co kim cham vs valdez tan keh.docx

7/25/2019 Co kim Cham vs Valdez Tan Keh.docx

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

CO KIM CHM !"#$"% CO KIM CHM&,petitioner,vs.EUSE'IO (L)E* TN KEH "+ RSENIO P. )I*ON, /e o0 $r%t I+%t"+2e o0M"+$#",respondents.1

Marcelino Lontok for petitioner.P. A. Revilla for respondent Valdez Tan Keh.Respondent Judge Dizon in his on !ehalf.

ERI, J.:

This petition for "anda"usin which petitioner pras that the respondent !ud"e of the lowercourt be ordered to continue the proceedin"s in civil case No. #$1% of said court, which wereinitiated under the re"i&e of the so'called Republic of the Philippines established durin" the(apanese &ilitar occupation of these )slands.

The respondent !ud"e refused to ta*e co"ni+ance of and continue the proceedin"s in said caseon the "round that the procla&ation issued on ctober %#, 1-, b /eneral 0ou"lasMacArthur had the effect of invalidatin" and nullifin" all !udicial proceedin"s and !ud"e&ents ofthe court of the Philippines under the Philippine Eecutive Co&&ission and the Republic of the

Philippines established durin" the (apanese &ilitar occupation, and that, further&ore, thelower courts have no !urisdiction to ta*e co"ni+ance of and continue !udicial proceedin"spendin" in the courts of the defunct Republic of the Philippines in the absence of an enablin"law "rantin" such authorit. And the sa&e respondent, in his answer and &e&orandu& filed inthis Court, contends that the "overn&ent established in the Philippines durin" the (apaneseoccupation were no de facto"overn&ents.

n (anuar %, 1-%, the )&perial (apanese 2orces occupied the Cit of Manila, and on the netda their Co&&ander in Chief proclai&ed 3the Militar Ad&inistration under law over thedistricts occupied b the Ar&.3 )n said procla&ation, it was also provided that 3so far as theMilitar Ad&inistration per&its, all the laws now in force in the Co&&onwealth, as well aseecutive and !udicial institutions, shall continue to be effective for the ti&e bein" as in the past,3

and 3all public officials shall re&ain in their present posts and carr on faithfull their duties asbefore.3

A civil "overn&ent or central ad&inistration or"ani+ation under the na&e of 3PhilippineEecutive Co&&ission was or"ani+ed b rder No. 1 issued on (anuar %#, 1-%, b theCo&&ander in Chief of the (apanese 2orces in the Philippines, and (or"e B. 4ar"as, who wasappointed Chair&an thereof, was instructed to proceed to the i&&ediate coordination of theeistin" central ad&inistrative or"ans and !udicial courts, based upon what had eistedtherefore, with approval of the said Co&&ander in Chief, who was to eercise !urisdiction over

!udicial courts.

The Chair&an of the Eecutive Co&&ission, as head of the central ad&inistrative or"ani+ation,

issued Eecutive rders Nos. 1 and , dated (anuar #$ and 2ebruar 5, 1-%, respectivel, inwhich the 6upre&e Court, Court of Appeals, Courts of 2irst )nstance, and the !ustices of thepeace and &unicipal courts under the Co&&onwealth were continued with the sa&e

!urisdiction, in confor&it with the instructions "iven to the said Chair&an of the EecutiveCo&&ission b the Co&&ander in Chief of (apanese 2orces in the Philippines in the latter7srder No. # of 2ebruar %$, 1-%, concernin" basic principles to be observed b the PhilippineEecutive Co&&ission in eercisin" le"islative, eecutive and !udicial powers. 6ection 1 of said


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rder provided that 3activities of the ad&inistration or"ans and !udicial courts in the Philippinesshall be based upon the eistin" statutes, orders, ordinances and custo&s. . . .3

n ctober 1, 1-#, the so'called Republic of the Philippines was inau"urated, but nosubstantial chan"e was effected thereb in the or"ani+ation and !urisdiction of the differentcourts that functioned durin" the Philippine Eecutive Co&&ission, and in the laws the

ad&inistered and enforced.

n ctober %#, 1-, a few das after the historic landin" in 8ete, /eneral 0ou"las MacArthurissued a procla&ation to the People of the Philippines which declared9

1. That the /overn&ent of the Co&&onwealth of the Philippines is, sub!ect to thesupre&e authorit of the /overn&ent of the :nited 6tates, the sole and onl"overn&ent havin" le"al and valid !urisdiction over the people in areas of the Philippinesfree of ene& occupation and control;

%. That the laws now eistin" on the statute boo*s of the Co&&onwealth of thePhilippines and the re"ulations pro&ul"ated pursuant thereto are in full force and effectand le"all bindin" upon the people in areas of the Philippines free of ene& occupationand control; and

#. That all laws, re"ulations and processes of an other "overn&ent in the Philippinesthan that of the said Co&&onwealth are null and void and without le"al effect in areas ofthe Philippines free of ene& occupation and control.

n 2ebruar #, 1-5, the Cit of Manila was partiall liberated and on 2ebruar %1? @hether the !udicial acts andproceedin"s of the court eistin" in the Philippines under the Philippine Eecutive Co&&issionand the Republic of the Philippines were "ood and valid and re&ained so even after theliberation or reoccupation of the Philippines b the :nited 6tates and 2ilipino forces; >%?@hetherthe procla&ation issued on ctober %#, 1-, b /eneral 0ou"las MacArthur, Co&&ander inChief of the :nited 6tates Ar&, in which he declared 3that all laws, re"ulations and processesof an of the "overn&ent in the Philippines than that of the said Co&&onwealth are null andvoid and without le"al effect in areas of the Philippines free of ene& occupation and control,3has invalidated all !ud"e&ents and !udicial acts and proceedin"s of the said courts; and >#? )fthe said !udicial acts and proceedin"s have not been invalidated b said procla&ation, whether

the present courts of the Co&&onwealth, which were the sa&e court eistin" prior to, andcontinued durin", the (apanese &ilitar occupation of the Philippines, &a continue thoseproceedin"s pendin" in said courts at the ti&e the Philippines were reoccupied and liberated bthe :nited 6tates and 2ilipino forces, and the Co&&onwealth of the Philippines werereestablished in the )slands.

@e shall now proceed to consider the first =uestion, that is, whether or not under the rules ofinternational law the !udicial acts and proceedin"s of the courts established in the Philippinesunder the Philippine Eecutive Co&&ission and the Republic of the Philippines were "ood andvalid and re&ained "ood and valid even after the liberation or reoccupation of the Philippines bthe :nited 6tates and 2ilipino forces.

1. )t is a le"al truis& in political and international law that all acts and proceedin"s of thele"islative, eecutive, and !udicial depart&ents of a de facto"overn&ent are "ood and valid.The =uestion to be deter&ined is whether or not the "overn&ents established in these )slandsunder the na&es of the Philippine Eecutive Co&&ission and Republic of the Philippines durin"the (apanese &ilitar occupation or re"i&e were de facto"overn&ents. )f the were, the !udicialacts and proceedin"s of those "overn&ents re&ain "ood and valid even after the liberation orreoccupation of the Philippines b the A&erican and 2ilipino forces.


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There are several *inds of de facto"overn&ents. The first, or "overn&ent de facto in a properle"al sense, is that "overn&ent that "ets possession and control of, or usurps, b force or bthe voice of the &a!orit, the ri"htful le"al "overn&ents and &aintains itself a"ainst the will ofthe latter, such as the "overn&ent of En"land under the Co&&onwealth, first b Parlia&ent andlater b Cro&well as Protector. The second is that which is established and &aintained b&ilitar forces who invade and occup a territor of the ene& in the course of war, and which is

deno&inated a "overn&ent of para&ount force, as the cases of Castine, in Maine, which wasreduced to British possession in the war of 11%, and Ta&pico, Meico, occupied durin" the warwith Meico, b the troops of the :nited 6tates. And the third is that established as anindependent "overn&ent b the inhabitants of a countr who rise in insurrection a"ainst theparent state of such as the "overn&ent of the 6outhern Confederac in revolt not concerned inthe present case with the first *ind, but onl with the second and third *inds of defacto"overn&ents.

6pea*in" of "overn&ent 3de facto3 of the second *ind, the 6upre&e Court of the :nited 6tates,in the case of Thorin"ton vs.6&ith > @all., 1?, said9 3But there is another description of"overn&ent, called also b publicists a "overn&ent de facto, but which &i"ht, perhaps, be &oreaptl deno&inated a "overn&ent of para&ount force. )ts distin"uishin" characteristics are >1?,

that its eistence is &aintained b active &ilitar power with the territories, and a"ainst theri"htful authorit of an established and lawful "overn&ent; and >%?, that while it eists itnecessaril be obeed in civil &atters b private citi+ens who, b acts of obedience rendered insub&ission to such force, do not beco&e responsible, or wron"doers, for those acts, thou"h notwarranted b the laws of the ri"htful "overn&ent. Actual "overn&ents of this sort areestablished over districts differin" "reatl in etent and conditions. The are usuallad&inistered directl b &ilitar authorit, but the &a be ad&inistered, also, civil authorit,supported &ore or less directl b &ilitar force. . . . ne ea&ple of this sort of "overn&ent isfound in the case of Castine, in Mine, reduced to British possession in the war of 11% . . . :.6. vs.Rice > @heaton, %5#?. A li*e ea&ple is found in the case of Ta&pico, occupied durin"the war with Meico, b the troops of the :nited 6tates . . . 2le&in" vs.Pa"e >- oward, 1?.These were cases of te&porar possessions of territor b lawfull and re"ular "overn&ents at

war with the countr of which the territor so possessed was part.3

The powers and duties of de facto"overn&ents of this description are re"ulated in 6ection ))) ofthe a"ue Conventions of 1-$4ol. %, p. ?9 3The ri"ht of one belli"erent to occup and "overn the territor of the ene&while in its &ilitar possession, is one of the incidents of war, and flows directl fro& the ri"ht tocon=uer. @e, therefore, do not loo* to the Constitution or political institutions of the con=ueror,


