts? Are we to place in the documents presented to us, such
as the October Proclamation, different words than what are written therein? Are we to read "not all",
where it is written "all"?

We are afraid to such procedure is not precisely the most appropriate to keep public confidence in the
effectiveness of the administration of justice.

That is why we must insists that in the October Proclamation should be read what General MacArthur has
written in it, that is, that, besides laws and regulations, he declared and proclaimed null and void "ALL
PROCESSES", including naturally judicial processes, of the governments under the Japanese regime.

THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE REGIME

JUDICIAL PROCESSES

Now we come to the third and last question propounded in the majority opinion.

The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by legislative act.

It is provided so in our Constitution. (Section 2, Article VIII.)

The Commonwealth courts of justice are continuations of the courts established before the inauguration
of the Commonwealth and before the Constitution took effect on November 15, 1935. And their
jurisdiction is the same as provided by existing laws at the time of inauguration of the Commonwealth
Government.

Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the
Philippines, is the one that defines the jurisdiction of justice of the peace and municipal courts, Courts of
First Instance, and the Supreme Court. It is not necessary to mention here the jurisdiction of the Court of
Appeals, because the same has been abolished by Executive Order No. 37.
No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the
Commonwealth tribunals jurisdiction to continue the judicial processes or proceedings of tribunals
belonging to other governments, such as the governments established during the Japanese occupation.

The jurisdiction of our justice of the peace and municipal courts is provided in section 68, chapter V, of
Act No. 136. The original and appellate jurisdiction of the Courts of First Instance is provided in the
sections 56, 57, Chapter IV, of Act No. 136. The original and appellate jurisdiction of the Supreme Court
is provided in 17 and 18, Chapter II, of the same Act. The provisions of the above-cited do not authorize,
even implicitly, any of the decisions and judgements of tribunals of the governments, nor to continue the
processes or proceedings of said tribunals.

NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE PREVAILING IN THE PHILIPPINES
AND IN THE UNITED STATES

Taking aside the question as to whether the judicial processes of the government established during the
Japanese occupation should be considered valid or not, in order that said processes could be continued
and the Commonwealth tribunals could exercise proper jurisdiction to continue them, under the well-
established legal doctrine, prevailing not only in the Philippines, but also in the proper enabling law.

Almost a half a century ago, in the instructions given by President McKinley on April 7, 1900, for the
guidance of the Philippine Commission, it was stated that, in all the forms of the govenment and
administrative provisions which they were authorized to prescribed, the Commission should bear in mind
that the government which they were establishing was designed not for the satisfaction of the Americans
or for the expression of their of their theoretical views, but for the happiness, peace and prosperity of the
people of the Philippines, and the measures adopted should be made to conform to their customs, their
habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the
indispensable requisites of just and effective government.

Notwithstanding the policy so outlined, it was not enough for the Philippine Commission to create and
establish the courts of justice provided in Act No. 136, in order that said tribunals could take cognizance
and continue the judicial proceedings of the tribunals existing in the Philippines at the time the American
occupation.

It needed specific enabling provisions in order that the new tribunals might continue the processes
pending in the tribunals established by the Spaniards, and which continued to function until they were
substituted by the courts created by the Philippine Commission.

So it was done in regards to the transfer of the cases pending before the Spanish Audiencia to the newly
created Supreme Court, in sections 38 and 39 of Act No. 136 quoted as follows:

SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers, and so forth,
pending in the existing Supreme Court and in the "Contencioso Administravo." — All records,
books, papers, causes, actions, proceedings, and appeals logged, deposited, or pending in the
existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal called
"Contencioso Administravo," are transferred to the Supreme Court above provided for which, has
the same power and jurisdiction over them as if they had been in the first instance lodged, filed,
or pending therein, or, in case of appeal, appealed thereto.

SEC. 39. Abolition of existing Supreme Court. — The existing Audiencia or Supreme Court is
hereby abolished, and the Supreme Court provided by this Act is substituted in place thereof.

Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of cases and
processes pending in the abolished Spanish Courts of First Instance to the tribunals of the same name
established by the Philippine Commission.
 SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing Courts
of First Instance. — All records, books, papers, actions, proceedings, and appeals lodged,
deposited, or pending in the Court of First Instance as now constituted of or any province are
transferred to the Court of First Instance of such province hereby established, which shall have
the same power and jurisdiction over them as if they had been primarily lodged, deposited, filed,
or commenced therein, or in case of appeal, appealed thereto.

SEC. 65. Abolition of existing Courts of First Instance. — The existing Courts First Instance are
hereby abolished, and the Courts of First Instance provided by this Act are substituted in place
thereof.

The same procedure has been followed by the Philippine Commission eventhough the courts of origin of
the judicial processes to be transferred and continued belonged to the same government and sovereignty
of the courts which are empowered to continue said processes.

So section 78 of Act No. 136, after the repeal of all acts conferring upon American provost courts in the
Philippines jurisdiction over civil actions, expressly provided that said civil actions shall be transferred to
the newly created tribunals.

And it provided specifically that "the Supreme Court, Courts of the First Instance and courts of the justice
of the peace established by this Act (No. 136) are authorized to try and determine the actions so
transferred to them respectively from the provost courts, in the same manner and with the same legal
effect as though such actions had originally been commenced in the courts created" by virtue of said Act.

MUNICIPAL COURTS UNDER ACT NO. 183

On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila, No. 183.

Two municipal courts for the city were created by section 40 of said Act, one for the northern side of
Pasig River and the other for the southern side.

They were courts with criminal jurisdiction or identical cases under the jurisdiction of the justices of the
peace then existing in Manila. Although both courts were of the same jurisdiction, in order that the
criminal cases belonging to the justice of the peace courts may be transferred to the municipal courts just
created, and the proceedings may be continued by the same, the Philippine Commission considered it
necessary to pas the proper enabling act.

So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all criminal cases and
proceedings pending in the justices of the peace of Manila are transferred to the municipal courts, which
are conferred the jurisdiction to continue said cases and proceedings.

THE CABANTAG CASE

On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission.

(Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on December 10, 1901, and his execution
by hanging was set for January 12,1902. .

On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The Civil Governor
on December 2, 1903, commuted the death penalty to 20 years imprisonment. The commutation was
approved by the Secretary of War, following instructions of the President.
Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the military
commission which convicted him, there was no existing tribunal which could order the execution of the
penalty of imprisonment.

The Supreme Court denied the writ, but stated that, if the petitioner had filed the writ before the
enactment of Act No. 865, the question presented to the Supreme Court would have been different.

Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that decisions
rendered by the provost courts and military commission shall be ordered executed by the Courts of First
Instance in accordance with the procedure outlined in said Act.

It is evident from the foregoing that this Supreme Court has accepted and confirmed the doctrine of the
necessity of an enabling act in order that our Courts of First Instance could exercise jurisdiction to
execute the decision of the abolished provost courts and military commission.

It is evident that the doctrine is applicable, with more force, to the judicial processes coming from
governments deriving their authority from a foreign enemy state.

