FIRST DIVISION [G.R. No. 112170. April 10, 1996] CESARIO URSUA, petitioner, vs.

COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents. SYLLABUS 1. STATUTORY CONSTRUCTION; STATUTES; CONSTRUED WITH REFERENCE TO THE INTENDED SCOPE AND PURPOSE. - Time and again we have decreed that statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Thus in construing a statute the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers. 2. ID.; COMMONWEALTH ACT 142, AS AMENDED (AN ACT TO REGULATE THE USE OF ALIASES); PURPOSE IS TO REGULATE THE USE OF ALIASES IN BUSINESS TRANSACTION. - The objective and purpose of C.A. No. 142 have their origin and basis in Act No. 3883, An Act to Regulate the Use in Business Transactions of Names other than True Names, Prescribing the Duties of the Director of the Bureau of Commerce and Industry in its Enforcement, Providing Penalties for Violations thereof, and for other purposes, which was approved on 14 November 1931 and amended by Act No. 4147, approved on 28 November 1934. The enactment of C.A. No. 142 as amended was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not

be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register. 3. CRIMINAL LAW; COMMONWEALTH ACT 142, AS AMENDED (AN ACT TO REGULATE THE USE OF ALIASES); ALIAS, DEFINED. - An alias is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A mans name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and thse are known as aliases. 4. ID.; ID.; USE OF FICTITIOUS NAME IN A SINGLE TRANSACTION WITHOUT INTENDING TO BE KNOWN BY THIS NAME IN ADDITION TO HIS REAL NAME, NOT A VIOLATION THEREOF. - The use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. 5. ID.; ID.; ID.; CASE AT BAR. - This is so in the case at bench. It is not disputed that petitioner introduced himself in the Office of the Ombudsman as Oscar Perez, which was the name of the messenger of his lawyer who should have brought the letter to that office in the first place instead of petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question then that

Oscar Perez is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name. The use of the name Oscar Perez was made by petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances. While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him. Wherefore, the questioned decision of the Court of Appeals affirming that of the Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the crime charged. 6. STATUTORY CONSTRUCTION; A PENAL STATUTE LIKE COMMONWEALTH ACT 142, AS AMENDED, CONSTRUED

STRICTLY AGAINST THE STATE AND IN FAVOR OF THE ACCUSED. - As C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused. The reason for this principle is the tenderness of the law for the rights of individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. APPEARANCES OF COUNSEL Ceferino Padua Law Office for petitioner. The Solicitor General for respondents. DECISION BELLOSILLO, J.: This is a petition for a review of the decision of the Court of Appeals which affirmed the conviction of petitioner by the Regional Trial Court of Davao City for violation of Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085, otherwise known as An Act to Regulate the Use of Alliases.[1] Petitioner Cesario Ursua was a Community Environment and Natural Resources Officer assigned in Kidapawan, Cotabato. On 9 May 1989 the Provincial Governor of Cotabato requested the Office of the Ombudsman in Manila to conduct an investigation on a complaint for bribery, dishonesty, abuse of authority and giving of unwarranted benefits by petitioner and other officials of the Department of Environment and Natural Resources. The complaint was initiated by the Sangguniang Panlalawigan of Cotabato through a resolution advising the Governor to report the involvement of petitioner and others in the illegal cutting of mahogany trees and hauling of illegally-cut logs in the area.[2] On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office of the Ombudsman in Davao City requesting that he be furnished copy of the complaint

against petitioner. Atty. Palmones then asked his client Ursua to take his letterrequest to the Office of the Ombudsman because his law firms messenger, Oscar Perez, had to attend to some personal matters. Before proceeding to the Office of the Ombudsman petitioner talked to Oscar Perez and told him that he was reluctant to personally ask for the document since he was one of the respondents before the Ombudsman. However, Perez advised him not to worry as he could just sign his (Perez) name if ever he would be required to acknowledge receipt of the complaint.[3] When petitioner arrived at the Office of the Ombudsman in Davao City he was instructed by the security officer to register in the visitors logbook. Instead of writing down his name petitioner wrote the name Oscar Perez after which he was told to proceed to the Administrative Division for the copy of the complaint he needed. He handed the letter of Atty. Palmones to the Chief of the Administrative Division, Ms. Loida Kahulugan, who then gave him a copy of the complaint, receipt of which he acknowledged by writing the name Oscar Perez.[4] Before petitioner could leave the premises he was greeted by an acquaintance, Josefa Amparo, who also worked in the same office. They conversed for a while then he left. When Loida learned that the person who introduced himself as Oscar Perez was actually petitioner Cesario Ursua, a customer of Josefa Amparo in her gasoline station, Loida reported the matter to the Deputy Ombudsman who recommended that petitioner be accordingly charged. On 18 December 1990, after the prosecution had completed the presentation of its evidence, petitioner without leave of court filed a demurrer to evidence alleging that the failure of the prosecution to prove that his supposed alias was different from his registered name in the local civil registry was fatal to its cause. Petitioner argued that no document from the local civil registry was

presented to show the registered name of accused which according to him was a condition sine qua non for the validity of his conviction. The trial court rejected his contentions and found him guilty of violating Sec. 1 of C.A. No. 142 as amended by R. A. No. 6085. He was sentenced to suffer a prison term of one (1) year and one (1) day of prision correccional minimum as minimum, to four (4) years of prision correccional medium as maximum, with all the accessory penalties provided for by law, and to pay a fine of P4,000.00 plus costs. Petitioner appealed to the Court of Appeals. On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but modified the penalty by imposing an indeterminate term of one (1) year as minimum to three (3) years as maximum and a fine of P5,000.00. Petitioner now comes to us for review of his conviction as. he reasserts his innocence. He contends that he has not violated C.A. No. 142 as amended by R. A. No. 6085 as he never used any alias name; neither is Oscar Perez his alias. An alias, according to him, is a term which connotes the habitual use of another name by which a person is also known. He claims that he has never been known as Oscar Perez and that he only used such name on one occasion and it was with the express consent of Oscar Perez himself. It is his position that an essential requirement for a conviction under C.A. No. 142 as amended by R. A. No. 6085 has not been complied with when the prosecution failed to prove that his supposed alias was different from his registered name in the Registry of Births. He further argues that the Court of Appeals erred in not considering the defense theory that he was charged under the wrong law. [5] Time and again we have decreed that statutes are to be construed in the light of

the purposes to be achieved and the evils sought to be remedied. Thus in construing a statute the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose.[6] The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers.[7] For a clear understanding of the purpose of C.A. No. 142 as amended, which was allegedly violated by petitioner, and the surrounding circumstances under which the law was enacted, the pertinent provisions thereof, its amendments and related statutes are herein cited. C.A. No. 142, which was approved on 7 November 1936, and before its amendment by R. A. No. 6085, is entitled An Act to Regulate the Use of Aliases. It provides as follows: Section 1. Except as a pseudonym for literary purposes, no person shall use any name different from the one with which he was christened or by which he has been known since his childhood, or such substitute name as may have been authorized by a competent court. The name shall comprise the patronymic name and one or two surnames. Section 2. Any person desiring to use an alias or aliases shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name. Separate proceedings shall be had for each alias, and each new petition shall set forth the original name and the alias or aliases for the use of which judicial authority has been obtained, specifying the proceedings and the date on which such authority was granted. Judicial authorities for the use of aliases shall be recorded in the proper civil register x x x. The above law was subsequently amended by R. A. No. 6085, approved on 4 August 1969. As amended, C.A. No. 142 now reads:

Section 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry or with which he was baptized for the first time, or in case of an alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons whose births have not been registered in any local civil registry and who have not been baptized, have one year from the approval of this act within which to register their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames. Sec. 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the persons baptismal and family name and the name recorded in the civil registry, if different, his immigrants name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the desired alias. The judicial authority for the use of alias, the christian name and the alien immigrants name shall be recorded in the proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry. The objective and purpose of C. A. No. 142 have their origin and basis in Act No. 3883, An Act to Regulate the Use in Business Transactions of Names other than True Names, Prescribing the Duties of the Director of the Bureau of Commerce And Industry in

its Enforcement, Providing Penalties for Violations thereof, and for other purposes, which was approved on 14 November 1931 and amended by Act No. 4147, approved on 28 November 1934.[8] The pertinent provisions of Act No. 3883 as amended follow -Section 1. It shall be unlawful for any person to use or sign, on any written or printed receipt including receipt for tax or business or any written or printed contract not verified by a notary public or on any written or printed evidence of any agreement or business transactions, any name used in connection with his business other than his true name, or keep conspicuously exhibited in plain view in or at the place where his business is conducted, if he is engaged in a business, any sign announcing a firm name or business name or style without first registering such other name, or such firm name, or business name or style in the Bureau of Commerce together with his true name and that of any other person having a joint or common interest with him in such contract agreement, business transaction, or business x x x. For a bit of history, the enactment of C.A. No. 142 as amended was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. CA. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register.[9] In Yu Kheng Chiau v. Republic[10] the Court had occasion to explain the meaning, concept and ill effects of the use of an alias within the purview of C.A. No. 142 when we ruled

There can hardly be any doubt that petitioners use of alias Kheng Chiau Young in addition to his real name Yu Cheng Chiau would add to more confusion. That he is known in his business, as manager of the Robert Reid, Inc., by the former name, is not sufficient reason to allow him its use. After all, petitioner admitted that he is known to his associates by both names. In fact, the Anselmo Trinidad, Inc., of which he is a customer, knows him by his real name. Neither would the fact that he had encountered certain difficulties in his transactions with government offices which required him to explain why he bore two names, justify the grant of his petition, for petitioner could easily avoid said difficulties by simply using and sticking only to his real name Yu Cheng Chiau. The fact that petitioner intends to reside permanently in the Philippines, as shown by his having filed a petition for naturalization in Branch V of the abovementioned court, argues the more against the grant of his petition, because if naturalized as a Filipino citizen, there would then be no necessity for his further using said alias, as it would be contrary to the usual Filipino way and practice of using only one name in ordinary as well as business transactions. And, as the lower court correctly observed, if he believes (after he is naturalized) that it would be better for him to write his name following the Occidental method, he can easily file a petition for change of name, so that in lieu of the name Yu Kheng Chian, he can, abandoning the same, ask for authority to adopt the name Kheng Chiau Young. All things considered, we are of the opinion and so hold, that petitioner has not shown satisfactory proper and reasonable grounds under the aforequoted provisions of Commonwealth Act No. 142 and the Rules of Court, to warrant the grant of his petition for the use of an alias name. Clearly therefore an alias is a name or names used by a person or intended to be used by

him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A mans name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and these are known as aliases.[11] Hence, the use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. This is so in the case at bench. It is not disputed that petitioner introduced himself in the Office of the Ombudsman as Oscar Perez, which was the name of the messenger of his lawyer who should have brought the letter to that office in the first place instead of petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question then that Oscar Perez is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name. The use of the name Oscar Perez was made by petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances. While the act of petitioner may be covered by other provisions of law, such does not

constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences.[12] Moreover, as C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused.[13] The reason for this principle is the tenderness of the law for the rights of individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited.[14] Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him. WHEREFORE, the questioned decision of the Court of Appeals affirming that of the Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the crime charged. SO ORDERED. Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

[1]

Rollo, pp. 24-37. Id., p. 26. Records, p. 7.

[2]

[3]

[4]

Rollo, p. 26. Id., p. 12.

FERIA, J.: This petition for mandamus in which petitioner prays that the respondent judge of the lower court be ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated under the regime of the so-called Republic of the Philippines established during the Japanese military occupation of these Islands. The respondent judge refused to take cognizance of and continue the proceedings in said case on the ground that the proclamation issued on October 23, 1944, by General Douglas MacArthur had the effect of invalidating and nullifying all judicial proceedings and judgements of the court of the Philippines under the Philippine Executive Commission and the Republic of the Philippines established during the Japanese military occupation, and that, furthermore, the lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines in the absence of an enabling law granting such authority. And the same respondent, in his answer and memorandum filed in this Court, contends that the government established in the Philippines during the Japanese occupation were no de facto governments. On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next day their Commander in Chief proclaimed "the Military Administration under law over the districts occupied by the Army." In said proclamation, it was also provided that "so far as the Military Administration permits, all the laws now in force in the Commonwealth, as well as executive and judicial institutions, shall continue to be effective for the time being as in the past," and "all public officials shall remain in their present posts and carry on faithfully their duties as before."

[5]

[6]

People v. Purisima, Nos. L-42050-66, 28 November 1978, 86 SCRA 524.

[7]

Gregorio, Antonio L., Fundamentals of Criminal Law Review, 1985 Ed., p. 9; People v. Manantan, No. L-14129, 31 July 1962, 5 SCRA 684.
[8]

Aquino, Ramon C., The Revised Penal Code, 1961 Ed., Vol. II, pp. 1008-1009.
[9]

Francisco, Vicente J., The Revised Penal Code Annotated, 1954 Ed., Vol. II, p. 331; Guevarra, Guillermo B., Commentaries on the Revised Penal Code, 1946 Ed., p. 359.
[10]

106 Phil. 762 (1959).

[11]

Words and Phrases, Permanent Edition, Vol. III, West Publishing Co., p. 139.
[12]

See Note 6. People v. Uy Jui Pio, 102 Phil., 679 (1957). See Note 6.

[13]

[14]

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner, vs. EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.1 Marcelino Lontok for petitioner. P. A. Revilla for respondent Valdez Tan Keh. Respondent Judge Dizon in his own behalf.

A civil government or central administration organization under the name of "Philippine Executive Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief of the Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was instructed to proceed to the immediate coordination of the existing central administrative organs and judicial courts, based upon what had existed therefore, with approval of the said Commander in Chief, who was to exercise jurisdiction over judicial courts. The Chairman of the Executive Commission, as head of the central administrative organization, issued Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in which the Supreme Court, Court of Appeals, Courts of First Instance, and the justices of the peace and municipal courts under the Commonwealth were continued with the same jurisdiction, in conformity with the instructions given to the said Chairman of the Executive Commission by the Commander in Chief of Japanese Forces in the Philippines in the latter's Order No. 3 of February 20, 1942, concerning basic principles to be observed by the Philippine Executive Commission in exercising legislative, executive and judicial powers. Section 1 of said Order provided that "activities of the administration organs and judicial courts in the Philippines shall be based upon the existing statutes, orders, ordinances and customs. . . ." On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial change was effected thereby in the organization and jurisdiction of the different courts that functioned during the Philippine Executive Commission, and in the laws they administered and enforced. On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur issued a proclamation to the People of the Philippines which declared:

1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority of the Government of the United States, the sole and only government having legal and valid jurisdiction over the people in areas of the Philippines free of enemy occupation and control; 2. That the laws now existing on the statute books of the Commonwealth of the Philippines and the regulations promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control; and 3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control. On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General MacArthur, on behalf of the Government of the United States, solemnly declared "the full powers and responsibilities under the Constitution restored to the Commonwealth whose seat is here established as provided by law." In the light of these facts and events of contemporary history, the principal questions to be resolved in the present case may be reduced to the following:(1) Whether the judicial acts and proceedings of the court existing in the Philippines under the Philippine Executive Commission and the Republic of the Philippines were good and valid and remained so even after the liberation or reoccupation of the Philippines by the United States and Filipino forces; (2)Whether the proclamation issued on October 23, 1944, by General Douglas MacArthur, Commander in Chief of the United States Army, in which he declared "that all laws, regulations and processes of any of the government in the Philippines

than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control," has invalidated all judgements and judicial acts and proceedings of the said courts; and (3) If the said judicial acts and proceedings have not been invalidated by said proclamation, whether the present courts of the Commonwealth, which were the same court existing prior to, and continued during, the Japanese military occupation of the Philippines, may continue those proceedings pending in said courts at the time the Philippines were reoccupied and liberated by the United States and Filipino forces, and the Commonwealth of the Philippines were reestablished in the Islands. We shall now proceed to consider the first question, that is, whether or not under the rules of international law the judicial acts and proceedings of the courts established in the Philippines under the Philippine Executive Commission and the Republic of the Philippines were good and valid and remained good and valid even after the liberation or reoccupation of the Philippines by the United States and Filipino forces. 1. It is a legal truism in political and international law that all acts and proceedings of the legislative, executive, and judicial departments of a de facto government are good and valid. The question to be determined is whether or not the governments established in these Islands under the names of the Philippine Executive Commission and Republic of the Philippines during the Japanese military occupation or regime were de facto governments. If they were, the judicial acts and proceedings of those governments remain good and valid even after the liberation or reoccupation of the Philippines by the American and Filipino forces. There are several kinds of de facto governments. The first, or government de facto in a proper legal sense, is that government that gets possession and

control of, or usurps, by force or by the voice of the majority, the rightful legal governments and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector. The second is that which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated a government of paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United States. And the third is that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state of such as the government of the Southern Confederacy in revolt not concerned in the present case with the first kind, but only with the second and third kinds of de facto governments. Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military power with the territories, and against the rightful authority of an established and lawful government; and (2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be

administered, also, civil authority, supported more or less directly by military force. . . . One example of this sort of government is found in the case of Castine, in Mine, reduced to British possession in the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico, occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9 Howard, 614). These were cases of temporary possessions of territory by lawfull and regular governments at war with the country of which the territory so possessed was part." The powers and duties of de facto governments of this description are regulated in Section III of the Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899 on the same subject of said Section III provides "the authority of the legislative power having actually passed into the hands of the occupant, the latter shall take steps in his power to reestablish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is burdened with the duty to insure public order and safety during his military occupation, he possesses all the powers of a de facto government, and he can suspended the old laws and promulgate new ones and make such changes in the old as he may see fit, but he is enjoined to respect, unless absolutely prevented by the circumstances prevailing in the occupied territory, the municipal laws in force in the country, that is, those laws which enforce public order and regulate social and commercial life of the country. On the other hand, laws of a political nature or affecting political relations, such as, among others, the right of assembly, the right to bear arms, the freedom of the press, and the right to travel freely in the territory occupied, are

considered as suspended or in abeyance during the military occupation. Although the local and civil administration of justice is suspended as a matter of course as soon as a country is militarily occupied, it is not usual for the invader to take the whole administration into his own hands. In practice, the local ordinary tribunals are authorized to continue administering justice; and judges and other judicial officers are kept in their posts if they accept the authority of the belligerent occupant or are required to continue in their positions under the supervision of the military or civil authorities appointed, by the Commander in Chief of the occupant. These principles and practice have the sanction of all publicists who have considered the subject, and have been asserted by the Supreme Court and applied by the President of the United States. The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws war, as established by the usage of the of the world, and confirmed by the writings of publicists and decisions of courts in fine, from the law of nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military occupation, excepts so far as they are suspended or changed by the acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones."

