Republic of the Philippines governs a body politic or society which constitute the state) must be distinguished
SUPREME COURT from the exercise of the rights inherent thereto, and may be destroyed, or severed and
Manila
EN BANC
G.R. No. L-409 January 30, 1947
ANASTACIO LAUREL, petitioner,
vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for
respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the
petition for habeas corpus filed 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
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 facto therein 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 facto
acquire 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;
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.

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";
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49 November 12, 1945
WILLIAM F. PERALTA, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
William F. Peralta in his own behalf.
Office of the Solicitor General Tañada for respondent.
City Fiscal Mabanag as amicus curiae.
FERIA, J.:
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged
with the supervision and control of the production, procurement and distribution of
goods and other necessaries as defined in section 1 of Act No. 9 of the National
Assembly of the so-called Republic of the Philippines, was prosecuted for the crime
of robbery as defined and penalized by section 2 (a) of Act No. 65 of the same
Assembly. He was found guilty and sentenced to life imprisonment, which he
commenced to serve on August 21, 1944, by the Court of Special and Exclusive
Criminal Jurisdiction, created in section 1 of Ordinance No. 7 promulgated by the
President of the so-called Republic of the Philippines, pursuant to the authority
conferred upon him by the Constitution and laws of the said Republic. And the
procedure followed in the trial was the summary one established in Chapter II of
Executive Order No. 157 of the Chairman of the Executive Commission, made
applicable to the trial violations of said Act No. 65 by section 9 thereof and section 5
of said Ordinance No. 7.
The petition for habeas corpus is based on the ground that the Court of Special and
Executive Criminal Jurisdiction created by Ordinance No. 7 "was a political
instrumentality of the military forces of the Japanese Imperial Army, the aims and
purposes of which are repugnant to those aims and political purposes of the
Commonwealth of the Philippines, as well as those of the United States of America,
and therefore, null and void ab initio," that the provisions of said Ordinance No. 7
are violative of the fundamental laws of the Commonwealth of the Philippines and
"the petitioner has been deprived of his constitutional rights"; that the petitioner
herein is being punished by a law created to serve the political purpose of the
Japanese Imperial Army in the Philippines, and "that the penalties provided for are
much (more) severe than the penalties provided for in the Revised Penal Code."
The Solicitor General, in his answer in behalf of the respondent, states that, in his
own opinion, for the reasons expressed in his brief in the case of People of the
Philippines, plaintiff-appellant, vs. Benedicto Jose y Santos, defendant-appellee, G.
R. No. L-22 (p. 612, post), the acts and proceedings taken and had before the said
Court of Special and Exclusive Criminal Jurisdiction which resulted in the
conviction and imprisonment of the herein petitioner, should now be denied force
and efficacy, and therefore the petition for habeas corpus should be granted. The
reasons advanced by the Solicitor General in said brief and in his reply memorandum
in support of his contention are, that the Court of Special and Exclusive Criminal
Jurisdiction created, and the summary procedure prescribed therefor, by said
Ordinance No. 7 in connection with Executive Order No. 157 of the Chairman of the
Executive Commission are tinged with political complexion; that the procedure
prescribed in Ordinance No. 7 does not afford a fair trial, violates the Constitution of
the Commonwealth, and impairs the Constitutional rights of accused persons under
their legitimate Constitution. And he cites, in support of this last proposition, the
decisions of the Supreme Court of the United States in the cases of Texas vs. White
(7 Wall., 700, 743); Horn vs. Lockart (17 Wall., 570, 581); United States vs. Home
Insurance Co. (22 Wall., 99, 104); Sprott vs. United States (20 Wall., 459).
The City Fiscal of Manila appeared before this Court as amicus curiae. In his
memorandum he submits that the petition for habeas corpus be denied on the
following grounds: That the Court of Special and Exclusive Criminal Jurisdiction
and the Acts, Ordinances and Executive Orders, creating it are not of a political
complexion, for said Court was created, and the crimes and offenses placed under its
jurisdiction were penalized heavily, in response to an urgent necessity, according to
the preamble of Ordinance No. 7; that the right to appeal in a criminal case is not a
constitutional right; and that the summary procedure established in said Ordinance
No. 7 is not violative of the provision of Article III, section 1 (18) of the Constitution
of the Commonwealth, to the effect that no person shall be compelled to be a witness
against himself, nor of the provision of section 1 (1) of the same Article that no
person shall be deprived of life, liberty, or property without due process of law.
The features of the summary procedure adopted by Ordinance No. 7, assailed by the
petitioner and the Solicitor General as impairing the constitutional rights of an
accused are: that court may interrogate the accused and witnesses before trial in
order to clarify the points in dispute; that the refusal of the accused to answer the
questions may be considered unfavorable to him; that if from the facts admitted at
the preliminary interrogatory it appears that the defendant is guilty, he may be
immediately convicted; and that the sentence of the sentence of the court is not
appealable, except in case of death penalty which cannot be executed unless and
until reviewed and affirmed by a special division of the Supreme Court composed of
three Justices.
Before proceeding further, and in order to determine the law applicable to the
questions involved in the present case, it is necessary to bear in mind the nature and
status of the government established in these Islands by the Japanese forces of
occupation under the designation of Republic of the Philippines.
In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113,
127, ante), recently decided, this Court, speaking through the Justice who pens this
decision, held:
In view of the foregoing, it is evident that the Philippines Executive Commission,
which was organized by Order No. 1, issued on January 23, 1942, by the
Commander of the Japanese forces, was a civil government established by the
military forces of occupation and therefore a de facto government of the second kind.
It was not different from the government established by the British in Castine,
Maine, or by the United States in Tanpico, Mexico. As Halleck says, "the
government established over an enemy's territory during the military occupation may
exercise all the powers given by the laws of war to the conqueror over the
conquered, and is subject to all restrictions which that code imposes. It is of little
consequence whether such government be called a military or civil government. Its
character is the same and the source of its authority the same. In either case it is a
government imposed by the laws of war and so far as it concerns the inhabitants of
such territory or the rest of the world those laws alone determine the legality or
illegality of its acts." (vol. 2 p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run by Filipinos and
not by Japanese nationals is of no consequence.
And speaking of the so-called Republic of the Philippines in the same decision, this
Court said:
The so-called Republic of the Philippines, apparently established and organized as a
sovereign state independent from any other government by the Filipino people, was,
in truth and reality, a government established by the belligerent occupant or the
Japanese forces of occupation. It was of the same character as the Philippine
Executive Commission, and the ultimate source of its authority was the same — the
Japanese military authority and government. As General MacArthur stated in his
proclamation of October 23, 1944, a portion of which has been already quoted,
"under enemy duress, a so-called government styled as the 'Republic of the
Philippines' was established on October 14, 1943, based upon neither the free
expression of the peoples" will nor the sanction of the Government of the United
States.' Japan had no legal power to grant independence to the Philippines or transfer
the sovereignty of the United States to, or recognize the latent sovereignty of the
Filipino people, before its military occupation and possession of the Islands had
matured into an absolute and permanent dominion or sovereignty by a treaty of peace
or other means recognized in the law of nations.