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for authorit to establish a "overn&ent for the territor of the ene& in his possession, durin" its&ilitar occupation, nor for the rules b which the powers of such "overn&ent are re"ulated andli&ited. 6uch authorit and such rules are derived directl fro& the laws war, as established bthe usa"e of the of the world, and confir&ed b the writin"s of publicists and decisions of courtsD in fine, fro& the law of nations. . . . The &unicipal laws of a con=uered territor, or the lawswhich re"ulate private ri"hts, continue in force durin" &ilitar occupation, ecepts so far as the

are suspended or chan"ed b the acts of con=ueror. . . . e, nevertheless, has all the powers ofa de facto"overn&ent, and can at his pleasure either chan"e the eistin" laws or &a*e newones.3

And applin" the principles for the eercise of &ilitar authorit in an occupied territor, whichwere later e&bodied in the said a"ue Conventions, President Mcinle, in his eecutive orderto the 6ecretar of @ar of Ma 1-,1-, relatin" to the occupation of the Philippines b :nited6tates forces, said in part9 3Thou"h the powers of the &ilitar occupant are absolute andsupre&e, and i&&ediatel operate upon the political condition of the inhabitants, the &unicipallaws of the con=uered territor, such as affect private ri"hts of person and propert and providefor the punish&ent of cri&e, are considered as continuin" in force, so far as the are co&patiblewith the new order of thin"s, until the are suspended or superseded b the occupin"

belli"erent; and in practice the are not usuall abro"ated, but are allowed to re&ain in forceand to be ad&inistered b the ordinar tribunals, substantiall as the were before theoccupation. This enli"htened practice is, so far as possible, to be adhered to on the presentoccasion. The !ud"es and the other officials connected with the ad&inistration of !ustice &a, ifthe accept the authorit of the :nited 6tates, continue to ad&inister the ordinar law of theland as between &an and &an under the supervision of the A&erican Co&&ander in Chief.3>Richardson7s Messa"es and Papers of President, F, p. %$-.?

As to 3de facto3 "overn&ent of the third *ind, the 6upre&e Court of the :nited 6tates, in thesa&e case of Thorin"ton vs.6&ith, supra, reco"ni+ed the "overn&ent set up b theConfederate 6tates as a de facto"overn&ent. )n that case, it was held that 3the central"overn&ent established for the insur"ent 6tates differed fro& the te&porar "overn&ents at

Castine and Ta&pico in the circu&stance that its authorit did no ori"inate in lawful acts ofre"ular war; but it was not, on the account, less actual or less supre&e. And we thin* that it&ust be classed a&on" the "overn&ents of which these are ea&ples. . . .

)n the case of @illia& vs.Bruff >- :. 6. 1


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insurrection973 and 3That !udicial and le"islative acts in the respective states co&posin" the so'called Confederate 6tates should be respected b the courts if the were not hostile in theirpurpose or &ode of enforce&ent to the authorit of the National /overn&ent, and did not i&pairthe ri"hts of citi+ens under the Constitution.3

)n view of the fore"oin", it is evident that the Philippine Eecutive Co&&ission, which was

or"ani+ed b rder No. 1, issued on (anuar %#, 1-%, b the Co&&ander of the (apaneseforces, was a civil "overn&ent established b the &ilitar forces of occupation and thereforea de facto"overn&ent of the second *ind. )t was not different fro& the "overn&ent establishedb the British in Castine, Maine, or b the :nited 6tates in Ta&pico, Meico. As allec* sas,3The "overn&ent established over an ene&7s territor durin" the &ilitar occupation &aeercise all the powers "iven b the laws of war to the con=ueror over the con=uered, and issub!ect to all restrictions which that code i&poses. )t is of little conse=uence whether such"overn&ent be called a &ilitar or civil "overn&ent. )ts character is the sa&e and the source ofits authorit the sa&e. )n either case it is a "overn&ent i&posed b the laws of war, and so far itconcerns the inhabitants of such territor or the rest of the world, those laws alone deter&inethe le"alit or ille"alit of its acts.3 >4ol. %, p. .? The fact that the Philippine EecutiveCo&&ission was a civil and not a &ilitar "overn&ent and was run b 2ilipinos and not b

(apanese nationals, is of no conse=uence. )n 1$, when Napoleon occupied the "reater part ofPrussia, he retained the eistin" ad&inistration under the "eneral direction of a french official>8an"fre istor of Napoleon, 1, )4, %5?; and, in the sa&e wa, the 0u*e of @illin"ton, oninvadin" 2rance, authori+ed the local authorities to continue the eercise of their functions,apparentl without appointin" an En"lish superior. >@ellin"ton 0espatches, F), #$which prohibitsco&pulsion of the population of the occupied territor to swear alle"iance to the hostile power?,

the belli"erent occupation, !eing essentiall$ provisional, does not serve to transfer soverei"ntover the territor controlled althou"h thede &ure "overn&ent is durin" the period of occupancdeprived of the power to eercise its ri"hts as such. >Thirt o"shead of 6u"ar vs.Bole, -Cranch, 1-1; :nited 6tates vs.Rice, @heat., %; 2le&in" vs.Pa"e, - oward, $#;0ownes vs.Bidwell, 1% :. 6., #5.? The for&ation of the Republic of the Philippines was asche&e contrived b (apan to delude the 2ilipino people into believin" in the apparent&a"nani&it of the (apanese "esture of transferrin" or turnin" over the ri"hts of "overn&entinto the hands of 2ilipinos. )t was established under the &ista*en belief that b doin" so, (apanwould secure the cooperation or at least the neutralit of the 2ilipino people in her war a"ainstthe :nited 6tates and other allied nations.

)ndeed, even if the Republic of the Philippines had been established b the free will of the

2ilipino who, ta*in" advanta"e of the withdrawal of the A&erican forces fro& the )slands, andthe occupation thereof b the (apanese forces of invasion, had or"ani+ed an independent"overn&ent under the na&e with the support and bac*in" of (apan, such "overn&ent wouldhave been considered as one established b the 2ilipinos in insurrection or rebellion a"ainst theparent state or the :nite 6tates. And as such, it would have been a de facto"overn&ent si&ilarto that or"ani+ed b the confederate states durin" the war of secession and reco"ni+ed as suchb the b the 6upre&e Court of the :nited 6tates in nu&erous cases, notabl those ofThorin"ton vs.6&ith, @illia&s vs.Bruff, and Badl vs.unter, above =uoted; and si&ilar to the


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short'lived "overn&ent established b the 2ilipino insur"ents in the )sland of Cebu durin" the6panish'A&erican war, reco"ni+ed as a de facto"overn&ent b the 6upre&e Court of the:nited 6tates in the case of McCleod vs.:nited 6tates >%-- :. 6., 1?. Accordin" to the factsin the last'na&ed case, the 6panish forces evacuated the )sland of Cebu on 0ece&ber %5,1-, havin" first appointed a provisional "overn&ent, and shortl afterwards, the 2ilipinos,for&erl in insurrection a"ainst 6pain, too* possession of the )slands and established a

republic, "overnin" the )slands until possession thereof was surrendered to the :nited 6tates on2ebruar %%, 1-. And the said 6upre&e Court held in that case that 3such "overn&ent as ofthe class of de facto"overn&ents described in ) Moore7s )nternational 8aw 0i"est, 6 %$, . . .7called also b publicists a "overn&ent de facto, but which &i"ht, perhaps, be &ore aptldeno&inated a "overn&ent of para&ount force . . 7.3 That is to sa, that the "overn&ent of acountr in possession of belli"erent forces in insurrection or rebellion a"ainst the parent state,rests upon the sa&e principles as that of a territor occupied b the hostile ar& of an ene& atre"ular war with the le"iti&ate power.

The "overn&ents b the Philippine Eecutive Co&&ission and the Republic of the Philippinesdurin" the (apanese &ilitar occupation bein" de facto"overn&ents, it necessaril follows thatthe !udicial acts and proceedin"s of the courts of !ustice of those "overn&ents, which are not of

a political co&pleion, were "ood and valid, and, b virtue of the well'*nown principle ofpostli&in >postli&iniu&? in international law, re&ained "ood and valid after the liberation orreoccupation of the Philippines b the A&erican and 2ilipino forces under the leadership of/eneral 0ou"las MacArthur. Accordin" to that well'*nown principle in international law, the factthat a territor which has been occupied b an ene& co&es a"ain into the power of itsle"iti&ate "overn&ent of soverei"nt, 3does not, ecept in a ver few cases, wipe out the effectsof acts done b an invader, which for one reason or another it is within his co&petence to do.Thus !udicial acts done under his control, when the are not of a political co&pleion,ad&inistrative acts so done, to the etent that the ta*e effect durin" the continuance of hiscontrol, and the various acts done durin" the sa&e ti&e b private persons under the sanctionof &unicipal law, re&ain "ood. @ere it otherwise, the whole social life of a co&&unit would beparal+ed b an invasion; and as between the state and the individuals the evil would be

scarcel less, D it would be hard for ea&ple that pa&ent of taes &ade under duress shouldbe i"nored, and it would be contrar to the "eneral interest that the sentences passed uponcri&inals should be annulled b the disappearance of the intrusive "overn&ent .3 >all,)nternational 8aw,


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principles of international law. The onl reasonable construction of the said phrase is that itrefers to "overn&ental processes other than !udicial processes of court proceedin"s, foraccordin" to a well'*nown rule of statutor construction, set forth in %5 R. C. 8., p. 1$%, 3astatute ou"ht never to be construed to violate the law of nations if an other possibleconstruction re&ains.3

)t is true that the co&&andin" "eneral of a belli"erent ar& of occupation, as an a"ent of his"overn&ent, &a not unlawfull suspend eistin" laws and pro&ul"ate new ones in theoccupied territor, if and when the ei"encies of the &ilitar occupation de&and such action.But even assu&in" that, under the law of nations, the le"islative power of a co&&ander in chiefof &ilitar forces who liberates or reoccupies his own territor which has been occupied b anene&, durin" the &ilitar and before the restoration of the civil re"i&e, is as broad as that ofthe co&&ander in chief of the &ilitar forces of invasion and occupation >althou"h theei"encies of &ilitar reoccupation are evidentl less than those of occupation?, it is to bepresu&ed that /eneral 0ou"las MacArthur, who was actin" as an a"ent or a representative ofthe /overn&ent and the President of the :nited 6tates, constitutional co&&ander in chief of the:nited 6tates Ar&, did not intend to act a"ainst the principles of the law of nations asserted bthe 6upre&e Court of the :nited 6tates fro& the earl period of its eistence, applied b the

Presidents of the :nited 6tates, and later e&bodied in the a"ue Conventions of 1-$%5 R. C. 8., pp. 1$%5, 1$%


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Manila on (anuar %, 1-%, had been disposed of b the latter before the restoration of theCo&&onwealth /overn&ent in 1-5; while al&ost all, if not all, appealed cases pendin" onMarch 1$, 1-5, in the Court of Appeals werefro" &udg"ents rendered !$ the 'ourt of (irst)nstance during the Japanese regi"e.