THE DOCTRINE IN THE UNITED STATES

It is also evident that the Congress of the United States, by enacting the Bill of the Philippines on July 1,
1902, confirmed also the same doctrine.

In effect, in section 9 of said Act, the Congress approved what the Philippine Commission did as to the
jurisdiction of the courts established and transfer of cases and judicial processes, as provided in Acts
Nos. 136, 186, and 865.

The same doctrine was adopted by the United States government as part of its international policy, as
could be seen in Article XII of the Treaty concluded with Spain on December 10, 1898, in Paris.

Even in 1866 the Congress of the United States followed the same doctrine.

The suit, shown by the record, was originally instituted in the District Court of the United States
for the District of Louisiana, where a decree was rendered for the libellant. From the decree an
appeal was taken to the Circuit Court, where the case was pending, when in 1861, the
proceedings of the court were interrupted by the civil war. Louisiana had become involved in the
rebellion, and the courts and officers of the United States were excluded from its limits. In 1862,
however, the National authority had been partially reestablished in the State, though still liable to
the overthrown by the vicissitudes of war. The troops of the Union occupied New Orleans, and
held military possession of the city and such other portions of the State as had submitted to the
General Government. The nature of this occupation and possession was fully explained in the
case of The Vinice.

Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation, instituted a
Provisional Court of the State of Louisiana, with authority, among other powers, to hear, try, and
determine all causes in admiralty. Subsequently, by consent of parties, this cause was transferred
into the Provisional Court thus, constituted, and was heard, and a decree was again rendered in
favor of the libellants. Upon the restoration of civil authority in the State, the Provincial Court,
limited in duration, according to the terms of the proclamation, by the event, ceased to exist.

On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings in the
Provisional Court, proper for the jurisdiction of the Circuit Court of the United States for the
Eastern District of Louisiana, should be transferred to that court, and heard, and determined
 therein; and that all judgements, orders, and decrees of the Provisional Court in causes
transferred to the Circuit Court should at once become the orders, judgements, and decrees of
that court, and might be enforced, pleaded, and proved accordingly.

It is questioned upon these facts whether the establishment by the President of a Provisional
Court was warranted by the Constitution.

xxx xxx xxx

We have no doubt that the Provisional Court of Louisiana was properly established by the
President in the exercise of this constitutional authority during war; or that Congress had power,
upon the close of the war, and the dissolution of the Provisional Court, to provide for the transfer
of cases pending in that court, and of its judgement and decrees, to the proper courts of the
United States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)

JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE VALIDATED BY

CONSTITUTIONAL PROVISION

During the civil war in 1861, the prevailing rebel forces established their own government in Louisiana.

When the rebel forces were overpowered by the Union Forces and the de facto government was replaced
by the de jure government, to give effect to the judgments and other judicial acts of the rebel government,
from January 26, 1861, up to the date of the adoption of the State Constitution, a provision to said effect
was inserted in said document.

Section 149 of the Louisiana Constitution reads as follows:

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

EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE NOT
EXECUTORY

The member states of the United States of America belong to the same nation, to the country, and are
under the same sovereignty.

But judgements rendered in one state are not executory in other states.

To give them effect in other states it is necessary to initiate an original judicial proceedings, and therein
the defendants in the domestic suit may plead bar the sister state judgement puis darrien continuance.
(Wharton, on the Conflict of Laws, Vol. II, p. 1411.)

Under the Constitution of the United States, when a judgement of one state in the Union is
offered in a court of a sister state as the basis of a suit nil debet cannot be pleaded. The only
proper plea is nul tiel record. (Id., p. 1413.).

It is competent for the defendant, however, to an action on a judgement of a sister state, as to an

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

The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the absence of
an enabling act or of an express legislative grant, have no jurisdiction to take cognizance and continue
the judicial processes, procedures, and proceedings of the tribunals which were created by the Japanese
Military Administration and functioned under the Vargas Philippine Executive Commission of the Laurel
Republic of the Philippines, deriving their authority from the Emperor, the absolute ruler of Japan, the
invading enemy, and not from the Filipino people in whom, according to the Constitution, sovereignty
resides, and from whom all powers of government emanate.

The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the First Instance of
Manila in declaring himself without jurisdiction nor authority to continue the proceedings which provoked
the present controversy, being a judicial process of a Japanese sponsored government, is absolutely
correct, under the legal doctrines established by the United States and the Philippine Government, and
consistently, invariably, and without exception, followed by the same.

If we accept, for the sake of argument, the false hypothesis that the Commonwealth tribunals have
jurisdiction to continue the judicial processes left pending by the courts of the governments established
under the Japanese regime, the courts which disappeared and, automatically, ceased to function with the
ouster of the enemy, the position of the Judge Dizon, in declining to continue the case, is still
unassailable, because, for all legal purposes, it is the same as if the judicial processes in said case were
not taken at all, as inevitable result of the sweeping and absolute annulment declared by the General
MacArthur in the October Proclamation.

In said proclamation it is declared in unmistakable and definite terms that "ALL PROCESSES" of the
Japanese sponsored governments "ARE NULL AND VOID AND WITHOUT LEGAL EFFECT", and they
shall remain so until the Commonwealth, through its legislative power, decides otherwise in a proper
validating act.

The fact that the Japanese invaders, under international law, were in duty bound to establish courts of
justice during the occupation, although they made them completely powerless to safeguard the
constitutional rights of the citizens, and mere figureheads as regards the fundamental liberties of the
helpless men, women and children of our people, so much so that said courts could not offer even the
semblance of protection when the life, the liberty, the honor and dignity of our individual citizens were
wantonly trampled by any Japanese, military or civilian, does not change the situation. "ALL
PROCESSES" of said court are declared "NULL AND VOID AND WITHOUT LEGAL EFFECT" in the
October proclamation, and we do not have any other alternative but to accept the law, as said
proclamation has the full force of a law.

The fact that in the past, the legitimate governments, once restored in their own territory, condescended
in many cases to recognize and to give effect to judgments rendered by courts under the governments
set up by an invading military occupant or by a rebel army, does not elevate such condescension to the
category of a principle, when Wheaton declares that no international wrong is done if the acts of the
invader are reversed.

Many irrelevant authorities were cited to us as to the duties imposed by the international law on military
occupants, but no authority has been cited to the effect that the representative of the restored legitimate
government is a bound to recognize and accept as valid the acts and processes of said occupants. On
the contrary, Wheaton says that if the occupant's acts are reversed "no international wrong would be
committed."
Following the authority of Wheaton, undisputed by the majority, General MacArthur thought, as the wisest
course, of declaring "NULL AND VOID AND WITHOUT EFFECT," by official proclamation, "ALL
PROCESSES" under the Japanese regime, that is legislative, executive and judicial processes, which fall
under the absolute adjective "ALL".

That declaration is a law. It is a law that everybody bound to accept and respect, as all laws must be
accepted and respected. It is a law that the tribunals are duty bound to give effect and apply.

We are not unmindful of the adverse consequences to some individuals of the annullment of all the
judicial processes under the Japanese regime, as provided in the October Proclamation, but the tribunals
are not guardians of the legislative authorities, either an army commander in chief, during war, or a
normal legislature, in peace time. The tribunals are not called upon to guide the legislative authorities to
the wisdom of the laws to be enacted. That is the legislative responsibility. Our duty and our responsibility
is to see to it that the law, once enacted, be applied and complied with.