As the so-called Republic of the Philippines was a de facto government of the second
kind (of paramount force), as the government established in Castine, Maine, during
its occupation by the British forces and as that of Tampico, Mexico, occupied during
the war with that the country by the United State Army, the question involved in the
present case cannot be decided in the light of the Constitution of the Commonwealth
Government; because the belligerent occupant was totally independent of the
constitution of the occupied territory in carrying out the administration over said
territory; and the doctrine laid down by the Supreme Court of the United States in the
cases involving the validity of judicial and legislative acts of the Confederate States,
considered as de facto governments of the third kind, does not apply to the acts of the
so-called Republic of the Philippines which is a de facto government of paramount
force. The Constitution of the so-called Republic of the Philippines can neither be
applied, since the validity of an act of a belligerent occupant cannot be tested in the
light of another act of the same occupant, whose criminal jurisdiction is drawn
entirely from the law martial as defined in the usages of nations.
In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the
United States held that, by the military occupation of Castine, Maine, the sovereignty
of the United States in the territory was, of course, suspended, and the laws of the
United States could no longer be rightfully enforced there or be obligatory upon the
inhabitants who remained and submitted to the belligerent occupant. By the
surrender the inhabitants passed under a temporary allegiance to the British
government, and were bound by such laws, and such only, as it chose to recognize
and impose. And Oppenheim, in his Treatise on International Law, says that, in
carrying out the administration over the occupied territory and its inhabitants, "the
(belligerent) occupant is totally independent of the constitution and the laws of the
territory, since occupation is an aim of warfare, and the maintenance and safety of
his forces, and the purpose of war, stand in the foreground of his interest and must be
promoted under all circumstances or conditions. (Vol. II, Sixth Edition, Revised,
1944, p. 342.)
The doctrine laid down in the decisions of the Supreme Court of the United States (in
the cases of Texas vs. White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570;
Williams vs. Bruffy, 96 U. S., 176 United States vs. Home Insurance Co., 20 Wall.,
249; Sprott vs. United States, 20 Wall., 459, and others) that the judicial and
legislative acts of the Confederate States which impaired the rights of the citizens
under the Constitution of the United States or of the States, or were in conflict with
those constitutions, were null and void, is not applicable to the present case. Because
that doctrine rests on the propositions that "the concession (of belligerency) made to
the Confederate Government . . . sanctioned no hostile legislation . . . and it impaired
in no respect the rights of loyal and citizens as they existed at the commencement of
hostilities" (Williams vs. Bruffy, supra);that the Union is perpetual and indissoluble,
and the obligation of allegiance to the to the estate and obedience to her laws and the
estate constitution, subject to the Constitution of the United States, remained
unimpaired during the War of Secession (Texas vs. White, supra) and that the
Confederate States "in most, if not in all instances, merely transferred the existing
state organizations to the support of a new and different national head. the same
constitution, the same laws for the protection of the property and personal rights
remained and were administered by the same officers." (Sprott vs. United States,
supra). In fine, because in the case of the Confederate States, the constitution of each
state and that of the United States or the Union continued in force in those states
during the War of Secession; while the Constitution of the Commonwealth
Government was suspended during the occupation of the Philippines by the Japanese
forces of the belligerent occupant at regular war with the United States.
The question which we have to resolve in the present case in the light of the law of
nations are, first, the validity of the creation of the Court of Special and Exclusive
Criminal Jurisdiction, and of the summary procedure adopted for that court;
secondly, the validity of the sentence which imprisonment during the Japanese
military occupation; and thirdly, if they were then valid, the effect on said punitive
sentence of the reoccupation of the Philippines and the restoration therein of the
Commonwealth Government.
(1) As to the validity of the creation of the Court of Special and Exclusive
Criminal Jurisdiction by Ordinance No. 7, the only factor to be considered is the
authority of the legislative power which promulgated said law or ordinance. It is well
established in International Law that "The criminal jurisdiction established by the
invader in the occupied territory finds its source neither in the laws of the conquering
or conquered state, — it is drawn entirely form the law martial as defined in the
usages of nations. The authority thus derived can be asserted either through special
tribunals, whose authority and procedure is defined in the military code of the
conquering state, or through the ordinary courts and authorities of the occupied
district." (Taylor, International Public Law, p. 598.) The so-called Republic of the
Philippines, being a governmental instrumentality of the belligerent occupant, had
therefore the power or was competent to create the Court of Special and Exclusive
Criminal Jurisdiction. No question may arise as to whether or not a court is of
political complexion, for it is mere a governmental agency charged with the duty of
applying the law to cases falling within its jurisdiction. Its judgments and sentences
may be of political complexion, or not depending upon the nature or character of the
law so applied. There is no room for doubt, therefore, as to the validity of the
creation of the court in question.
With respect to the Summary procedure adopted by Ordinance No. 7, and followed
in the trial of the case which resulted in the conviction of the herein petitioner, there
is also no question as to the power or competence of the belligerent occupant to
promulgate the law providing for such procedure. For "the invader deals freely with
the relations of the inhabitants of the occupied territory towards himself . . . for his
security also, he declares certain acts, not forbidden by the ordinary laws of the
country, to be punishable; and he so far suspends the laws which guard personal
liberty as is required for the summary punishment of any one doing such acts."
(Hall's International Law, seventh ed., p. 5000). A belligerent "occupant may where
necessary, set up military courts instead of the ordinary courts; and in case, and in so
far as, he admits the administration of justice by the ordinary courts, he may
nevertheless, so far as is necessary for military purposes, or for the maintenance of
public order and safety temporarily alter the laws, especially the Criminal Law, on
the basis of which justice is administered as well as the laws regarding procedure."
(Oppenheim's International Law, Vol. II, sixth edition, 1944, p.349.)
No objection can be set up to the legality of its provisions in the light of the precepts
of our Commonwealth Constitution relating to the rights of accused under that
Constitution, because the latter was not in force during the period of the Japanese
military occupation, as we have already stated. Nor may said Constitution be applied
upon its revival at the time of the re-occupation of the Philippines by virtue of the
principle of postliminium because "a constitution should operate prospectively only,
unless the words employed show a clear intention that it should have a retrospective
effect" (Cooley's Constitutional Limitations, seventh edition, page 97, and cases
quoted and cited in the footnote), especially as regards laws of procedure applied to
cases already terminated completely.
The only restrictions or limitations imposed upon the power of a belligerent occupant
to alter the laws or promulgate new ones, especially the criminal law as well as the
laws regarding procedure, so far as it is necessary for military purposes, that is, for
his control of the territory and the safety and protection of his army, are those
imposed by the Hague Regulations, the usages established by civilized nations, the
laws of humanity and the requirements of public conscience. It is obvious that the
summary procedure under consideration does not violate those precepts. It cannot be
considered as violating the laws of humanity and public conscience, for it is less
objectionable, even from the point of view of those who are used to the accusatory
system of criminal procedure than the procedural laws based on the semi-
inquisitorial or mixed system prevailing in France and other countries in continental
Europe.