And applying the principles for the exercise of military authority in an occupied territory, which were later embodied in the said Hague Conventions, President McKinley, in his executive order to the Secretary of War of May 19,1898, relating to the occupation of the Philippines by United States forces, said in part: "Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion. The judges and the other officials connected with the administration of justice may, if they accept the authority of the United States, continue to administer the ordinary law of the land as between man and man under the supervision of the American Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.) As to "de facto" government of the third kind, the Supreme Court of the United States, in the same case of Thorington vs. Smith, supra, recognized the government set up by the Confederate States as a de factogovernment. In that case, it was held that "the central government established for the insurgent States differed from the temporary governments at Castine and Tampico in the circumstance that its authority did no originate in lawful acts of regular war; but it was not, on the account, less actual or less supreme. And we think that it must be

classed among the governments of which these are examples. . . . In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States, discussing the validity of the acts of the Confederate States, said: "The same general form of government, the same general laws for the administration of justice and protection of private rights, which had existed in the States prior to the rebellion, remained during its continuance and afterwards. As far as the Acts of the States do not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, they are, in general, to be treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in the time of peace. No one, that we are aware of, seriously questions the validity of judicial or legislative Acts in the insurrectionary States touching these and kindered subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution'. The same doctrine has been asserted in numerous other cases." And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured or was done in respect of such matters under the authority of the laws of these local de facto governments should not be disregarded or held to be invalid merely because those governments were organized in hostility to the Union established by the national Constitution; this, because the existence of war between the

United States and the Confederate States did not relieve those who are within the insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of society nor do away with civil government or the regular administration of the laws, and because transactions in the ordinary course of civil society as organized within the enemy's territory although they may have indirectly or remotely promoted the ends of the de facto or unlawful government organized to effect a dissolution of the Union, were without blame 'except when proved to have been entered intowith actual intent to further invasion or insurrection:'" and "That judicial and legislative acts in the respective states composing the so-called Confederate States should be respected by the courts if they were not hostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution." In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government established by the military forces of occupation and therefore a de facto government of the second kind. It was not different from the government established by the British in Castine, Maine, or by the United States in Tampico, Mexico. As Halleck says, "The government established over an enemy's territory during the military occupation may exercise all the powers given by the laws of war to the conqueror over the conquered, and is subject to all restrictions which that code imposes. It is of little consequence whether such government be called a military or civil government. Its character is the same and the source of its authority the same. In either case it is a government imposed by the laws of war, and so far it concerns the inhabitants of such territory or the rest of the world, those laws alone determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the

Philippine Executive Commission was a civil and not a military government and was run by Filipinos and not by Japanese nationals, is of no consequence. In 1806, when Napoleon occupied the greater part of Prussia, he retained the existing administration under the general direction of a french official (Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on invading France, authorized the local authorities to continue the exercise of their functions, apparently without appointing an English superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when they invaded France in 1870, appointed their own officials, at least in Alsace and Lorraine, in every department of administration and of every rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed., p. 505, note 2.) The so-called Republic of the Philippines, apparently established and organized as a sovereign state independent from any other government by the Filipino people, was, in truth and reality, a government established by the belligerent occupant or the Japanese forces of occupation. It was of the same character as the Philippine Executive Commission, and the ultimate source of its authority was the same the Japanese military authority and government. As General MacArthur stated in his proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy duress, a so-called government styled as the 'Republic of the Philippines' was established on October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the Government of the United States." Japan had no legal power to grant independence to the Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of, the Filipino people, before its military occupation and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of nations. For

it is a well-established doctrine in International Law, recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied territory to swear allegiance to the hostile power), the belligerent occupation, being essentially provisional, does not serve to transfer sovereignty over the territory controlled although the de jure government is during the period of occupancy deprived of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs.Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was a scheme contrived by Japan to delude the Filipino people into believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the rights of government into the hands of Filipinos. It was established under the mistaken belief that by doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people in her war against the United States and other allied nations. Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino who, taking advantage of the withdrawal of the American forces from the Islands, and the occupation thereof by the Japanese forces of invasion, had organized an independent government under the name with the support and backing of Japan, such government would have been considered as one established by the Filipinos in insurrection or rebellion against the parent state or the Unite States. And as such, it would have been a de facto government similar to that organized by the confederate states during the war of secession and recognized as such by the by the Supreme Court of the United States in numerous cases, notably those of Thorington vs. Smith, Williams vs.Bruffy, and Badly vs. Hunter, above quoted; and similar

to the short-lived government established by the Filipino insurgents in the Island of Cebu during the Spanish-American war, recognized as a de facto government by the Supreme Court of the United States in the case of McCleod vs. United States (299 U. S., 416). According to the facts in the last-named case, the Spanish forces evacuated the Island of Cebu on December 25, 1898, having first appointed a provisional government, and shortly afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the Islands and established a republic, governing the Islands until possession thereof was surrendered to the United States on February 22, 1898. And the said Supreme Court held in that case that "such government was of the class of de facto governments described in I Moore's International Law Digest, S 20, . . . 'called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force . . '." That is to say, that the government of a country in possession of belligerent forces in insurrection or rebellion against the parent state, rests upon the same principles as that of a territory occupied by the hostile army of an enemy at regular war with the legitimate power. The governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation being de facto governments, it necessarily follows that the judicial acts and proceedings of the courts of justice of those governments, which are not of a political complexion, were good and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international law, remained good and valid after the liberation or reoccupation of the Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur. According to that well-known principle in international law, the fact that a territory which has been occupied by an enemy comes again into the power of its

legitimate government of sovereignty, "does not, except in a very few cases, wipe out the effects of acts done by an invader, which for one reason or another it is within his competence to do. Thus judicial acts done under his control, when they are not of a political complexion, administrative acts so done, to the extent that they take effect during the continuance of his control, and the various acts done during the same time by private persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of a community would be paralyzed by an invasion; and as between the state and the individuals the evil would be scarcely less, it would be hard for example that payment of taxes made under duress should be ignored, and it would be contrary to the general interest that the sentences passed upon criminals should be annulled by the disappearance of the intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when the occupation and the abandonment have been each an incident of the same war as in the present case, postliminy applies, even though the occupant has acted as conqueror and for the time substituted his own sovereignty as the Japanese intended to do apparently in granting independence to the Philippines and establishing the so-called Republic of the Philippines. (Taylor, International Law, p. 615.) That not only judicial but also legislative acts of de facto governments, which are not of a political complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant, is confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which declares null and void all laws, regulations and processes of the governments established in the Philippines during the Japanese occupation, for it would not have been necessary for said proclamation to abrogate them if they were invalid ab initio.

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

ones in the occupied territory, if and when the exigencies of the military occupation demand such action. But even assuming that, under the law of nations, the legislative power of a commander in chief of military forces who liberates or reoccupies his own territory which has been occupied by an enemy, during the military and before the restoration of the civil regime, is as broad as that of the commander in chief of the military forces of invasion and occupation (although the exigencies of military reoccupation are evidently less than those of occupation), it is to be presumed that General Douglas MacArthur, who was acting as an agent or a representative of the Government and the President of the United States, constitutional commander in chief of the United States Army, did not intend to act against the principles of the law of nations asserted by the Supreme Court of the United States from the early period of its existence, applied by the Presidents of the United States, and later embodied in the Hague Conventions of 1907, as above indicated. It is not to be presumed that General Douglas MacArthur, who enjoined in the same proclamation of October 23, 1944, "upon the loyal citizens of the Philippines full respect and obedience to the Constitution of the Commonwealth of the Philippines," should not only reverse the international policy and practice of his own government, but also disregard in the same breath the provisions of section 3, Article II, of our Constitution, which provides that "The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the Nation." Moreover, from a contrary construction great inconvenience and public hardship would result, and great public interests would be endangered and sacrificed, for disputes or suits already adjudged would have to be again settled accrued or vested rights nullified, sentences passed on criminals set aside, and criminals might easily become

immune for evidence against them may have already disappeared or be no longer available, especially now that almost all court records in the Philippines have been destroyed by fire as a consequence of the war. And it is another well-established rule of statutory construction that where great inconvenience will result from a particular construction, or great public interests would be endangered or sacrificed, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law, unless required by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.) The mere conception or thought of possibility that the titular sovereign or his representatives who reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or proceedings of the tribunals which the belligerent occupant had the right and duty to establish in order to insure public order and safety during military occupation, would be sufficient to paralyze the social life of the country or occupied territory, for it would have to be expected that litigants would not willingly submit their litigation to courts whose judgements or decisions may afterwards be annulled, and criminals would not be deterred from committing crimes or offenses in the expectancy that they may escaped the penalty if judgments rendered against them may be afterwards set aside. That the proclamation has not invalidated all the judgements and proceedings of the courts of justice during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force of law, issued by the President of the Philippines on March 10, 1945, by virtue of the emergency legislative power vested in him by the Constitution and the laws of the Commonwealth of the Philippines. Said Executive order abolished the Court of Appeals, and provided "that all case which have heretofore been duly

appealed to the Court of Appeals shall be transmitted to the Supreme Court final decision." This provision impliedly recognizes that the judgments and proceedings of the courts during the Japanese military occupation have not been invalidated by the proclamation of General MacArthur of October 23, because the said Order does not say or refer to cases which have been duly appealed to said court prior to the Japanese occupation, but to cases which had therefore, that is, up to March 10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed that almost all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese military occupation of Manila on January 2, 1942, had been disposed of by the latter before the restoration of the Commonwealth Government in 1945; while almost all, if not all, appealed cases pending on March 10, 1945, in the Court of Appeals were from judgments rendered by the Court of First Instance during the Japanese regime. The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it is said that an occupier's acts are valid and under international law should not be abrogated by the subsequent conqueror, it must be remembered that no crucial instances exist to show that if his acts should be reversed, any international wrong would be committed. What does happen is that most matters are allowed to stand by the restored government, but the matter can hardly be put further than this." (Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this quotion the respondent judge "draws the conclusion that whether the acts of the occupant should be considered valid or not, is a question that is up to the restored government to decide; that there is no rule of international law that denies to the restored government to decide; that there is no rule of international law that denies to the restored government the right of exercise its discretion on the matter, imposing upon it in its stead the obligation of

recognizing and enforcing the acts of the overthrown government." There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier, such as the laws, regulations and processes other than judicial of the government established by the belligerent occupant. But in view of the fact that the proclamation uses the words "processes of any other government" and not "judicial processes" prisely, it is not necessary to determine whether or not General Douglas MacArthur had power to annul and set aside all judgments and proceedings of the courts during the Japanese occupation. The question to be determined is whether or not it was his intention, as representative of the President of the United States, to avoid or nullify them. If the proclamation had, expressly or by necessary implication, declared null and void the judicial processes of any other government, it would be necessary for this court to decide in the present case whether or not General Douglas MacArthur had authority to declare them null and void. But the proclamation did not so provide, undoubtedly because the author thereof was fully aware of the limitations of his powers as Commander in Chief of Military Forces of liberation or subsequent conqueror. Not only the Hague Regulations, but also the principles of international law, as they result from the usages established between civilized nations, the laws of humanity and the requirements of the public of conscience, constitute or from the law of nations. (Preamble of the Hague Conventions; Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or Conventions which we have already quoted in discussing the first question, imposes upon the occupant the obligation to establish courts; and Article 23 (h), section II, of the same Conventions, which prohibits the belligerent occupant "to declare . . . suspended . . . in a Court of Law

the rights and action of the nationals of the hostile party," forbids him to make any declaration preventing the inhabitants from using their courts to assert or enforce their civil rights. (Decision of the Court of Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to establish courts of justice in the territory occupied, and forbidden to prevent the nationals thereof from asserting or enforcing therein their civil rights, by necessary implication, the military commander of the forces of liberation or the restored government is restrained from nullifying or setting aside the judgments rendered by said courts in their litigation during the period of occupation. Otherwise, the purpose of these precepts of the Hague Conventions would be thwarted, for to declare them null and void would be tantamount to suspending in said courts the right and action of the nationals of the territory during the military occupation thereof by the enemy. It goes without saying that a law that enjoins a person to do something will not at the same time empower another to undo the same. Although the question whether the President or commanding officer of the United States Army has violated restraints imposed by the constitution and laws of his country is obviously of a domestic nature, yet, in construing and applying limitations imposed on the executive authority, the Supreme Court of the United States, in the case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from general rules of international law and from fundamental principles known wherever the American flag flies." In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command of the forces of the United States in South Carolina after the end of the Civil War, wholly annulling a decree rendered by a court of chancery in that state in a case within its jurisdiction, was declared void, and not warranted by the acts approved

respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which defined the powers and duties of military officers in command of the several states then lately in rebellion. In the course of its decision the court said; "We have looked carefully through the acts of March 2, 1867 and July 19, 1867. They give very large governmental powers to the military commanders designated, within the States committed respectively to their jurisdiction; but we have found nothing to warrant the order here in question. . . . The clearest language would be necessary to satisfy us that Congress intended that the power given by these acts should be so exercised. . . . It was an arbitrary stretch of authority, needful to no good end that can be imagined. Whether Congress could have conferred the power to do such an act is a question we are not called upon to consider. It is an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint indicated, we hold that the order was void." It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which declared that "all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void without legal effect in areas of the Philippines free of enemy occupation and control," has not invalidated the judicial acts and proceedings, which are not a political complexion, of the courts of justice in the Philippines that were continued by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation, and that said judicial acts and proceedings were good and valid before and now good and valid after the reoccupation of

liberation of the Philippines by the American and Filipino forces. 3. The third and last question is whether or not the courts of the Commonwealth, which are the same as those existing prior to, and continued during, the Japanese military occupation by the Philippine Executive Commission and by the so-called Republic of the Philippines, have jurisdiction to continue now the proceedings in actions pending in said courts at the time the Philippine Islands were reoccupied or liberated by the American and Filipino forces, and the Commonwealth Government was restored. Although in theory the authority the authority of the local civil and judicial administration is suspended as a matter of course as soon as military occupation takes place, in practice the invader does not usually take the administration of justice into his own hands, but continues the ordinary courts or tribunals to administer the laws of the country which he is enjoined, unless absolutely prevented, to respect. As stated in the above-quoted Executive Order of President McKinley to the Secretary of War on May 19, 1898, "in practice, they (the municipal laws) are not usually abrogated but are allowed to remain in force and to be administered by the ordinary tribunals substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion." And Taylor in this connection says: "From a theoretical point of view it may be said that the conqueror is armed with the right to substitute his arbitrary will for all preexisting forms of government, legislative, executive and judicial. From the stand-point of actual practice such arbitrary will is restrained by the provision of the law of nations which compels the conqueror to continue local laws and institution so far as military necessity will permit." (Taylor, International Public Law, p.596.) Undoubtedly, this practice has been adopted in order that the ordinary pursuits

and business of society may not be unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional, and the government established by the occupant of transient character. Following these practice and precepts of the law of nations, Commander in Chief of the Japanese Forces proclaimed on January 3, 1942, when Manila was occupied, the military administration under martial law over the territory occupied by the army, and ordered that "all the laws now in force in the Commonwealth, as well as executive and judicial institutions, shall continue to be affective for the time being as in the past," and "all public officials shall remain in their present post and carry on faithfully their duties as before." When the Philippine Executive Commission was organized by Order No. 1 of the Japanese Commander in Chief, on January 23, 1942, the Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of January 30 and February 5, respectively, continued the Supreme Court, Court of Appeals, Court of First Instance, and justices of the peace of courts, with the same jurisdiction in conformity with the instructions given by the Commander in Chief of the Imperial Japanese Army in Order No. 3 of February 20, 1942. And on October 14, 1943 when the so-called Republic of the Philippines was inaugurated, the same courts were continued with no substantial change in organization and jurisdiction thereof. If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation had been continued during the Japanese military administration, the Philippine Executive Commission, and the so-called Republic of the Philippines, it stands to reason that the same courts, which had become reestablished and conceived of as having in continued existence upon the reoccupation and liberation of the Philippines by virtue of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may

continue the proceedings in cases then pending in said courts, without necessity of enacting a law conferring jurisdiction upon them to continue said proceedings. As Taylor graphically points out in speaking of said principles "a state or other governmental entity, upon the removal of a foreign military force, resumes its old place with its right and duties substantially unimpaired. . . . Such political resurrection is the result of a law analogous to that which enables elastic bodies to regain their original shape upon removal of the external force, and subject to the same exception in case of absolute crushing of the whole fibre and content." (Taylor, International Public Law, p. 615.) The argument advanced by the respondent judge in his resolution in support in his conclusion that the Court of First Instance of Manila presided over by him "has no authority to take cognizance of, and continue said proceedings (of this case) to final judgment until and unless the Government of the Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of the courts of the now defunct Republic of the Philippines, and the cases commenced and the left pending therein," is "that said courts were a government alien to the Commonwealth Government. The laws they enforced were, true enough, laws of the Commonwealth prior to Japanese occupation, but they had become the laws and the courts had become the institutions of Japan by adoption (U.S. vs. Reiter. 27 F. Cases, No. 16146), as they became later on the laws and institutions of the Philippine Executive Commission and the Republic of the Philippines." The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions of the country occupied if continued by the conqueror or occupant, become the laws and the courts, by adoption, of the sovereign nation that is militarily occupying the territory. Because, as already shown, belligerent or military

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

Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established continues until changed by the some competent legislative power. It is not change merely by change of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in law. From the time the law comes into existence with the first-felt corporateness of a primitive people it must last until the final disappearance of human society. Once created, it persists until a change take place, and when changed it continues in such changed condition until the next change, and so forever. Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law continues unchanged until the new sovereign by legislative acts creates a change." As courts are creatures of statutes and their existence defends upon that of the laws which create and confer upon them their jurisdiction, it is evident that such laws, not being a political nature, are not abrogated by a change of sovereignty, and continue in force "ex proprio vigore" unless and until repealed by legislative acts. A proclamation that said laws and courts are expressly continued is not necessary in order that they may continue in force. Such proclamation, if made, is but a declaration of the intention of respecting and not repealing those laws. Therefore, even assuming that Japan had legally acquired sovereignty over these Islands, which she had afterwards transferred to the so-called Republic of the Philippines, and that the laws and the courts of these Islands had become the courts of Japan, as the said courts of the laws creating and conferring jurisdiction upon them have continued in force until now, it necessarily follows that the same courts may continue exercising the same jurisdiction over cases

pending therein before the restoration of the Commonwealth Government, unless and until they are abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government. As a consequence, enabling laws or acts providing that proceedings pending in one court be continued by or transferred to another court, are not required by the mere change of government or sovereignty. They are necessary only in case the former courts are abolished or their jurisdiction so change that they can no longer continue taking cognizance of the cases and proceedings commenced therein, in order that the new courts or the courts having jurisdiction over said cases may continue the proceedings. When the Spanish sovereignty in the Philippine Islands ceased and the Islands came into the possession of the United States, the "Audiencia" or Supreme Court was continued and did not cease to exist, and proceeded to take cognizance of the actions pending therein upon the cessation of the Spanish sovereignty until the said "Audiencia" or Supreme Court was abolished, and the Supreme Court created in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of the Islands during the Spanish regime continued taking cognizance of cases pending therein upon the change of sovereignty, until section 65 of the same Act No. 136 abolished them and created in its Chapter IV the present Courts of First Instance in substitution of the former. Similarly, no enabling acts were enacted during the Japanese occupation, but a mere proclamation or order that the courts in the Island were continued. On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing the civil jurisdiction of the provost courts created by the military government of occupation in the Philippines during the Spanish-American War of 1898, the same section 78 provided for the transfer of all civil actions then pending in the

provost courts to the proper tribunals, that is, to the justices of the peace courts, Court of First Instance, or Supreme Court having jurisdiction over them according to law. And later on, when the criminal jurisdiction of provost courts in the City of Manila was abolished by section 3 of Act No. 186, the same section provided that criminal cases pending therein within the jurisdiction of the municipal court created by Act No. 183 were transferred to the latter. That the present courts as the same courts which had been functioning during the Japanese regime and, therefore, can continue the proceedings in cases pending therein prior to the restoration of the Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already quoted in support of our conclusion in connection with the second question. Said Executive Order provides"(1) that the Court of Appeals created and established under Commonwealth Act No. 3 as amended, be abolished, as it is hereby abolished," and "(2) that all cases which have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. . . ." In so providing, the said Order considers that the Court of Appeals abolished was the same that existed prior to, and continued after, the restoration of the Commonwealth Government; for, as we have stated in discussing the previous question, almost all, if not all, of the cases pending therein, or which had theretofore (that is, up to March 10, 1945) been duly appealed to said court, must have been cases coming from the Courts of First Instance during the so-called Republic of the Philippines. If the Court of Appeals abolished by the said Executive Order was not the same one which had been functioning during the Republic, but that which had existed up to the time of the Japanese occupation, it would have provided that all the cases which had, prior to and up to that occupation on January 2, 1942, been dully appealed to the said Court of Appeals

shall be transmitted to the Supreme Court for final decision. It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the proceedings in cases, not of political complexion, pending therein at the time of the restoration of the Commonwealth Government. Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves civil rights of the parties under the laws of the Commonwealth Government, pending in said court at the time of the restoration of the said Government; and that the respondent judge of the court, having refused to act and continue him does a duty resulting from his office as presiding judge of that court, mandamus is the speedy and adequate remedy in the ordinary course of law, especially taking into consideration the fact that the question of jurisdiction herein involved does affect not only this particular case, but many other cases now pending in all the courts of these Islands. In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement as to costs. So ordered. Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

Separate Opinions DE JOYA, J., concurring: The principal question involved in this case is the validity of the proceedings held in civil

case No. 3012, in the Court of First Instance of the City of Manila, under the now defunct Philippine Republic, during Japanese occupation; and the effect on said proceedings of the proclamation of General Douglas MacArthur, dated October 23, 1944. The decision of this question requires the application of principles of International Law, in connection with the municipal law in force in this country, before and during Japanese occupation. Questions of International Law must be decided as matters of general law (Juntington vs. Attril, 146 U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and International Law is no alien in this Tribunal, as, under the Constitution of the Commonwealth of the Philippines, it is a part of the fundamental law of the land (Article II, section 3). As International Law is an integral part of our laws, it must be ascertained and administered by this Court, whenever questions of right depending upon it are presented for our determination, sitting as an international as well as a domestic Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed., 838). Since International Law is a body of rules actually accepted by nations as regulating their mutual relations, the proof of the existence of a given rule is to be found in the consent of nations to abide by that rule; and this consent is evidenced chiefly by the usages and customs of nations, and to ascertain what these usages and customs are, the universal practice is to turn to the writings of publicists and to the decisions of the highest courts of the different countries of the world (The Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320). But while usage is the older and original source of International Law, great international treaties are a later source of increasing importance, such as The Hague Conventions of 1899 and 1907.