The respondent !ud"e =uotes a portion of @heaton7s )nternational 8aw which sa9 3Moreover

when it is said that an occupier7s acts are valid and under international law should not beabro"ated b the subse=uent con=ueror, it &ust be re&e&bered that no crucial instances eistto show that if his acts should be reversed, an international wron" would be co&&itted. @hatdoes happen is that &ost &atters are allowed to stand b the restored "overn&ent, but the&atter can hardl be put further than this.3 >@heaton, )nternational 8aw, @ar, h?,section )), of the sa&e Conventions, which prohibits the belli"erent occupant 3to declare . . .suspended . . . in a Court of 8aw the ri"hts and action of the nationals of the hostile part,3forbids hi& to &a*e an declaration preventin" the inhabitants fro& usin" their courts to assertor enforce their civil ri"hts. >0ecision of the Court of Appeals of En"land in the case of

Porter vs.2ruedenbur", 8.R. G1-15H, 1 .B., 5


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!urisdiction, was declared void, and not warranted b the acts approved respectivel March %,1< >1 6tat., %?, and (ul 1- of the sa&e ear >15 id., 1?, which defined the powers andduties of &ilitar officers in co&&and of the several states then latel in rebellion. )n the courseof its decision the court said; 3@e have loo*ed carefull throu"h the acts of March %, 1< and(ul 1-, 1Talor, )nternational Public 8aw, p.5-.? :ndoubtedl, this practice hasbeen adopted in order that the ordinar pursuits and business of societ &a not beunnecessaril deran"ed, inas&uch as belli"erent occupation is essentiall provisional, and the"overn&ent established b the occupant of transient character.

2ollowin" these practice and precepts of the law of nations, Co&&ander in Chief of the(apanese 2orces proclai&ed on (anuar #, 1-%, when Manila was occupied, the &ilitarad&inistration under &artial law over the territor occupied b the ar&, and ordered that 3all

the laws now in force in the Co&&onwealth, as well as eecutive and !udicial institutions, shallcontinue to be affective for the ti&e bein" as in the past,3 and 3all public officials shall re&ain intheir present post and carr on faithfull their duties as before.3 @hen the Philippine EecutiveCo&&ission was or"ani+ed b rder No. 1 of the (apanese Co&&ander in Chief, on (anuar%#, 1-%, the Chair&an of the Eecutive Co&&ission, b Eecutive rders Nos. 1 and of(anuar #$ and 2ebruar 5, respectivel, continued the 6upre&e Court, Court of Appeals, Courtof 2irst )nstance, and !ustices of the peace of courts, with the sa&e !urisdiction in confor&itwith the instructions "iven b the Co&&ander in Chief of the )&perial (apanese Ar& in rder


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No. # of 2ebruar %$, 1-%. And on ctober 1, 1-# when the so'called Republic of thePhilippines was inau"urated, the sa&e courts were continued with no substantial chan"e inor"ani+ation and !urisdiction thereof.

)f the proceedin"s pendin" in the different courts of the )slands prior to the (apanese &ilitaroccupation had been continued durin" the (apanese &ilitar ad&inistration, the Philippine

Eecutive Co&&ission, and the so'called Republic of the Philippines, it stands to reason thatthe sa&e courts, which had beco&e reestablished and conceived of as havin" in continuede*istenceupon the reoccupation and liberation of the Philippines b virtue of the principle ofpostli&in >all, )nternational 8aw, Talor, )nternational Public 8aw, p. 15.?

The ar"u&ent advanced b the respondent !ud"e in his resolution in support in his conclusionthat the Court of 2irst )nstance of Manila presided over b hi& 3has no authorit to ta*eco"ni+ance of, and continue said proceedin"s >of this case? to final !ud"&ent until and unlessthe /overn&ent of the Co&&onwealth of the Philippines . . . shall have provided for the transferof the !urisdiction of the courts of the now defunct Republic of the Philippines, and the casesco&&enced and the left pendin" therein,3 is 3that said courts were a "overn&ent alien to theCo&&onwealth /overn&ent. The laws the enforced were, true enou"h, laws of theCo&&onwealth prior to (apanese occupation, but the had beco&e the laws D and the courtshad beco&e the institutions D of (apan b adoption >:.6. vs.Reiter. %< 2. Cases, No. 11?,as the beca&e later on the laws and institutions of the Philippine Eecutive Co&&ission andthe Republic of the Philippines.3

The court in the said case of :.6. vs.Reiter did not and could not sa that the laws andinstitutions of the countr occupied if continued b the con=ueror or occupant, beco&e the lawsand the courts, b adoption, of the soverei"n nation that is &ilitaril occupin" the territor.Because, as alread shown, belli"erent or &ilitar occupation is essentiall provisional and doesnot serve to transfer the soverei"nt over the occupied territor to the occupant. @hat the courtsaid was that, if such laws and institutions are continued in use b the occupant, the beco&ehis and derive their force fro& hi&, in the sense that he &a continue or set the& aside. Thelaws and institution or courts so continued re&ain the laws and institutions or courts of theoccupied territor. The laws and the courts of the Philippines, therefore, did not beco&e, bbein" continued as re=uired b the law of nations, laws and courts of (apan. The provision of

Article 5, section ))), of the a"ue Conventions of 1-$< which prohibits an co&pulsion of thepopulation of occupied territor to swear alle"iance to the hostile power, 3etends to prohibit

everthin" which would assert or i&pl a chan"e &ade b the invader in the le"iti&atesoverei"nt. This dut is neither to innovate in the political life of the occupied districts, norneedlessl to brea* the continuit of their le"al life. ence, so far as the courts of !ustice areallowed to continue ad&inisterin" the territorial laws, the &ust be allowed to "ive theirsentences in the na&e of the le"iti&ate soverei"n 3 >@estla*e, )nt. 8aw, Part )), second ed., p.1$%?. Accordin" to @heaton, however, the victor need not allow the use of that of the le"iti&ate"overn&ent. @hen in 1@heaton, )nternational 8aw,@ar, (oseph . Beale, Cases on Conflict of 8aws, ))), 6u&&ar 6ection -,citin" Co&&onwealth vs.Chap&an, 1# Met., .? As the sa&e author sas, in his Treatise onthe Conflict on 8aws >Ca&brid"e, 1-1, 6ection 1#1?9 3There can no brea* or interre"nu& in


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law. 2ro& the ti&e the law co&es into eistence with the first'felt corporateness of a pri&itivepeople it &ust last until the final disappearance of hu&an societ. nce created, it persists untila chan"e ta*e place, and when chan"ed it continues in such chan"ed condition until the netchan"e, and so forever. Con=uest or coloni+ation is i&potent to brin" law to an end; in spite ofchan"e of constitution, the law continues unchan"ed until the new soverei"n b le"islative actscreates a chan"e.3

As courts are creatures of statutes and their eistence defends upon that of the laws whichcreate and confer upon the& their !urisdiction, it is evident that such laws, not bein" a politicalnature, are not abro"ated b a chan"e of soverei"nt, and continue in force 3e proprio vi"ore3unless and until repealed b le"islative acts. A procla&ation that said laws and courts areepressl continued is not necessar in order that the &a continue in force. 6uchprocla&ation, if &ade, is but a declaration of the intention of respectin" and not repealin" thoselaws. Therefore, even assu&in" that (apan had le"all ac=uired soverei"nt over these )slands,which she had afterwards transferred to the so'called Republic of the Philippines, and that thelaws and the courts of these )slands had beco&e the courts of (apan, as the said courts of thelaws creatin" and conferrin" !urisdiction upon the& have continued in force until now, itnecessaril follows that the sa&e courts &a continue eercisin" the sa&e !urisdiction over

cases pendin" therein before the restoration of the Co&&onwealth /overn&ent, unless anduntil the are abolished or the laws creatin" and conferrin" !urisdiction upon the& are repealedb the said "overn&ent. As a conse=uence, enablin" laws or acts providin" that proceedin"spendin" in one court be continued b or transferred to another court, are not re=uired b the&ere chan"e of "overn&ent or soverei"nt. The are necessar onl in case the for&er courtsare abolished or their !urisdiction so chan"e that the can no lon"er continue ta*in" co"ni+anceof the cases and proceedin"s co&&enced therein, in order that the new courts or the courtshavin" !urisdiction over said cases &a continue the proceedin"s. @hen the 6panishsoverei"nt in the Philippine )slands ceased and the )slands ca&e into the possession of the:nited 6tates, the 3Audiencia3 or 6upre&e Court was continued and did not cease to eist, andproceeded to ta*e co"ni+ance of the actions pendin" therein upon the cessation of the 6panishsoverei"nt until the said 3Audiencia3 or 6upre&e Court was abolished, and the 6upre&e Court

created in Chapter )) of Act No. 1# was substituted in lieu thereof. And the Courts of 2irst)nstance of the )slands durin" the 6panish re"i&e continued ta*in" co"ni+ance of casespendin" therein upon the chan"e of soverei"nt, until section 5 of the sa&e Act No. 1#abolished the& and created in its Chapter )4 the present Courts of 2irst )nstance in substitutionof the for&er. 6i&ilarl, no enablin" acts were enacted durin" the (apanese occupation, but a&ere procla&ation or order that the courts in the )sland were continued.