No matter the consequences, no matter who might be adversely affected, a judge must have the firm
resolve and the courage to do his duty, as, in the present case, Judge Dizon did, without fear nor favor.
We cannot see any reason why we should not uphold him in his stand in upholding the law.

It is our official duty, national and international duty. Yes. Because this Supreme Court is sitting, not only
as a national court, but as an international court, as is correctly stated in the concurring opinion of Justice
De Joya, and we should feel the full weight of the corresponding responsibility, as the American courts
with admiralty jurisdiction and the Prize Courts of England did feel. In fact, it is in the judiciary where,
more than in any point of view is more pressing, more imperative, more unavoidable. Justice has no
country. It is of all countries. The horizon of justice cannot be limited by the scene where our tribunals are
functioning and moving. That horizon is boundless. That is why in our constitution the bill of rights has
been written not for Filipinos, but for all persons. They are rights that belong to men, not as Filipinos,
Americans, Russians, Chinese or Malayan, but as a members of humanity. The international character of
our duty to administer justice has become more specific by the membership of our country in the United
Nations. And let us not forget, as an elemental thing, that our primary duty is to uphold and apply the law,
as it is; that we must not replace the words of the law with what we might be inclined to surmise; that what
is clearly and definitely provided should not be substituted with conjectures and suppositions; that we
should not try to deduce a contrary intention to that which is unequivocally stated in the law; that we
should not hold valid what is conclusively declared null and void.

The October Proclamation declared "ALL PROCESSES" under the Japanese regime "AND VOID
WITHOUT EFFECT", so they must stand. There is no possible way of evasion. "ALL PROCESSES", in
view of the meaning of the absolute adjective "ALL", include "JUDICIAL PROCESSES". Allegatio contra
factum non est admittenda.

CONCLUSION

For all the foregoing reasons we conclude:

1. That General MacArthur had full legal authority to issue the October Proclamation, and that no principle
of the international law is violated by said proclamation, no international wrong being committed by the
reversal by the legitimate government of the acts of the military invader.

2. That said proclamation was issued in full conformity with the official policies to which the United States
and Philippine Governments were committed, and the annulment of all the facts of the governments
under the Japanese regime, legislative, executive, and judicial, is legal, and justified by the wrongs
committed by the Japanese.

3. That when General MacArthur proclaimed and declared in the October Proclamation "That all laws,
regulations and processes" of the Japanese sponsored governments, during enemy occupation, "are null
and void and without effect", he meant exactly what he said.

4. That where General MacArthur said "all processes" we must read and understand precisely and
exactly "all processes", and not "some processes". "All" and "some" have incompatible meanings and are
not interchangeable.

5. That the word "processes" includes judicial procedures, proceedings, processes, and cases. Therefore,
"all processes" must include "all judicial processes.".

6. That we have no right to attribute General MacArthur an intention different from what he has plainly,
clearly, unmistakably expressed in unambiguous words with familiar meaning generally understood by the
common man.

7. That the judicial proceedings here in question are included among those adversely affected by the
October Proclamation.

8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor to continue the judicial
proceedings under the Japanese regime.

9. That to exercise said jurisdiction an enabling act of the Congress is necessary.

10. That respondent Judge Dizon did not commit the error complained of in the petition, and that the
petition has no merits at all.

We refuse to follow the course of action taken by the majority in the present case. It is a course based on
a mistaken conception of the principles of international law and their interpretation and application, and on
a pinchbeck. It is a course based on misconstruction or misunderstanding of the October Proclamation, in
utter disregard of the most elemental principles of legal here meneutics. It is a course that leads to
nowhere, except to the brink of disaster, because it is following the dangerous path of ignoring or
disobeying the law.

Let us not allow ourselves to be deceived. The issue confronting us is not of passing importance. It is an
issue of awesome magnitude and transcendency. It goes to and reaches the very bottom. It is simple.
Lacking in complexities. But it may shake the very foundation of society, the cornerstone of the state, the
primary pillar of the nation. It may dry the very foundation of social life, the source of vitalizing sap that
nurtures the body politic. The issue is between the validity of one or more Japanese regime processes
and the sanctity of the law.

That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. It is the alpha
and the omega of the whole issue. Either the processes, or the law. We have to select between two,
which to uphold. It is a dilemma that does not admit of middle terms, or of middle ways where we can
loiter with happy unconcern . We are in the cross road: which way shall we follow? The processes and
the law are placed in the opposite ends of the balance. Shall we inclined the balance of justice to uphold
the processes and defeat law, or vice versa?

We feel jittery because some judicial processes might be rescinded or annulled, but we do not tremble
with sincere alarm at the thought of putting the law under the axe, of sentencing law to be executed by
the guillotine. We feel uneasy, fancying chaos and paralyzation of social life, because some litigants in
cases during the Japanese regime will be affected in their private interests, with the annulment of some
judicial processes, but we adopt an attitude of complete nonchalance in throwing law overboard. This
baffling attitude is a judicial puzzle that nobody will understand. So it is better that we should shift to a
more understandable way, that which is conformable to the standard that the world expects in judicial
action.

No amount of arguments and lucubration's, no amount of speculative gymnastics, no amount of juggling

of immaterial principles of international law, no amount of presumptions and suppositions, surmises and
conjectures, no amount of dexterity in juridical exegesis can divert our attention from the real, simple,
looming, hypostasis of the issue before us: Law. It is Law with all its majestic grandeur which we are
defying and intending to overthrow from the sacred pedestal where the ages had placed her as a
goddess, to be enshrined, obeyed, and venerated by men, forever. Let us not dare to lay our profaning
hands on her vestal virginity, lest the oracle should fling at us the thunder of his prophetic anathema.

We cannot therefore vote except for the denial of the petition.

HILADO, J., dissenting:

I dissent from the opinion of the majority and, pursuant to the Constitution, proceed to state the reason for
my dissent.

The proceeding involved in the case at bar were commenced by a complaint filed by the instant petitioner,
as plaintiff, on November 18, 1944, in civil case No. 3012 of the so-called Court of First Instance of
Manila, the complaint bearing this heading and title: "The Republic of the Philippines — In the Court of
First Instance of Manila" (Annex X of Exhibit A of petition for mandamus). The farthest that said
proceedings had gone before the record was burned or destroyed during the battle for Manila, was the
filing by counsel for plaintiff therein of their opposition to a motion for dismissal filed by opposing counsel.

It is, therefore, plain that the case had not been heard on the merits when the record was burned or
destroyed.