The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declares that: ARTICLE XLII. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to be territory where such authority is established, and in a position to assert itself. ARTICLE XLIII. The authority of the legitimate power having actually passed into the hands of the occupant, the later shall take all steps in his power to reestablish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. (32 Stat. II, 1821.) The above provisions of the Hague Convention have been adopted by the nations giving adherence to them, among which is United States of America (32 Stat. II, 1821). The commander in chief of the invading forces or military occupant may exercise governmental authority, but only when in actual possession of the enemy's territory, and this authority will be exercised upon principles of international Law (New Orleans vs. Steamship Co, [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57 Law Ed., 1260; II Oppenheim of International Law, section 167). There can be no question that the Philippines was under Japanese military occupation, from January, 1942, up to the time of the reconquest by the armed forces of the United States of the Island of Luzon, in February, 1945. It will thus be readily seen that the civil laws of the invaded State continue in force, in so far as they do not affect the hostile occupant unfavorably. The regular judicial Tribunals of the occupied territory continue usual for the

invader to take the whole administration into his own hands, partly because it is easier to preserve order through the agency of the native officials, and partly because it is easier to preserve order through the agency of the native officials, and partly because the latter are more competent to administer the laws in force within the territory and the military occupant generally keeps in their posts such of the judicial and administrative officers as are willing to serve under him, subjecting them only to supervision by the military authorities, or by superior civil authorities appointed by him.(Young vs. U.S., 39; 24 Law, ed., 992; Coleman vs. Tennessee, 97 U.S., 509; 24 Law ed., 1118; MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on International Law, sections 576. 578; Wilson on International Law; pp. 331-37; Hall on International Law, 6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on International Law, 7th ed., pp. 412, 413; Davis, Elements of International Law, 3rd ed., pp. 330-332 335; Holland on International Law pp. 356, 357, 359; Westlake on International Law, 2d ed., pp. 121-23.) It is, therefore, evident that the establishment of the government under the so-called Philippine Republic, during Japanese occupation, respecting the laws in force in the country, and permitting the local courts to function and administer such laws, as proclaimed in the City of Manila, by the Commander in Chief of the Japanese Imperial Forces, on January 3, 1942, was in accordance with the rules and principles of International Law. If the military occupant is thus in duly bound to establish in the territory under military occupation governmental agencies for the preservation of peace and order and for the proper administration of justice, in accordance with the laws in force within territory it must necessarily follow that the judicial proceedings conducted before the courts established by the military occupant

must be considered legal and valid, even after said government establish by the military occupant has been displaced by the legitimate government of the territory. Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely settling the rights of private parties actually within their jurisdiction, not tending to defeat the legal rights of citizens of the United States, nor in furtherance of laws passed in aid of the rebellion had been declared valid and binding (Cock vs.Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williams vs.Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700; Ketchum vs. Buckley [1878], 99 U.S., 188); and the judgment of a court of Georgia rendered in November, 1861, for the purchase money of slaves was held valid judgment when entered, and enforceable in 1871(Frenchvs. Tumlin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104). Said judgments rendered by the courts of the states constituting the Confederate States of America were considered legal and valid and enforceable, even after the termination of the American Civil War, because they had been rendered by the courts of a de facto government. The Confederate States were a de facto government in the sense that its citizens were bound to render the government obedience in civil matters, and did not become responsible, as wrong-doers, for such acts of obedience (Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law. ed., 361). In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held "It is now settled law in this court that during the late civil war the same general form of government, the same general law for the administration of justice and the protection of private rights, which had existed in the

States prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the States did not impair or tend to impair the supremacy of the national authority, or the just and legal rights of the citizens, under the Constitution, they are in general to be treated as valid and binding." (William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700.) The government established in the Philippines, during Japanese occupation, would seem to fall under the following definition of de facto government given by the Supreme Court of the United States: But there is another description of government, called also by publicists, a government de facto, but which might, perhaps, be more aptly denominateda government of paramount force. Its distinguishing characteristics are (1) that its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and (2) that while it exists it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrong doers, for those acts, though not warranted by the laws of the rightful government. Actual government of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered, also, by civil authority, supported more or less directly by military force. (Macleod vs. United States [1913] 229 U.S., 416.) The government established in the Philippines, under the so-called Philippine Republic, during Japanese occupation, was and should be considered as a de facto government; and that the judicial proceedings conducted before the courts which had been established in this country,

during said Japanese occupation, are to be considered legal and valid and enforceable, even after the liberation of this country by the American forces, as long as the said judicial proceedings had been conducted, under the laws of the Commonwealth of the Philippines. The judicial proceedings involved in the case under consideration merely refer to the settlement of property rights, under the provisions of the Civil Code, in force in this country under the Commonwealth government, before and during Japanese occupation. Now, petitioner contends that the judicial proceedings in question are null and void, under the provisions of the proclamation issued by General Douglas MacArthur, dated October 23, 1944; as said proclamation "nullifies all the laws, regulations and processes of any other government of the Philippines than that of the Commonwealth of the Philippines." In other words, petitioner demands a literal interpretation of said proclamation issued by General Douglas MacArthur, a contention which, in our opinion, is untenable, as it would inevitably produce judicial chaos and uncertainties. When an act is susceptible of two or more constructions, one of which will maintain and the others destroy it, the courts will always adopt the former (U. S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of Granada County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125; In re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46 Phil., 385). The judiciary, always alive to the dictates of national welfare, can properly incline the scales of its decisions in favor of that solution which will most effectively promote the public policy (Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible construction. General terms should be so

limited in their application as not lead to injustice, oppression or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter (U. S. vs. Kirby, 7 Wall. [U.S.], 482; 19 Law. ed., 278; Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed., 226; Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765; In re Allen, 2 Phil., 630). The duty of the court in construing a statute, which is reasonably susceptible of two constructions to adopt that which saves is constitutionality, includes the duty of avoiding a construction which raises grave and doubtful constitutional questions, if it can be avoided (U. S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836). According to the rules and principles of International Law, and the legal doctrines cited above, the judicial proceedings conducted before the courts of justice, established here during Japanese military occupation, merely applying the municipal law of the territory, such as the provisions of our Civil Code, which have no political or military significance, should be considered legal, valid and binding. It is to be presumed that General Douglas MacArthur is familiar with said rules and principles, as International Law is an integral part of the fundamental law of the land, in accordance with the provisions of the Constitution of the United States. And it is also to be presumed that General MacArthur his acted, in accordance with said rules and principles of International Law, which have been sanctioned by the Supreme Court of the United States, as the nullification of all judicial proceedings conducted before our courts, during Japanese occupation would lead to injustice and absurd results, and

would be highly detrimental to the public interests. For the foregoing reasons, I concur in the majority opinion.

PERFECTO, J., dissenting: Law must be obeyed. To keep the bonds of society, it must not be evaded. On its supremacy depends the stability of states and nations. No government can prevail without it. The preservation of the human race itself hinges in law. Since time immemorial, man has relied on law as an essential means of attaining his purposes, his objectives, his mission in life. More than twenty-two centuries before the Christian Era, on orders of the Assyrian King Hammurabi, the first code was engrave in black diorite with cunie form characters. Nine centuries later Emperor Hung Wu, in the cradle of the most ancient civilization, compiled the Code of the Great Ming. The laws of Manu were written in the verdic India. Moses received at Sinai the ten commandments. Draco, Lycurgus, Solon made laws in Greece. Even ruthless Genghis Khan used laws to keep discipline among the nomad hordes with which he conquered the greater part of the European and Asiastic continents. Animal and plants species must follow the mendelian heredity rules and other biological laws to survive. Thanks to them, the chalk cliffs of the infusoria show the marvel of an animal so tiny as to be imperceptible to the naked eye creating a whole mountain. Even the inorganic world has to conform the law. Planets and stars follow the laws discovered by Kepler, known as the law-maker of heavens. If, endowed with rebellious spirit, they should happen to challenge the law of universal gravity, the immediate result would be cosmic chaos. The tiny and twinkling points of light set above us on the velvet

darkness of the night will cease to inspire us with dreams of more beautiful and happier worlds. Again we are called upon to do our duty. Here is a law that we must apply. Shall we shrink? Shall we circumvent it ? Can we ignore it? The laws enacted by the legislators shall be useless if courts are not ready to apply them. It is actual application to real issues which gives laws the breath of life. In the varied and confused market of human endeavor there are so many things that might induce us to forget the elementals. There are so many events, so many problem, so many preoccupations that are pushing among themselves to attract our attention, and we might miss the nearest and most familiar things, like the man who went around his house to look for a pencil perched on one of his ears. THE OCTOBER PROCLAMATION In October, 1944, the American Armed Forces of Liberation landed successfully in Leyte. When victory in islands was accomplished, after the most amazing and spectacular war operations, General of the Army Douglas MacArthur as a commander in Chief of the American Army, decided to reestablish, in behalf of the United States, the Commonwealth Government. Then he was confronted with the question as to what policy to adopt in regards to the official acts of the governments established in the Philippines by the Japanese regime. He might have thought of recognizing the validity of some of said acts, but, certainly, there were acts which he should declare null and void, whether against the policies of the American Government, whether inconsistent with military strategy and operations, whether detrimental to the interests of the

American or Filipino peoples, whether for any other strong or valid reasons. But, which to recognize, and which not? He was not in a position to gather enough information for a safe basis to distinguished and classify which acts must be nullified, and which must validated. At the same time he had to take immediate action. More pressing military matters were requiring his immediate attention. He followed the safe course: to nullify all the legislative, executive, and judicial acts and processes under the Japanese regime. After all, when the Commonwealth Government is already functioning, with proper information, he will be in a position to declare by law, through its Congress, which acts and processes must be revived and validated in the public interest. So on October 23, 1944, the Commander in Chief issued the following proclamation: GENERAL HEADQUARTERS SOUTHWEST PACIFIC AREA OFFICE OF THE COMMANDER IN CHIEF PROCLAMATION To the People of the Philippines: WHEREAS, the military forces under my command have landed in the Philippines soil as a prelude to the liberation of the entire territory of the Philippines; and WHEREAS, the seat of the Government of the Commonwealth of the Philippines has been re-established in the Philippines under President Sergio Osmea and the members of his cabinet; and WHEREAS, under enemy duress, a so-called government styled as the "Republic of the Philippines" was established on October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the Government of the United States, and is purporting to exercise

Executive, Judicial and Legislative powers of government over the people; Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander in Chief of the military forces committed to the liberation of the Philippines, do hereby proclaim and declare: 1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority of the Government of the United States, the sole and the only government having legal and valid jurisdiction over the people in areas of the Philippines free of enemy occupation and control; 2. The laws now existing on the statute books of the Commonwealth of the Philippines and the regulation promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control; and 3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free enemy occupation and control; and I do hereby announce my purpose progressively to restore and extend to the people of the Philippines the sacred right of government by constitutional process under the regularly constituted Commonwealth Government as rapidly as the several occupied areas are liberated to the military situation will otherwise permit; I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted government whose seat is now firmly reestablished on Philippine soil. October 23, 1944.

DOUGLAS MACARTHUR General U. S. Army Commander in Chief IS THE OCTOBER PROCLAMATION LAW? In times of war the Commander in Chief of an army is vested with extraordinary inherent powers, as a natural result of the nature of the military operations aimed to achieve the purposes of his country in the war, victory being paramount among them. Said Commander in Chief may establish in the occupied or reoccupied territory, under his control, a complete system of government; he may appoint officers and employees to manage the affairs of said government; he may issue proclamations, instructions, orders, all with the full force of laws enacted by a duly constituted legislature; he may set policies that should be followed by the public administration organized by him; he may abolish the said agencies. In fact, he is the supreme ruler and law-maker of the territory under his control, with powers limited only by the receipts of the fundamental laws of his country. California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846. Shortly afterward the United States had military possession of all upper California. Early in 1847 the President, as constitutional commander in chief of the army and navy, authorized the military and naval commander of our forces in California to exercise the belligerent rights of a conqueror, and form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government, and of the army which has the conquest in possession. . . Cross of Harrison, 16 Howard, 164, 189.) In May, 1862, after the capture of New Orleans by the United States Army, General Butler, then in command of the army at that place, issued a general order appointing

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

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

President, as Commander in Chief, and instructed as such with the direction of the military force by which the occupation was held." Thus it has been determined that the power to establish by military authority courts for the administration of civil as well as criminal justice in portions of the insurgent States occupied by the National forces, is precisely the same as that which exists when foreign territory has been conquered and is occupied by the conquerors. What that power is has several times been considered. In Leitensdorfer & Houghton vs. Webb, may be found a notable illustration. Upon the conquest of New Mexico, in 1846, the commanding officer of the conquering army, in virtue of the power of conquest and occupancy, and with the sanction and authority of the President, ordained a provisional government for the country. The ordinance created courts, with both civil and criminal jurisdiction. It did not undertake to change the municipal laws of the territory, but it established a judicial system with a superior or appellate court, and with circuit courts, the jurisdiction of which declared to embrace, first, all criminal causes that should not otherwise provided for by law; and secondly, original and exclusive cognizance of all civil cases not cognizable before the prefects and alcades. But though these courts and this judicial system were established by the military authority of the United States, without any legislation of Congress, this court ruled that they were lawfully established. And there was no express order for their establishment emanating from the President or the Commander in Chief. The ordinance was the act of the General Kearney the commanding officer of the army occupying the conquered territory. In view of these decisions it is not to be questioned that the Constitution did not prohibit the creation by the military authority of court for the trial of civil causes during the

civil war in conquered portions of the insurgent States. The establishment of such courts is but the exercise of the ordinary rights of conquest. The plaintiffs in error, therefore, had no constitutional immunity against subjection to the judgements of such courts. They argue, however, that if this be conceded, still General Butler had no authority to establish such a court; that the President alone, as a Commander in Chief, had such authority. We do not concur in this view. General Butler was in command of the conquering and the occupying army. He was commissioned to carry on the war in Louisina. He was, therefore, invested with all the powers of making war, so far as they were denied to him by the Commander in Chief, and among these powers, as we have seen, was of establishing courts in conquered territory. It must be presumed that he acted under the orders of his superior officer, the President, and that his acts, in the prosecution of the war, were the acts of his commander in chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.) There is no question, therefore, that when General of the Army Douglas MacArthur issued on October Proclamation, he did it in the legitimate exercise of his powers. He did it as the official representative of the supreme authority of the United States of America. Consequently, said proclamation is legal, valid, and binding. Said proclamation has the full force of a law. In fact, of a paramount law. Having been issued in the exercise of the American sovereignty, in case of conflict, it can even supersede, not only the ordinary laws of the Commonwealth of the Philippines, but also our Constitution itself while we remain under the American flag. "PROCESS" IN THE OCTOBER PROCLAMATION In the third section of the dispositive part of the October Proclamation, it is declared that all laws, regulations and processes of any

other government in the Philippines than that of the Commonwealth, are null and void. Does the word "processes" used in the proclamation include judicial processes? In its broadest sense, process is synonymous with proceedings or procedures and embraces all the steps and proceedings in a judicial cause from it commencement to its conclusion. PROCESS. In Practice. The means of compelling a defendant to appear in court after suing out the original writ, in civil, and after indictment, in criminal cases. The method taken by law to compel a compliance with the original writ or command as of the court. A writ, warrant, subpoena, or other formal writing issued by authority law; also the means of accomplishing an end, including judicial proceedings; Gollobitch vs. Rainbow, 84 la., 567; 51 N. W., 48; the means or method pointed out by a statute, or used to acquire jurisdiction of the defendants, whether by writ or notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St. Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.) A. Process generally. 1. Definition. As a legal term process is a generic word of every comprehensive signification and many meanings. It is broadest sense it is equivalent to, or synonymous with, "proceedings" or "procedure," and embraces all the steps and proceedings in a cause from its commencement to its conclusion. Sometimes the term is also broadly defined as the means whereby a court compels a compliance with it demands. "Process" and "writ" or "writs" are synonymous in the sense that every writ is a process, and in a narrow sense of the term "process" is limited to judicial writs in an action, or at least to writs or writings issued from or out of court, under the seal thereof, and returnable thereto; but it is not always necessary to construe the

term so strictly as to limit it to a writ issued by a court in the exercise of its ordinary jurisdiction; the term is sometimes defined as a writ or other formal writing issued by authority of law or by some court, body, or official having authority to issue it; and it is frequently used to designate a means, by writ or otherwise , of acquiring jurisdiction of defendant or his property, or of bringing defendant into, or compelling him to appear in, court to answer. As employed in the statutes the legal meaning of the word "process" varies according to the context, subject matter, and spirit of the statute in which it occurs. In some jurisdictions codes or statutes variously define "process" as signifying or including: A writ or summons issued in the course of judicial proceedings; all writs, warrants, summonses, and orders of courts of justice or judicial officers; or any writ, declaration, summons, order, or subpoena whereby any action, suit or proceeding shall be commenced, or which shall be issued in or upon any action, suit or proceeding. (50 C. J., PP. 441, 442.) The definition of "process" given by Lord Coke comprehends any lawful warrant, authority, or proceeding by which a man may be arrested. He says: "Process of law is two fold, namely, by the King's writ, or by proceeding and warrant, either in deed or in law, without writ." (People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.) Baron Comyn says that process, in a large acceptance, comprehends the whole proceedings after the original and before judgement; but generally it imports the writs which issue out of any court to bring the party to answer, or for doing execution, and all process out of the King's court ought to be in the name of the King. It is called "process" because it proceeds or goes upon former matter, either original or judicial. Gilmer, vs. Bird 15 Fla., 410, 421. (34 Words

and Phrases, permanent edition, 1940 edition, p. 147.) In a broad sense the word "process" includes the means whereby a court compels the appearance of the defendant before it, or a compliance with it demands, and any every writ, rule order, notice, or decree, including any process of execution that may issue in or upon any action, suit, or legal proceedings, and it is not restricted to mesne process. In a narrow or restricted sense it is means those mandates of the court intending to bring parties into court or to require them to answer proceedings there pending. (Colquitt Nat. Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.) A "process" is an instrument in an epistolary from running in the name of the sovereign of a state and issued out of a court of justice, or by a judge thereof, at the commencement of an action or at any time during its progress or incident thereto, usually under seal of the court, duly attested and directed to some municipal officer or to the party to be bound by it, commanding the commission of some act at or within a specified time, or prohibiting the doing of some act. The cardinal requisites are that the instrument issue from a court of justice, or a judge thereof; that it run in the name of the sovereign of the state; that it be duly attested, but not necessarily by the judge, though usually, but not always, under seal; and that it be directed to some one commanding or prohibiting the commission of an act. Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.) Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is largely taken for all proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end; secondly, that is termed the "process" by which a man is called into any temporal

court, because the beginning or principal part thereof, by which the rest is directed or taken. Strictly, it is a proceeding after the original, before the judgement. A policy of fire insurance contained the condition that if the property shall be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree or voluntary transfer or convenience, then and in every such case the policy shall be void. The term "legal process," as used in the policy, means what is known as a writ; and, as attachment or execution on the writs are usually employed to effect a change of title to property, they are or are amongst the processes contemplated by the policy. The words "legal process" mean all the proceedings in an action or proceeding. They would necessarily embrace the decree, which ordinarily includes the proceedings. Perry vs. Lorillard Fire Ins. Co., N. Y., 6 Lans., 201, 204. See, also, Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.) "Process" in a large acceptation, is nearly synonymous with "proceedings," and means the entire proceedings in an action, from the beginning to the end. In a stricter sense, it is applied to the several judicial writs issued in an action. Hanna vs. Russell, 12 Minn., 80, 86 (Gil., 43, 45). (34 Words and Phrases, permanent edition, 1940, edition 149.) The term "process" as commonly applied, intends that proceeding by which a party is called into court, but it has more enlarged signification, and covers all the proceedings in a court, from the beginning to the end of the suit; and, in this view, all proceedings which may be had to bring testimony into court, whether viva voceor in writing, may be considered the process of the court. Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id. "Process" in its broadest sense comprehends all proceedings to the accomplishment of an end, including judicial proceedings. Frequently its signification is limited to the means of bringing a party in court. In the

Constitution process which at the common law would have run in the name of the king is intended. In the Code process issued from a court is meant. McKenna vs. Cooper, 101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn., 80. (Gil., 43 ); Black Com. 279; Bou vs. Law. Dict. (34 Words and Phrases, permanent edition 1940 edition, p. 149.) "Judicial process" includes the mandate of a court to its officers, and a means whereby courts compel the appearance of parties, or compliance with its commands, and includes a summons. Ex parte Hill, 51 So., 786, 787; 165 Ala., 365. "Judicial process" comprehends all the acts of then court from the beginning of the proceeding to its end, and in a narrower sense is the means of compelling a defendant to appear in court after suing out the original writ in civil case and after the indictment in criminal cases, and in every sense is the act of the court and includes any means of acquiring jurisdiction and includes attachment, garnishment, or execution, and also a writ. Blair vs. Maxbass Security Bank of Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and Phrases, permanent edition 1940 edition, p. 328.) There is no question that the word process, as used in the October Proclamation, includes all judicial processes or proceedings. The intention of the author of the proclamation of including judicial processes appears clearly in the preamble of the document. The second "Whereas," states that so-called government styled as the "Republic of the Philippines," based upon neither the free expression of the people's will nor the sanction of the Government of the United States, and is purporting to the exercise Executive, Judicial, and Legislative powers of government over the people."