n the other hand, durin" the A&erican re"i&e, when section 1? that the Court of Appeals created and establishedunder Co&&onwealth Act No. # as a&ended, be abolished, as it is hereb abolished,3 and 3>%?that all cases which have heretofore been dul appealed to the Court of Appeals shall be

trans&itted to the 6upre&e Court for final decision. . . .3 )n so providin", the said rderconsiders that the Court of Appeals abolished was the sa&e that eisted prior to, and continuedafter, the restoration of the Co&&onwealth /overn&ent; for, as we have stated in discussin"the previous =uestion, al&ost all, if not all, of the cases pendin" therein, or which hadtheretofore >that is, up to March 1$, 1-5? been dul appealed to said court, &ust have beencases co&in" fro& the Courts of 2irst )nstance durin" the so'called Republic of the Philippines.)f the Court of Appeals abolished b the said Eecutive rder was not the sa&e one which hadbeen functionin" durin" the Republic, but that which had eisted up to the ti&e of the (apanese


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occupation, it would have provided that all the cases which had, prior to and up to thatoccupation on (anuar %, 1-%, been dull appealed to the said Court of Appeals shall betrans&itted to the 6upre&e Court for final decision.

)t is, therefore, obvious that the present courts have !urisdiction to continue, to final !ud"&ent,the proceedin"s in cases, not of political co&pleion, pendin" therein at the ti&e of the

restoration of the Co&&onwealth /overn&ent.

avin" arrived at the above conclusions, it follows that the Court of 2irst )nstance of Manila has!urisdiction to continue to final !ud"&ent the proceedin"s in civil case No. #$1%, which involvescivil ri"hts of the parties under the laws of the Co&&onwealth /overn&ent, pendin" in saidcourt at the ti&e of the restoration of the said /overn&ent; and that the respondent !ud"e of thecourt, havin" refused to act and continue hi& does a dut resultin" fro& his office as presidin"

!ud"e of that court, "anda"usis the speed and ade=uate re&ed in the ordinar course oflaw, especiall ta*in" into consideration the fact that the =uestion of !urisdiction herein involveddoes affect not onl this particular case, but &an other cases now pendin" in all the courts ofthese )slands.

)n view of all the fore"oin" it is ad!ud"ed and decreed that a writ of "anda"usissue, directed tothe respondent !ud"e of the Court of 2irst )nstance of Manila, orderin" hi& to ta*e co"ni+ance ofand continue to final !ud"&ent the proceedin"s in civil case No. #$1% of said court. Nopronounce&ent as to costs. 6o ordered.

Moran+ '.J.+ ,zaeta+ Paras+ Jaranilla and Pa!lo+ JJ.+concur.

Sep"r"te Op$+$o+%

)E O3, J., concurrin"9

The principal =uestion involved in this case is the validit of the proceedin"s held in civil caseNo. #$1%, in the Court of 2irst )nstance of the Cit of Manila, under the now defunct PhilippineRepublic, durin" (apanese occupation; and the effect on said proceedin"s of the procla&ationof /eneral 0ou"las MacArthur, dated ctober %#, 1-. The decision of this =uestion re=uiresthe application of principles of )nternational 8aw, in connection with the &unicipal law in force inthis countr, before and durin" (apanese occupation.

Iuestions of )nternational 8aw &ust be decided as &atters of "eneral law >(untin"ton vs.Attril,1 :.6., 5Article )), section #?.

As )nternational 8aw is an inte"ral part of our laws, it &ust be ascertained and ad&inistered bthis Court, whenever =uestions of ri"ht dependin" upon it are presented for our deter&ination,sittin" as an international as well as a do&estic Tribunal >ansas vs.Colorado, 15 :.6., 1;%% 6up. Ct. 55%; 8aw. Ed., #?.

6ince )nternational 8aw is a bod of rules actuall accepted b nations as re"ulatin" their&utual relations, the proof of the eistence of a "iven rule is to be found in the consent ofnations to abide b that rule; and this consent is evidenced chiefl b the usa"es and custo&sof nations, and to ascertain what these usa"es and custo&s are, the universal practice is to turn

to the writin"s of publicists and to the decisions of the hi"hest courts of the different countries ofthe world >The abana, 1


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ART)C8E F8)). Territor is considered occupied when it is actuall placed under theauthorit of the hostile ar&.

The occupation applies onl to be territor where such authorit is established, and in aposition to assert itself.

ART)C8E F8))). The authorit of the le"iti&ate power havin" actuall passed into thehands of the occupant, the later shall ta*e all steps in his power to reestablish andinsure, as far as possible, public order and safet, while respectin", unless absolutelprevented, the laws in force in the countr. >#% 6tat. )), 1%1.?

The above provisions of the a"ue Convention have been adopted b the nations "ivin"adherence to the&, a&on" which is :nited 6tates of A&erica >#% 6tat. )), 1%1?.

The co&&ander in chief of the invadin" forces or &ilitar occupant &a eercise "overn&entalauthorit, but onl when in actual possession of the ene&7s territor, and this authorit will beeercised upon principles of international 8aw >New rleans vs.6tea&ship Co, G1


14/52

entered, and enforceable in 12renchvs.Tu&lin, 1$ A&. 8aw. Re". GN.6.H, 1; 2ed. Case,No. 51$?.

6aid !ud"&ents rendered b the courts of the states constitutin" the Confederate 6tates ofA&erica were considered le"al and valid and enforceable, even after the ter&ination of theA&erican Civil @ar, because the had been rendered b the courts of a de facto"overn&ent.

The Confederate 6tates were a de facto"overn&ent in the sense that its citi+ens were bound torender the "overn&ent obedience in civil &atters, and did not beco&e responsible, as wron"'doers, for such acts of obedience >Thorin"ton vs.6&ith, @all. G:.6.H, -; 1- 8aw. ed., #1?.

)n the case of etchu& vs.Buc*le >G1@illia& vs.Bruff, - :.6., 1%? that while it eists it&ust necessaril be obeed in civil &atters b private citi+ens who, b acts of obediencerendered in sub&ission to such force, do not beco&e responsible, as wron" doers, forthose acts, thou"h not warranted b the laws of the ri"htful "overn&ent. Actual"overn&ent of this sort are established over districts differin" "reatl in etent andconditions. The are usuall ad&inistered directl b &ilitar authorit, but the &a bead&inistered, also, b civil authorit, supported &ore or less directl b &ilitar force.>Macleod vs.:nited 6tates G1-1#H %%- :.6., 1.?

The "overn&ent established in the Philippines, under the so'called Philippine Republic, durin"(apanese occupation, was and should be considered as a de facto "overn&ent; and that the

!udicial proceedin"s conducted before the courts which had been established in this countr,durin" said (apanese occupation, are to be considered le"al and valid and enforceable, evenafter the liberation of this countr b the A&erican forces, as lon" as the said !udicialproceedin"s had been conducted, under the laws of the Co&&onwealth of the Philippines.

The !udicial proceedin"s involved in the case under consideration &erel refer to the settle&entof propert ri"hts, under the provisions of the Civil Code, in force in this countr under theCo&&onwealth "overn&ent, before and durin" (apanese occupation.

Now, petitioner contends that the !udicial proceedin"s in =uestion are null and void, under theprovisions of the procla&ation issued b /eneral 0ou"las MacArthur, dated ctober %#, 1-;as said procla&ation 3nullifies all the laws, re"ulations and processes of an other "overn&entof the Philippines than that of the Co&&onwealth of the Philippines.3

)n other words, petitioner de&ands a literal interpretation of said procla&ation issued b

/eneral 0ou"las MacArthur, a contention which, in our opinion, is untenable, as it wouldinevitabl produce !udicial chaos and uncertainties.

@hen an act is susceptible of two or &ore constructions, one of which will &aintain and theothers destro it, the courts will alwas adopt the for&er >:. 6. vs.Coo&bs G1#H, 1% Pet.,


15/52

properl incline the scales of its decisions in favor of that solution which will &ost effectivelpro&ote the public polic >6&ith, Bell K Co., 8td. vs.Natividad G1-1-H, $ Phil., 1#?. All lawsshould receive a sensible construction. /eneral ter&s should be so li&ited in their applicationas not lead to in!ustice, oppression or an absurd conse=uence. )t will alwas, therefore, bepresu&ed that the le"islature intended eceptions to its lan"ua"e, which would avoid results ofthis character. The reason of the law in such cases should prevail over its letter >:. 6. vs.irb,

< @all. G:.6.H, %; 1- 8aw. ed., %


16/52

The laws enacted b the le"islators shall be useless if courts are not read to appl the&. )t isactual application to real issues which "ives laws the breath of life.

)n the varied and confused &ar*et of hu&an endeavor there are so &an thin"s that &i"htinduce us to for"et the ele&entals. There are so &an events, so &an proble&, so &anpreoccupations that are pushin" a&on" the&selves to attract our attention, and we &i"ht &iss

the nearest and &ost fa&iliar thin"s, li*e the &an who went around his house to loo* for apencil perched on one of his ears.

TE CTBER PRC8AMAT)N

)n ctober, 1-, the A&erican Ar&ed 2orces of 8iberation landed successfull in 8ete.