(2) The validity of the sentence rendered by the Court of Special and Exclusive
Criminal Jurisdiction which imposes life imprisonment upon the herein petitioner,
depends upon the competence or power of the belligerent occupant to promulgate
Act No. 65 which punishes the crime of which said petitioner was convicted.
Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907
"indicates that the laws to be enforced by the occupant consist of, first, the territorial
law in general, as that which stands to the public order and social and commercial
life of the district in a relation of mutual adaptation, so that any needless
displacement of it would defeat the object which the invader is enjoined to have in
view, and secondly, such variations of the territorial law as may be required by real
necessity and are not expressly prohibited by any of the rules which will come before
us. Such variations will naturally be greatest in what concerns the relation of the
communities and individuals within the district to the invading army and its
followers, it being necessary for the protection of the latter, and for the unhindered
prosecution of the war by them, that acts committed to their detriment shall not only
lose what justification the territorial law might give them as committed against
enemies, but shall be repressed more severely than the territorial law would repress
acts committed against fellow subjects. Indeed the entire relation between the
invaders and the invaded, so far as it may fall within the criminal department
whether by the intrinsic nature of the acts done or in consequence of the regulations
made by the invaders, may be considered as taken out of the territorial law and
referred to what is called martial law." (Westlake, International Law, Part II, War, p.
96.)
According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so
far as it is used to describe any fact in relation to belligerent occupation, does not
refer to a particular code or system of law, or to a special agency entrusted with its
administration. The term merely signifies that the body of law actually applied,
having the sanction of military authority, is essentially martial. All law, by
whomsoever administered, in an occupied district martial law; and it is none the less
so when applied by civil courts in matters devoid of special interest to the occupant.
The words "martial law" are doubtless suggestive of the power of the occupant to
share the law as he sees fit; that is, to determine what shall be deemed lawful or
unlawful acts, to establish tests for ascertaining the guilt of offenders, to fix
penalties, and generally to administer justice through such agencies as the found
expedient.
And the United States Rules of Land Warfare provide that the belligerent occupant
may promulgate such new laws and regulations as military necessity demands, and in
this class will be included those laws which come into being as a result of military
rule; that is, those which establish new crimes and offenses incident to a state of war
and are necessary for the control of the country and the protection of the army, for
the principal object of the occupant is to provide for the security of the invading
army and to contribute to its support and efficiency and the success of its operations.
(Pub. 1940, pp. 76, 77.)
From the above it appears clear that it was within the power and competence of the
belligerent occupant to promulgate, through the National Assembly of the so-called
Republic of the Philippines, Act No. 65 of the said Assembly, which penalizes the
crimes of robbery and other offenses by imprisonment ranging from the maximum
period of the imprisonment prescribed by the laws and ordinances promulgated by
the President of the so-called Republic as minimum, to life imprisonment or death as
maximum. Although these crimes are defined in the Revised Penal Code, they were
altered and penalized by said Act No. 65 with different and heavier penalties, as new
crimes and offenses demanded by military necessity, incident to a state of war, and
necessary for the control of the country by the belligerent occupant, the protection
and safety of the army of occupation, its support and efficiency, and the success of
its operations.
They are not the same ordinary offenses penalized by the Revised Penal Code. —
The criminal acts penalized by said Act No. 65 are those committed by persons
charged or connected with the supervision and control of the production,
procurement and distribution of foods and other necessaries; and the penalties
imposed upon the violators are different from and much heavier than those provided
by the Revised Penal Code for the same ordinary crimes. The acts penalized by said
Act were taken out of the territorial law or Revised Penal Code, and referred to what
is called martial law by international jurists, defined above by Hyde, in order, not
only to prevent food and other necessaries from reaching the "guerrillas" which were
harassing the belligerent occupant from every nook and corner of the country, but
also to preserve the food supply and other necessaries in order that, in case of
necessity, the Imperial Japanese forces could easily requisition them, as they did, and
as they had the right to do in accordance with the law of nations for their
maintenance and subsistence (Art. LII, Sec. III, Hague Conventions of 1907).
Especially taking into consideration the fact, of which this court may take judicial
notice, that the Imperial Japanese Army had depended mostly for their supply upon
the produce of this country.
The crimes penalized by Act No. 65 — as well as the crimes against national
security and the law of nations, to wit: treason, espionage, inciting war, violation of
neutrality, correspondence with hostile country, flight to enemy's country, piracy;
and the crimes against public order, such as rebellion, sedition and disloyalty, illegal
possession of firearms and other, penalized by Ordinance No. 7 and placed under
jurisdiction of the Court of Special and Exclusive Criminal Jurisdiction — are all of
a political complexion, because the acts constituting those offenses were punished, as
are all political offenses, for public rather than private reasons, and were acts in aid
or favor of the enemy and against the welfare, safety and security of the belligerent
occupant. While it is true that these offenses, when committed against the
Commonwealth or United States Government, are defined and also penalized by the
territorial law Revised Penal Code, they became inapplicable as crimes against the
occupier upon the occupation of the Islands by the Japanese forces. And they had to
be taken out of the territorial law and made punishable by said Ordinance No. 7, for
they were not penalized before under the Revised Penal Code when committed
against the belligerent occupant or the government established by him in these
Island. They are also considered by some writers as war crimes in a broad sense. In
this connection Wheaton observes the following:
"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts
from time to time ordered to be done or forbidden to be done in the martial law
proclamation or regulations of the invading or occupying commander. Thus, in the
Anglo-Boer war, the British military authorities proclaimed the following to be
offenses against their martial law; — Being in possession of arms, ammunition, etc.;
traveling without a permit; sending prohibited goods; holding meetings other than
those allowed; using seditious language; spreading alarmist reports; overcharging for
goods; wearing uniforms without due authority; going out of doors between certain
hours; injuring military animals or stores; being in possession, without a permit, of
horses, vehicles, cycles, etc.; hindering those in execution of military orders;
trespassing on defense works. Such offenses, together with several others, were
specified in the Japanese regulations made in the Russo-Japanese war." (Wheaton's
International Law, War, seventh edition, 1944, p. 242.)
It is, therefore, evident that the sentence rendered by the Court of Special and
Exclusive Criminal Jurisdiction against the petitioner, imposing upon him the
penalty of life imprisonment, was good and valid, since it was within the admitted
power or competence of the belligerent occupant to promulgate the law penalizing
the crime of which petitioner was convicted.
(3) The last question is the legal effect of the reoccupation of the Philippines
and restoration of the Commonwealth Government; that is whether or not, by the
principle of postliminy, the punitive sentence which petitioner is now serving fell
through or ceased to be valid from that time.
In order to resolve this last question, it is not necessary to enter into an elaborate
discussion on the matter. It is sufficient to quote the opinion on the subject of several
international jurists and our recent decision in the case of Co Kim Cham vs. Valdez
Tan Keh and Dizon, supra.
Hall, commenting on the effect of the principle of postliminy upon sentences of the
tribunals continued or created by the belligerent occupant, opines "that judicial acts
done under this control, when they are not of a political complexion, administrative
acts so done, to the extent that they take effect during the continuance of his control,
and the various acts done during the same time by private persons under the sanction
of municipal law, remain good. . . . Political acts on the other hand fall through as of
course, whether they introduce any positive change into the organization of the
country, or whether they only suspend the working of that already in existence. The
execution also of punitive sentences ceases as of course when they have had
reference to acts not criminal by the municipal law of the state, such for example as
acts directed against the security or control of the invader." (Hall's International Law,
seventh edition, p. 518.)