It is evident from the above-mentioned words that it was the purpose of General MacArthur to declare null and void all acts of government under the Japanese regime, and he used, in section 3 of he dispositive part, the word laws, as pertaining to the legislative branch, the word regulations, as pertaining to the executive branch, and lastly, the word processes, as pertaining to the judicial branch of the government which functioned under the Japanese regime. It is reasonable to assume that he might include in the word "process." besides those judicial character, those of executive or administrative character. At any rate, judicial processes cannot be excluded. THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY THE INTENTION OF THE AUTHOR The October Proclamation is written in such a way that it is impossible to make a mistake as to the intention of its author. Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of the United States, the following: When the words in their literal sense have a plain meaning, courts must be very cautious in allowing their imagination to give them a different one. Guild vs. Walter, 182 Mass., 225, 226 (1902) Upon questions of construction when arbitrary rule is involved, it is always more important to consider the words and the circumstances than even strong analogies decisions. The successive neglect of a series of small distinctions, in the effort to follow precedent, is very liable to end in perverting instruments from their plain meaning. In no other branch of the law (trusts) is so much discretion required in dealing with authority. . . . There is a strong presumption in favor of giving them words their natural meaning, and against reading them as if they said something else, which they are not

fitted to express. (Merrill vs. Preston, 135 Mass., 451, 455 (1883). When the words of an instrument are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framer, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what needs no interpretation. Very strong expression have been used by the courts to emphasize the principle that they are to derive their knowledge of the legislative intention from the words or language of the statute itself which the legislature has used to express it. The language of a statute is its most natural guide. We are not liberty to imagine an intent and bind the letter to the intent. The Supreme Court of the United States said: "The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of the words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true that there are cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional and only arise where there are cogent reasons for believing that the letter does not fully and accurately disclose the intent. No mere ommission, no mere failure to provide for contingencies, which it may seem wise should have specifically provided for will justify any judicial addition to the language of the statute." (United States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.) That the Government of the Commonwealth of the Philippines shall be the sole and only government in our country; that our laws are in full force and effect and legally binding; that "all laws, regulations and processes of any other government are null and void and without legal effect", are provisions clearly,

distinctly, unmistakably expressed in the October Proclamation, as to which there is no possibility of error, and there is absolutely no reason in trying to find different meanings of the plain words employed in the document. As we have already seen, the annulled processes are precisely judicial processes, procedures and proceedings, including the one which is under our consideration. THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY Although, as we have already stated, there is no possible mistakes as to the meaning of the words employed in the October Proclamation, and the text of the document expresses, in clear-cut sentences, the true purposes of its author, it might not be amiss to state here what was the policy intended to be established by said proclamation. It is a matter of judicial knowledge that in the global war just ended on September 2, 1945, by the signatures on the document of unconditional surrender affixed by representatives of the Japanese government, the belligerents on both sides resorted to what may call war weapons of psychological character. So Japan, since its military forces occupied Manila, had waged an intensive campaign propaganda, intended to destroy the faith of the Filipino people in America, to wipe out all manifestations of American or occidental civilization, to create interest in all things Japanese, which the imperial officers tried to present as the acme of oriental culture, and to arouse racial prejudice among orientals and occidentals, to induce the Filipinos to rally to the cause of Japan, which she tried to make us believe is the cause of the inhabitants of all East Asia. It is, then, natural that General MacArthur should take counter-measures to neutralize or annul completely all vestiges of Japanese influence, specially those which might jeopardize in any way his military operations

and his means of achieving the main objective of the campaign of the liberation, that is, to restore in our country constitutional processes and the high ideals constitute the very essence of democracy. It was necessary to free, not only our territory, but also our spiritual patrimony. It was necessary, not only to restore to us the opportunity of enjoying the physical treasures which a beneficent Providence accumulated on this bountiful land, the true paradise in the western Pacific, but to restore the full play of our ideology, that wonderful admixture of sensible principles of human conduct, bequeathed to us by our Malayan ancestors, the moral principles of the Christianity assimilated by our people from teachers of Spain, and the common-sense rules of the American democratic way of life. It was necessary to free that ideology from any Japanese impurity. Undoubtedly, the author of the proclamation thought that the laws, regulations, and processes of all the branches of the governments established under the Japanese regime, if allowed to continue and to have effect, might be a means of keeping and spreading in our country the Japanese influence, with the same deadly effects as the mines planted by the retreating enemy. The government offices and agencies which functioned during the Japanese occupation represented a sovereignty and ideology antagonistic to the sovereignty and ideology which MacArthur's forces sought to restore in our country. Under chapter I of the Japanese Constitution, it is declared that Japan shall reigned and governed by a line Emperors unbroken for ages eternal (Article 1); that the Emperor is sacred and inviolable (Article 3); that he is the head of the Empire, combining in himself the rights of the sovereignty (Article 4); that he exercises the legislative power (Article 5); that he gives sanction to laws, and orders to

be promulgated and executed (Article 6);that he has the supreme command of the Army and Navy (Article 11); that he declares war, makes peace, and concludes treaties (Article 13). There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a people which as confessed in a book we have at our desk, written by a Japanese, insists in doing many things precisely in a way opposite to that followed by the rest of the world. It is the ideology of a people which insists in adopting the policy of self-delusion; that believes that their Emperor is a direct descendant of gods and he himself is a god, and that the typhoon which occured on August 14, 1281, which destroyed the fleet with which Kublai Khan tried to invade Japan was the divine wind of Ise; that defies the heinous crime of the ronin, the 47 assassins who, in order to avenge the death of their master Asano Naganori, on February 3, 1703, entered stealthily into the house of Yoshinaka Kiro and killed him treacherously. It is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant from suicide, and on September 13, 1912, on the occasion of the funeral of Emperor Meiji, induced General Maresuke Nogi and his wife to practice the abhorrent "junshi", and example of which is offered to us in the following words of a historian: When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that, following the occasion, his attendants were assembled to from the hito-bashira (pillar-men) to gird the grave. They were buried alive in circle up to the neck around the thomb and "for several days they died not, but wept and wailed day night. At last they died not, but wept and wailed day night. At last they did not rotted. Dogs and cows gathered and ate them." (Gowen, an Outline of History of Japan, p. 50.)

The practice shows that the Japanese are the spiritual descendants of the Sumerians, the ferocious inhabitants of Babylonia who, 3500 years B. C., appeared in history as the first human beings to honor their patesis by killing and entombing with him his window, his ministers, and notable men and women of his kingdom, selected by the priests to partake of such abominable honor. (Broduer, The Pageant of Civilization, pp. 62-66.) General MacArthur sought to annul completely the officials acts of the governments under the Japanese occupation, because they were done at the shadow of the Japanese dictatorship, the same which destroyed the independence of Korea, the "Empire of Morning Frehsness"; they violated the territorial integrity of China, invaded Manchuria, and initiated therein the deceitful system of puppet governments, by designating irresponsible Pu Yi as Emperor of Manchukuo; they violated the trusteeship granted by the Treaty of Versailles by usurping tha mandated islands in the Pacific; they initiated that they call China Incident, without war declaration, and, therefore, in complete disregard of an elemental international duty; they attacked Pearl Harbor treacherously, and committed a long series of the flagrant violations of international law that have logically bestowed on Japan the title of the bandit nation in the social world. The conduct of the Japanese during the occupation shows a shocking an anchronism of a modern world power which seems to be re-incarnation of one whose primitive social types of pre-history, whose proper place must be found in an archeological collection. It represents a backward jump in the evolution of ethical and juridical concepts, a reversion that, more than a simple pathological state, represents a characteristics and well defined case of sociological teratology. Since they entered the threshold of our capital, the Japanese had announced that for

every one of them killed they would kill ten prominent Filipinos. They promised to respect our rights by submitting us to the wholesale and indiscriminate slapping, tortures, and atrocious massacres. Driving nails in the cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical zonings, looting of properties, establishments of redlight districts, machine gunning of women and children, interment of alive persons, they are just mere preludes of the promised paradised that they called "Greater East Asia Co-Prosperity Sphere". They promised religious liberty by compelling all protestant sects to unite, against the religious scruples and convictions of their members, in one group, and by profaning convents, seminaries, churches, and other cult centers of the Catholics, utilizing them as military barracks, munitions dumps, artillery base, deposits of bombs and gasoline, torture chambers and zone, and by compelling the government officials and employees to face and to bow in adoration before that caricature of divinity in the imperial palace of Tokyo. The Japanese offered themselves to be our cultural mentors by depriving us of the use of our schools and colleges, by destroying our books and other means of culture, by falsifying the contents of school texts, by eliminating free press, the radio, all elemental principles of civilized conduct, by establishing classes of rudimentary Japanese so as to reduce the Filipinos to the mental level of the rude Japanese guards, and by disseminating all kinds of historical, political, and cultural falsehoods. Invoking our geographical propinquity and race affinity, they had the insolence of calling us their brothers, without the prejuce of placing of us in the category of slaves, treating the most prominent Filipinos in a much lower social and political category than that of the most ignorant and brutal subject of the Emperor.

The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and tortured during investigations. In the prosecuting attorney's offices, no one was safe. When the Japanese arrested a person, the lawyer who dared to intercede was also placed under arrest. Even courts were not free from their dispotic members. There were judges who had to trample laws and shock their conscience in order not to disgust a Nipponese. The most noble of all professions, so much so that the universities of the world could not conceive of higher honor that may be conferred than that of Doctor of Laws, became the most despised. It was dangerous to practice the profession by which faith in the effectiveness of law is maintained; citizens feel confident in the protection of their liberties, honor, and dignity; the weak may face the powerful; the lowest citizen is not afraid of the highest official; civil equality becomes reality; justice is admnistered with more efficiency; and democracy becomes the best system of government and the best guaranty for the welfare and happiness of the individual human being. In fact, the profession of law was annulled, and the best lawyers for the unfortunate prisoners in Fort Santiago and other centers of torture were the military police, concubines, procurers, and spies, the providers of war materials and shameful pleasures, and the accomplices in fraudulent transactions, which were the specialty of many naval and military Japanese officers. The courts and Filipino government officials were completely helpless in the question of protecting the constitutional liberties and fundamental rights of the citizens who happen to be unfortunate enough to fall under the dragnet of the hated kempei. Even the highest government officials were not safe from arrest and imprisonment in the dreaded military dungeons, where torture or horrible death were always awaiting the defenseless victim of the Japanese brutality.

May any one be surprised if General MacArthur decided to annul all the judicial processes? The evident policy of the author of the October Proclamation can be seen if we take into consideration the following provisions of the Japanese Constitution: ART. 57. The Judicature shall be exercised by the Courts of Law according to law, in the name of the Emperor. ART. 61. No suit at law, which relates to rights alleged to have been infringed by the illegal measures of the executive authority .. shall be taken cognizance of by a Court of Law. INTERNATIONAL LAW Nobody dared challenge the validity of the October Proclamation. Nobody dared challenge the authority of the military Commander in Chief who issued it. Certainly not because of the awe aroused by the looming figure of General of the Army Douglas MacArthur, the Allied Supreme Commander, the military hero, the greatest American general, the Liberator of the Philippines, the conqueror of Japan, the gallant soldier under whose authority the Emperor of the Japan, who is supposed to rule supreme for ages as a descendant of gods, is receiving orders with the humility of a prisoner of war. No challenge has been hurled against the proclamation or the authority of the author to issue it, because everybody acknowledges the full legality of its issuance. But because the proclamation will affect the interest and the rights of a group of individuals, and to protect the same, a way is being sought to neutralize the effect of the proclamation. The way found is to invoke international law. The big and resounding word is considered

as a shibboleth powerful enough to shield the affected persons from the annulling impact. Even then, international law is not invoked to challenge the legality or authority of the proclamation, but only to construe it in a convenient way so that judicial processes during the Japanese occupation, through an exceptional effort of the imagination, might to segregated from the processes mentioned in the proclamation. An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science. On the country, it is developing incessantly, it is perpetually changing in forms. In each turn it advances or recedes, according to the vicissitudes of history, and following the monotonous rythm of the ebb and rise of the tide of the sea. Le driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se developpe sans cesse, il change eternellement de formes; tour il avance et il recule, selon less vicissitudes de histoire et suivan un rhythm monotone qui est comme le flux et le reflux d'un mer. (M. Revon, De l'existence du driot international sous la republique romain.) Another author has this to say: International law, if it is or can be a science at all, or can be, at most a regulative science, dealing with the conduct of States, that is, human beings in a certain capacity; and its principles and prescriptions are not, like those of science proper, final and unchanging. The substance of science proper is already made for man; the substance of international is actually made by man, and different ages make differently." (Coleman Philippson, The International Law and Custom of Ancient Greece of Rome, Vol. I, p. 50.) "Law must be stable, and yet it cannot stand still." (Pound, Interpretations of Legal History., p. 1. ) Justice Cardozo adds: "Here is

the great antimony confronting us at every turn. Rest and motion, unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue, must find some path compromise." (The Growth of Law p. 2.) Law is just one of the manifestations of human life, and "Life has relations not capable of division into inflexible compartments. The moulds expand and shrink," (Glanzer vs. Shepard, 233 N.Y., 236, 241.) The characteristic plasticity of law is very noticeable, much more than in any other department, in international law. In a certain matters it is clear we have made substantial progress, but in other points, he (M. Revon) maintains, we have retrograded; for example, in the middle ages the oath was not always respected as faithfully as in ancient Rome; and nearer our own times, in the seventeenth century, Grotius proclaims the unquestioned right of the belligerents to massacre the women and the children of the enemy; and in our more modern age the due declaration of war which Roman always conformed to has not been invariably observed. (Coleman Philippson, The International Law and Custom of Ancient Greece and Rome, Vol. I, p. 209.) Now let us see if any principle of international law may effect the enforcement of the October Proclamation. In this study we should be cautioned not to allow ourselves to be deluded by generalities and vagueness which are likely to lead us easily to error, in view of the absence of codification and statutory provisions. Our Constitution provides: The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the Nation. (Sec. 3, Art. II.)

There being no codified principles of international law, or enactments of its rules, we cannot rely on merely legal precepts. With the exception of international conventions and treaties and, just recently, the Charter of the United Nations, adopted in San Francisco Conference on June 26, 1945, we have to rely on unsystemized judicial pronouncements and reasonings and on theories, theses, and propositions that we may find in the works of authors and publicists. Due to that characteristic pliability and imprecision of international law, the drafters of our Constitution had to content themselves with "generally accepted principles." We must insists, therefore, that the principles should be specific and unmistakably defined and that there is definite and conclusive evidence to the effect that they generally accepted among the civilized nations of the world and that they belong to the current era and no other epochs of history. The temptation of assuming the role of a legislator is greater in international law than in any other department of law, since there are no parliaments, congresses, legislative assemblies which can enact laws and specific statutes on the subject. It must be our concern to avoid falling in so a great temptation, as its, dangers are incalculable. It would be like building castles in the thin air, or trying to find an exit in the thick dark forest where we are irretrievably lost. We must also be very careful in our logic. In so vast a field as international law, the fanciful wandering of the imagination often impair the course of dialistics. THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW Is there any principle of international law that may effect the October Proclamation?

We tried in vain to find out in the majority opinion anything as to the existence of any principle of international law under which the authority of General MacArthur to issue the proclamation can effectively be challenged. No principle of international law has been, or could be invoked as a basis for denying the author of the document legal authority to issue the same or any part thereof. We awaited in vain for any one to dare deny General MacArthur the authority, under international law, to declare null and void and without effect, not only the laws and regulations of the governments under the Japanese regime, but all the processes of said governments, including judicial processes. If General MacArthur, as commander in Chief of the American Armed Forces of Liberation, had authority, full and legal, to issue the proclamation, the inescapable result will be the complete viodance and nullity of all judicial processes, procedures, and proceedings of all courts under the Japanese regime. But those who are sponsoring the cause of said judicial processes try to achieve their aim, not by direct means, but by following a tortuous side-road. They accept and recognize the full authority of the author of the proclamation to issue it and all its parts, but they maintain that General MacArthur did not and could not have in mind the idea of nullifying the judicial processes during the Japanese occupation, because that will be in violation of the principles of international law. If we follow the reasoning of the majority opinion we will have to reach the conlusion that the world "processes" does not appear at all in the October Proclamation. It is stated more than once, and reiterated with dogmatic emphasis, that under the principles of international law the judicial

processes under an army occupation cannot be invalidated. But we waited in vain for the specific principle of international law, only one of those alluded to, to be pointed out to us. If the law exist, it can be pointed out. If the principle exists, it can stated specifically. The word is being used very often in plural, principles, but we need only one to be convinced. The imagined principles are so shrouded in a thick maze of strained analogies and reasoning, that we confess our inability even to have a fleeting glimpse at them through their thick and invulnerable wrappers. At every turn international law, the blatant words, are haunting us with the deafening bray of a trumpet, but after the transient sound has fled away, absorbed by the resiliency of the vast atmosphere, the announced principles, which are the very soul of international law, would disappear too with the lighting speed of a vanishing dream. WEAKNESS OF THE MAJORITY POSITION In the majority opinion three questions are propounded: first, whether judicial acts and proceedings during the Japanese occupation are valid even after liberation; second whether the October Proclamation had invalidated all judgement and judicial proceedings under the Japanese regime; and third, whether the present courts of the Commonwealth may continue the judicial proceedings pending at the time of liberation. As regards the first question, it is stated that it is a legal tourism in political and international law that all acts of ade facto government are good and valid, that the governments established during the Japanese occupation. that is, the Philippine Executive Commission and the Republic of the Philippines, were de facto governments, and that it necessarily follows that the

judicial acts and proceedings of the courts of those governments, "which are not of a political complexion," were good and valid, and by virtue of the principle of postliminium, remain good and valid after the liberation. In the above reasoning we will see right away how the alleged legal truism in political and international law, stated as a premise in a sweeping way, as an absolute rule, is immediately qualified by the exception as to judicial acts and proceedings which are of a "political complexion." So it is the majority itself which destroys the validity of what it maintains as a legal truism in political and international law, by stating from the beginning of the absolute proposition that all acts and proceedings of the legislative, executive, and judicial departments of a de facto governments are good and valid. It is be noted that no authority, absolutely no authority, has been cited to support the absolute and sweeping character of the majority proposition as stated in their opinion. No authority could be cited, because the majority itself loses faith in the validity of such absolute and sweeping proposition, by establishing an unexplained exception as regards the judicial acts and proceedings of a "political complexion." Besides, it is useless to try to find in the arguments of the majority anything that may challenge the power, the authority of a de jure government to annul the official acts of a de facto government, or the legal and indisputable authority of the restored legitimate government to refuse to recognize the official acts, legislative, executive and judicial, of the usurping government, once the same is ousted. As to the second question, the majority argues that the judicial proceedings and judgments of the de factogovernments under

the Japanese regime being good and valid, "it should be presumed that it was not, and could not have been, the intention of General Douglas MacArthur to refer to judicial processes, when he used the last word in the October Proclamation, and that it only refers to government processes other than judicial processes or court proceedings." The weakness and absolute ineffectiveness of the argument are self-evident. It is maintained that when General MacArthur declared the processes of the governments under the Japanese regime null and void, he could not refer to judicial processes, because the same are valid and remained so under the legal truism announced by the majority to the effect that, under political and international law, all official acts of a de facto government, legislative, executive or judicial, are valid. But we have seen already how the majority excepted from said legal truism the judicial processes of "political complexion." And now it is stated that in annulling the processes of the governments under Japanese occupation, General MacArthur referred to "processes other than judicial processes." That is, the legislative and executive processes. But, did not the majority maintain that all acts and proceedings of legislative and executive departments of a de facto governments are good and valid? Did it not maintain that they are so as a "legal truism in political and international law?" Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial processes because they are good and valid in accordance with international law, why should the same reasoning not apply to legislative and executive processes?