@hen victor in islands was acco&plished, after the &ost a&a+in" and spectacular waroperations, /eneral of the Ar& 0ou"las MacArthur as a co&&ander in Chief of the A&erican

Ar&, decided to reestablish, in behalf of the :nited 6tates, the Co&&onwealth /overn&ent.

Then he was confronted with the =uestion as to what polic to adopt in re"ards to the officialacts of the "overn&ents established in the Philippines b the (apanese re"i&e. e &i"ht havethou"ht of reco"ni+in" the validit of so&e of said acts, but, certainl, there were acts which heshould declare null and void, whether a"ainst the policies of the A&erican /overn&ent, whetherinconsistent with &ilitar strate" and operations, whether detri&ental to the interests of the

A&erican or 2ilipino peoples, whether for an other stron" or valid reasons.

But, which to reco"ni+e, and which notL e was not in a position to "ather enou"h infor&ationfor a safe basis to distin"uished and classif which acts &ust be nullified, and which &ustvalidated. At the sa&e ti&e he had to ta*e i&&ediate action. More pressin" &ilitar &atterswere re=uirin" his i&&ediate attention. e followed the safe course9 to nullif all the le"islative,eecutive, and !udicial acts and processes under the (apanese re"i&e. After all, when the

Co&&onwealth /overn&ent is alread functionin", with proper infor&ation, he will be in aposition to declare b law, throu"h its Con"ress, which acts and processes &ust be revived andvalidated in the public interest.

6o on ctober %#, 1-, the Co&&ander in Chief issued the followin" procla&ation9

/ENERA8 EA0I:ARTER6

6:T@E6T PAC)2)C AREA

22)CE 2 TE CMMAN0ER )N C)E2

PRC8AMAT)N

To the People of the Philippines9

@EREA6, the &ilitar forces under & co&&and have landed in the Philippines soil asa prelude to the liberation of the entire territor of the Philippines; and

@EREA6, the seat of the /overn&ent of the Co&&onwealth of the Philippines hasbeen re'established in the Philippines under President 6er"io s&ea and the &e&bersof his cabinet; and

@EREA6, under ene& duress, a so'called "overn&ent stled as the 3Republic of thePhilippines3 was established on ctober 1, 1-#, based upon neither the freeepression of the people7s will nor the sanction of the /overn&ent of the :nited 6tates,and is purportin" to eercise Eecutive, (udicial and 8e"islative powers of "overn&entover the people;


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Now, therefore, ), 0ou"las MacArthur, /eneral, :nited 6tates Ar&, as Co&&ander inChief of the &ilitar forces co&&itted to the liberation of the Philippines, do herebproclai& and declare9

1. That the /overn&ent of the Co&&onwealth of the Philippines is, sub!ect to thesupre&e authorit of the /overn&ent of the :nited 6tates, the sole and the onl

"overn&ent havin" le"al and valid !urisdiction over the people in areas of thePhilippines free of ene& occupation and control;

%. The laws now eistin" on the statute boo*s of the Co&&onwealth of thePhilippines and the re"ulation pro&ul"ated pursuant thereto are in full force andeffect and le"all bindin" upon the people in areas of the Philippines free ofene& occupation and control; and

#. That all laws, re"ulations and processes of an other "overn&ent in thePhilippines than that of the said Co&&onwealth are null and void and withoutle"al effect in areas of the Philippines free ene& occupation and control; and

) do hereb announce & purpose pro"ressivel to restore and etend to the people ofthe Philippines the sacred ri"ht of "overn&ent b constitutional process under there"ularl constituted Co&&onwealth /overn&ent as rapidl as the several occupiedareas are liberated to the &ilitar situation will otherwise per⁢

) do en!oin upon all loal citi+ens of the Philippines full respect for and obedience to theConstitution of the Co&&onwealth of the Philippines and the laws, re"ulations and otheracts of their dul constituted "overn&ent whose seat is now fir&l re'established onPhilippine soil.

ctober %#, 1-.

0:/8A6 MACART:R-eneral . /. Ar"$'o""ander in 'hief

)6 TE CTBER PRC8AMAT)N 8A@L

)n ti&es of war the Co&&ander in Chief of an ar& is vested with etraordinar inherentpowers, as a natural result of the nature of the &ilitar operations ai&ed to achieve thepurposes of his countr in the war, victor bein" para&ount a&on" the&.

6aid Co&&ander in Chief &a establish in the occupied or reoccupied territor, under his

control, a co&plete sste& of "overn&ent; he &a appoint officers and e&ploees to &ana"ethe affairs of said "overn&ent; he &a issue procla&ations, instructions, orders, all with the fullforce of laws enacted b a dul constituted le"islature; he &a set policies that should befollowed b the public ad&inistration or"ani+ed b hi&; he &a abolish the said a"encies. )nfact, he is the supre&e ruler and law'&a*er of the territor under his control, with powers li&itedonl b the receipts of the funda&ental laws of his countr.

California, or the port of 6an 2rancisco, had been con=uered b the ar&s of the :nited6tates as earl as 1. 6hortl afterward the :nited 6tates had &ilitar possession ofall upper California. Earl in 1< the President, as constitutional co&&ander in chief ofthe ar& and nav, authori+ed the &ilitar and naval co&&ander of our forces inCalifornia to eercise the belli"erent ri"hts of a con=ueror, and for& a civil "overn&ent

for the con=uered countr, and to i&pose duties on i&ports and tonna"e as &ilitarcontributions for the support of the "overn&ent, and of the ar& which has the con=uestin possession. . . Cross of arrison, 1 oward, 1, 1-.?

)n Ma, 1%, after the capture of New rleans b the :nited 6tates Ar&, /eneralButler, then in co&&and of the ar& at that place, issued a "eneral order appointin"Ma!or (. M. Bell, volunteer aide'de'ca&p, of the division staff, provost !ud"e of the cit,and directed that he should be obeed and respected accordin"l. The sa&e order


18/52

appointed Capt. (. . 2rench provost &arshal of the cit, the Capt. 6tafford deputprovost &arshal. A few das after this order the :nion Ban* lent to the plaintiffs the su&of 1#$,$$$, and subse=uentl, the loan not havin" been repaid, brou"ht suit before theprovost !ud"e to recover the debt. The defense was ta*en that the !ud"e had no

!urisdiction over the civil cases, but !ud"e&ent was "iven a"ainst the borrowers, andthe paid the &one under protest. To recover it bac* is the ob!ect of the present suit,

and the contention of the plaintiffs is that the !ud"e&ent was ille"al and void, becausethe Provost Court had no !urisdiction of the case. The !ud"e&ent of the 0istrict Courtwas a"ainst the plaintiffs, and this !ud"e&ent was affir&ed b the 6upre&e Court of the6tate. To this affir&ance error is now assi"ned.

The ar"u&ent of the plaintiffs in error is that the establish&ent of the Provost Court, theappoint&ent of the !ud"e, and his action as such in the case brou"ht b the :nion Ban*a"ainst the& were invalid, because in violation of the Constitution of the :nited 6tates,which vests the !udicial power of the /eneral "overn&ent in one 6upre&e Court and insuch inferior courts as Con"ress &a fro& ti&e to ti&e ordain and establish, and underthis constitutional provision the were entitled to i&&unit fro& liabilit i&posed b the

!ud"&ent of the Provost Court. Thus, it is clai&ed, a 2ederal =uestion is presented, and

the hi"hest court of the 6tate havin" decided a"ainst the i&&unit clai&ed, our!urisdiction is invo*ed.

Assu&in" that the case is thus brou"ht within our ri"ht to review it, the controllin"=uestion is whether the co&&andin" "eneral of the ar& which captured New rleansand held it in Ma 1%, had authorit after the capture of the cit to establish a courtand appoint a !ud"e with power to tr and ad!udicate civil causes. 0id the Constitution ofthe :nited 6tates prevent the creation of the civil courts in captured districts durin" thewar of the rebellion, and their creation b &ilitar authoritL

This cannot be said to be an open =uestion. The sub!ect ca&e under the considerationb this court in The /rapeshot, where it was decided that when, durin" the late civil war,

portions of the insur"ent territor were occupied b the National forces, it was within theconstitutional authorit of the President, as co&&ander in chief, to establish thereinprovisional courts for the hearin" and deter&ination of all causes arisin" under the lawsof the 6tates or of the :nited 6tates, and it was ruled that a court instituted b President8incoln for the 6tate of 8ouisiana, with authorit to hear, tr, and deter&ine civil causes,was lawfull authori+ed to eercise such !urisdiction. )ts establish&ent b the &ilitarauthorit was held to be no violation of the constitutional provision that 3the !udicialpower of the :nited 6tates shall be vested in one 6upre&e Court and in such inferiorcourts as the Con"ress &a for& ti&e to ti&e ordain and establish.3 That clause of theConstitution has no application to the abnor&al condition of con=uered territor in theoccupanc of the con=uerin", ar&. )t refers onl to courts of :nited 6tates, which&ilitar courts are not. As was said in the opinion of the court, delivered b Chief (ustice

Chase, in The /rapeshot, 3)t beca&e the dut of the National "overn&ent, wherever theinsur"ent power was overthrown, and the territor which had been do&inated b it wasoccupied b the National forces, to provide, as far as possible, so lon" as the warcontinued, for the securit of the persons and propert and for the ad&inistration of

!ustice. The dut of the National "overn&ent in this respect was no other than that whichdevolves upon a re"ular belli"erent, occupin" durin" war the territor of anotherbelli"erent. )t was a &ilitar dut, to be perfor&ed b the President, as Co&&ander inChief, and instructed as such with the direction of the &ilitar force b which theoccupation was held.3

Thus it has been deter&ined that the power to establish b &ilitar authorit courts forthe ad&inistration of civil as well as cri&inal !ustice in portions of the insur"ent 6tates

occupied b the National forces, is precisel the sa&e as that which eists when forei"nterritor has been con=uered and is occupied b the con=uerors. @hat that power is hasseveral ti&es been considered. )n 8eitensdorfer K ou"hton vs.@ebb, &a be found anotable illustration. :pon the con=uest of New Meico, in 1, the co&&andin" officerof the con=uerin" ar&, in virtue of the power of con=uest and occupanc, and with thesanction and authorit of the President, ordained a provisional "overn&ent for thecountr. The ordinance created courts, with both civil and cri&inal !urisdiction. )t did notunderta*e to chan"e the &unicipal laws of the territor, but it established a !udicial


19/52

sste& with a superior or appellate court, and with circuit courts, the !urisdiction of whichdeclared to e&brace, first, all cri&inal causes that should not otherwise provided for blaw; and secondl, ori"inal and eclusive co"ni+ance of all civil cases not co"ni+ablebefore the prefects and alcades. But thou"h these courts and this !udicial sste& wereestablished b the &ilitar authorit of the :nited 6tates, without an le"islation ofCon"ress, this court ruled that the were lawfull established. And there was no epress

order for their establish&ent e&anatin" fro& the President or the Co&&ander in Chief.The ordinance was the act of the /eneral earne the co&&andin" officer of the ar&occupin" the con=uered territor.