Westlake, speaking of the duration of the validity of punitive sentences for offenses
such as the one in question, which is within the admitted power or competence of the
belligerent occupant to punish, says that: "To the extent to which the legal power of
the occupant is admitted he can make law for the duration of his occupation. Like
any other legislator he is morally subject to the duty of giving sufficient notice of his
enactments or regulations, not indeed so as to be debarred from carrying out his will
without notice, when required by military necessity and so far as practically carrying
out his will can be distinguished from punishment, but always remembering that to
punish for breach of a regulation a person who was justifiably ignorant of it would be
outrageous. But the law made by the occupant within his admitted power, whether
morally justifiable or not, will bind any member of the occupied population as
against any other member of it, and will bind as between them all and their national
government, so far as it produces an effect during the occupation. When the
occupation comes to an end the authority of the national government is restored,
either by the progress of operations during the war or by the conclusion of a peace,
no redress can be had for what has been actually carried out but nothing further can
follow from the occupant's legislation. A prisoner detained under it must be released,
and no civil right conferred by it can be further enforced. The enemy's law depends
on him for enforcement as well as for enactment. The invaded state is not subject to
the indignity of being obliged to execute his commands. (Westlake, International
Law, Part II, War, pp. 97, 98.)
And Wheaton, who, as above stated, considers as war crimes such offenses as those
penalized in Ordinance No. 7 and Act No. 65, says: "In general, the cast of the
occupant possess legal validity, and under international law should not be abrogated
by the subsequent government. But this rule does not necessarily apply to acts that
exceed the occupant's power (e.g., alienation of the domains of the State or the
sovereign), to sentences for 'war treason' and 'war crimes,' to acts of a political
character, and to those that beyond the period of occupation. When occupation
ceases, no reparation is legally due for what has already been carried out."
(Wheaton's International Law, supra, p. 245.)
We have already held in our recent decision in the case of Co Kim Cham vs. Valdez
Tan Keh and Dizon, supra, that all judgments of political complexion of the courts
during the Japanese regime, ceased to be valid upon the reoccupation of the islands
by virtue of the principle or right of postliminium. Applying that doctrine to the
present case, the sentence which convicted the petitioner of a crime of a political
complexion must be considered as having ceased to be valid ipso facto upon the
reoccupation or liberation of the Philippines by General Douglas MacArthur.
It may not be amiss to say in this connection that it is not necessary and proper to
invoke the proclamation of General Douglas MacArthur declaring null and void all
laws, among them Act No. 65, of the so-called Republic of the Philippines under
which petitioner was convicted, in order to give retroactive effect to the nullification
of said penal act and invalidate sentence rendered against petitioner under said law, a
sentence which, before the proclamation, had already become null and of no effect.
We therefore hold that the punitive sentence under consideration, although good and
valid during the military occupation of the Philippines by the Japanese forces, ceased
to be good and valid ipso facto upon the reoccupation of these Island and the
restoration therein of the Commonwealth Government.
In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted
and it is ordered that the petitioner be released forthwith, without pronouncement as
to costs. So ordered.
Jaranilla, Pablo and Bengzon, JJ., concur.
Moran, C.J., concurs in the result.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners,
vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for
respondents.
TUASON, J.:
This was a petition for prohibition, praying that the respondents, the Chief of Staff
and the General Court Martial of the Philippine Army, be commanded to desist from
further proceedings in the trial of petitioners before that body. Preliminary injunction
having been denied by us and the General Court Martial having gone ahead with the
trial, which eventually resulted in the acquittal of one of the defendants, Ramon
Ruffy, the dismissal of the case as to another, Victoriano Dinglasan, and the
conviction of Jose L. Garcia, Prudente M. Francisco, Dominador Adeva and Andres
Fortus, the last-named four petitioners now seek in their memorandum to convert the
petition into one for certiorari, with the prayer that the records of the proceedings
before the General Court Martial be ordered certified to this court for review.
The ground of the petition was that the petitioners were not subject to military law at
the time the offense for which they had been placed on trial was committed. In their
memorandum they have raised an additional question of law — that the 93d Article
of War is unconstitutional.
An outline of the petitioner's previous connection with the Philippine Army, the
Philippine Constabulary, and/or with guerrilla organizations will presently be made.
This outline is based on allegations in the petition and the answer, and on exhibits
attached thereto and to the parties' memoranda, exhibits which were offered in the
course of the oral argument and admitted without objection. The said exhibits are
public documents certified by the officials who had them in custody in their official
capacity. They are presumed to be authentic, as we have no doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the
Provincial Commander, Prudente M. Francisco, a junior officer, and Andres Fortus,
a corporal, all of the Philippine Constabulary garrison stationed in Mindoro. When,
on February 27, 1942, the Japanese forces landed in Mindoro, Major Ruffy retreated
to the mountains instead of surrendering to the enemy, disbanded his company, and
organized and led a guerrilla outfit known as Bolo Combat team of Bolo Area.
Lieutenant Francisco, Corporal Fortus and Jose L. Garcia, the last then a civilian
joined Major Ruffy's organization towards the latter part of 1942, while Dominador
Adeva and Victoriano Dinglasan, then likewise civilians, became its members some
time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the
Philippine Army, also took to the hills of Panay and led the operation of the 6th
Military District, one of the districts into which the Philippine Army had been
divided before the war. About November, 1942, Colonel Peralta succeeded in
contacting the General Headquarters of General MacArthur in Australia as the result
of which on February 13, 1943, the 6th Military District was recognized by the
Headquarters of the Southwest Pacific Area as a military unit and part of its
command.
Even before General MacArthur's recognition of the 6th Military District Colonel
Peralta had extended its sphere of operation to comprise Mindoro and Marinduque,
and had, on January 2, 1943, named Major Ruffy as Acting Commander for those
two provinces and Commanding Officer of the 3rd Battalion, 66 Infantry 61st
Division, Philippine Corps. After the recognition, 2d Lieut. Prudente M. Francisco,
by virtue of Special Orders No. 99, dated November 2, 1943, and signed by Enrique
L. Jurado, Major, OSE, Commanding, was assigned as S-3 in the Bolo Area. Major,
later Lieut. Col., Jurado, it should be noted, had been dispatched by the 6th Military
District to Mindoro to assume operational control supervision over the Bolo Area
unit and to make and direct the necessary report to the Headquarters, 6th Military
District, in Panay. On April 26, 1944, by General Orders No. 40 of the 6th Military
District, 2d Lieutenant Francisco was promoted to the rank of 1st Lieutenant
(Brevet), effective April 15, 1944, subject to approval by the President of the
Philippines, and was re-assigned to the Bolo Area. As to Andres Fortus he was
assigned to the same Bolo Area as probationary 3d lieutenant for two-month
probationary training, by the Headquarters of the 6th Military District, as per Special
Orders No. 70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District, dated
January 1943, and signed by L.R. Relunia, Lieut. Col., CE, Chief of Staff, Jose L.