Why does the majority maintain that, notwithstanding the fact that, according that said legal truism, legislative and executive official acts of de facto governments are good and valid, General MacArthur referred to the latter in his annulling proclamation, but not to judicial processes? If the argument is good so as to exclude judicial processes from the effect of the October Proclamation, we can see no logic in considering it bad with respect to legislative and executive processes. If the argument is bad with respect to legislative and executive processes, there is no logic in holding that it is not good with respect to judicial processes. Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General MacArthur did not declare null and void any processes, at all, whether legislative processes, executive processes, or judicial processes, and that the word "processes" used by him in the October Proclamation is a mere surplusage or an ornamental literary appendix. The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but a mere legal pretense that cannot stand the least analysis or the test of logic. A great legal luminary admonished that we must have courage to unmasks pretense if we are to reach a peace that will abide beyond the fleeting hour. It is admitted that the commanding general of a belligerent army of occupation as an agent of his government, "may not unlawfully suspend existing laws and promulgate new ones in the occupied territory if and when exigencies of the military occupation demand such action," but it is doubted whether the commanding general of the army of the restored legitimate government can exercise the same broad legislative powers.

We beg to disagree with a theory so unreasonable and subversive. We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an invading army, or of a usurping army, should enjoy greater legal authority during the illegal, and in the case of the Japanese, iniquitous and bestial occupation, than the official representative of the legitimate government, once restored in the territory wrested from the brutal invaders and aggressors. We cannot agree with such legal travesty. Broad and unlimited powers are granted and recognized in the commanding general of an army of invasion, but the shadow of the vanishing alleged principle of international law is being brandished to gag, manacle, and make completely powerless the commander of an army of liberation to wipe out the official acts of the government for usurpation, although said acts might impair the military operation or neutralize the public policies of the restored legitimate government. We are not unmindful of the interest of the persons who might be adversely affected by the annulment of the judicial processes of the governments under the Japanese regime, but we cannot help smiling when we hear that chaos will reign or that the world will sink. It is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed that the President, in the exercise of his constitutional powers of pardon and amnesty, had in the past released many criminals from imprisonment. And let us not forget that due to human limitations, in all countries, under all governments, in peace or in war, there were, there are, and there will always be unpunished criminals, and that situation never caused despair to any one. We can conceive of inconveniences and hardships, but they are necessary

contributions to great and noble purposes. Untold sacrifices were always offered to attain high ideals and in behalf of worthy causes. We cannot refrain from feeling a paternal emotion for those who are trembling with all sincerity because of the belief that the avoidance of judicial proceedings of the governments under the Japanese regime "would paralyze the social life of the country." To allay such fear we must remind them that the country that produced many great hereos and martyrs; that contributed some of highest morals figures that humanity has ever produced in all history; which inhabited by a race which was able to traverse in immemorial times the vast expanses of the Indian Ocean and the Pacific with inadequate means of navigation, and to inhabit in many islands so distantly located, from Madagascar to the eastern Pacific; which made possible the wonderful resistance of Bataan and Corregidor, can not have a social life so frail as to be easily paralyzed by the annulment of some judicial proceedings. The Japanese vandalisms during the last three years of nightmares and bestial oppression, during the long period of our national slavery, and the wholesale massacres and destructions in Manila and many other cities and municipalities and populated areas, were not able to paralyze the social life of our people. Let us not loss faith so easily in the inherent vitality of the social life of the people and country of Rizal and Mabini. It is insinuated that because of the thought that the representative of the restored sovereign power may set aside all judicial processes of the army of occupation, in the case to courts of a future invasions, litigants will not summit their cases to courts whose judgement may afterwards be annulled, and criminals would not be deterred from committing offenses in the expectancy that they may escape penalty upon liberation of the country. We hope that Providence will

never allow the Philippines to fall again under the arms of an invading army, but if such misfortune will happen, let the October Proclamation serve as a notice to the ruthless invaders that the official acts of the government of occupation will not merit any recognition from the legitimate government, especially if they should not conduct themselves, as exemplified by the Japanese, in accordance with the rules of action of a civilized state. One conclusive evidence of the untenableness of the majority position is the fact that it had to resort to Executive Order No. 37, issued on March 10, 1945, providing "that all cases that have heretofore been appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision." The far-fetched theory is advanced that this provision impliedly recognizes the court processes during the Japanese military occupation, on the false assumption that it refers to the Court of Appeals existing during the Japanese regime. It is self-evident that the Executive Order could have referred only to the Commonwealth Court of Appeals, which is the one declared abolished in said order. Certainly no one will entertain the absurd idea that the President of the Philippines could have thought of abolishing the Court of Appeals under the government during the Japanese occupation. Said Court of Appeals disappeared with the ouster of the Japanese military administration from which it derived its existence and powers. The Court of Appeals existing on March 10, 1945, at the time of the issuance of Executive Order No. 37, was the Commonwealth Court of Appeals and it was the only one that could be abolished. Without discussing the correctness of principle stated the majority opinion quotes from Wheaton the following: "Moreover when it is said that occupier's acts are valid and under international law should not be abrogated by the subsequent conqueror, it must be remembered that on crucial

instances exist to show that if his acts should be reversed, any international wrong would be committed. What does happen is that most matters are allowed to stand by the stored government, but the matter can hardly be put further than this." (Wheaton, International Law, War, 7th English edition of 1944, p. 245) Then it says that there is no doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier, such as the laws, regulations and processes other than the judicial of the government established by the belligerent occupant. It is evident that the statement just quoted is a complete diversion from the principle stated in the in an unmistakable way by Wheaton, who says in definite terms that "it must be remembered that no crucial instances exist to show that if his acts (the occupant's) should be reversed, any international wrong would be committed." It can be clearly seen that Wheaton does not make any distinction or point out any exception. But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting the right of the restored government to annul "most of the acts of the occupier" and "processes other than judicial." The statement made by the respondent judge after quoting the above-mentioned principle, as stated by Wheaton, to the effect that whether the acts of military occupant should be considered valid or not, is a question that is up to the restored government to decide, and that there is no rule of international law that denies to the restored government the right to exercise its discretion on the matter, is quoted without discussion in the majority opinion. As the statement is not disputed, wee are entitled to presume that it is concurred in

and, therefore, the qualifications made in the statement in the majority opinion seem to completely groundless. THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF THE LEGITIMATE GOVERNMENT The majority opinion is accumulating authorities to show the many duties imposed by international law on the military occupant of an invaded country. And from said duties it is deduced that the legitimate government, once restored in his own territory, is bound to respect all the official acts of the government established by the usurping army, except judicial processes political complexion. The reasoning calls for immediate opposition. It is absolutely contrary to all principles of logic. Between the duties imposed in the military occupant and the legal prerogatives of the legitimate government there are no logical relationship or connection that might bind the ones with the others. The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the legitimate government necessarily validate the measures adopted by the said occupant in the performance of this duty, if the legitimate government believes his duty to annul them for weighty reasons? The military occupant is duty bound to establish courts of justice. Why should the legitimate government validate the acts of said courts, if it is convinced that said courts were absolutely powerless, as was the case during the Japanese occupation, to stop the horrible abuses of the military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect the fundamental human rights of the Filipinos life, property, and personal freedom?

The majority opinion recognizes in the military occupant the power to annul the official acts of the ousted and supplanted legitimate government, a privilege which is inversely denied to the last. This preference and predilection in favor of the military occupant, that is in favor of the invader and usurper, and against the legitimate government, is simply disconcerting, if we have to say the least. PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS The invading military occupant is duty bound to establish and maintain courts of justice in the invaded territory, for the protection of the inhabitants thereof. It is presumed that the restored legitimate government will respect the acts of said courts of the army of occupation. Therefore, it is a principle of international law that said acts are valid and should be respected by the legitimate government. It is presumed that General MacArthur is acquainted with such principle, discovered or revealed through presumptive operations, and it is presumed that he had not the intention of declaring null and void the judicial processes of the government during the Japanese regime. Therefore, his October Proclamation, declaring null and void and without effect "all processes" of said governments, in fact, did not annul the Japanese regime judicial processes. So run the logic of the majority. They don't mind the that General MacArthur speaks in the October Proclamation as follows: NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-in-Chief of the military forces committed to the liberation of the Philippines, do hereby proclaim and declare: xxx xxx xxx

3. That all laws, regulations and processes of any other government in the Philippines than

that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control. (emphasis supplied.) General MacArthur says categorically "all processes", but the majority insists on reading differently, that, is: "NOT ALL processes." The majority presume, suppose, against the unequivocal meaning of simple and well known words, that when General MacArthur said "all processes", in fact, he said "not all processes", because it is necessary, by presumption, by supposition, to exclude judicial processes. If where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to foresee the consequences of such so stubborn attitude, but it is possible to understand how they reached the unacceptable possible conclusion which we cannot be avoid opposing and exposing. Are we to adopt and follow the policy of deciding cases submitted to our consideration, by presumption and suppositions putting aside truths and facts? Are we to place in the documents presented to us, such as the October Proclamation, different words than what are written therein? Are we to read "not all", where it is written "all"? We are afraid to such procedure is not precisely the most appropriate to keep public confidence in the effectiveness of the administration of justice. That is why we must insists that in the October Proclamation should be read what General MacArthur has written in it, that is, that, besides laws and regulations, he declared and proclaimed null and void "ALL PROCESSES", including naturally judicial processes, of the governments under the Japanese regime. THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE REGIME JUDICIAL PROCESSES

Now we come to the third and last question propounded in the majority opinion. The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by legislative act. It is provided so in our Constitution. (Section 2, Article VIII.) The Commonwealth courts of justice are continuations of the courts established before the inauguration of the Commonwealth and before the Constitution took effect on November 15, 1935. And their jurisdiction is the same as provided by existing laws at the time of inauguration of the Commonwealth Government. Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the Philippines, is the one that defines the jurisdiction of justice of the peace and municipal courts, Courts of First Instance, and the Supreme Court. It is not necessary to mention here the jurisdiction of the Court of Appeals, because the same has been abolished by Executive Order No. 37. No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the Commonwealth tribunals jurisdiction to continue the judicial processes or proceedings of tribunals belonging to other governments, such as the governments established during the Japanese occupation. The jurisdiction of our justice of the peace and municipal courts is provided in section 68, chapter V, of Act No. 136. The original and appellate jurisdiction of the Courts of First Instance is provided in the sections 56, 57, Chapter IV, of Act No. 136. The original and appellate jurisdiction of the Supreme Court is provided in 17 and 18, Chapter II, of the same Act. The provisions of the abovecited do not authorize, even implicitly, any of the decisions and judgements of tribunals of the governments, nor to continue the processes or proceedings of said tribunals.

NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE PREVAILING IN THE PHILIPPINES AND IN THE UNITED STATES Taking aside the question as to whether the judicial processes of the government established during the Japanese occupation should be considered valid or not, in order that said processes could be continued and the Commonwealth tribunals could exercise proper jurisdiction to continue them, under the well- established legal doctrine, prevailing not only in the Philippines, but also in the proper enabling law. Almost a half a century ago, in the instructions given by President McKinley on April 7, 1900, for the guidance of the Philippine Commission, it was stated that, in all the forms of the govenment and administrative provisions which they were authorized to prescribed, the Commission should bear in mind that the government which they were establishing was designed not for the satisfaction of the Americans or for the expression of their of their theoretical views, but for the happiness, peace and prosperity of the people of the Philippines, and the measures adopted should be made to conform to their customs, their habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the indispensable requisites of just and effective government. Notwithstanding the policy so outlined, it was not enough for the Philippine Commission to create and establish the courts of justice provided in Act No. 136, in order that said tribunals could take cognizance and continue the judicial proceedings of the tribunals existing in the Philippines at the time the American occupation. It needed specific enabling provisions in order that the new tribunals might continue the processes pending in the tribunals established by the Spaniards, and which continued to function until they were

substituted by the courts created by the Philippine Commission. So it was done in regards to the transfer of the cases pending before the Spanish Audiencia to the newly created Supreme Court, in sections 38 and 39 of Act No. 136 quoted as follows: SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers, and so forth, pending in the existing Supreme Court and in the "Contencioso Administravo." All records, books, papers, causes, actions, proceedings, and appeals logged, deposited, or pending in the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal called "Contencioso Administravo," are transferred to the Supreme Court above provided for which, has the same power and jurisdiction over them as if they had been in the first instance lodged, filed, or pending therein, or, in case of appeal, appealed thereto. SEC. 39. Abolition of existing Supreme Court. The existing Audiencia or Supreme Court is hereby abolished, and the Supreme Court provided by this Act is substituted in place thereof. Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of cases and processes pending in the abolished Spanish Courts of First Instance to the tribunals of the same name established by the Philippine Commission. SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing Courts of First Instance . All records, books, papers, actions, proceedings, and appeals lodged, deposited, or pending in the Court of First Instance as now constituted of or any province are transferred to the Court of First Instance of such province hereby established, which shall have the same power and jurisdiction over them as if they had been primarily lodged, deposited,

filed, or commenced therein, or in case of appeal, appealed thereto. SEC. 65. Abolition of existing Courts of First Instance. The existing Courts First Instance are hereby abolished, and the Courts of First Instance provided by this Act are substituted in place thereof. The same procedure has been followed by the Philippine Commission eventhough the courts of origin of the judicial processes to be transferred and continued belonged to the same government and sovereignty of the courts which are empowered to continue said processes. So section 78 of Act No. 136, after the repeal of all acts conferring upon American provost courts in the Philippines jurisdiction over civil actions, expressly provided that said civil actions shall be transferred to the newly created tribunals. And it provided specifically that "the Supreme Court, Courts of the First Instance and courts of the justice of the peace established by this Act (No. 136) are authorized to try and determine the actions so transferred to them respectively from the provost courts, in the same manner and with the same legal effect as though such actions had originally been commenced in the courts created" by virtue of said Act. MUNICIPAL COURTS UNDER ACT NO. 183 On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila, No. 183. Two municipal courts for the city were created by section 40 of said Act, one for the northern side of Pasig River and the other for the southern side. They were courts with criminal jurisdiction or identical cases under the jurisdiction of the justices of the peace then existing in Manila. Although both courts were of the same jurisdiction, in order that the criminal cases

belonging to the justice of the peace courts may be transferred to the municipal courts just created, and the proceedings may be continued by the same, the Philippine Commission considered it necessary to pas the proper enabling act. So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all criminal cases and proceedings pending in the justices of the peace of Manila are transferred to the municipal courts, which are conferred the jurisdiction to continue said cases and proceedings. THE CABANTAG CASE On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission. (Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on December 10, 1901, and his execution by hanging was set for January 12,1902. . On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The Civil Governor on December 2, 1903, commuted the death penalty to 20 years imprisonment. The commutation was approved by the Secretary of War, following instructions of the President. Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the military commission which convicted him, there was no existing tribunal which could order the execution of the penalty of imprisonment. The Supreme Court denied the writ, but stated that, if the petitioner had filed the writ before the enactment of Act No. 865, the question presented to the Supreme Court would have been different. Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that decisions rendered by the provost courts and military commission shall be ordered executed by the Courts of First Instance in

accordance with the procedure outlined in said Act. It is evident from the foregoing that this Supreme Court has accepted and confirmed the doctrine of the necessity of an enabling act in order that our Courts of First Instance could exercise jurisdiction to execute the decision of the abolished provost courts and military commission. It is evident that the doctrine is applicable, with more force, to the judicial processes coming from governments deriving their authority from a foreign enemy state. THE DOCTRINE IN THE UNITED STATES It is also evident that the Congress of the United States, by enacting the Bill of the Philippines on July 1, 1902, confirmed also the same doctrine. In effect, in section 9 of said Act, the Congress approved what the Philippine Commission did as to the jurisdiction of the courts established and transfer of cases and judicial processes, as provided in Acts Nos. 136, 186, and 865. The same doctrine was adopted by the United States government as part of its international policy, as could be seen in Article XII of the Treaty concluded with Spain on December 10, 1898, in Paris. Even in 1866 the Congress of the United States followed the same doctrine. The suit, shown by the record, was originally instituted in the District Court of the United States for the District of Louisiana, where a decree was rendered for the libellant. From the decree an appeal was taken to the Circuit Court, where the case was pending, when in 1861, the proceedings of the court were interrupted by the civil war. Louisiana had become involved in the rebellion, and the courts and officers of the United States were excluded from its limits. In 1862, however, the National authority had been

partially reestablished in the State, though still liable to the overthrown by the vicissitudes of war. The troops of the Union occupied New Orleans, and held military possession of the city and such other portions of the State as had submitted to the General Government. The nature of this occupation and possession was fully explained in the case of The Vinice. Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation, instituted a Provisional Court of the State of Louisiana, with authority, among other powers, to hear, try, and determine all causes in admiralty. Subsequently, by consent of parties, this cause was transferred into the Provisional Court thus, constituted, and was heard, and a decree was again rendered in favor of the libellants. Upon the restoration of civil authority in the State, the Provincial Court, limited in duration, according to the terms of the proclamation, by the event, ceased to exist. On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings in the Provisional Court, proper for the jurisdiction of the Circuit Court of the United States for the Eastern District of Louisiana, should be transferred to that court, and heard, and determined therein; and that all judgements, orders, and decrees of the Provisional Court in causes transferred to the Circuit Court should at once become the orders, judgements, and decrees of that court, and might be enforced, pleaded, and proved accordingly. It is questioned upon these facts whether the establishment by the President of a Provisional Court was warranted by the Constitution. xxx xxx xxx

We have no doubt that the Provisional Court of Louisiana was properly established by the President in the exercise of this constitutional authority during war; or that