The respondent judge, in his order dated June 6, 1945, disposing of the petition dated May 25, 1945 filed
by petitioner, as a plaintiff in said case, and of the petition filed by respondent Eusebio Valdez Tan Keh,
as defendant therein, on May 31, 19045, held: " first, that by virtue of the proclamation of General
MacArthur quoted above, all laws, regulations and processes of any other government in the Philippines
than that of the Commonwealth became null and void and without legal effect in Manila on February 3,
1945 or, at the lates, on February 27 of the same year; second that the proceedings and processes had
in the present case having been before a court of the Republic of the Philippines and in accordance with
the laws and regulations of said Republic, the same are now void and without legal effect; third, that this
Court as one of the different courts of general jurisdiction of the Commonwealth of the Philippines, has no
authority to take cognizance of and continue said proceedings to final judgement, until and unless the
Government of the Commonwealth of the Philippines, in the manner and form provided by law, shall have
provided for the transfer of the jurisdiction of the courts of the now defunct Republic of the Philippines,
and the causes commenced and left pending therein, to the courts created and organized by virtue of the
provisions of Act No. 4007, as revived by Executive Order No. 36, or for the validation of all proceedings
had in said courts."

Petitioner prays that this Court declare that the respondent judge should not have ordered the suspension
of the proceedings in civil case No. 3012 and should continue and dispose of all the incidents in said case
till its complete termination. In my opinion, the petition should denied.
In stating the reasons for this dissent, we may divide the arguments under the following propositions:

1. The proceedings in said civil case No. 3012 are null and void under General of the Army MacArthur's
proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);

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

3. The courts of those governments were entirely different from our Commonwealth courts before and
after the Japanese occupation;

4. The question boils down to whether the Commonwealth Government, as now restored, is to be bound
by the acts of either or both of those Japanese-sponsored governments;

5. Even consideration of policy of practical convenience militate against petitioner's contention.

The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148).

In this proclamation, after reciting certain now historic facts, among which was that the so-called
government styled as the "Republic of the Philippines" was established on October 14, 1943 "under
enemy duress, . . . based upon neither the free expression of the people's will nor the sanction of the
Government of the United States," the great Commander-in-Chief proclaimed and declared:

xxx xxx xxx

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

xxx xxx xxx

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts of
their duly constituted government whose seat is now firmly re-established on Philippine soil.

The evident meaning and effect of the 3rd paragraph above quoted is, I think, that as the different areas
of the Philippines were progressively liberated, the declaration of nullity therein contained shall attach to
the laws, regulations and processes thus condemned in so far as said areas were concerned. Mark that
the proclamation did not provide that such laws, regulations and processes shall be or are annulled, but
that they are null and void. Annulment implies some degree of the effectiveness in the act annulled
previous to the annulment, but a declaration of nullity denotes that the act is null and void ab initio — the
nullity precedes the declaration. The proclamation speaks in the present tense, not in the future. If so, the
fact that the declaration of nullity as to the condemned laws, regulations, and processes in areas not yet
free from enemy occupation and control upon the date of the proclamation, would attach thereto at a later
date, is no argument for giving them validity or effectiveness in the interregnum. By the very terms of the
proclamation itself, that nullity had to date back from the inception of such laws, regulations and
processes; and to dispel any shadow of doubt which may still remain, we need only consider the
concluding paragraph of the proclamation wherein the Commander in Chief of the army liberation
solemnly enjoined upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts of their duly
constituted government. This is all-inclusive — it comprises not only the loyal citizens in the liberated
areas but also those in areas still under enemy occupation and control. It will be noticed that the
complaint in said civil case No. 3012 was filed twenty-six days after the above-quoted proclamations of
General of the Army MacArthur. If the parties to said case were to consider the proceedings therein up to
the date of the liberation of Manila valid and binding, they would hardly be complying with the severe
injunction to render full respect for and obedience to our Constitution and the laws, regulations and other
acts of our duly constituted government from October 23, 1944, onwards. Indeed, to my mind, in choosing
between these two courses of action, they would be dangerously standing on the dividing line between
loyalty and disloyalty to this country and its government.

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

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

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

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

October 23, 1943.

FRANKLIN DELANO ROOSEVELT

President of the United States

(Form U.S. Naval War College International Law Documents, 1943, pp. 93, 94.).

It is a fact of contemporary history that while President Manuel L. Quezon of the Philippines was in
Washington, D.C., with his exiled government, he also repeatedly condemned both the "Philippine
Executive Commission" and the "Philippine Republic," as they had been established by or under orders of
the Commander in Chief of the Imperial Japanese Forces. With these two heads of the Governments of
the United States and the Commonwealth of the Philippines condemning the "puppet regime" from its
very inception, it is beyond my comprehension to see how the proceedings in question could be
considered valid and binding without adopting an attitude incompatible with theirs. As President
Roosevelt said in his above quoted message, "Our symphaty goes out to those remain loyal to the United
States and the Commonwealth — that great majority of the Filipino people who have not been deceived
by the promises of the enemy.

The most that I can concede is that while the Japanese Army of occupation was in control in the Islands
and their paramount military strength gave those of our people who were within their reach no other
alternative, these had to obey their orders and decrees, but the only reason for such obedience would be
that paramount military strength and not any intrinsic legal validity in the enemy's orders and decrees.
And once that paramount military strength disappeared, the reason for the obedience vanished, and
obedience should likewise cease.

As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S., 176;
24 Law. ed., 719), "In the face of an overwhelming force, obedience in such matters may often be a
necessity and, in the interest of order, a duty. No concession is thus made to the rightfulness of the
authority exercised." (Emphasis ours.) The court there refers to its own former decision in
Thorington vs. Smith, and makes it clear that the doctrine in the Thorington case, so far as the effects of
the acts of the provisional government maintained by the British in Casetine, from September, 1814 to the
Treaty of Peace in 1815, and the consideration of Tampico as United States territory, were concerned,
was limited to the period during which the British, in the first case, retained possession of Castine, and
the United States, in the second, retained possession of Tampico. In referring to the Confederate
Government during the Civil War, as mentioned in the Thorington case, the court again says in effect that
the actual supremacy of the Confederate Government over a portion of the territory of the Union was the
only reason for holding that its inhabitants could not but obey its authority. But the court was careful to
limit this to the time when that actual supremacy existed, when it said: . . . individual resistance to its
authority then would have been futile and, therefore, unjustifiable." (Emphasis ours.)

Because of its pertinence, we beg leave to quote the following paragraph from that leading decision:

There is nothing in the language used in Thorington vs. Smith (supra), which conflicts with these
views. In that case, the Confederate Government is characterized as one of paramount force, and
classed among the governments of which the one maintained by great Britain in Castine, from
September 1814, to the Treaty of Peace in 1815, and the one maintained by the United States in
Tampico, during our War with Mexico, are examples. Whilst the British retained possession of
Castine, the inhabitants were held to be subject to such laws as the British Government chose to
recognize and impose. Whilst the United States retained possession of Tampico, it was held that
it must regarded and respected as their territory. The Confederate Government, the court
observed, differed from these temporary governments in the circumstance that its authority did
not justifying acts of hostility to the United States, "Made obedience to its authority in civil and
local matters not only a necessity, but a duty." All that was meant by this language was, that as
the actual supremancy of the Confederate Government existed over certain territory, individual
resistance to its authority then would have been futile and, therefore, unjustifiable. In the face of
an overwhelming force, obedience in such matters may often be a necessity and, in the interest
of order, a duty. No concession is thus made to the rightfulness of the authority exercised.
(Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.)