Garcia and Dominador Adeva were appointed 3d lieutenants, infantry as of
December 31, 1942. Garcia later was promoted to the rank of captain, effective
March 15, 1943, as per Special Orders No. 82, issued in the field, 6th Military
District, and dated August 28, 1943. On May 24, 1943, Jose L. Garcia took his oath
before Captain Esteban P. Beloncio, then Acting Commanding Officer, 3d Battalion,
66th Infantry Regiment, 61st Division, 6th Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be
Commanding Officer of the Bolo Combat Team in Mindoro and to undertake other
missions of Military character. Pursuant to instructions, Colonel Jurado on
November 2, 1943, assigned Major Ruffy as Commanding Officer of the Bolo Area
with 3d Lieut. Dominador Adeva and 2d Lieut. Prudente M. Francisco as members
of his staff and Victoriano Dinglasan as Finance Officer, as per Special Orders No.
99 dated November 2, 1943. In a memorandum of Colonel Jurado for Major Ruffy
bearing date 25 June, 1944, it was stated that Captain Garcia had been given P5,000
for palay and Lieut. Francisco P9,000, P5,000 for palay and P4,000 for salary of the
personnel B. Company.
A change in the command of the Bolo Area was effected by Colonel Jurado on June
8, 1944: Major Ruffy was relieved of his assignment as Commanding Officer, Bolo
Battalion, and Capt. Esteban P. Beloncio was put in Ruffy's place. On October 19,
1944, Lieut. Col. Jurado was slain allegedly by the petitioners. After the commission
of this crime, the petitioners, it is alleged, seceded from the 6th Military District. It
was this murder which gave rise to petitioner's trial, the legality of which is now
being contested.
On July 26, 1941, the President of the Untied States issued a military order the
pertinent paragraph of which stated: ". . . as Commander in Chief of the Army and
Navy of the United States, I hereby call and order into the service of the armed
forces of the United States Army, for the period of the existing emergency, and place
under the command of the general officer, United States Army, to be designated by
the Secretary of War, from time to time, all of the organized military forces of the
Government of the Commonwealth." Following the issuance of President Roosevelt's
order General Douglas MacArthur was appointed Commanding General of the
United States Armed Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the
enemy occupation of the Philippines, the National Defense Act and all laws and
regulations creating and governing the existence of the Philippine Army including
the Articles of War, were suspended and in abeyance during such belligerent
occupation."
The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law
and Precedents and the subsequent paragraph which has been omitted furnish a
complete answer to petitioner's contention of the Philippines by Japanese forces, the
officers and men of the Philippine Army did not cease to be fully in the service,
though in a measure,' only in a measure, they were not subject to the military
jurisdiction, if they were not active duty. In the latter case, like officers and soldiers
on leave of absence or held as prisoners of war, they could not be held guilty of a
breach of the discipline of the command or of a neglect of duty, or disobedience of
orders, or mutiny, or subject to a military trial therefor; but for an act unbecoming an
officer and a gentleman, or an act which constitutes an offense of the class specified
in the 95th Article of War, they may in general be legally held subject to military
jurisdiction and trial. "So a prisoner of war, though not subject, while held by the
enemy, to the discipline of his own army, would, when exchanged of paroled, be not
exempt from liability for such offenses as criminal acts or injuriuos conduct
committed during his captivity against other officers or soldiers in the same status."
(Winthrop's Military Law and Precedents, 2d Edition, pp. 91, 92.)
The rule invoked by counsel, namely, that laws of political nature or affecting
political relations are considered superseded or in abeyance during the military
occupation, is intended for the governing of the civil inhabitants of the occupied
territory. It is not intended for and does not bind the enemies in arms. This is self-
evident from the very nature of things. The paradox of a contrary ruling should
readily manifest itself. Under the petitioner's theory the forces of resistance operating
in an occupied territory would have to abide by the outlawing of their own existence.
They would be stripped of the very life-blood of an army, the right and the ability to
maintain order and discipline within the organization and to try the men guilty of
breach thereof.
The surrender by General Wainright of the Fil-American Forces does not profit the
petitioner's who were former members of the Philippine Constabulary any more than
does the rule of war or international law they cite. The fall of Bataan and Corregidor
did not end the war. It did not, legally or otherwise, keep the United States and the
Commonwealth of the Philippines from organizing a new army, regular or irregular,
out of new men and men in the old service who had refused to surrender or who
having surrendered, had decided to carry on the fight through other diverse means
and methods. The fall of Corregidor and Bataan just marked the beginning of the
gigantic preparation for the gigantic drive that was to fight its way to and beyond the
Philippines in fulfillment of General MacArthur's classic promise, "I shall return."
The heroic role which the guerrillas played in that preparation and in the subsequent
liberation of the Philippines is now history.
Independently of their previous connection with the Philippine Army and the
Philippine Constabulary, Captain Francisco and Lieutenant Fortus as well as Major
Garcia and Lieutenant Adeva were subject to military jurisdiction.
The 2d Article of War defines and enumerates the persons subject to military law as
follows:
Art. 2. Persons Subject to Military Law. — The following persons are subject to
these articles and shall be understood as included in the term "any person subject to
military law" or "persons subject to military law," whenever used in these articles:
(a) All officers, members of the Nurse Corps and soldiers belonging to the Regular
Force of the Philippine Army; all reservists, from the dates of their call to active duty
and while on such active duty; all trainees undergoing military instructions; and all
other persons lawfully called, drafted, or order to obey the same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the Army
of the Philippines in the field in time of war or when martial law is declared though
not otherwise subject to these articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general application of the clause
in sub-paragraph (a); "and all other persons lawfully called, drafted, or ordered into,
or to duty for training in, the said service, from the dates they are required by the
terms of the call, draft, or order to obey the same." By their acceptance of
appointments as officers in the Bolo Area from the General Headquarters of the 6th
Military District, they became members of the Philippine Army amendable to the
Articles of War. The Bolo Area, as has been seen, was a contigent of the 6th Military
District which, as has also been pointed out, had been recognized by and placed
under the operational control of the United States Army in the Southwest Pacific.
The Bolo Area received supplies and funds for the salaries of its officers and men
from the Southwest Pacific Command. As officers in the Bolo Area and the 6th
Military District, the petitioners operated under the orders of duly established and
duly appointed commanders of the United States Army.
The attitude of the enemy toward underground movements did not affect the military
status of guerrillas who had been called into the service of the Philippine Army. If
the invaders refused to look upon guerrillas, without distinctions, as legitimate
troops, that did not stop the guerillas who had been inducted into the service of the
Philippine Army from being component parts thereof, bound to obey military status
of guerrillas was to be judged not by the concept of the army of the country for
which they fought.
provisions of the Constitution authorizing Congress to provide for the government of
the army, excepting military offenses from the civil jurisdiction, and making the
President Commander in Chief, observes as follows: "These provisions show that
Congress has the power to provide for the trial and punishment of military and naval
offenses in the manner then and now practiced by civilized nations, and that the
power to do so is given without any connection between it and the 3d Article of the
United States; indeed that the two powers are entirely independent of each other."