Congress had power, upon the close of the war, and the dissolution of the Provisional Court, to provide for the transfer of cases pending in that court, and of its judgement and decrees, to the proper courts of the United States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.) JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE VALIDATED BY CONSTITUTIONAL PROVISION During the civil war in 1861, the prevailing rebel forces established their own government in Louisiana. When the rebel forces were overpowered by the Union Forces and the de facto government was replaced by the de jure government, to give effect to the judgments and other judicial acts of the rebel government, from January 26, 1861, up to the date of the adoption of the State Constitution, a provision to said effect was inserted in said document. Section 149 of the Louisiana Constitution reads as follows: All the rights, actions, prosecutions, claims, contracts, and all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if it had not been adopted; all judgments and judicial sales, marriages, and executed contracts made in good faith and in accordance with existing laws in this State rendered, made, or entered into, between the 26th day of January, 1861, and the date when this constitution shall be adopted, are hereby declared to be valid, etc. (U. S. Report, Wallace, Vol. 22, Mechanics' etc. Bank vs. Union Bank, 281.) EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE NOT EXECUTORY The member states of the United States of America belong to the same nation, to the

country, and are under the same sovereignty. But judgements rendered in one state are not executory in other states. To give them effect in other states it is necessary to initiate an original judicial proceedings, and therein the defendants in the domestic suit may plead bar the sister state judgement puis darrien continuance. (Wharton, on the Conflict of Laws, Vol. II, p. 1411.) Under the Constitution of the United States, when a judgement of one state in the Union is offered in a court of a sister state as the basis of a suit nil debet cannot be pleaded. The only proper plea is nul tiel record. (Id., p. 1413.). It is competent for the defendant, however, to an action on a judgement of a sister state, as to an action on a foreign judgement, to set up as a defense, want of jurisdiction of the court rendering the judgement; and, as indicating such want of jurisdiction, to aver by plea that the defendant was not an inhabitant of the state rendering the judgement, and had not been served with process, and did not enter his appearance; or that the attorney was without authority to appear. (Id., pp. 1414-1415.) The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the absence of an enabling act or of an express legislative grant, have no jurisdiction to take cognizance and continue the judicial processes, procedures, and proceedings of the tribunals which were created by the Japanese Military Administration and functioned under the Vargas Philippine Executive Commission of the Laurel Republic of the Philippines, deriving their authority from the Emperor, the absolute ruler of Japan, the invading enemy, and not from the Filipino people in whom, according to the Constitution,

sovereignty resides, and from whom all powers of government emanate. The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the First Instance of Manila in declaring himself without jurisdiction nor authority to continue the proceedings which provoked the present controversy, being a judicial process of a Japanese sponsored government, is absolutely correct, under the legal doctrines established by the United States and the Philippine Government, and consistently, invariably, and without exception, followed by the same. If we accept, for the sake of argument, the false hypothesis that the Commonwealth tribunals have jurisdiction to continue the judicial processes left pending by the courts of the governments established under the Japanese regime, the courts which disappeared and, automatically, ceased to function with the ouster of the enemy, the position of the Judge Dizon, in declining to continue the case, is still unassailable, because, for all legal purposes, it is the same as if the judicial processes in said case were not taken at all, as inevitable result of the sweeping and absolute annulment declared by the General MacArthur in the October Proclamation. In said proclamation it is declared in unmistakable and definite terms that "ALL PROCESSES" of the Japanese sponsored governments "ARE NULL AND VOID AND WITHOUT LEGAL EFFECT", and they shall remain so until the Commonwealth, through its legislative power, decides otherwise in a proper validating act. The fact that the Japanese invaders, under international law, were in duty bound to establish courts of justice during the occupation, although they made them completely powerless to safeguard the constitutional rights of the citizens, and mere figureheads as regards the fundamental liberties of the helpless men, women and

children of our people, so much so that said courts could not offer even the semblance of protection when the life, the liberty, the honor and dignity of our individual citizens were wantonly trampled by any Japanese, military or civilian, does not change the situation. "ALL PROCESSES" of said court are declared "NULL AND VOID AND WITHOUT LEGAL EFFECT" in the October proclamation, and we do not have any other alternative but to accept the law, as said proclamation has the full force of a law. The fact that in the past, the legitimate governments, once restored in their own territory, condescended in many cases to recognize and to give effect to judgments rendered by courts under the governments set up by an invading military occupant or by a rebel army, does not elevate such condescension to the category of a principle, when Wheaton declares that no international wrong is done if the acts of the invader are reversed. Many irrelevant authorities were cited to us as to the duties imposed by the international law on military occupants, but no authority has been cited to the effect that the representative of the restored legitimate government is a bound to recognize and accept as valid the acts and processes of said occupants. On the contrary, Wheaton says that if the occupant's acts are reversed "no international wrong would be committed." Following the authority of Wheaton, undisputed by the majority, General MacArthur thought, as the wisest course, of declaring "NULL AND VOID AND WITHOUT EFFECT," by official proclamation, "ALL PROCESSES" under the Japanese regime, that is legislative, executive and judicial processes, which fall under the absolute adjective "ALL". That declaration is a law. It is a law that everybody bound to accept and respect, as all laws must be accepted and respected. It

is a law that the tribunals are duty bound to give effect and apply. We are not unmindful of the adverse consequences to some individuals of the annullment of all the judicial processes under the Japanese regime, as provided in the October Proclamation, but the tribunals are not guardians of the legislative authorities, either an army commander in chief, during war, or a normal legislature, in peace time. The tribunals are not called upon to guide the legislative authorities to the wisdom of the laws to be enacted. That is the legislative responsibility. Our duty and our responsibility is to see to it that the law, once enacted, be applied and complied with. No matter the consequences, no matter who might be adversely affected, a judge must have the firm resolve and the courage to do his duty, as, in the present case, Judge Dizon did, without fear nor favor. We cannot see any reason why we should not uphold him in his stand in upholding the law. It is our official duty, national and international duty. Yes. Because this Supreme Court is sitting, not only as a national court, but as an international court, as is correctly stated in the concurring opinion of Justice De Joya, and we should feel the full weight of the corresponding responsibility, as the American courts with admiralty jurisdiction and the Prize Courts of England did feel. In fact, it is in the judiciary where, more than in any point of view is more pressing, more imperative, more unavoidable. Justice has no country. It is of all countries. The horizon of justice cannot be limited by the scene where our tribunals are functioning and moving. That horizon is boundless. That is why in our constitution the bill of rights has been written not for Filipinos, but for all persons. They are rights that belong to men, not as Filipinos, Americans, Russians, Chinese or Malayan, but as a members of humanity. The international character of our duty to administer justice has become more specific

by the membership of our country in the United Nations. And let us not forget, as an elemental thing, that our primary duty is to uphold and apply the law, as it is; that we must not replace the words of the law with what we might be inclined to surmise; that what is clearly and definitely provided should not be substituted with conjectures and suppositions; that we should not try to deduce a contrary intention to that which is unequivocally stated in the law; that we should not hold valid what is conclusively declared null and void. The October Proclamation declared "ALL PROCESSES" under the Japanese regime "AND VOID WITHOUT EFFECT", so they must stand. There is no possible way of evasion. "ALL PROCESSES", in view of the meaning of the absolute adjective "ALL", include "JUDICIAL PROCESSES". Allegatio contra factum non est admittenda.

CONCLUSION For all the foregoing reasons we conclude: 1. That General MacArthur had full legal authority to issue the October Proclamation, and that no principle of the international law is violated by said proclamation, no international wrong being committed by the reversal by the legitimate government of the acts of the military invader. 2. That said proclamation was issued in full conformity with the official policies to which the United States and Philippine Governments were committed, and the annulment of all the facts of the governments under the Japanese regime, legislative, executive, and judicial, is legal, and justified by the wrongs committed by the Japanese. 3. That when General MacArthur proclaimed and declared in the October Proclamation "That all laws, regulations and processes" of

the Japanese sponsored governments, during enemy occupation, "are null and void and without effect", he meant exactly what he said. 4. That where General MacArthur said "all processes" we must read and understand precisely and exactly "all processes", and not "some processes". "All" and "some" have incompatible meanings and are not interchangeable. 5. That the word "processes" includes judicial procedures, proceedings, processes, and cases. Therefore, "all processes" must include "all judicial processes.". 6. That we have no right to attribute General MacArthur an intention different from what he has plainly, clearly, unmistakably expressed in unambiguous words with familiar meaning generally understood by the common man. 7. That the judicial proceedings here in question are included among those adversely affected by the October Proclamation. 8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor to continue the judicial proceedings under the Japanese regime. 9. That to exercise said jurisdiction an enabling act of the Congress is necessary. 10. That respondent Judge Dizon did not commit the error complained of in the petition, and that the petition has no merits at all. We refuse to follow the course of action taken by the majority in the present case. It is a course based on a mistaken conception of the principles of international law and their interpretation and application, and on a pinchbeck. It is a course based on misconstruction or misunderstanding of the October Proclamation, in utter disregard of the most elemental principles of legal here

meneutics. It is a course that leads to nowhere, except to the brink of disaster, because it is following the dangerous path of ignoring or disobeying the law. Let us not allow ourselves to be deceived. The issue confronting us is not of passing importance. It is an issue of awesome magnitude and transcendency. It goes to and reaches the very bottom. It is simple. Lacking in complexities. But it may shake the very foundation of society, the cornerstone of the state, the primary pillar of the nation. It may dry the very foundation of social life, the source of vitalizing sap that nurtures the body politic. The issue is between the validity of one or more Japanese regime processes and the sanctity of the law. That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. It is the alpha and the omega of the whole issue. Either the processes, or the law. We have to select between two, which to uphold. It is a dilemma that does not admit of middle terms, or of middle ways where we can loiter with happy unconcern . We are in the cross road: which way shall we follow? The processes and the law are placed in the opposite ends of the balance. Shall we inclined the balance of justice to uphold the processes and defeat law, or vice versa? We feel jittery because some judicial processes might be rescinded or annulled, but we do not tremble with sincere alarm at the thought of putting the law under the axe, of sentencing law to be executed by the guillotine. We feel uneasy, fancying chaos and paralyzation of social life, because some litigants in cases during the Japanese regime will be affected in their private interests, with the annulment of some judicial processes, but we adopt an attitude of complete nonchalance in throwing law overboard. This baffling attitude is a judicial puzzle that nobody will understand. So it is better that we should shift to a more understandable way, that which is conformable to the

standard that the world expects in judicial action. No amount of arguments and lucubration's, no amount of speculative gymnastics, no amount of juggling of immaterial principles of international law, no amount of presumptions and suppositions, surmises and conjectures, no amount of dexterity in juridical exegesis can divert our attention from the real, simple, looming, hypostasis of the issue before us: Law. It is Law with all its majestic grandeur which we are defying and intending to overthrow from the sacred pedestal where the ages had placed her as a goddess, to be enshrined, obeyed, and venerated by men, forever. Let us not dare to lay our profaning hands on her vestal virginity, lest the oracle should fling at us the thunder of his prophetic anathema. We cannot therefore vote except for the denial of the petition.

It is, therefore, plain that the case had not been heard on the merits when the record was burned or destroyed. The respondent judge, in his order dated June 6, 1945, disposing of the petition dated May 25, 1945 filed by petitioner, as a plaintiff in said case, and of the petition filed by respondent Eusebio Valdez Tan Keh, as defendant therein, on May 31, 19045, held: " first, that by virtue of the proclamation of General MacArthur quoted above, all laws, regulations and processes of any other government in the Philippines than that of the Commonwealth became null and void and without legal effect in Manila on February 3, 1945 or, at the lates, on February 27 of the same year; second that the proceedings and processes had in the present case having been before a court of the Republic of the Philippines and in accordance with the laws and regulations of said Republic, the same are now void and without legal effect; third, that this Court as one of the different courts of general jurisdiction of the Commonwealth of the Philippines, has no authority to take cognizance of and continue said proceedings to final judgement, until and unless the Government of the Commonwealth of the Philippines, in the manner and form provided by law, shall have provided for the transfer of the jurisdiction of the courts of the now defunct Republic of the Philippines, and the causes commenced and left pending therein, to the courts created and organized by virtue of the provisions of Act No. 4007, as revived by Executive Order No. 36, or for the validation of all proceedings had in said courts." Petitioner prays that this Court declare that the respondent judge should not have ordered the suspension of the proceedings in civil case No. 3012 and should continue and dispose of all the incidents in said case till its complete termination. In my opinion, the petition should denied.

HILADO, J., dissenting: I dissent from the opinion of the majority and, pursuant to the Constitution, proceed to state the reason for my dissent. The proceeding involved in the case at bar were commenced by a complaint filed by the instant petitioner, as plaintiff, on November 18, 1944, in civil case No. 3012 of the socalled Court of First Instance of Manila, the complaint bearing this heading and title: "The Republic of the Philippines In the Court of First Instance of Manila" (Annex X of Exhibit A of petition for mandamus). The farthest that said proceedings had gone before the record was burned or destroyed during the battle for Manila, was the filing by counsel for plaintiff therein of their opposition to a motion for dismissal filed by opposing counsel.

In stating the reasons for this dissent, we may divide the arguments under the following propositions: 1. The proceedings in said civil case No. 3012 are null and void under General of the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148); 2. (a) The government styled as, first, the "Philippine Executive Commission "and later as the Republic of the Philippines", established here by the Commander in Chief of the Imperial Japanese Forces or by his order was not a de-facto government the so-called Court of First Instance of Manila was not a de facto court, and the judge who presided it was not a de facto judge; (b) the rules of International Law regarding the establishment of a de facto Government in territory belonging to a belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments thus established here by Japan; 3. The courts of those governments were entirely different from our Commonwealth courts before and after the Japanese occupation; 4. The question boils down to whether the Commonwealth Government, as now restored, is to be bound by the acts of either or both of those Japanese-sponsored governments; 5. Even consideration of policy of practical convenience militate against petitioner's contention. I The proceedings in said civil case No. 3012 are null and void under General of the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148). In this proclamation, after reciting certain now historic facts, among which was that the so-called government styled as the "Republic of the Philippines" was established on

October 14, 1943 "under enemy duress, . . . based upon neither the free expression of the people's will nor the sanction of the Government of the United States," the great Commander-in-Chief proclaimed and declared: xxx xxx xxx

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

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted government whose seat is now firmly reestablished on Philippine soil. The evident meaning and effect of the 3rd paragraph above quoted is, I think, that as the different areas of the Philippines were progressively liberated, the declaration of nullity therein contained shall attach to the laws, regulations and processes thus condemned in so far as said areas were concerned. Mark that the proclamation did not provide that such laws, regulations and processes shall be or are annulled, but that they are null and void. Annulment implies some degree of the effectiveness in the act annulled previous to the annulment, but a declaration of nullity denotes that the act is null and void ab initio the nullity precedes the declaration. The proclamation speaks in the present tense, not in the future. If so, the fact that the declaration of nullity as to the condemned laws, regulations, and processes in areas not yet free from enemy occupation and control upon the date of the proclamation, would attach thereto at a later date, is no argument for giving them validity or effectiveness in the interregnum. By the

very terms of the proclamation itself, that nullity had to date back from the inception of such laws, regulations and processes; and to dispel any shadow of doubt which may still remain, we need only consider the concluding paragraph of the proclamation wherein the Commander in Chief of the army liberation solemnly enjoined upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted government. This is all-inclusive it comprises not only the loyal citizens in the liberated areas but also those in areas still under enemy occupation and control. It will be noticed that the complaint in said civil case No. 3012 was filed twenty-six days after the above-quoted proclamations of General of the Army MacArthur. If the parties to said case were to consider the proceedings therein up to the date of the liberation of Manila valid and binding, they would hardly be complying with the severe injunction to render full respect for and obedience to our Constitution and the laws, regulations and other acts of our duly constituted government from October 23, 1944, onwards. Indeed, to my mind, in choosing between these two courses of action, they would be dangerously standing on the dividing line between loyalty and disloyalty to this country and its government. The proceeding in question, having been had before the liberation of Manila, were unquestionably "processes" of the Japanesesponsored government in the Philippines within the meaning of the aforesaid proclamation of General of the Army MacArthur and, consequently, fall within the condemnation of the proclamation. Being processes of a branch of a government which had been established in the hostility to the Commonwealth Government, as well as the United States Government, they could not very well be considered by the parties to be valid and binding, at least after October 23, 1944, without said parties incurring in

disobedience and contempt of the proclamation which enjoins them to render full respect for the obedience to our Constitution and the laws, regulations and other acts of our duly constituted government. Nine days after the inauguration of the so-called "Republic of the Philippines," President Franklin Delano Roosevelt of the United States declared in one of his most memorable pronouncements about the activities of the enemy in the Philippines, as follows: One of the fourtheenth of this month, a puppet government was set up in the Philippine Island with Jose P. Laurel, formerly a justice of the Philippine Supreme Court, as "president." Jorge Vargas, formerly as a member of the Commonwealth Cabinet, and Benigno Aquino, also formerly a member of that cabinet, were closely associated with Laurel in this movement. The first act of the new puppet regime was to sign a military alliance with Japan. The second act was a hyphocritical appeal for American sympathy which was made in fraud and deceit, and was designed to confuse and mislead the Filipino people. I wish to make it clear that neither the former collaborationist "Philippine Executive Commission" nor the present "Philippine Republic " has the recognition or sympathy of the Government of the United States. . . . Our symphaty goes out to those who remain loyal to the United States and the Commonwealth that great majority of the Filipino people who have not been deceived by the promises of the enemy. October 23, 1943. FRANKLIN DELANO ROOSEVELT President of the United States (Form U.S. Naval War College International Law Documents, 1943, pp. 93, 94.). It is a fact of contemporary history that while President Manuel L. Quezon of the

Philippines was in Washington, D.C., with his exiled government, he also repeatedly condemned both the "Philippine Executive Commission" and the "Philippine Republic," as they had been established by or under orders of the Commander in Chief of the Imperial Japanese Forces. With these two heads of the Governments of the United States and the Commonwealth of the Philippines condemning the "puppet regime" from its very inception, it is beyond my comprehension to see how the proceedings in question could be considered valid and binding without adopting an attitude incompatible with theirs. As President Roosevelt said in his above quoted message, "Our symphaty goes out to those remain loyal to the United States and the Commonwealth that great majority of the Filipino people who have not been deceived by the promises of the enemy. The most that I can concede is that while the Japanese Army of occupation was in control in the Islands and their paramount military strength gave those of our people who were within their reach no other alternative, these had to obey their orders and decrees, but the only reason for such obedience would be that paramount military strength and not any intrinsic legal validity in the enemy's orders and decrees. And once that paramount military strength disappeared, the reason for the obedience vanished, and obedience should likewise cease. As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S., 176; 24 Law. ed., 719), "In the face of an overwhelming force, obedience in such matters may often be a necessity and, in the interest of order, a duty. No concession is thus made to the rightfulness of the authority exercised." (Emphasis ours.) The court there refers to its own former decision in Thorington vs. Smith, and makes it clear that the doctrine in the Thorington case, so far as the effects of the acts of the

provisional government maintained by the British in Casetine, from September, 1814 to the Treaty of Peace in 1815, and the consideration of Tampico as United States territory, were concerned, was limited to the period during which the British, in the first case, retained possession of Castine, and the United States, in the second, retained possession of Tampico. In referring to the Confederate Government during the Civil War, as mentioned in the Thorington case, the court again says in effect that the actual supremacy of the Confederate Government over a portion of the territory of the Union was the only reason for holding that its inhabitants could not but obey its authority. But the court was careful to limit this to the time when that actual supremacy existed, when it said: . . . individual resistance to its authority then would have been futile and, therefore, unjustifiable." (Emphasis ours.) Because of its pertinence, we beg leave to quote the following paragraph from that leading decision: There is nothing in the language used in Thorington vs. Smith (supra), which conflicts with these views. In that case, the Confederate Government is characterized as one of paramount force, and classed among the governments of which the one maintained by great Britain in Castine, from September 1814, to the Treaty of Peace in 1815, and the one maintained by the United States in Tampico, during our War with Mexico, are examples. Whilst the British retained possession of Castine, the inhabitants were held to be subject to such laws as the British Government chose to recognize and impose. Whilst the United States retainedpossession of Tampico, it was held that it must regarded and respected as their territory. The Confederate Government, the court observed, differed from these temporary governments in the circumstance that its authority did not justifying acts of hostility to the United States, "Made obedience to its authority in civil and local

matters not only a necessity, but a duty." All that was meant by this language was, that as the actual supremancy of the Confederate Government existed over certain territory, individual resistance to its authority then would have been futile and, therefore, unjustifiable. In the face of an overwhelming force, obedience in such matters may often be a necessity and, in the interest of order, a duty. No concession is thus made to the rightfulness of the authority exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.) The majority opinion, in considering valid the proceedings in question, invokes the rule that when a belligerent army occupies a territory belonging to the enemy, the former through its Commander in Chief, has the power to establish thereon what the decisions and treaties have variously denominated provisional or military government, and the majority holds that the Japanese-sponsored government in the Philippines was such a government. Without prejudice to later discussing the effects which the renunciation of war as an instrument of national policy contained in our Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have produced in this rule in so far as the Philippines is concerned, let us set forth some considerations apropos of this conclusion of the majority. If the power to establish here such a provisional government is recognized in the Commander in Chief of the invasion army, why should we not recognize at least an equal power in the Commander in Chief of the liberation army to overthrow that government will all of its acts, at least of those of an executory nature upon the time of liberation? Considering the theory maintained by the majority, it would seem that they would recognize in the Japanese Commander in Chief the power to overthrow the Commonwealth Government, and all of its acts and institutions if he had choosen to. Why should at least an equal power be denied the Commander in Chief of the United