The majority opinion, in considering valid the proceedings in question, invokes the rule that when a
belligerent army occupies a territory belonging to the enemy, the former through its Commander in Chief,
has the power to establish thereon what the decisions and treaties have variously denominated
provisional or military government, and the majority holds that the Japanese-sponsored government in
the Philippines was such a government. Without prejudice to later discussing the effects which the
renunciation of war as an instrument of national policy contained in our Commonwealth Constitution, as
well as in the Briand-Kellog Pact, must have produced in this rule in so far as the Philippines is
concerned, let us set forth some considerations apropos of this conclusion of the majority. If the power to
establish here such a provisional government is recognized in the Commander in Chief of the invasion
army, why should we not recognize at least an equal power in the Commander in Chief of the liberation
army to overthrow that government will all of its acts, at least of those of an executory nature upon the
time of liberation? Considering the theory maintained by the majority, it would seem that they would
recognize in the Japanese Commander in Chief the power to overthrow the Commonwealth Government,
and all of its acts and institutions if he had choosen to. Why should at least an equal power be denied the
Commander in Chief of the United States Army to overthrow the substitute government thus erected by
the enemy with all of its acts and institutions which are still not beyond retrieve? Hereafter we shall have
occasion to discuss the aspects of this question from the point of view of policy or the practical
convenience of the inhabitants. If the Japanese Commander in Chief represented sovereignty of Japan,
the American Commander in Chief represented the sovereignty of the United States, as well as the
Government of the Commonwealth. If Japan had won this war, her paramount military supremacy would
have continued to be exerted upon the Filipino people, and out of sheer physical compulsion this country
would have had to bow to the continuance of the puppet regime that she had set up here for an indefinite
time. In such a case, we admit that, not because the acts of that government would then have intrinsically
been legal and valid, but simply because of the paramount military force to which our people would then
have continued to be subjected, they would have had to recognize as binding and obligatory the acts of
the different departments of that government. But fortunately for the Filipinos and for the entire civilized
world, Japan was defeated. And I now ask: Now that Japan has been defeated, why should the Filipinos
be still bound to respect or recognize validity in the acts of the Japanese-sponsored government which
has been so severely condemned by both the heads of the United States and our Commonwealth
Government throughout the duration of the war? If we were to draw a parallel between that government
and that which was established by the Confederate States during the American Civil War, we will find that
both met with ultimate failure. And, in my opinion, the conclusion to be drawn should be the same in both
cases.

As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the Confederate
Government, its failure carried with it the dissipation of its pretentions and the breaking down in pieces of
the whole fabric of its government. The Court said among other things:

The immense power exercised by the government of the Confederate States for nearly four
years, the territory over which it extended, the vast resources it wielded, and the millions who
acknowledged its authority, present an imposing spectacle well fitted to mislead the mind in
considering the legal character of that organization. It claimed to represent an independent nation
and to posses sovereign powers; as such to displace to jurisdiction and authority of the United
States from nearly half of their territory and, instead of their laws, to substitute and enforce those
of its own enactment. Its pretentions being resisted, they were submitted to the arbitrament of
war. In that contest the Confederacy failed; and in its failure its pretentions were dissipated, its
armies scattered, and the whole fabric of its government broken in pieces. (24 Law, ed., 719;
emphasis ours.)

By analogy, if the Japanese invasion and occupation of the Philippines had been lawful — which,
however, is not the case — and if Japan had succeeded in permanently maintaining the government that
she established in the Philippines, which would have been the case had victory been hers, there would be
more reason for holding the acts of that government valid, but because Japan has lost the war and,
therefore, failed in giving permanence to that government, the contrary conclusion should legitimately
follow.

The validity of legislation exercised by either contestant "depends not upon the existence of hostilities but
upon the ultimate success of the party which it is adopted" (emphasis ours). And, referring to the
overthrow of the of the Confederacy, the Court, said, "when its military forces were overthrown, it utterly
perished, and with it all its enactments" (emphasis ours)
The majority cite on page 9-10 of their opinion a passage from the same case of
Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says that in this passage
the Court was "discussing the validity of the acts of the Confederate States." In the first place, an
examination of the decision will reveal that the controversy dealt with an act of the Confederate
Government, not of the Confederate States individually; and in the second place, the quoted passage
refers to something which was not in issue in the case, namely, the acts of the individual States
composing the Confederacy. But even this passage clearly places the case at bar apart from the Court's
pronouncement therein. The quoted passage commences by stating that "The same general form of
government the same general laws for the administration of justice and the protection of private rights,
which has existed in the States prior to the rebellion, remanded during (its) continuance and afterwards.
"In the case at bar, the same general form of the Commonwealth Government did not continue under the
Japanese, for the simple reason that one of the first acts of the invaders was to overthrow the
Commonwealth Constitution and, therefore, the constitutional government which existed thereunder, as
an effect of the following acts and decrees of the Commander in Chief of the Imperial Japanese Forces:

1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial Japanese Forces to
the Chairman of the Philippine Executive Commission directed that, in the exercise of legislative,
executive and judicial powers in the Philippines, the "activities" of the "administrative organs and judicial
courts in the Philippines shall be based upon the existing status, order, ordinances and the
Commonwealth Constitution (1 Official Journal of the Japanese Military Administration, page 34). Under
the frame of government existing in this Commonwealth upon the date of the Japanese invasion, the
Constitution was the very fountain-head of the validity and effects of all the "status, orders, and
ordinances" mentioned by the Japanese Commander in Chief, and in overthrowing the Constitution he, in
effect, overthrew all of them.

2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official Gazette,
edited at the Office of the Executive Commission) gave the "Detailed Instruction Based on Guiding
Principle of the Administration," and among other things required "The entire personnel shall be required
to pledge their loyalty to the Imperial Japanese Forces. . . ." (This, of course, was repugnant to the frame
of government existing here under the Commonwealth Constitution upon the date of invasion.)

3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in paragraph 3
that "The Authorities and the People of the Commonwealth should sever their relations with the U.S. o . .
." (This is, likewise, repugnant to the Commonwealth Constitution and the to the Government of that
Commonwealth Constitution and to the Government of that Commonwealth which was expressly made
subject to the supreme sovereignty of the United States until complete independence is granted, not by
the mere will of the United States, but by virtue of an agreement between that Government and ours,
under the Tydings-McDuffie Act.)

The individual States of the Confederate and their governments existed prior to the Civil War and had
received the sanction and recognition of the Union Government, for which the Federal Supreme Court
was speaking in the Williams-Bruffy case; while the Japanese-sponsored governments of the "Philippine
Executive Commission" and the Republic of the Philippines" neither existed here before the war nor had
received the recognition or sanction of either the United States or the Commonwealth Government —
nay, they had received the most vigorous condemnation of both.