"Not belonging to the judicial branch of the government, it follows that courts-
martial must pertain to the executive department; and they are in fact simply
instrumentalities of the executive power, provided by Congress for the President as
Commander in Chief, to aid him in properly commanding the army and navy and
enforcing discipline therein, and utilized under his orders or those of his authorized
military representatives." (Winthrop's Military Law and Precedents, 2d Edition, p.
49.) Of equal interest Clode, 2 M. F., 361, says of these courts in the British law: "It
must never be lost sight of that the only legitimate object of military tribunals is to
aid the Crown to maintain the discipline and government of the Army." (Footnote
No. 24, p. 49, Winthrop's Military Law and Precedents, 2d Edition.)
Our conclusion, therefore, is that the petition has no merit and that it should be
dismissed with costs. It is so ordered.
Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and Padilla, JJ., concur.

The constitutionality of the 93d Article of War is assailed. This article ordains "that
any person subject to military law who commits murder in time of was shall suffer
death or imprisonment for life, as the court martial may direct." It is argued that
since "no review is provided by that law to be made by the Supreme Court,
irrespective of whether the punishment is for life imprisonment or death", it violates
Article VIII, section 2, paragraph 4, of the Constitution of the Philippines which
provides that "the National Assembly may not deprive the Supreme Court of its
original jurisdiction over all criminal cases in which the penalty imposed is death or
life imprisonment."

We think the petitioners are in error. This error arose from failure to perceive the
nature of courts martial and the sources of the authority for their creation.

Courts martial are agencies of executive character, and one of the authorities "for the
ordering of courts martial has been held to be attached to the constitutional functions
of the President as Commander in Chief, independently of legislation." (Winthrop's
Military Law and Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a
portion of the judiciary. "The Supreme Court of the United States referring to the
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26379 December 27, 1969
WILLIAM C. REAGAN, ETC., petitioner,
vs.
COMMISSIONER OF INTERNAL REVENUE, respondent.
Quasha, Asperilla, Blanco, Zafra and Tayag for petitioner.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General
Felicisimo R. Rosete, Solicitor Lolita O. Gal-lang and Special Attorney Gamaliel
H. Mantolino for respondent.
DECISION
FERNANDO, J.:
A question novel in character, the answer to which has far-reaching implications, is
raised by petitioner William C. Reagan, at one time a civilian employee of an
American corporation providing technical assistance to the United States Air Force
in the Philippines. He would dispute the payment of the income tax assessed on him
by respondent Commissioner of Internal Revenue on an amount realized by him on a
sale of his automobile to a member of the United States Marine Corps, the
transaction having taken place at the Clark Field Air Base at Pampanga. It is his
contention, seriously and earnestly expressed, that in legal contemplation the sale
was made outside Philippine territory and therefore beyond our jurisdictional power
to tax.
Such a plea, far-fetched and implausible, on its face betraying no kinship with
reality, he would justify by invoking, mistakenly as will hereafter be more fully
shown an observation to that effect in a 1951 opinion, 1 petitioner ignoring that such
utterance was made purely as a flourish of rhetoric and by way of emphasizing the
decision reached, that the trading firm as purchaser of army goods must respond for
the sales taxes due from an importer, as the American armed forces being exempt
could not be taxed as such under the National Internal Revenue Code.2 Such an
assumption, inspired by the commendable aim to render unavailing any attempt at
tax evasion on the part of such vendee, found expression anew in a 1962 decision,3
coupled with the reminder however, to render the truth unmistakable, that “the areas
covered by the United States Military Bases are not foreign territories both in the
political and geographical sense.”
As thus clarified, it is manifest that such a view amounts at most to a legal fiction
and is moreover obiter. It certainly cannot control the resolution of the specific
question that confronts us. We declare our stand in an unequivocal manner. The sale
having taken place on what indisputably is Philippine territory, petitioner’s liability
for the income tax due as a result thereof was unavoidable. As the Court of Tax
Appeals reached a similar conclusion, we sustain its decision now before us on
appeal.
In the decision appealed from, the Court of Tax Appeals, after stating the nature of
the case, started the recital of facts thus: “It appears that petitioner, a citizen of the
United States and an employee of Bendix Radio, Division of Bendix Aviation
Corporation, which provides technical assistance to the United States Air Force, was
assigned at Clark Air Base, Philippines, on or about July 7, 1959 … . Nine (9)
months thereafter and before his tour of duty expired, petitioner imported on April
22, 1960 a tax-free 1960 Cadillac car with accessories valued at $6,443.83, including
freight, insurance and other charges.”4 Then came the following: “On July 11, 1960,
more than two (2) months after the 1960 Cadillac car was imported into the
Philippines, petitioner requested the Base Commander, Clark Air Base, for a permit
to sell the car, which was granted provided that the sale was made to a member of
the United States Armed Forces or a citizen of the United States employed in the
U.S. military bases in the Philippines. On the same date, July 11, 1960, petitioner
sold his car for $6,600.00 to a certain Willie Johnson, Jr. (Private first class), United
States Marine Corps, Sangley Point, Cavite, Philippines, as shown by a Bill of
Sale . . . executed at Clark Air Base. On the same date, Pfc. Willie (William)
Johnson, Jr. sold the car to Fred Meneses for P32,000.00 as evidenced by a deed of
sale executed in Manila.”5
As a result of the transaction thus made, respondent Commissioner of Internal
Revenue, after deducting the landed cost of the car as well as the personal exemption
to which petitioner was entitled, fixed as his net taxable income arising from such
transaction the amount of P17,912.34, rendering him liable for income tax in the sum
of P2,979.00. After paying the sum, he sought a refund from respondent claiming
that he was exempt, but pending action on his request for refund, he filed the case
with the Court of Tax Appeals seeking recovery of the sum of P2,979.00 plus the
legal rate of interest.
As noted in the appealed decision: “The only issue submitted for our resolution is
whether or not the said income tax of P2,979.00 was legally collected by respondent
for petitioner.”6 After discussing the legal issues raised, primarily the contention that
the Clark Air Base “in legal contemplation, is a base outside the Philippines” the sale
therefore having taken place on “foreign soil”, the Court of Tax Appeals found
nothing objectionable in the assessment and thereafter the payment of P2,979.00 as
income tax and denied the refund on the same. Hence, this appeal predicated on a
legal theory we cannot accept. Petitioner cannot make out a case for reversal.
1. Resort to fundamentals is unavoidable to place things in their proper perspective,
petitioner apparently feeling justified in his refusal to defer to basic postulates of
constitutional and international law, induced no doubt by the weight he would accord
to the observation made by this Court in the two opinions earlier referred to. To
repeat, scant comfort, if at all is to be derived from such an obiter dictum, one which
is likewise far from reflecting the fact as it is.
Nothing is better settled than that the Philippines being independent and sovereign,
its authority may be exercised over its entire domain. There is no portion thereof that
is beyond its power. Within its limits, its decrees are supreme, its commands
paramount. Its laws govern therein, and everyone to whom it applies must submit to
its terms. That is the extent of its jurisdiction, both territorial and personal.
Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution
of its sovereignty.