States Army to overthrow the substitute government thus erected by the enemy with all of its acts and institutions which are still not beyond retrieve? Hereafter we shall have occasion to discuss the aspects of this question from the point of view of policy or the practical convenience of the inhabitants. If the Japanese Commander in Chief represented sovereignty of Japan, the American Commander in Chief represented the sovereignty of the United States, as well as the Government of the Commonwealth. If Japan had won this war, her paramount military supremacy would have continued to be exerted upon the Filipino people, and out of sheer physical compulsion this country would have had to bow to the continuance of the puppet regime that she had set up here for an indefinite time. In such a case, we admit that, not because the acts of that government would then have intrinsically been legal and valid, but simply because of the paramount military force to which our people would then have continued to be subjected, they would have had to recognize as binding and obligatory the acts of the different departments of that government. But fortunately for the Filipinos and for the entire civilized world, Japan was defeated. And I now ask: Now that Japan has been defeated, why should the Filipinos be still bound to respect or recognize validity in the acts of the Japanese-sponsored government which has been so severely condemned by both the heads of the United States and our Commonwealth Government throughout the duration of the war? If we were to draw a parallel between that government and that which was established by the Confederate States during the American Civil War, we will find that both met with ultimate failure. And, in my opinion, the conclusion to be drawn should be the same in both cases. As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the Confederate Government, its failure carried with it the dissipation of its pretentions and the breaking down in pieces of the whole

fabric of its government. The Court said among other things: The immense power exercised by the government of the Confederate States for nearly four years, the territory over which it extended, the vast resources it wielded, and the millions who acknowledged its authority, present an imposing spectacle well fitted to mislead the mind in considering the legal character of that organization. It claimed to represent an independent nation and to posses sovereign powers; as such to displace to jurisdiction and authority of the United States from nearly half of their territory and, instead of their laws, to substitute and enforce those of its own enactment. Its pretentions being resisted, they were submitted to the arbitrament of war. In that contest the Confederacy failed; and in its failure its pretentions were dissipated, its armies scattered, and the whole fabric of its government broken in pieces. (24 Law, ed., 719; emphasis ours.) By analogy, if the Japanese invasion and occupation of the Philippines had been lawful which, however, is not the case and if Japan had succeeded in permanently maintaining the government that she established in the Philippines, which would have been the case had victory been hers, there would be more reason for holding the acts of that government valid, but because Japan has lost the war and, therefore, failed in giving permanence to that government, the contrary conclusion should legitimately follow. The validity of legislation exercised by either contestant "depends not upon the existence of hostilities but upon the ultimate success of the party which it is adopted" (emphasis ours). And, referring to the overthrow of the of the Confederacy, the Court, said, "when its military forces were overthrown, it utterly perished, and with it all its enactments" (emphasis ours)

The majority cite on page 9-10 of their opinion a passage from the same case of Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says that in this passage the Court was "discussing the validity of the acts of the Confederate States." In the first place, an examination of the decision will reveal that the controversy dealt with an act of the Confederate Government, not of the Confederate States individually; and in the second place, the quoted passage refers to something which was not in issue in the case, namely, the acts of the individual States composing the Confederacy. But even this passage clearly places the case at bar apart from the Court's pronouncement therein. The quoted passage commences by stating that "The same general form of government the same general laws for the administration of justice and the protection of private rights, which has existed in the States prior to the rebellion, remanded during (its) continuance and afterwards. "In the case at bar, the same general form of the Commonwealth Government did not continue under the Japanese, for the simple reason that one of the first acts of the invaders was to overthrow the Commonwealth Constitution and, therefore, the constitutional government which existed thereunder, as an effect of the following acts and decrees of the Commander in Chief of the Imperial Japanese Forces: 1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial Japanese Forces to the Chairman of the Philippine Executive Commission directed that, in the exercise of legislative, executive and judicial powers in the Philippines, the "activities" of the "administrative organs and judicial courts in the Philippines shall be based upon the existing status, order, ordinances and the Commonwealth Constitution (1 Official Journal of the Japanese Military Administration, page 34). Under the frame of government existing in this Commonwealth upon the date of the

Japanese invasion, the Constitution was the very fountain-head of the validity and effects of all the "status, orders, and ordinances" mentioned by the Japanese Commander in Chief, and in overthrowing the Constitution he, in effect, overthrew all of them. 2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official Gazette, edited at the Office of the Executive Commission) gave the "Detailed Instruction Based on Guiding Principle of the Administration," and among other things required "The entire personnel shall be required to pledge their loyalty to the Imperial Japanese Forces. . . ." (This, of course, was repugnant to the frame of government existing here under the Commonwealth Constitution upon the date of invasion.) 3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in paragraph 3 that "The Authorities and the People of the Commonwealth should sever their relations with the U.S. o . . ." (This is, likewise, repugnant to the Commonwealth Constitution and the to the Government of that Commonwealth Constitution and to the Government of that Commonwealth which was expressly made subject to the supreme sovereignty of the United States until complete independence is granted, not by the mere will of the United States, but by virtue of an agreement between that Government and ours, under the TydingsMcDuffie Act.) The individual States of the Confederate and their governments existed prior to the Civil War and had received the sanction and recognition of the Union Government, for which the Federal Supreme Court was speaking in the Williams-Bruffy case; while the Japanese-sponsored governments of the "Philippine Executive Commission" and the Republic of the Philippines" neither existed here before the war nor had received the recognition or sanction of either the United States or the Commonwealth Government

nay, they had received the most vigorous condemnation of both. The Court further says in Williams vs. Bruffy (supra): No case has been cited in argument, and we think unsuccesfully attempting to establish a separate revolutionary government have been sustained as a matter of legal right. As justly observed by the late Chief Justice in the case of Shortridge vs. Macon, I Abb. U.S., 58, decided at the circuit, and, in all material respects like the one at bar, "Those who engage in rebellion must consider the consequences. If theysucceed, rebellion becomes revolution, and the new government will justify is founders. If they fail, all their acts hostile to the rightful government are violations of law, and originate no rights which can be recognized by the courts of the nation whose authority and existence have been alike assailed. S.C., Chase, Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.) I am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion should be applied with greater force to the case of a belligerent who loss the war. And since the founding of the Japanesesponsored government in the Philippines was designed to supplant and did actually supplant the rightful government and since all its acts could not but a hostile to the latter (however blameless the officials who acted under enemy duress might be), and since Japan failed, all said acts, particularly those of the Japanese-sponsored court in said civil case No. 3012, "are violations of law, and originate no rights which can be recognized by the courts of the nation whose authority and existence have been alike assailed", quoting the language of the court in Shortridgevs. Macon, cited by Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718). II

(a) The government styled as, first, the "Philippine Executive Commission" and later as the Republic of the Philippines", established here by the Commander in Chief of the Imperial Japanese Forces or by the his order was not a de facto government--the socalled Court of First Instance of Manila was not a de factocourt and the who presided it was not a de facto judge; (b) The rules of International Law regarding the establishment of a de facto government in territory belonging to a belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments thus established here by Japan. Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the short-lived provisional government thus established by the Japanese in the Philippines should be classified, at best, as a government of paramount force. But this is not all. The Constitution of this Commonwealth which has been expressly approved by the United States Government, in Article II, section 3, under the heading "Declaration of Principles", renounces war as an instrument of national policy. This renunciation of war as an instruments of national policy follows an equal renunciation in the Briand-Kellog Pact. The rules of International Law , cited in support of the power or right of a belligerent army of occupation to set up a provisional government on occupied enemy territory, were evolved prior to the first World War, but the horrors and devastations of that war convinced, at least the governments of the United States and France, that they should thereafter renounce war as an instrument of national policy, and they consequently subscribed the Briand-Kellog Pact. Those horrors and devastations were increased a hundred fold, if not more, in this second World War, but even before this war occurred, our own people, through our Constitutional delegates, who framed the Commonwealth Constitution also adopted

the same doctrine, and embodied an express renunciation of war as an instrument of national policy in the instrument that they drafted. It is true that in section 3, Article II, above-cited, our Constitution adopts the generally accepted principles of International Law as a part of the law of the Nation. But, of course, this adoption is exclusive of those principles of International Law which might involve recognition of war as an instrument of national policy. It is plain that on the side of the Allies, the present war is purely defensive. When Japan started said war, treacherously and without previous declaration, and attacked Pearl Harbor and the Philippines on those two fateful days of December 7 and 8, 1941, she employed war as an instrument of the national policy. Under the Briand-Kellog Pact and our Commonwealth Constitution, the United States and the Commonwealth Government could not possibly have recognized in Japan any right, as against them, to employ that war as an instrument of her national policy, and, consequently, they could not have recognized in Japan power to set up in the Philippines the puppet government that she later set up, because such power would be a mere incident or consequence of the war itself. The authorities agree that such a power, under the cited rules, is said to a right derived from war. (67 C.J., p. 421, sec. 171.) There can be no question that the United States and the Commonwealth Governments were free to refuse to be bound by those rules when they made their respective renunciations above referred to. Indeed, all the United Nations have exercised this free right in their Charter recently signed at San Francisco. As necessary consequence of this, those rules of International Law were no longer applicable to the Philippines and to the United States at the time of the Japanese invasion as a corollary, it follows that we have no legal foundation on which to base the proposition that the acts of that Japanese-sponsored government in the

Philippines were valid and binding. Moreover, I am of opinion, that although at the time of the Japanese invasion and up to the present, the United States retains over the Philippines, a certain measure of sovereignty, it is only for certain specified purposes enumerated in the Tydings-McDufie Act of the Commonwealth Constitution. (Ordinance appended to the Constitution.) And our territory was at the time of the Japanese invasion not a territory of the United States, within the meaning of the laws of war governing war-like operations on enemy territory. Our territory is significantly called "The National Territory" in Article I of our Constitution and this bears the stamps of express approval of the United States Government. The Philippines has been recognized and admitted as a member of the United Nations. We, therefore, had our own national and territorial identity previous to that invasion. Our nation was not at war with the Filipinos. And line with this, the Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt. Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of January 2, 1942, said: . . . we had not the slighest intensions to make your people our enemy; rather we considered them as our friends who will join us has hand-in-hand in the establishment of an orderly Greater East Asia. . . ., (Official Gazette, edited at the Office of the Executive Commission, Vol. I, p. 55.) If the Philippines was a neutral territory when invaded by the Japanese, the following principles from Lawrence, International Law (7th ed.), p. 603, are pertinent: The Duties of Belligerent States Towards Neutral States. . . . To refrain from carrying on hostilities within neutral territory . We have already seen that, though this obligation was recognized in theory during the infancy of International law, it was often very imperfectly observed in practice. But in modern times it has been strickly enforced, and any State which knowingly ordered

warlike operations to be carried on in neutral territory . . . would bring down upon itself the reprobation of civilized mankind. Hostilities may be carried on in the territory of either belligerent, on the high seas, and in territory belonging to no one. Neutral land and neutral territorial waters are sacred. No acts of warfare may lawfully take place within them. . . . (Emphasis ours.) In all the cases and authorities supporting the power or right to set up a provisional government, the belligerent had the right to invade or occupy the territory in the first instance. Such was not the case with the Philippines. President Roosevelt, in his message to the Filipino people, soon after the landing of American Forces in Leyte, on October 20, 1944, characterized Japan's invasion and occupation of the Philippines as "the barbarous, unprovoked and treacherous attack upon the Philippines," and he announced the American people's "firm determination to punish the guilty." (41 Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the United Nations could not have in more unmistakable terms the utter illegality of that invasion and occupation. If the establishment of a provinsional government in occupied territory by a belligerent is "a mere application or extension of the force by which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality of the invasion, would necessarily permeate the government, which was its mere application or extention. The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and treacherous attack," the meager and almost untrained forces of the Philippine Army had been inducted into the American Army, did not change the neutral status of the Philippines. That military measure had been adopted for purely defensive purposes. Nothing could be farther from the minds of the government and military leaders of the United States and the Philippines in adopting it than to embark

upon any aggressive or warlike enterprise against any other nation. It is an old and honored rule dating as far back as the 18th century that even solemn promises of assistance made before the war by a neutral to a nation which later becomes a belligerent, would not change the status of the neutral even if such promises were carried out, so long as they were made for purely defensive purposes. In the words of Vattel "when a sovereign furnishes the succor due in virtue of a former defensive alliance, he does not associate himself in the war. Therefore he may fulfill his engagements and yet preserve an exact neutrality." (Lawrence, Principles of International Law [7th ed.], pp. 585, 586.) If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and their territory occupied by the Japanese without resistance, such invasion occupation would undoubtedly have been considered in violation of International Law. Should the Filipinos be punished for having had the patriotism, bravery, and heroism to fight in defense of the sacredness of their land, the sanctity of their homes, and the honor and dignity of their government by giving validity, in whatever limited measure, to the lawless acts of the ruthless enemy who thus overran their country, and robbed them of the tranquility and happiness of their daily lives? And yet, to my mind, to give any measure of validity or binding effect to the proceedings of the Japanese-sponsored Court of First Instance of Manila, involved herein, would be to give that much validity or effect to the acts of those same invaders. To equalize the consequences of a lawful and a wrongful invasion of occupation, would be to equalize right and wrong, uphold the creed that might makes right, and adopt "the law of the jungle." If said Japanese-sponsored government was not a de facto government, it would seem clearly to follow that its "Court of First Instance of Manila" was not a de facto court.

But it should additionally be stated that for it be a de facto court, its judge had to be a de facto judge, which he could not be, as presently demonstrated. As said by President Osmea, in replying to the speech of General of the Army MacArthur when the latter turned over to him the full powers and responsibilities of the Commonwealth Government, on February 27, 1945: xxx xxx xxx

The time has come when the world should know that when our forces surrendered in Bataan and Corregidor, resistance to the enemy was taken up by the people itself resistance which was inarticulate and disorganized in its inception but which grew from the day to day and from island until it broke out into an open warfare against the enemy. The fight against the enemy was truly a people's war because it counted with the wholehearted support of the masses. From the humble peasant to the barrio school teacher, from the volunteer guard to the women's auxilliary service units, from the loyal local official to the barrio folk each and every one of those contributed his share in the great crusade for liberation. The guerrillas knew that without the support of the civilian population, they could not survive. Whole town and villages dared enemy reprisal to oppose the hated invader openly or give assistance to the underground movement. . . . (41 Off. Gaz., 88, 89.) Under these facts, taken together with the General of the Army MacArthur's accurate statement that the "Republic of the Philippines" had been established under enemy duress, it must be presumed to say the least that the judge who presided over the proceedings in question during the Japanese occupation, firstly, accepted his appointment under duress; and secondly, acted by virtue of that appointment under

the same duress. In such circumstances he could not have acted in the bona fide belief that the new "courts" created by or under the orders of the Japanese Military Commander in chief had been legally created--among them the "Court of first Instance of Manila," that the Chairman of the "Philippine Executive Commission" or the President of the "Republic of the Philippines", whoever appointed him, and conferred upon him a valid title to his office and a legitimate jurisdiction to act as such judge. Good faith is essential for the existence of a de facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of enemy duress would necessarily imply that but for the duress exerted upon him by the enemy he would have refused to accept the appointment and to act thereunder. And why? Because he must be presumed to know that the office to which he was thus appointed had been created by the enemy in open defiance of the Commonwealth Constitution and the laws and regulation promulgated by our Commonwealth Government, and that his acceptance of said office and his acting therein, if willfully done, would have been no less than an open hostility to the very sovereignty of the United Sates and to the Commonwealth Government, and a renunciation of his allegiance to both. There is no middle ground here. Either the judge acted purely under duress, in which case his acts would be null and void; or maliciously in defiance of said governments, in which case his acts would be null and void for more serious reasons. The courts created here by the Japanese government had to look for the source of their supposed authority to the orders of the Japanese Military Commander in chief and the so-called Constitution of the "Republic of the Philippines," which had been adopted in a manner which would shock the conscience of democratic peoples, and which was designed to supplant the Constitution which had been duly adopted by the Filipino people in a Constitutional Convention of their duly

elected Constitutional Delegates. And it was decreed that the Commander in chief of the Imperial Japanese Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese Military Administration, cited on pp. 2, 3, of the order of the respondent judge complained of and marked Exhibit H of the petition for mandamus.) How can our present courts legitimately recognize any efficacy in the proceedings of such an exotic judicial system, wherein the Commander in Chief of the Imperial Japanese Forces possessed the highest judicial jurisdiction? III The courts of those governments were entirely different from our Commonwealth courts before and after the Japanese occupation. Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first paragraph, states the prime concern of the government "to re-establish the courts as fast as provinces are liberated from the Japanese occupation." If the courts under the Japanese-sponsored government of the "Republic of the Philippines" were the same Commonwealth courts that existed here under the Constitution at the time of the Japanese invasion, President Osmea would not be speaking of re-establishing those courts in his aforesaid Executive Order. For soothe, how could those courts under the "Republic of the Philippines" be the courts of the Commonwealth of the Philippines when they were not functioning under the Constitution of the Commonwealth and the laws enacted in pursuance of said Constitution? The jurisdiction of the Commonwealth courts was defined and conferred under the Commonwealth Constitution and the pertinent legislation enacted thereunder, that of the Japanesesponsored courts was defined and conferred by the orders and decrees of the Japanese Commander in Chief, and, perhaps, the decrees of the "Philippine Executive

Commission" and the laws of the so-called Legislature under the Republic, which was not composed of the elected representatives of the people. The Justices and Judges of the Commonwealth courts had to be appointed by the President of the Commonwealth with confirmation by the Commission on Appointments, pursuant to the Commonwealth Constitution. The Chief Justice of the Supreme Court, under the "Philippine Executive Commission" was appointed by the Commander in Chief of the Imperial Japanese Forces, and the Associate Justices of the Supreme Court, the Presiding Justice and Associate Justices of the Court of Appeals, the Judges of first Instance and of all inferior courts were appointed by the Chairman of the Executive Commission, at first, and later, by the President of the Republic, of course, without confirmation by the Commission on Appointments under the Commonwealth Constitution. The Chief Justice and Associate Justices of the Supreme Court, the President and Associate Justices of the Court of Appeals, and the Judges of First Instance and of all inferior courts in the Commonwealth judicial system, had to swear to support and defend the Commonwealth Constitution, while this was impossible under the Japanese-sponsored government. In the Commonwealth judicial system, if a Justice or Judge should die or incapacitated to continue in the discharge of his official duties, his successor was appointed by the Commonwealth President with confirmation by the Commission on Appointments, and said successor had to swear to support and defend the Commonwealth Constitution; in the exotic judicial system implanted here by the Japanese, if a Justice or Judge should die or incapacitated, his successor would be appointed by the Japanese Commander in Chief, if the dead or incapacitated incumbent should be the Chief Justice of the Supreme Court, or otherwise, by the Chairman of the "Executive Commission" or the President of the "Republic", of course without confirmation by the Commission on Appointments of the Commonwealth

Congress, and, of course, without the successor swearing to support and defend the Commonwealth Constitution. If, as we believe having conclusively shown, the Japanese-sponsored courts were not the same Commonwealth courts, the conclusion is unavoidable that any jurisdiction possessed by the former and any cases left pending therein, were not and could not be automatically transfered to the Commonwealth courts which we reestablished under Executive Order No. 36. For the purpose, a special legislation was necessary. Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the President recognized as valid the proceedings in all cases appealed to the Court of Appeals. Section 2 of that order simply provides that all cases which have been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. The adverb "duly" would indicate that the President foresaw the possibility of appeals not having been duly taken. All cases appealed to the Court of Appeals before the war and the otherwise duly appealed, would come under the phrase "duly appealed" in this section of the Executive Order. But considering the determined and firm attitude of the Commonwealth Government towards those Japanese-sponsored governments since the beginning, it would seem inconceivable that the President Osmea, in section 2 of Executive Order No. 37, intended to include therein appeals taken to the Japanesesponsored Court of Appeals, or from the Japanese-sponsored inferior courts. It should be remembered that in the Executive Order immediately preceeding and issued on the same date, the President speaks of reestablishing the courts as fast as provinces were liberated from the Japanese occupation. IV