The Court further says in Williams vs. Bruffy (supra):

No case has been cited in argument, and we think unsuccesfully attempting to establish a
separate revolutionary government have been sustained as a matter of legal right. As justly
observed by the late Chief Justice in the case of Shortridge vs. Macon, I Abb. U.S., 58, decided at
the circuit, and, in all material respects like the one at bar, "Those who engage in rebellion must
consider the consequences. If they succeed, rebellion becomes revolution, and the new
government will justify is founders. If they fail, all their acts hostile to the rightful government are
violations of law, and originate no rights which can be recognized by the courts of the nation
 whose authority and existence have been alike assailed. S.C., Chase, Dec., 136.
(Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.)

I am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion should be
applied with greater force to the case of a belligerent who loss the war. And since the founding of the
Japanese-sponsored government in the Philippines was designed to supplant and did actually supplant
the rightful government and since all its acts could not but a hostile to the latter (however blameless the
officials who acted under enemy duress might be), and since Japan failed, all said acts, particularly those
of the Japanese-sponsored court in said civil case No. 3012, "are violations of law, and originate no rights
which can be recognized by the courts of the nation whose authority and existence have been alike
assailed", quoting the language of the court in Shortridge vs. Macon, cited by Mr. Justice Field in
Williams vs. Bruffy, supra (24 Law. ed., 718).

II

(a) The government styled as, first, the "Philippine Executive Commission" and later as the
Republic of the Philippines", established here by the Commander in Chief of the Imperial
Japanese Forces or by the his order was not a de facto government--the so-called Court of First
Instance of Manila was not a de facto court and the who presided it was not a de facto judge;

(b) The rules of International Law regarding the establishment of a de facto government in
territory belonging to a belligerent but occupied or controlled by an opposing belligerent are
inapplicable to the governments thus established here by Japan.

Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the short-lived
provisional government thus established by the Japanese in the Philippines should be classified, at best,
as a government of paramount force. But this is not all. The Constitution of this Commonwealth which has
been expressly approved by the United States Government, in Article II, section 3, under the heading
"Declaration of Principles", renounces war as an instrument of national policy. This renunciation of war as
an instruments of national policy follows an equal renunciation in the Briand-Kellog Pact. The rules of
International Law , cited in support of the power or right of a belligerent army of occupation to set up a
provisional government on occupied enemy territory, were evolved prior to the first World War, but the
horrors and devastations of that war convinced, at least the governments of the United States and
France, that they should thereafter renounce war as an instrument of national policy, and they
consequently subscribed the Briand-Kellog Pact. Those horrors and devastations were increased a
hundred fold, if not more, in this second World War, but even before this war occurred, our own people,
through our Constitutional delegates, who framed the Commonwealth Constitution also adopted the same
doctrine, and embodied an express renunciation of war as an instrument of national policy in the
instrument that they drafted. It is true that in section 3, Article II, above-cited, our Constitution adopts the
generally accepted principles of International Law as a part of the law of the Nation. But, of course, this
adoption is exclusive of those principles of International Law which might involve recognition of war as an
instrument of national policy. It is plain that on the side of the Allies, the present war is purely defensive.
When Japan started said war, treacherously and without previous declaration, and attacked Pearl Harbor
and the Philippines on those two fateful days of December 7 and 8, 1941, she employed war as an
instrument of the national policy. Under the Briand-Kellog Pact and our Commonwealth Constitution, the
United States and the Commonwealth Government could not possibly have recognized in Japan any
right, as against them, to employ that war as an instrument of her national policy, and, consequently, they
could not have recognized in Japan power to set up in the Philippines the puppet government that she
later set up, because such power would be a mere incident or consequence of the war itself. The
authorities agree that such a power, under the cited rules, is said to a right derived from war. (67 C.J., p.
421, sec. 171.) There can be no question that the United States and the Commonwealth Governments
were free to refuse to be bound by those rules when they made their respective renunciations above
referred to. Indeed, all the United Nations have exercised this free right in their Charter recently signed at
San Francisco.
As necessary consequence of this, those rules of International Law were no longer applicable to the
Philippines and to the United States at the time of the Japanese invasion as a corollary, it follows that we
have no legal foundation on which to base the proposition that the acts of that Japanese-sponsored
government in the Philippines were valid and binding. Moreover, I am of opinion, that although at the time
of the Japanese invasion and up to the present, the United States retains over the Philippines, a certain
measure of sovereignty, it is only for certain specified purposes enumerated in the Tydings-McDufie Act
of the Commonwealth Constitution. (Ordinance appended to the Constitution.) And our territory was at the
time of the Japanese invasion not a territory of the United States, within the meaning of the laws of war
governing war-like operations on enemy territory. Our territory is significantly called "The National
Territory" in Article I of our Constitution and this bears the stamps of express approval of the United
States Government. The Philippines has been recognized and admitted as a member of the United
Nations. We, therefore, had our own national and territorial identity previous to that invasion. Our nation
was not at war with the Filipinos. And line with this, the Japanese army, in time, released Filipino war
prisoners captured in Bataan. Lt. Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of
January 2, 1942, said:

. . . we had not the slighest intensions to make your people our enemy; rather we considered
them as our friends who will join us has hand-in-hand in the establishment of an orderly Greater
East Asia. . . ., (Official Gazette, edited at the Office of the Executive Commission, Vol. I, p. 55.)

If the Philippines was a neutral territory when invaded by the Japanese, the following principles from
Lawrence, International Law (7th ed.), p. 603, are pertinent:

The Duties of Belligerent States Towards Neutral States. — . . . To refrain from carrying on
hostilities within neutral territory. — We have already seen that, though this obligation was
recognized in theory during the infancy of International law, it was often very imperfectly observed
in practice. But in modern times it has been strickly enforced, and any State which knowingly
ordered warlike operations to be carried on in neutral territory . . . would bring down upon itself
the reprobation of civilized mankind. Hostilities may be carried on in the territory of either
belligerent, on the high seas, and in territory belonging to no one. Neutral land and neutral
territorial waters are sacred. No acts of warfare may lawfully take place within them. . . .
(Emphasis ours.)

In all the cases and authorities supporting the power or right to set up a provisional government, the
belligerent had the right to invade or occupy the territory in the first instance. Such was not the case with
the Philippines. President Roosevelt, in his message to the Filipino people, soon after the landing of
American Forces in Leyte, on October 20, 1944, characterized Japan's invasion and occupation of the
Philippines as "the barbarous, unprovoked and treacherous attack upon the Philippines," and he
announced the American people's "firm determination to punish the guilty." (41 Off. Gaz., 149.)
(Emphasis ours.) The illustrious leader of the United Nations could not have in more unmistakable terms
the utter illegality of that invasion and occupation. If the establishment of a provinsional government in
occupied territory by a belligerent is "a mere application or extension of the force by which the invasion or
occupation was effected" (67 C.J., p. 421, sec 171), the illegality of the invasion, would necessarily
permeate the government, which was its mere application or extention.

The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and treacherous
attack," the meager and almost untrained forces of the Philippine Army had been inducted into the
American Army, did not change the neutral status of the Philippines. That military measure had been
adopted for purely defensive purposes. Nothing could be farther from the minds of the government and
military leaders of the United States and the Philippines in adopting it than to embark upon any
aggressive or warlike enterprise against any other nation. It is an old and honored rule dating as far back
as the 18th century that even solemn promises of assistance made before the war by a neutral to a nation
which later becomes a belligerent, would not change the status of the neutral even if such promises were
carried out, so long as they were made for purely defensive purposes. In the words of Vattel "when a
sovereign furnishes the succor due in virtue of a former defensive alliance, he does not associate himself
in the war. Therefore he may fulfill his engagements and yet preserve an exact neutrality." (Lawrence,
Principles of International Law [7th ed.], pp. 585, 586.)