It is to be admitted that any state may, by its consent, express or implied, submit to a
restriction of its sovereign rights. There may thus be a curtailment of what otherwise
is a power plenary in character. That is the concept of sovereignty as auto-limitation,
which, in the succinct language of Jellinek, “is the property of a state-force due to
which it has the exclusive capacity of legal self-determination and self-restriction.”7
A state then, if it chooses to, may refrain from the exercise of what otherwise is
illimitable competence.
Its laws may as to some persons found within its territory no longer control. Nor
does the matter end there. It is not precluded from allowing another power to
participate in the exercise of jurisdictional right over certain portions of its territory.
If it does so, it by no means follows that such areas become impressed with an alien
character. They retain their status as native soil. They are still subject to its authority.
Its jurisdiction may be diminished, but it does not disappear. So it is with the bases
under lease to the American armed forces by virtue of the military bases agreement
of 1947. They are not and cannot be foreign territory.
Decisions coming from petitioner’s native land, penned by jurists of repute, speak to
that effect with impressive unanimity. We start with the citation from Chief Justice
Marshall, announced in the leading case of Schooner Exchange v. M’Faddon,8 an
1812 decision: “The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any
restriction upon it, deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restriction, and an investment of
that sovereignty to the same extent in that power which could impose such
restriction.” After which came this paragraph: “All exceptions, therefore, to the full
and complete power of a nation within its own territories, must be traced up to the
consent of the nation itself. They can flow from no other legitimate source.”
Chief Justice Taney, in an 1857 decision,9 affirmed the fundamental principle of
everyone within the territorial domain of a state being subject to its commands: “For
undoubtedly every person who is found within the limits of a government, whether
the temporary purposes or as a resident, is bound by its laws.” It is no exaggeration
then for Justice Brewer to stress that the United States government “is one having
jurisdiction over every foot of soil within its territory, and acting directly upon each
[individual found therein]; . . .”10
Not too long ago, there was a reiteration of such a view, this time from the pen of
Justice Van Devanter. Thus: “It now is settled in the United States and recognized
elsewhere that the territory subject to its jurisdiction includes the land areas under its
dominion and control the ports, harbors, bays, and other in closed arms of the sea
along its coast, and a marginal belt of the sea extending from the coast line outward a
marine league, or 3 geographic miles.”11 He could cite moreover, in addition to
many American decisions, such eminent treatise-writers as Kent, Moore, Hyde,
Wilson, Westlake, Wheaton and Oppenheim.
As a matter of fact, the eminent commentator Hyde in his three-volume work on
International Law, as interpreted and applied by the United States, made clear that
not even the embassy premises of a foreign power are to be considered outside the
territorial domain of the host state. Thus: “The ground occupied by an embassy is not
in fact the territory of the foreign State to which the premises belong through
possession or ownership. The lawfulness or unlawfulness of acts there committed is
determined by the territorial sovereign. If an attaché commits an offense within the
precincts of an embassy, his immunity from prosecution is not because he has not
violated the local law, but rather for the reason that the individual is exempt from
prosecution. If a person not so exempt, or whose immunity is waived, similarly
commits a crime therein, the territorial sovereign, if it secures custody of the
offender, may subject him to prosecution, even though its criminal code normally
does not contemplate the punishment of one who commits an offense outside of the
national domain. It is not believed, therefore, that an ambassador himself possesses
the right to exercise jurisdiction, contrary to the will of the State of his sojourn, even
within his embassy with respect to acts there committed. Nor is there apparent at the
present time any tendency on the part of States to acquiesce in his exercise of it.”12
2. In the light of the above, the first and crucial error imputed to the Court of Tax
Appeals to the effect that it should have held that the Clark Air Force is foreign soil
or territory for purposes of income tax legislation is clearly without support in law.
As thus correctly viewed, petitioner’s hope for the reversal of the decision
completely fades away. There is nothing in the Military Bases Agreement that lends
support to such an assertion. It has not become foreign soil or territory. This
country’s jurisdictional rights therein, certainly not excluding the power to tax, have
been preserved. As to certain tax matters, an appropriate exemption was provided
for.
Petitioner could not have been unaware that to maintain the contrary would be to
defy reality and would be an affront to the law. While his first assigned error is thus
worded, he would seek to impart plausibility to his claim by the ostensible
invocation of the exemption clause in the Agreement by virtue of which a “national
of the United States serving in or employed in the Philippines in connection with the
construction, maintenance, operation or defense of the bases and residing in the
Philippines only by reason of such employment” is not to be taxed on his income
unless “derived from Philippine source or sources other than the United States
sources.”13 The reliance, to repeat, is more apparent than real for as noted at the
outset of this opinion, petitioner places more faith not on the language of the
provision on exemption but on a sentiment given expression in a 1951 opinion of this
Court, which would be made to yield such an unwarranted interpretation at war with
the controlling constitutional and international law principles. At any rate, even if
such a contention were more adequately pressed and insisted upon, it is on its face
devoid of merit as the source clearly was Philippine.
In Saura Import and Export Co. v. Meer,14 the case above referred to, this Court
affirmed a decision rendered about seven months previously,15 holding liable as an
importer, within the contemplation of the National Internal Revenue Code provision,
the trading firm that purchased army goods from a United States government agency
in the Philippines. It is easily understandable why. If it were not thus, tax evasion
would have been facilitated. The United States forces that brought in such equipment
later disposed of as surplus, when no longer needed for military purposes, was
beyond the reach of our tax statutes.
Justice Tuason, who spoke for the Court, adhered to such a rationale, quoting
extensively from the earlier opinion. He could have stopped there. He chose not to
do so. The transaction having occurred in 1946, not so long after the liberation of the
Philippines, he proceeded to discuss the role of the American military contingent in
the Philippines as a belligerent occupant. In the course of such a dissertion, drawing
on his well-known gift for rhetoric and cognizant that he was making an as if
statement, he did say: “While in army bases or installations within the Philippines
those goods were in contemplation of law on foreign soil.”
It is thus evident that the first, and thereafter the controlling, decision as to the
liability for sales taxes as an importer by the purchaser, could have been reached
without any need for such expression as that given utterance by Justice Tuason. Its
value then as an authoritative doctrine cannot be as much as petitioner would
mistakenly attach to it. It was clearly obiter not being necessary for the resolution of
the issue before this Court.16 It was an opinion “uttered by the way.”17 It could not
then be controlling on the question before us now, the liability of the petitioner for
income tax which, as announced at the opening of this opinion, is squarely raised for
the first time.18
On this point, Chief Justice Marshall could again be listened to with profit. Thus: “It
is a maxim, not to be disregarded, that general expressions, in every opinion, are to
be taken in connection with the case in which those expressions are used. If they go
beyond the case, they may be respected, but ought not to control the judgment in a
subsequent suit when the very point is presented for decision.”19
Nor did the fact that such utterance of Justice Tuason was cited in Co Po v. Collector
of Internal Revenue,20 a 1962 decision relied upon by petitioner, put a different
complexion on the matter. Again, it was by way of pure embellishment, there being
no need to repeat it, to reach the conclusion that it was the purchaser of army goods,
this time from military bases, that must respond for the advance sales taxes as
importer. Again, the purpose that animated the reiteration of such a view was clearly
to emphasize that through the employment of such a fiction, tax evasion is precluded.