)n view of these decisions it is not to be =uestioned that the Constitution did not prohibitthe creation b the &ilitar authorit of court for the trial of civil causes durin" the civilwar in con=uered portions of the insur"ent 6tates. The establish&ent of such courts isbut the eercise of the ordinar ri"hts of con=uest. The plaintiffs in error, therefore, hadno constitutional i&&unit a"ainst sub!ection to the !ud"e&ents of such courts. Thear"ue, however, that if this be conceded, still /eneral Butler had no authorit to establishsuch a court; that the President alone, as a Co&&ander in Chief, had such authorit. @edo not concur in this view. /eneral Butler was in co&&and of the con=uerin" and the

occupin" ar&. e was co&&issioned to carr on the war in 8ouisina. e was,therefore, invested with all the powers of &a*in" war, so far as the were denied to hi&b the Co&&ander in Chief, and a&on" these powers, as we have seen, was ofestablishin" courts in con=uered territor. )t &ust be presu&ed that he acted under theorders of his superior officer, the President, and that his acts, in the prosecution of thewar, were the acts of his co&&ander in chief. >Mechanics7 etc. Ban* vs.:nion Ban*, -:. 6. G%% @all.H, %


20/52

or snon&ous with, 3proceedin"s3 or 3procedure,3 and e&braces all the steps andproceedin"s in a cause fro& its co&&ence&ent to its conclusion. 6o&eti&es the ter& isalso broadl defined as the &eans whereb a court co&pels a co&pliance with itde&ands. 3Process3 and 3writ3 or 3writs3 are snon&ous in the sense that ever writ isa process, and in a narrow sense of the ter& 3process3 is li&ited to !udicial writs in anaction, or at least to writs or writin"s issued fro& or out of court, under the seal thereof,

and returnable thereto; but it is not alwas necessar to construe the ter& so strictl asto li&it it to a writ issued b a court in the eercise of its ordinar !urisdiction; the ter& isso&eti&es defined as a writ or other for&al writin" issued b authorit of law or b so&ecourt, bod, or official havin" authorit to issue it; and it is fre=uentl used to desi"nate a&eans, b writ or otherwise , of ac=uirin" !urisdiction of defendant or his propert, or ofbrin"in" defendant into, or co&pellin" hi& to appear in, court to answer.

As e&ploed in the statutes the le"al &eanin" of the word 3process3 varies accordin" tothe contet, sub!ect &atter, and spirit of the statute in which it occurs. )n so&e

!urisdictions codes or statutes variousl define 3process3 as si"nifin" or includin"9 A writor su&&ons issued in the course of !udicial proceedin"s; all writs, warrants,su&&onses, and orders of courts of !ustice or !udicial officers; or an writ, declaration,

su&&ons, order, or subpoena whereb an action, suit or proceedin" shall beco&&enced, or which shall be issued in or upon an action, suit or proceedin". >5$ C.(., PP. 1, %.?

The definition of 3process3 "iven b 8ord Co*e co&prehends an lawful warrant,authorit, or proceedin" b which a &an &a be arrested. e sas9 3Process of law istwo fold, na&el, b the in"7s writ, or b proceedin" and warrant, either in deed or inlaw, without writ.3 >People vs.Nevins GN. J.H ill, 15, 1-, 1# @ords and Phrases, per&anent edition, 1-$edition, p. 1


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the rest is directed or ta*en. 6trictl, it is a proceedin" after the ori"inal, before the!ud"e&ent. A polic of fire insurance contained the condition that if the propert shall besold or transferred, or an chan"e ta*es place in title or possession, whether b le"alprocess or !udicial decree or voluntar transfer or convenience, then and in ever suchcase the polic shall be void. The ter& 3le"al process,3 as used in the polic, &eanswhat is *nown as a writ; and, as attach&ent or eecution on the writs are usuall

e&ploed to effect a chan"e of title to propert, the are or are a&on"st the processesconte&plated b the polic. The words 3le"al process3 &ean all the proceedin"s in anaction or proceedin". The would necessaril e&brace the decree, which ordinarilincludes the proceedin"s. Perr vs.8orillard 2ire )ns. Co., N. J., 8ans., %$1, %$. /ee+also, Tipton vs.Cordova, 1 N. M., ##, #5. ># @ords and Phrases, per&anent edition,1-$ edition, p. 1.?

3Process3 in a lar"e acceptation, is nearl snon&ous with 3proceedin"s,3 and &eansthe entire proceedin"s in an action, fro& the be"innin" to the end. )n a stricter sense, itis applied to the several !udicial writs issued in an action. anna vs.Russell, 1% Minn.,$, >/il., #, 5?. ># @ords and Phrases, per&anent edition, 1-$, edition 1-.?

The ter& 3process3 as co&&onl applied, intends that proceedin" b which a part iscalled into court, but it has &ore enlar"ed si"nification, and covers all the proceedin"s ina court, fro& the be"innin" to the end of the suit; and, in this view, all proceedin"s which&a be had to brin" testi&on into court, whether viva voceor in writin", &a beconsidered the process of the court. Rich vs.Tri&ple, 4t., % Tler, #-, #5$. )d.

3Process3 in its broadest sense co&prehends all proceedin"s to the acco&plish&ent ofan end, includin" !udicial proceedin"s. 2re=uentl its si"nification is li&ited to the &eansof brin"in" a part in court. )n the Constitution process which at the co&&on law wouldhave run in the na&e of the *in" is intended. )n the Code process issued fro& a court is&eant. Mcenna vs.Cooper, 1$1 P., %, #;


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)t is reasonable to assu&e that he &i"ht include in the word 3process.3 besides those !udicialcharacter, those of eecutive or ad&inistrative character. At an rate, !udicial processes cannotbe ecluded.

TE @R06 2 PRC8AMAT)N EFPRE66 :NM)6TAAB8J

TE )NTENT)N 2 TE A:TR

The ctober Procla&ation is written in such a wa that it is i&possible to &a*e a &ista*e as tothe intention of its author.

liver @endell ol&es, perhaps the wisest &an who had ever sat in the 6upre&e Court of the:nited 6tates, the followin"9

@hen the words in their literal sense have a plain &eanin", courts &ust be ver cautiousin allowin" their i&a"ination to "ive the& a different one. /uild vs.@alter, 1% Mass.,%%5, %% >1-$%?

:pon =uestions of construction when arbitrar rule is involved, it is alwas &orei&portant to consider the words and the circu&stances than even stron" analo"iesdecisions. The successive ne"lect of a series of s&all distinctions, in the effort to followprecedent, is ver liable to end in pervertin" instru&ents fro& their plain &eanin". )n noother branch of the law >trusts? is so &uch discretion re=uired in dealin" with authorit. . .. There is a stron" presu&ption in favor of "ivin" the& words their natural &eanin", anda"ainst readin" the& as if the said so&ethin" else, which the are not fitted to epress.>Merrill vs.Preston, 1#5 Mass., 51, 55 >1#?.

@hen the words of an instru&ent are free fro& a&bi"uit and doubt, and epress plainl, clearland distinctl the sense of the fra&er, there is no occasion to resort to other &eans of

interpretation. )t is not allowable to interpret what needs no interpretation.

4er stron" epression have been used b the courts to e&phasi+e the principle that the are toderive their *nowled"e of the le"islative intention fro& the words or lan"ua"e of the statute itselfwhich the le"islature has used to epress it. The lan"ua"e of a statute is its &ost natural "uide.@e are not libert to i&a"ine an intent and bind the letter to the intent.

The 6upre&e Court of the :nited 6tates said9 3The pri&ar and "eneral rule of statutorconstruction is that the intent of the law'&a*er is to be found in the lan"ua"e that he has used.e is presu&ed to *now the &eanin" of the words and the rules of "ra&&ar. The courts haveno function of le"islation, and si&pl see* to ascertain the will of the le"islator. )t is true thatthere are cases in which the letter of the statute is not dee&ed controllin", but the cases are few

and eceptional and onl arise where there are co"ent reasons for believin" that the letter doesnot full and accuratel disclose the intent. No &ere o&&ission, no &ere failure to provide forcontin"encies, which it &a see& wise should have specificall provided for will !ustif an

!udicial addition to the lan"ua"e of the statute.3 >:nited 6tates vs./oldenber", 1 :. 6., -5,1$%, 1$#; 1 6. C. Rep., #; % 8aw. ed., #-.?

That the /overn&ent of the Co&&onwealth of the Philippines shall be the sole and onl"overn&ent in our countr; that our laws are in full force and effect and le"all bindin"; that 3alllaws, re"ulations and processes of an other "overn&ent are null and void and without le"aleffect3, are provisions clearl, distinctl, un&ista*abl epressed in the ctober Procla&ation, asto which there is no possibilit of error, and there is absolutel no reason in trin" to finddifferent &eanin"s of the plain words e&ploed in the docu&ent.