If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and their
territory occupied by the Japanese without resistance, such invasion occupation would undoubtedly have
been considered in violation of International Law. Should the Filipinos be punished for having had the
patriotism, bravery, and heroism to fight in defense of the sacredness of their land, the sanctity of their
homes, and the honor and dignity of their government by giving validity, in whatever limited measure, to
the lawless acts of the ruthless enemy who thus overran their country, and robbed them of the tranquility
and happiness of their daily lives? And yet, to my mind, to give any measure of validity or binding effect to
the proceedings of the Japanese-sponsored Court of First Instance of Manila, involved herein, would be
to give that much validity or effect to the acts of those same invaders. To equalize the consequences of a
lawful and a wrongful invasion of occupation, would be to equalize right and wrong, uphold the creed that
might makes right, and adopt "the law of the jungle."

If said Japanese-sponsored government was not a de facto government, it would seem clearly to follow
that its "Court of First Instance of Manila" was not a de facto court. But it should additionally be stated that
for it be a de facto court, its judge had to be a de facto judge, which he could not be, as presently
demonstrated.

As said by President Osmeña, in replying to the speech of General of the Army MacArthur when the latter
turned over to him the full powers and responsibilities of the Commonwealth Government, on February
27, 1945:

xxx xxx xxx

The time has come when the world should know that when our forces surrendered in Bataan and
Corregidor, resistance to the enemy was taken up by the people itself — resistance which was
inarticulate and disorganized in its inception but which grew from the day to day and from island
until it broke out into an open warfare against the enemy.

The fight against the enemy was truly a people's war because it counted with the wholehearted
support of the masses. From the humble peasant to the barrio school teacher, from the volunteer
guard to the women's auxilliary service units, from the loyal local official to the barrio folk — each
and every one of those contributed his share in the great crusade for liberation.

The guerrillas knew that without the support of the civilian population, they could not survive.
Whole town and villages dared enemy reprisal to oppose the hated invader openly or give
assistance to the underground movement. . . . (41 Off. Gaz., 88, 89.)

Under these facts, taken together with the General of the Army MacArthur's accurate statement that the
"Republic of the Philippines" had been established under enemy duress, it must be presumed — to say
the least — that the judge who presided over the proceedings in question during the Japanese
occupation, firstly, accepted his appointment under duress; and secondly, acted by virtue of that
appointment under the same duress. In such circumstances he could not have acted in the bona
fide belief that the new "courts" created by or under the orders of the Japanese Military Commander in
chief had been legally created--among them the "Court of first Instance of Manila," — that the Chairman
of the "Philippine Executive Commission" or the President of the "Republic of the Philippines", whoever
appointed him, and conferred upon him a valid title to his office and a legitimate jurisdiction to act as such
judge. Good faith is essential for the existence of a de facto judge (Tayko vs. Capistrano, 53 Phil., 866,
872). The very idea of enemy duress would necessarily imply that but for the duress exerted upon him by
the enemy he would have refused to accept the appointment and to act thereunder. And why? Because
he must be presumed to know that the office to which he was thus appointed had been created by the
enemy in open defiance of the Commonwealth Constitution and the laws and regulation promulgated by
our Commonwealth Government, and that his acceptance of said office and his acting therein, if willfully
done, would have been no less than an open hostility to the very sovereignty of the United Sates and to
the Commonwealth Government, and a renunciation of his allegiance to both. There is no middle ground
here. Either the judge acted purely under duress, in which case his acts would be null and void; or
maliciously in defiance of said governments, in which case his acts would be null and void for more
serious reasons.

The courts created here by the Japanese government had to look for the source of their supposed
authority to the orders of the Japanese Military Commander in chief and the so-called Constitution of the
"Republic of the Philippines," which had been adopted in a manner which would shock the conscience of
democratic peoples, and which was designed to supplant the Constitution which had been duly adopted
by the Filipino people in a Constitutional Convention of their duly elected Constitutional Delegates. And it
was decreed that the Commander in chief of the Imperial Japanese Forces "shall exercise jurisdiction
over judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese Military Administration, cited on pp. 2,
3, of the order of the respondent judge complained of and marked Exhibit H of the petition
for mandamus.) How can our present courts legitimately recognize any efficacy in the proceedings of
such an exotic judicial system, wherein the Commander in Chief of the Imperial Japanese Forces
possessed the highest judicial jurisdiction?

III

The courts of those governments were entirely different from our Commonwealth courts before
and after the Japanese occupation.

Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first
paragraph, states the prime concern of the government "to re-establish the courts as fast as provinces
are liberated from the Japanese occupation." If the courts under the Japanese-sponsored government of
the "Republic of the Philippines" were the same Commonwealth courts that existed here under the
Constitution at the time of the Japanese invasion, President Osmeña would not be speaking of re-
establishing those courts in his aforesaid Executive Order. For soothe, how could those courts under the
"Republic of the Philippines" be the courts of the Commonwealth of the Philippines when they were not
functioning under the Constitution of the Commonwealth and the laws enacted in pursuance of said
Constitution? The jurisdiction of the Commonwealth courts was defined and conferred under the
Commonwealth Constitution and the pertinent legislation enacted thereunder, that of the Japanese-
sponsored courts was defined and conferred by the orders and decrees of the Japanese Commander in
Chief, and, perhaps, the decrees of the "Philippine Executive Commission" and the laws of the so-called
Legislature under the Republic, which was not composed of the elected representatives of the people.
The Justices and Judges of the Commonwealth courts had to be appointed by the President of the
Commonwealth with confirmation by the Commission on Appointments, pursuant to the Commonwealth
Constitution. The Chief Justice of the Supreme Court, under the "Philippine Executive Commission" was
appointed by the Commander in Chief of the Imperial Japanese Forces, and the Associate Justices of the
Supreme Court, the Presiding Justice and Associate Justices of the Court of Appeals, the Judges of first
Instance and of all inferior courts were appointed by the Chairman of the Executive Commission, at first,
and later, by the President of the Republic, of course, without confirmation by the Commission on
Appointments under the Commonwealth Constitution. The Chief Justice and Associate Justices of the
Supreme Court, the President and Associate Justices of the Court of Appeals, and the Judges of First
Instance and of all inferior courts in the Commonwealth judicial system, had to swear to support and
defend the Commonwealth Constitution, while this was impossible under the Japanese-sponsored
government. In the Commonwealth judicial system, if a Justice or Judge should die or incapacitated to
continue in the discharge of his official duties, his successor was appointed by the Commonwealth
President with confirmation by the Commission on Appointments, and said successor had to swear to
support and defend the Commonwealth Constitution; in the exotic judicial system implanted here by the
Japanese, if a Justice or Judge should die or incapacitated, his successor would be appointed by the
Japanese Commander in Chief, if the dead or incapacitated incumbent should be the Chief Justice of the
Supreme Court, or otherwise, by the Chairman of the "Executive Commission" or the President of the
"Republic", of course without confirmation by the Commission on Appointments of the Commonwealth
Congress, and, of course, without the successor swearing to support and defend the Commonwealth
Constitution.