What is more, how far divorced from the truth was such statement was emphasized
by Justice Barrera, who penned the Co Po opinion, thus: “It is true that the areas
covered by the United States Military Bases are not foreign territories both in the
political and geographical sense.”21
Justice Tuason moreover made explicit that rather than corresponding with reality,
what was said by him was in the way of a legal fiction. Note his stress on “in
contemplation of law.” To lend further support to a conclusion already announced,
being at that a confirmation of what had been arrived at in the earlier case,
distinguished by its sound appreciation of the issue then before this Court and to
preclude any tax evasion, an observation certainly not to be taken literally was thus
given utterance.
This is not to say that it should have been ignored altogether afterwards. It could be
utilized again, as it undoubtedly was, especially so for the purpose intended, namely
to stigmatize as without support in law any attempt on the part of a taxpayer to
escape an obligation incumbent upon him. So it was quoted with that end in view in
the Co Po case. It certainly does not justify any effort to render futile the collection
of a tax legally due, as here. That was farthest from the thought of Justice Tuason.
What is more, the statement on its face is, to repeat, a legal fiction. This is not to
discount the uses of a fictio juris in the science of the law. It was Cardozo who
pointed out its value as a device “to advance the ends of justice” although at times it
could be “clumsy” and even “offensive”.22 Certainly, then, while far from
objectionable as thus enunciated, this observation of Justice Tuason could be
misused or misconstrued in a clumsy manner to reach an offensive result. To repeat,
properly used, a legal fiction could be relied upon by the law, as Frankfurter noted,
in the pursuit of legitimate ends.23 Petitioner then would be well-advised to take to
heart such counsel of care and circumspection before invoking not a legal fiction that
would avoid a mockery of the law by avoiding tax evasion but what clearly is a
misinterpretation thereof, leading to results that would have shocked its originator.
The conclusion is thus irresistible that the crucial error assigned, the only one that
calls for discussion to the effect that for income tax purposes the Clark Air Force
Base is outside Philippine territory, is utterly without merit. So we have said earlier.
3. To impute then to the statement of Justice Tuason the meaning that petitioner WHEREFORE, the decision of the Court of Tax Appeals of May 12, 1966 denying
would fasten on it is, to paraphrase Frankfurter, to be guilty of succumbing to the the refund of P2,979.00 as the income tax paid by petitioner is AFFIRMED. With
vice of literalness. To so conclude is, whether by design or inadvertence, to misread costs against petitioner.
it. It certainly is not susceptible of the mischievous consequences now sought to be
fastened on it by petitioner. Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Teehankee, JJ.,
concur.
That it would be fraught with such peril to the enforcement of our tax statutes on the
military bases under lease to the American armed forces could not have been within Reyes, J.B.L., J., concurs in the result.
the contemplation of Justice Tuason. To so attribute such a bizarre consequence is to
be guilty of a grave disservice to the memory of a great jurist. For his real and Barredo, J., took no part.
genuine sentiment on the matter in consonance with the imperative mandate of
controlling constitutional and international law concepts was categorically set forth
by him, not as an obiter but as the rationale of the decision, in People v. Acierto24
thus: “By the [Military Bases] Agreement, it should be noted, the Philippine
Government merely consents that the United States exercise jurisdiction in certain
cases. The consent was given purely as a matter of comity, courtesy, or expediency
over the bases as part of the Philippine territory or divested itself completely of
jurisdiction over offenses committed therein.”

Nor did he stop there. He did stress further the full extent of our territorial
jurisdiction in words that do not admit of doubt. Thus: “This provision is not and
cannot on principle or authority be construed as a limitation upon the rights of the
Philippine Government. If anything, it is an emphatic recognition and reaffirmation
of Philippine sovereignty over the bases and of the truth that all jurisdictional rights
granted to the United States and not exercised by the latter are reserved by the
Philippines for itself.”25

It is in the same spirit that we approach the specific question confronting us in this
litigation. We hold, as announced at the outset, that petitioner was liable for the
income tax arising from a sale of his automobile in the Clark Field Air Base, which
clearly is and cannot otherwise be other than, within our territorial jurisdiction to tax.

4. With the mist thus lifted from the situation as it truly presents itself, there is
nothing that stands in the way of an affirmance of the Court of Tax Appeals decision.
No useful purpose would be served by discussing the other assigned errors, petitioner
himself being fully aware that if the Clark Air Force Base is to be considered, as it
ought to be and as it is, Philippine soil or territory, his claim for exemption from the
income tax due was distinguished only by its futility.

There is further satisfaction in finding ourselves unable to indulge petitioner in his

plea for reversal. We thus manifest fealty to a pronouncement made time and time
again that the law does not look with favor on tax exemptions and that he who would
seek to be thus privileged must justify it by words too plain to be mistaken and too
categorical to be misinterpreted.26 Petitioner had not done so. Petitioner cannot do
so.
PROVINCE OF NORTH COTABATO VS GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
Posted by kaye lee on 9:43 PM
G.R. No. 183591 October 14 2008
Province of North Cotabato vs Government of the Republic of the Philippines
FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro
Islamic Liberation Front (MILF) were scheduled to sign a Memorandum of
Agreement of the Ancestral Domain Aspect of the GRP - MILF Tripoli Agreement
on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to
compel respondents to disclose and furnish them the complete and official copies of
the MA-AD and to prohibit the slated signing of the MOA-AD and the holding of
public consultation thereon. They also pray that the MOA-AD be declared
unconstitutional. The Court issued a TRO enjoining the GRP from signing the same.
ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe for
adjudication;
2. Whether or not there is a violation of the people's right to information on matters
of public concern (Art 3 Sec. 7) under a state policy of full disclosure of all its
transactions involving public interest (Art 2, Sec 28) including public consultation
under RA 7160 (Local Government Code of 1991)
3. Whether or not the signing of 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)
RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the respondents to
consult the local government units or communities affected constitutes a departure
by respondents from their mandate under EO No. 3. Moreover, the 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.
In Pimentel, Jr. v. Aguirre, 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.x x x x
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.
That the law or act in question is not yet effective does not negate ripeness.
2. Yes. The Court finds that there is a grave violation of the Constitution involved in
the matters of public concern (Sec 7 Art III) under a state policy of full disclosure of
all its transactions involving public interest (Art 2, Sec 28) including public
consultation under RA 7160 (Local Government Code of 1991).
(Sec 7 ArtIII) The right to information guarantees the right of the people to demand
information, while Sec 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.
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.
3.
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;
Yes. The 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.
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, 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. 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.
b) to revise or amend the Constitution and existing laws to conform to the MOA:
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 .
It will be observed that the President has authority, as stated in her oath of office,
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 “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 guarantee to 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.
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)
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.
Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD,
includes not only “Moros” as traditionally understood even by Muslims, 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. Both parties to the
MOA-AD acknowledge that ancestral domain does not form part of the public
domain.
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.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations beforeany 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.
CONCLUSION:
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.