As we have alread seen, the annulled processes are precisel !udicial processes, proceduresand proceedin"s, includin" the one which is under our consideration.

TE CTBER PRC8AMAT)N E6TAB8)6E6 A C8EAR P8)CJ

Althou"h, as we have alread stated, there is no possible &ista*es as to the &eanin" of thewords e&ploed in the ctober Procla&ation, and the tet of the docu&ent epresses, in clear'


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cut sentences, the true purposes of its author, it &i"ht not be a&iss to state here what was thepolic intended to be established b said procla&ation.

)t is a &atter of !udicial *nowled"e that in the "lobal war !ust ended on 6epte&ber %, 1-5, bthe si"natures on the docu&ent of unconditional surrender affied b representatives of the(apanese "overn&ent, the belli"erents on both sides resorted to what &a call war weapons of

pscholo"ical character.

6o (apan, since its &ilitar forces occupied Manila, had wa"ed an intensive ca&pai"npropa"anda, intended to destro the faith of the 2ilipino people in A&erica, to wipe out all&anifestations of A&erican or occidental civili+ation, to create interest in all thin"s (apanese,which the i&perial officers tried to present as the ac&e of oriental culture, and to arouse racialpre!udice a&on" orientals and occidentals, to induce the 2ilipinos to rall to the cause of (apan,which she tried to &a*e us believe is the cause of the inhabitants of all East Asia.

)t is, then, natural that /eneral MacArthur should ta*e counter'&easures to neutrali+e or annulco&pletel all vesti"es of (apanese influence, speciall those which &i"ht !eopardi+e in anwa his &ilitar operations and his &eans of achievin" the &ain ob!ective of the ca&pai"n ofthe liberation, that is, to restore in our countr constitutional processes and the hi"h idealsconstitute the ver essence of de&ocrac.

)t was necessar to free, not onl our territor, but also our spiritual patri&on. )t was necessar,not onl to restore to us the opportunit of en!oin" the phsical treasures which a beneficentProvidence accu&ulated on this bountiful land, the true paradise in the western Pacific, but torestore the full pla of our ideolo", that wonderful ad&iture of sensible principles of hu&anconduct, be=ueathed to us b our Malaan ancestors, the &oral principles of the Christianitassi&ilated b our people fro& teachers of 6pain, and the co&&on'sense rules of the A&ericande&ocratic wa of life.

)t was necessar to free that ideolo" fro& an (apanese i&purit.

:ndoubtedl, the author of the procla&ation thou"ht that the laws, re"ulations, and processes ofall the branches of the "overn&ents established under the (apanese re"i&e, if allowed tocontinue and to have effect, &i"ht be a &eans of *eepin" and spreadin" in our countr the(apanese influence, with the sa&e deadl effects as the &ines planted b the retreatin" ene&.

The "overn&ent offices and a"encies which functioned durin" the (apanese occupationrepresented a soverei"nt and ideolo" anta"onistic to the soverei"nt and ideolo" whichMacArthur7s forces sou"ht to restore in our countr.

:nder chapter ) of the (apanese Constitution, it is declared that (apan shall rei"ned and

"overned b a line E&perors unbro*en for a"es eternal >Article 1?; that the E&peror is sacredand inviolable >Article #?; that he is the head of the E&pire, co&binin" in hi&self the ri"hts of thesoverei"nt >Article ?; that he eercises the le"islative power >Article 5?; that he "ives sanctionto laws, and orders to be pro&ul"ated and eecuted >Article ?;that he has the supre&eco&&and of the Ar& and Nav >Article 11?; that he declares war, &a*es peace, and concludestreaties >Article 1#?.

There is no reason for allowin" to re&ain an vesti"e of (apanese ideolo", the ideolo" of apeople which as confessed in a boo* we have at our des*, written b a (apanese, insists indoin" &an thin"s precisel in a wa opposite to that followed b the rest of the world.

)t is the ideolo" of a people which insists in adoptin" the polic of self'delusion; that believes

that their E&peror is a direct descendant of "ods and he hi&self is a "od, and that the tphoonwhich occured on Au"ust 1, 1%1, which destroed the fleet with which ublai han tried toinvade (apan was the divine wind of )se; that defies the heinous cri&e of the ronin, the The /rowth of 8aw p. %.? 8aw is !ust one of the&anifestations of hu&an life, and 38ife has relations not capable of division into infleibleco&part&ents. The &oulds epand and shrin*,3 >/lan+er vs.6hepard, %## N.J., %#, %1.?

The characteristic plasticit of law is ver noticeable, &uch &ore than in an other depart&ent,in international law.

)n a certain &atters it is clear we have &ade substantial pro"ress, but in other points, he>M. Revon? &aintains, we have retro"raded; for ea&ple, in the &iddle a"es the oathwas not alwas respected as faithfull as in ancient Ro&e; and nearer our own ti&es, inthe seventeenth centur, /rotius proclai&s the un=uestioned ri"ht of the belli"erents to&assacre the wo&en and the children of the ene&; and in our &ore &odern a"e thedue declaration of war which Ro&an alwas confor&ed to has not been invariablobserved. >Cole&an Philippson, The )nternational 8aw and Custo& of Ancient /reeceand Ro&e, 4ol. ), p. %$-.?

Now let us see if an principle of international law &a effect the enforce&ent of the ctoberProcla&ation.

)n this stud we should be cautioned not to allow ourselves to be deluded b "eneralities andva"ueness which are li*el to lead us easil to error, in view of the absence of codification andstatutor provisions.

ur Constitution provides9

The Philippines renounces war as an instru&ent of national polic, and adopts the"enerall accepted principles of international law as part of the law of the Nation. >6ec.

#, Art. )).?

There bein" no codified principles of international law, or enact&ents of its rules, we cannot relon &erel le"al precepts.

@ith the eception of international conventions and treaties and, !ust recentl, the Charter of the:nited Nations, adopted in 6an 2rancisco Conference on (une %, 1-5, we have to rel on


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unsste&i+ed !udicial pronounce&ents and reasonin"s and on theories, theses, andpropositions that we &a find in the wor*s of authors and publicists.

0ue to that characteristic pliabilit and i&precision of international law, the drafters of ourConstitution had to content the&selves with 3"enerall accepted principles.3

@e &ust insists, therefore, that the principles should be specific and un&ista*abl defined andthat there is definite and conclusive evidence to the effect that the "enerall accepted a&on"the civili+ed nations of the world and that the belon" to the current era and no other epochs ofhistor.

The te&ptation of assu&in" the role of a le"islator is "reater in international law than in another depart&ent of law, since there are no parlia&ents, con"resses, le"islative asse&blieswhich can enact laws and specific statutes on the sub!ect. )t &ust be our concern to avoid fallin"in so a "reat te&ptation, as its, dan"ers are incalculable. )t would be li*e buildin" castles in thethin air, or trin" to find an eit in the thic* dar* forest where we are irretrievabl lost. @e &ustalso be ver careful in our lo"ic. )n so vast a field as international law, the fanciful wanderin" ofthe i&a"ination often i&pair the course of dialistics.

TE CTBER PRC8AMAT)N AN0 )NTERNAT)NA8 8A@

)s there an principle of international law that &a effect the ctober Procla&ationL

@e tried in vain to find out in the &a!orit opinion anthin" as to the eistence of an principle ofinternational law under which the authorit of /eneral MacArthur to issue the procla&ation caneffectivel be challen"ed.

No principle of international law has been, or could be invo*ed as a basis for denin" the authorof the docu&ent le"al authorit to issue the sa&e or an part thereof.

@e awaited in vain for an one to dare den /eneral MacArthur the authorit, underinternational law, to declare null and void and without effect, not onl the laws and re"ulations ofthe "overn&ents under the (apanese re"i&e, but all the processes of said "overn&ents,includin" !udicial processes.

)f /eneral MacArthur, as co&&ander in Chief of the A&erican Ar&ed 2orces of 8iberation, hadauthorit, full and le"al, to issue the procla&ation, the inescapable result will be the co&pleteviodance and nullit of all !udicial processes, procedures, and proceedin"s of all courts underthe (apanese re"i&e.

But those who are sponsorin" the cause of said !udicial processes tr to achieve their ai&, not

b direct &eans, but b followin" a tortuous side'road.

The accept and reco"ni+e the full authorit of the author of the procla&ation to issue it and allits parts, but the &aintain that /eneral MacArthur did not and could not have in &ind the ideaof nullifin" the !udicial processes durin" the (apanese occupation, because that will be inviolation of the principles of international law.

)f we follow the reasonin" of the &a!orit opinion we will have to reach the conlusion that theworld 3processes3 does not appear at all in the ctober Procla&ation.

)t is stated &ore than once, and reiterated with do"&atic e&phasis, that under the principles ofinternational law the !udicial processes under an ar& occupation cannot be invalidated.

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

)f the law eist, it can be pointed out. )f the principle eists, it can stated specificall. The word isbein" used ver often in plural, principles, but we need onl one to be convinced.


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The i&a"ined principles are so shrouded in a thic* &a+e of strained analo"ies and reasonin",that we confess our inabilit even to have a fleetin" "li&pse at the& throu"h their thic* andinvulnerable wrappers.

At ever turn international law, the blatant words, are hauntin" us with the deafenin" bra of atru&pet, but after the transient sound has fled awa, absorbed b the resilienc of the vast

at&osphere, the announced principles, which are the ver soul of international law, woulddisappear too with the li"htin" speed of a vanishin" drea&.

@EANE66 2 TE MA(R)TJ P6)T)N

)n the &a!orit opinion three =uestions are propounded9 first, whether !udicial acts andproceedin"s durin" the (apanese occupation are valid even after liberation; second whether thectober Procla&ation had invalidated all !ud"e&ent and !udicial proceedin"s under the(apanese re"i&e; and third, whether the present courts of the Co&&onwealth &a continue the

!udicial proceedin"s pendin" at the ti&e of liberation.