If, as we believe having conclusively shown, the Japanese-sponsored courts were not the same
Commonwealth courts, the conclusion is unavoidable that any jurisdiction possessed by the former and
any cases left pending therein, were not and could not be automatically transfered to the Commonwealth
courts which we re-established under Executive Order No. 36. For the purpose, a special legislation was
necessary.

Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the President
recognized as valid the proceedings in all cases appealed to the Court of Appeals. Section 2 of that order
simply provides that all cases which have been duly appealed to the Court of Appeals shall be transmitted
to the Supreme Court for final decision. The adverb "duly" would indicate that the President foresaw the
possibility of appeals not having been duly taken. All cases appealed to the Court of Appeals before the
war and the otherwise duly appealed, would come under the phrase "duly appealed" in this section of the
Executive Order. But considering the determined and firm attitude of the Commonwealth Government
towards those Japanese-sponsored governments since the beginning, it would seem inconceivable that
the President Osmeña, in section 2 of Executive Order No. 37, intended to include therein appeals taken
to the Japanese-sponsored Court of Appeals, or from the Japanese-sponsored inferior courts. It should
be remembered that in the Executive Order immediately preceeding and issued on the same date, the
President speaks of re-establishing the courts as fast as provinces were liberated from the Japanese
occupation.

IV

The question boils down to whether the Commonwealth Government, as now restored, is to be
bound by the acts of either or both of those Japanese-sponsored governments.

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

Even considerations of policy or practical convenience militate against petitioner's contention.

In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the following to
say:

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

Besides, I am of the opinion that the validity of the acts of the courts in the "judicial system implanted by
the Philippine Executive Commission and the Republic "would not depend upon the laws that they
"administered and enforced", but upon the authority by virtue of which they acted. If the members of this
Court were to decide the instant case in strict accordance with the Constitution and the laws of the
Commonwealth but not by the authority that they possess in their official capacity as the Supreme Court
of the Philippines, but merely as lawyers, their decision would surely be null and void. And yet, I am firmly
of opinion that whoever was the "judge" of the Japanese sponsored Court of First Instance of Manila who
presided over the said court when the proceedings and processes in the dispute were had, in acting by
virtue of the supposed authority which he was supposed to have received from that government, did so
with no more legal power than if he had acted as a mere lawyer applying the same laws to the case. If
duplication of work or effort, or even if confussion, should be alleged to possibly arise from a declaration
of nullity or judicial proceedings had before those Japanese-sponsored courts, it should suffice to answer
that the party so complaining in voluntarily resorting to such courts should be prepared to assume the
consequences of his voluntary act. On the other hand, his convenience should not be allowed to visit
upon the majority of the inhabitants of this country, the dire consequences of a sweeping and wholesale
validation of judicial proceedings in those courts. Let us set forth a few considerations apropos of this
assertion. It is a fact of general knowledge that during the Japanese occupation of the Philippines, the
overwhelming majority of our people and other resident inhabitants were literally afraid to go any place
where there were Japanese sentries, soldiers or even civilians, and that these sentries were posted at the
entrance into cities and towns and at government offices; that the feared Japanese "M. P.'s" or
Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or had
evacuated to places for from the Japanese, were found precisely in the cities and towns where the courts
were located; and as a consequence, the great majority of the people were very strongly adverse to
traveling any considerable distance from their homes and were, one might say, in constant hiding. Add to
these circumstances, the fact of the practical absence of transportation facilities and the no less important
fact of the economic structure having been so dislocated as to have impoverished the many in exchange
for the enrichment of the few — and we shall have a fair picture of the practical difficulties which the
ordinary litigant would in those days have encountered in defending his rights against anyone of the
favored few who would bring him to court. It should be easy to realize how hard it was for instances, to
procure the attendance of witnesses, principally because of the fact that most of them were in hiding or,
at least, afraid to enter the cities and towns, and also because of then generally difficult and abnormal
conditions prevailing. Under such conditions, cases or denial of a party's day in court expected. Such
denial might arise from many a cause. It might be party's fear to appear before the court because in doing
so, he would have had to get near the feared Japanese. It might be because he did not recognize any
legal authority in that court, or it might be his down-right repugnance of the hated enemy. And I dare say
that among such people would be found more than seventeen million Filipinos. These are but a few of
countless cause. So that if some form of validation of such judicial proceedings were to be attempted, all
necessary safeguards should be provided to avoid that in any particular case the validation should violate
any litigant's constitutional right to his day in court, within the full meaning of the phrase, or any other
constitutional or statutory right of his. More people, I am afraid, would be prejudiced than would be
benefited by a wholesale validation of said proceedings.

Much concern has been shown for the possible confusion which might result from a decision declaring
null and void the acts processes of the Japanese-sponsored governments in the Philippines. I think, this
aspect of the question has been unduly stressed. The situation is not without remedy, but the remedy lies
with the legislature and not with the courts. As the courts cannot create a new or special jurisdiction for
themselves, which is a legislative function, and as the situation demands such new or special jurisdiction,
let the legislature act in the premises. For instance, the Congress may enact a law conferring a special
jurisdiction upon the courts of its selection, whereby said courts may, after hearing all the parties
interested, and taking all the necessary safeguards, so that, a party's day in court or other constitutional
or statutory right under the Commonwealth Government should not be prejudiced by any of said acts,
processes or proceedings, particullarly, those in Japanese-sponsored courts, and subject to such other
conditions as the special law may provide, validate the corresponding acts, processes or proceedings.
This, to my mind, would be more conducive to a maximum of benefit and a minimum of prejudice to the
inhabitants of this country, rather than the procedure favored by the majority.

Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the provinces,
where the greater number of the people where then living outside the towns, in the farms and the hills.
These people constitute the great majority of the eighteen million Filipinos. To them the semblance of an
administration of justice which Japanese allowed, was practically unknown. But they constituted the
majority of loyal citizens to whom President Roosevelt's message of October 23, 1943 refers. They — the
majority of our people — had an unshaken faith in the arrival of American aid here and the final triumph of
the Allied cause. They were willing to wait for the restoration of their rightful government, with its courts
and other institutions, for the settlement of their differences. May in their common hardship and sufferings
under yoke of foreign oppression, they had not much time to think of such differences, if they did not
utterly forget them. Their undoubted hatred of the invader was enough to keep them away from the
judicial system that said invader allowed to have. Those who voluntarily went to the courts in those tragic
days belong to the small minority.

As to the public order — why! any public order which then existed was not due to the courts or other
departments of the puppet government. It was maintained at the point of the bayonet by the Japanese
army, and in their own unique fashion.

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
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 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.

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.

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, 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 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.

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.

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 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. . . .

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 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.

(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:

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 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 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."

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.

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 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 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.

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.

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.