As re"ards the first =uestion, it is stated that it is a le"al touris& in political and international lawthat all acts of ade facto"overn&ent are "ood and valid, that the "overn&ents establisheddurin" the (apanese occupation. that is, the Philippine Eecutive Co&&ission and the Republicof the Philippines, were de facto"overn&ents, and that it necessaril follows that the !udicialacts and proceedin"s of the courts of those "overn&ents, 3which are not of a politicalco&pleion,3 were "ood and valid, and b virtue of the principle ofpostli"iniu", re&ain "oodand valid after the liberation.

)n the above reasonin" we will see ri"ht awa how the alle"ed le"al truis& in political andinternational law, stated as a pre&ise in a sweepin" wa, as an absolute rule, is i&&ediatel=ualified b the eception as to !udicial acts and proceedin"s which are of a 3politicalco&pleion.3

6o it is the &a!orit itself which destros the validit of what it &aintains as a le"al truis& inpolitical and international law, b statin" fro& the be"innin" of the absolute proposition that allacts and proceedin"s of the le"islative, eecutive, and !udicial depart&ents of a defacto"overn&ents are "ood and valid.

)t is be noted that no authorit, absolutel no authorit, has been cited to support the absoluteand sweepin" character of the &a!orit proposition as stated in their opinion.

No authorit could be cited, because the &a!orit itself loses faith in the validit of such absoluteand sweepin" proposition, b establishin" an uneplained eception as re"ards the !udicial actsand proceedin"s of a 3political co&pleion.3

Besides, it is useless to tr to find in the ar"u&ents of the &a!orit anthin" that &a challen"ethe power, the authorit of a de !ure "overn&ent to annul the official acts of a defacto"overn&ent, or the le"al and indisputable authorit of the restored le"iti&ate "overn&entto refuse to reco"ni+e the official acts, le"islative, eecutive and !udicial, of the usurpin""overn&ent, once the sa&e is ousted.

As to the second =uestion, the &a!orit ar"ues that the !udicial proceedin"s and !ud"&ents ofthe de facto"overn&ents under the (apanese re"i&e bein" "ood and valid, 3it should bepresu&ed that it was not, and could not have been, the intention of /eneral 0ou"las MacArthurto refer to !udicial processes, when he used the last word in the ctober Procla&ation, and thatit onl refers to "overn&ent processes other than !udicial processes or court proceedin"s.3

The wea*ness and absolute ineffectiveness of the ar"u&ent are self'evident.

)t is &aintained that when /eneral MacArthur declared the processes of the "overn&ents underthe (apanese re"i&e null and void, he could not refer to !udicial processes, because the sa&eare valid and re&ained so under the le"al truis& announced b the &a!orit to the effect that,under political and international law, all official acts of a de facto"overn&ent, le"islative,eecutive or !udicial, are valid.


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But we have seen alread how the &a!orit ecepted fro& said le"al truis& the !udicialprocesses of 3political co&pleion.3

And now it is stated that in annullin" the processes of the "overn&ents under (apaneseoccupation, /eneral MacArthur referred to 3processes other than !udicial processes.3

That is, the le"islative and eecutive processes.

But, did not the &a!orit &aintain that all acts and proceedin"s of le"islative and eecutivedepart&ents of a de facto"overn&ents are "ood and validL 0id it not &aintain that the are soas a 3le"al truis& in political and international lawL3

Now if the reasonin" of the &a!orit to the effect that /eneral MacArthur could not refer to!udicial processes because the are "ood and valid in accordance with international law, whshould the sa&e reasonin" not appl to le"islative and eecutive processesL

@h does the &a!orit &aintain that, notwithstandin" the fact that, accordin" that said le"al

truis&, le"islative and eecutive official acts of de facto"overn&ents are "ood and valid,/eneral MacArthur referred to the latter in his annullin" procla&ation, but not to !udicialprocessesL

)f the ar"u&ent is "ood so as to eclude !udicial processes fro& the effect of the ctoberProcla&ation, we can see no lo"ic in considerin" it bad with respect to le"islative and eecutiveprocesses.

)f the ar"u&ent is bad with respect to le"islative and eecutive processes, there is no lo"ic inholdin" that it is not "ood with respect to !udicial processes.

Therefore, if the ar"u&ent of the &a!orit opinion is "ood, the inevitable conclusion is that

/eneral MacArthur did not declare null and void an processes, at all, whether le"islativeprocesses, eecutive processes, or !udicial processes, and that the word 3processes3 used bhi& in the ctober Procla&ation is a &ere surplusa"e or an orna&ental literar appendi.

The absurdit of the conclusion un&as*s the utter futilit of the position of the &a!orit, which isbut a &ere le"al pretense that cannot stand the least analsis or the test of lo"ic.

A "reat le"al lu&inar ad&onished that we &ust have coura"e to un&as*s pretense if we are toreach a peace that will abide beond the fleetin" hour.

)t is ad&itted that the co&&andin" "eneral of a belli"erent ar& of occupation as an a"ent ofhis "overn&ent, 3&a not unlawfull suspend eistin" laws and pro&ul"ate new ones in the

occupied territor if and when ei"encies of the &ilitar occupation de&and such action,3 but itis doubted whether the co&&andin" "eneral of the ar& of the restored le"iti&ate "overn&entcan eercise the sa&e broad le"islative powers.

@e be" to disa"ree with a theor so unreasonable and subversive.

@e cannot accept that the co&&andin" "eneral of an ar& of occupation, of a rebellious ar&,of an invadin" ar&, or of a usurpin" ar&, should en!o "reater le"al authorit durin" theille"al, and in the case of the (apanese, ini=uitous and bestial occupation, than the officialrepresentative of the le"iti&ate "overn&ent, once restored in the territor wrested fro& thebrutal invaders and a""ressors. @e cannot a"ree with such le"al travest.

Broad and unli&ited powers are "ranted and reco"ni+ed in the co&&andin" "eneral of an ar&of invasion, but the shadow of the vanishin" alle"ed principle of international law is bein"brandished to "a", &anacle, and &a*e co&pletel powerless the co&&ander of an ar& ofliberation to wipe out the official acts of the "overn&ent for usurpation, althou"h said acts &i"hti&pair the &ilitar operation or neutrali+e the public policies of the restored le"iti&ate"overn&ent.


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@e are not un&indful of the interest of the persons who &i"ht be adversel affected b theannul&ent of the !udicial processes of the "overn&ents under the (apanese re"i&e, but wecannot help s&ilin" when we hear that chaos will rei"n or that the world will sin*.

)t is possible that so&e cri&inals will be let loose unpunished, but nobod has ever beenalar&ed that the President, in the eercise of his constitutional powers of pardon and a&nest,

had in the past released &an cri&inals fro& i&prison&ent. And let us not for"et that due tohu&an li&itations, in all countries, under all "overn&ents, in peace or in war, there were, thereare, and there will alwas be unpunished cri&inals, and that situation never caused despair toan one.

@e can conceive of inconveniences and hardships, but the are necessar contributions to"reat and noble purposes. :ntold sacrifices were alwas offered to attain hi"h ideals and inbehalf of worth causes.

@e cannot refrain fro& feelin" a paternal e&otion for those who are tre&blin" with all sinceritbecause of the belief that the avoidance of !udicial proceedin"s of the "overn&ents under the(apanese re"i&e 3would paral+e the social life of the countr.3 To alla such fear we &ustre&ind the& that the countr that produced &an "reat hereos and &artrs; that contributedso&e of hi"hest &orals fi"ures that hu&anit has ever produced in all histor; which inhabitedb a race which was able to traverse in i&&e&orial ti&es the vast epanses of the )ndiancean and the Pacific with inade=uate &eans of navi"ation, and to inhabit in &an islands sodistantl located, fro& Mada"ascar to the eastern Pacific; which &ade possible the wonderfulresistance of Bataan and Corre"idor, can not have a social life so frail as to be easil paral+edb the annul&ent of so&e !udicial proceedin"s. The (apanese vandalis&s durin" the last threeears of ni"ht&ares and bestial oppression, durin" the lon" period of our national slaver, andthe wholesale &assacres and destructions in Manila and &an other cities and &unicipalitiesand populated areas, were not able to paral+e the social life of our people. 8et us not loss faithso easil in the inherent vitalit of the social life of the people and countr of Ri+al and Mabini.

)t is insinuated that because of the thou"ht that the representative of the restored soverei"npower &a set aside all !udicial processes of the ar& of occupation, in the case to courts of afuture invasions, liti"ants will not su&&it their cases to courts whose !ud"e&ent &a afterwardsbe annulled, and cri&inals would not be deterred fro& co&&ittin" offenses in the epectancthat the &a escape penalt upon liberation of the countr. @e hope that Providence will neverallow the Philippines to fall a"ain under the ar&s of an invadin" ar&, but if such &isfortune willhappen, let the ctober Procla&ation serve as a notice to the ruthless invaders that the officialacts of the "overn&ent of occupation will not &erit an reco"nition fro& the le"iti&ate"overn&ent, especiall if the should not conduct the&selves, as ee&plified b the (apanese,in accordance with the rules of action of a civili+ed state.

ne conclusive evidence of the untenableness of the &a!orit position is the fact that it had toresort to Eecutive rder No. #


31/52

"overn&ent, but the &atter can hardl be put further than this.3 >@heaton, )nternational 8aw,@ar, the occupant7s? should bereversed, an international wron" would be co&&itted.3

)t can be clearl seen that @heaton does not &a*e an distinction or point out an eception.

But in the &a!orit opinion the principle is =ualified, without statin" an reason therefore, bli&itin" the ri"ht of the restored "overn&ent to annul 3&ost of the acts of the occupier3 and3processes other than !udicial.3

The state&ent &ade b the respondent !ud"e after =uotin" the above'&entioned principle, asstated b @heaton, to the effect that whether the acts of &ilitar occ

co kim cham vs valdez tan keh.docx

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