The question boils down to whether the Commonwealth Government, as now restored, is to be bound by the acts of either or both of those Japanese-sponsored governments. In the last analysis, in deciding the question of validity or nullity of the proceedings involved herein, we are confronted with the necessity to decide whether the Court of first Instance of Manila and this Supreme Court, as re-established under the Commonwealth Constitution, and the entire Commonwealth Government, are to be bound by the acts of the said Japanese-sponsored court and government. To propound this question is, to my mind, to answer it most decidedly in the negative, not only upon the ground of the legal principles but also for the reasons of national dignity and international decency. To answer the question in the affirmative would be nothing short for legalizing the Japanese invasion and occupation of the Philippines. Indeed, it would be virtual submission to the dictation of an invader our people's just hatred of whom gave rise to the epic Philippine resistance movement, which has won the admiration of the entire civilized world. V Even considerations of policy or practical convenience militate against petitioner's contention. In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the following to say: It is contended, however, that the judicial system implanted by the Philippine Executive Commission and the Republic was the same as that of the Commonwealth prior to Japanese occupation; that the laws administered and enforced by said courts during the existence of said regime were the same laws on the statute books of Commonwealth before Japanese occupation, and that even the judges who presided them

were, in many instances, the same persons who held the position prior to the Japanese occupation. All this may be true, but other facts are just as stubborn and pitiless. One of them is that said courts were of a government alien to the Commonwealth Government. The laws they enforced were, true enough, laws of the Commonwealth prior to Japanese occupation, but they had become the laws and the Courts had become the institutions-of Japan by adoption (U.S. vs. Reiter, 27 F. Case No. 16,146), as they became later on the laws and institution of the Philippine Executive Commission and the Republic of the Philippines. No amount of argument or legal fiction can obliterate this fact. Besides, I am of the opinion that the validity of the acts of the courts in the "judicial system implanted by the Philippine Executive Commission and the Republic "would not depend upon the laws that they "administered and enforced", but upon the authority by virtue of which they acted. If the members of this Court were to decide the instant case in strict accordance with the Constitution and the laws of the Commonwealth but not by the authority that they possess in their official capacity as the Supreme Court of the Philippines, but merely as lawyers, their decision would surely be null and void. And yet, I am firmly of opinion that whoever was the "judge" of the Japanese sponsored Court of First Instance of Manila who presided over the said court when the proceedings and processes in the dispute were had, in acting by virtue of the supposed authority which he was supposed to have received from that government, did so with no more legal power than if he had acted as a mere lawyer applying the same laws to the case. If duplication of work or effort, or even if confussion, should be alleged to possibly arise from a declaration of nullity or judicial proceedings had before those Japanese-sponsored courts, it should suffice to answer that the party so complaining in voluntarily resorting to such

courts should be prepared to assume the consequences of his voluntary act. On the other hand, his convenience should not be allowed to visit upon the majority of the inhabitants of this country, the dire consequences of a sweeping and wholesale validation of judicial proceedings in those courts. Let us set forth a few considerations apropos of this assertion. It is a fact of general knowledge that during the Japanese occupation of the Philippines, the overwhelming majority of our people and other resident inhabitants were literally afraid to go any place where there were Japanese sentries, soldiers or even civilians, and that these sentries were posted at the entrance into cities and towns and at government offices; that the feared Japanese "M. P.'s" or Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or had evacuated to places for from the Japanese, were found precisely in the cities and towns where the courts were located; and as a consequence, the great majority of the people were very strongly adverse to traveling any considerable distance from their homes and were, one might say, in constant hiding. Add to these circumstances, the fact of the practical absence of transportation facilities and the no less important fact of the economic structure having been so dislocated as to have impoverished the many in exchange for the enrichment of the few and we shall have a fair picture of the practical difficulties which the ordinary litigant would in those days have encountered in defending his rights against anyone of the favored few who would bring him to court. It should be easy to realize how hard it was for instances, to procure the attendance of witnesses, principally because of the fact that most of them were in hiding or, at least, afraid to enter the cities and towns, and also because of then generally difficult and abnormal conditions prevailing. Under such conditions, cases or denial of a party's day in court expected. Such denial might arise from many a cause. It might be

party's fear to appear before the court because in doing so, he would have had to get near the feared Japanese. It might be because he did not recognize any legal authority in that court, or it might be his down-right repugnance of the hated enemy. And I dare say that among such people would be found more than seventeen million Filipinos. These are but a few of countless cause. So that if some form of validation of such judicial proceedings were to be attempted, all necessary safeguards should be provided to avoid that in any particular case the validation should violate any litigant's constitutional right to his day in court, within the full meaning of the phrase, or any other constitutional or statutory right of his. More people, I am afraid, would be prejudiced than would be benefited by a wholesale validation of said proceedings. Much concern has been shown for the possible confusion which might result from a decision declaring null and void the acts processes of the Japanese-sponsored governments in the Philippines. I think, this aspect of the question has been unduly stressed. The situation is not without remedy, but the remedy lies with the legislature and not with the courts. As the courts cannot create a new or special jurisdiction for themselves, which is a legislative function, and as the situation demands such new or special jurisdiction, let the legislature act in the premises. For instance, the Congress may enact a law conferring a special jurisdiction upon the courts of its selection, whereby said courts may, after hearing all the parties interested, and taking all the necessary safeguards, so that, a party's day in court or other constitutional or statutory right under the Commonwealth Government should not be prejudiced by any of said acts, processes or proceedings, particullarly, those in Japanesesponsored courts, and subject to such other conditions as the special law may provide, validate the corresponding acts, processes or proceedings. This, to my mind, would be

more conducive to a maximum of benefit and a minimum of prejudice to the inhabitants of this country, rather than the procedure favored by the majority. Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the provinces, where the greater number of the people where then living outside the towns, in the farms and the hills. These people constitute the great majority of the eighteen million Filipinos. To them the semblance of an administration of justice which Japanese allowed, was practically unknown. But they constituted the majority of loyal citizens to whom President Roosevelt's message of October 23, 1943 refers. They the majority of our people had an unshaken faith in the arrival of American aid here and the final triumph of the Allied cause. They were willing to wait for the restoration of their rightful government, with its courts and other institutions, for the settlement of their differences. May in their common hardship and sufferings under yoke of foreign oppression, they had not much time to think of such differences, if they did not utterly forget them. Their undoubted hatred of the invader was enough to keep them away from the judicial system that said invader allowed to have. Those who voluntarily went to the courts in those tragic days belong to the small minority. As to the public order why! any public order which then existed was not due to the courts or other departments of the puppet government. It was maintained at the point of the bayonet by the Japanese army, and in their own unique fashion.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 94723 August 21, 1997 KAREN E. SALVACION, minor, thru Federico N. Salvacion, Jr., father and Natural Guardian, and Spouses FEDERICO N. SALVACION, JR., and EVELINA E. SALVACION, petitioners, vs. CENTRAL BANK OF THE PHILIPPINES, CHINA BANKING CORPORATION and GREG BARTELLI y NORTHCOTT, respondents.

TORRES, JR., J.: In our predisposition to discover the "original intent" of a statute, courts become the unfeeling pillars of the status quo. Ligle do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of tune and irrelevant to our day. The petition is for declaratory relief. It prays for the following reliefs: a.) Immediately upon the filing of this petition, an Order be issued restraining the respondents from applying and enforcing Section 113 of Central Bank Circular No. 960; b.) After hearing, judgment be rendered:

Footnotes
1

1.) Declaring the respective rights and duties of petitioners and respondents; 2.) Adjudging Section 113 of Central Bank Circular No. 960 as contrary to the provisions of the Constitution, hence void; because its provision that "Foreign currency deposits

Resolution on motion for reconsideration, see p. 371, post.

shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever i.) has taken away the right of petitioners to have the bank deposit of defendant Greg Bartelli y Northcott garnished to satisfy the judgment rendered in petitioners' favor in violation of substantive due process guaranteed by the Constitution; ii.) has given foreign currency depositors an undue favor or a class privilege in violation of the equal protection clause of the Constitution; iii.) has provided a safe haven for criminals like the herein respondent Greg Bartelli y Northcott since criminals could escape civil liability for their wrongful acts by merely converting their money to a foreign currency and depositing it in a foreign currency deposit account with an authorized bank. The antecedent facts: On February 4, 1989, Greg Bartelli y Northcott, an American tourist, coaxed and lured petitioner Karen Salvacion, then 12 years old to go with him to his apartment. Therein, Greg Bartelli detained Karen Salvacion for four days, or up to February 7, 1989 and was able to rape the child once on February 4, and three times each day on February 5, 6, and 7, 1989. On February 7, 1989, after policemen and people living nearby, rescued Karen, Greg Bartelli was arrested and detained at the Makati Municipal Jail. The policemen recovered from Bartelli the following items: 1.) Dollar Check No. 368, Control No. 0210006781166111303, US 3,903.20; 2.) COCOBANK Bank Book No. 104-108758-8 (Peso Acct.); 3.) Dollar Account China Banking Corp., US$/A#54105028-2; 4.) ID-122-30-8877; 5.) Philippine Money (P234.00) cash; 6.) Door Keys 6 pieces; 7.) Stuffed Doll (Teddy Bear) used in seducing the complainant.

On February 16, 1989, Makati Investigating Fiscal Edwin G. Condaya filed against Greg Bartelli, Criminal Case No. 801 for Serious Illegal Detention and Criminal Cases Nos. 802, 803, 804, and 805 for four (4) counts of Rape. On the same day, petitioners filed with the Regional Trial Court of Makati Civil Case No. 89-3214 for damages with preliminary attachment against Greg Bartelli. On February 24, 1989, the day there was a scheduled hearing for Bartelli's petition for bail the latter escaped from jail. On February 28, 1989, the court granted the fiscal's Urgent Ex-Parte Motion for the Issuance of Warrant of Arrest and Hold Departure Order. Pending the arrest of the accused Greg Bartelli y Northcott, the criminal cases were archived in an Order dated February 28, 1989. Meanwhile, in Civil Case No. 89-3214, the Judge issued an Order dated February 22, 1989 granting the application of herein petitioners, for the issuance of the writ of preliminary attachment. After petitioners gave Bond No. JCL (4) 1981 by FGU Insurance Corporation in the amount of P100,000.00, a Writ of Preliminary Attachment was issued by the trial court on February 28, 1989. On March 1, 1989, the Deputy Sheriff of Makati served a Notice of Garnishment on China Banking Corporation. In a letter dated March 13, 1989 to the Deputy Sheriff of Makati, China Banking Corporation invoked Republic Act No. 1405 as its answer to the notice of garnishment served on it. On March 15, 1989, Deputy Sheriff of Makati Armando de Guzman sent his reply to China Banking Corporation saying that the garnishment did not violate the secrecy of bank deposits since the disclosure is merely incidental to a garnishment properly and legally made by virtue of a court order which has placed the subject deposits in custodia legis. In answer to this letter of the Deputy Sheriff of Makati, China Banking Corporation, in a letter dated March 20, 1989, invoked Section 113 of

Central Bank Circular No. 960 to the effect that the dollar deposits or defendant Greg Bartelli are exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body, whatsoever. This prompted the counsel for petitioners to make an inquiry with the Central Bank in a letter dated April 25, 1989 on whether Section 113 of CB Circular No. 960 has any exception or whether said section has been repealed or amended since said section has rendered nugatory the substantive right of the plaintiff to have the claim sought to be enforced by the civil action secured by way of the writ of preliminary attachment as granted to the plaintiff under Rule 57 of the Revised Rules of Court. The Central Bank responded as follows: May 26, 1989 Ms. Erlinda S. Carolino 12 Pres. Osmena Avenue South Admiral Village Paranaque, Metro Manila Dear Ms. Carolino: This is in reply to your letter dated April 25, 1989 regarding your inquiry on Section 113, CB Circular No. 960 (1983). The cited provision is absolute in application. It does not admit of any exception, nor has the same been repealed nor amended. The purpose of the law is to encourage dollar accounts within the country's banking system which would help in the development of the economy. There is no intention to render futile the basic rights of a person as was suggested in your subject letter. The law may be harsh as some perceive it, but it is still the law. Compliance is, therefore, enjoined. Very truly yours,

(SGD) AGAPITO S. FAJARDO Director 1 Meanwhile, on April 10, 1989, the trial court granted petitioners' motion for leave to serve summons by publication in the Civil Case No. 89-3214 entitled "Karen Salvacion, et al. vs. Greg Bartelli y Northcott." Summons with the complaint was a published in the Manila Times once a week for three consecutive weeks. Greg Bartelli failed to file his answer to the complaint and was declared in default on August 7, 1989. After hearing the case exparte, the court rendered judgment in favor of petitioners on March 29, 1990, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against defendant, ordering the latter: 1. To pay plaintiff Karen E. Salvacion the amount of P500,000.00 as moral damages; 2. To pay her parents, plaintiffs spouses Federico N. Salvacion, Jr., and Evelina E. Salvacion the amount of P150,000.00 each or a total of P300,000.00 for both of them; 3. To pay plaintiffs exemplary damages of P100,000.00; and 4. To pay attorney's fees in an amount equivalent to 25% of the total amount of damages herein awarded; 5. To pay litigation expenses of P10,000.00; plus 6. Costs of the suit. SO ORDERED. The heinous acts of respondent Greg Bartelli which gave rise to the award were related in graphic detail by the trial court in its decision as follows: The defendant in this case was originally detained in the municipal jail of Makati but was able to escape therefrom on February 24, 1989 as per report of the Jail Warden of

Makati to the Presiding Judge, Honorable Manuel M. Cosico of the Regional Trial Court of Makati, Branch 136, where he was charged with four counts of Rape and Serious Illegal Detention (Crim. Cases Nos. 802 to 805). Accordingly, upon motion of plaintiffs, through counsel, summons was served upon defendant by publication in the Manila Times, a newspaper of general circulation as attested by the Advertising Manager of the Metro Media Times, Inc., the publisher of the said newspaper. Defendant, however, failed to file his answer to the complaint despite the lapse of the period of sixty (60) days from the last publication; hence, upon motion of the plaintiffs, through counsel, defendant was declared in default and plaintiffs were authorized to present their evidence ex parte. In support of the complaint, plaintiffs presented as witnesses the minor Karen E. Salvacion, her father, Federico N. Salvacion, Jr., a certain Joseph Aguilar and a certain Liberato Madulio, who gave the following testimony: Karen took her first year high school in St. Mary's Academy in Pasay City but has recently transferred to Arellano University for her second year. In the afternoon of February 4, 1989, Karen was at the Plaza Fair Makati Cinema Square, with her friend Edna Tangile whiling away her free time. At about 3:30 p.m. while she was finishing her snack on a concrete bench in front of Plaza Fair, an American approached her. She was then alone because Edna Tangile had already left, and she was about to go home. (TSN, Aug. 15, 1989, pp. 2 to 5) The American asked her name and introduced himself as Greg Bartelli. He sat beside her when he talked to her. He said he was a Math teacher and told her that he has a sister who is a nurse in New York. His sister allegedly has a daughter who is about Karen's age and who was with him in his

house along Kalayaan Avenue. (TSN, Aug. 15, 1989, pp. 4-5) The American asked Karen what was her favorite subject and she told him it's Pilipino. He then invited her to go with him to his house where she could teach Pilipino to his niece. He even gave her a stuffed toy to persuade her to teach his niece. (Id., pp. 5-6) They walked from Plaza Fair along Pasong Tamo, turning right to reach the defendant's house along Kalayaan Avenue. (Id., p. 6) When they reached the apartment house, Karen noticed that defendant's alleged niece was not outside the house but defendant told her maybe his niece was inside. When Karen did not see the alleged niece inside the house, defendant told her maybe his niece was upstairs, and invited Karen to go upstairs. (Id., p. 7) Upon entering the bedroom defendant suddenly locked the door. Karen became nervous because his niece was not there. Defendant got a piece of cotton cord and tied Karen's hands with it, and then he undressed her. Karen cried for help but defendant strangled her. He took a packing tape and he covered her mouth with it and he circled it around her head. (Id., p. 7) Then, defendant suddenly pushed Karen towards the bed which was just near the door. He tied her feet and hands spread apart to the bed posts. He knelt in front of her and inserted his finger in her sex organ. She felt severe pain. She tried to shout but no sound could come out because there were tapes on her mouth. When defendant withdrew his finger it was full of blood and Karen felt more pain after the withdrawal of the finger. (Id., p. 8) He then got a Johnson's Baby Oil and he applied it to his sex organ as well as to her sex organ. After that he forced his sex organ into her but he was not able to do so. While he was doing it, Karen found it difficult to breathe and she perspired a lot while feeling

severe pain. She merely presumed that he was able to insert his sex organ a little, because she could not see. Karen could not recall how long the defendant was in that position. (Id. pp. 8-9) After that, he stood up and went to the bathroom to wash. He also told Karen to take a shower and he untied her hands. Karen could only hear the sound of the water while the defendant, she presumed, was in the bathroom washing his sex organ. When she took a shower more blood came out from her. In the meantime, defendant changed the mattress because it was full of blood. After the shower, Karen was allowed by defendant to sleep. She fell asleep because she got tired crying. The incident happened at about 4:00 p.m. Karen had no way of determining the exact time because defendant removed her watch. Defendant did not care to give her food before she went to sleep. Karen woke up at about 8:00 o'clock the following morning. (Id., pp. 9-10) The following day, February 5, 1989, a Sunday, after a breakfast of biscuit and coke at about 8:30 to 9:00 a.m. defendant raped Karen while she was still bleeding. For lunch, they also took biscuit and coke. She was raped for the second time at about 12:00 to 2:00 p.m. In the evening, they had rice for dinner which defendant had stored downstairs; it was he who cooked the rice that is why it looks like "lugaw". For the third time, Karen was raped again during the night. During those three times defendant succeeded in inserting his sex organ but she could not say whether the organ was inserted wholly. Karen did not see any firearm or any bladed weapon. The defendant did not tie her hands and feet nor put a tape on her mouth anymore but she did not cry for help for fear that she might be killed; besides, all the windows and doors were closed. And even if she shouted for help, nobody would hear her. She was so afraid that if somebody would hear her and would be able to call the police,

it was still possible that as she was still inside the house, defendant might kill her. Besides, the defendant did not leave that Sunday, ruling out her chance to call for help. At nighttime he slept with her again. (TSN, Aug. 15, 1989, pp. 12-14) On February 6, 1989, Monday, Karen was raped three times, once in the morning for thirty minutes after a breakfast of biscuits; again in the afternoon; and again in the evening. At first, Karen did not know that there was a window because everything was covered by a carpet, until defendant opened the window for around fifteen minutes or less to let some air in, and she found that the window was covered by styrofoam and plywood. After that, he again closed the window with a hammer and he put the styrofoam, plywood, and carpet back. (Id., pp. 14-15) That Monday evening, Karen had a chance to call for help, although defendant left but kept the door closed. She went to the bathroom and saw a small window covered by styrofoam and she also spotted a small hole. She stepped on the bowl and she cried for help through the hole. She cried: " Maawa no po kayo so akin. Tulungan n'yo akong makalabas dito. Kinidnap ako!" Somebody heard her. It was a woman, probably a neighbor, but she got angry and said she was "istorbo". Karen pleaded for help and the woman told her to sleep and she will call the police. She finally fell asleep but no policeman came. (TSN, Aug. 15, 1989, pp. 15-16) She woke up at 6:00 o'clock the following morning, and she saw defendant in bed, this time sleeping. She waited for him to wake up. When he woke up, he again got some food but he always kept the door locked. As usual, she was merely fed with biscuit and coke. On that day, February 7, 1989, she was again raped three times. The first at about 6:30 to 7:00 a.m., the second at about 8:30 9:00, and the third was after lunch at 12:00 noon. After he had raped her for the

second time he left but only for a short while. Upon his return, he caught her shouting for help but he did not understand what she was shouting about. After she was raped the third time, he left the house. (TSN, Aug. 15, 1989, pp. 16-17) She again went to the bathroom and shouted for help. After shouting for about five minutes, she heard many voices. The voices were asking for her name and she gave her name as Karen Salvacion. After a while, she heard a voice of a woman saying they will just call the police. They were also telling her to change her clothes. She went from the bathroom to the room but she did not change her clothes being afraid that should the neighbors call for the police and the defendant see her in different clothes, he might kill her. At that time she was wearing a T-shirt of the American because the latter washed her dress. (Id., p. 16) Afterwards, defendant arrived and he opened the door. He asked her if she had asked for help because there were many policemen outside and she denied it. He told her to change her clothes, and she did change to the one she was wearing on Saturday. He instructed her to tell the police that she left home and willingly; then he went downstairs but he locked the door. She could hear people conversing but she could not understand what they were saying. ( Id., p. 19) When she heard the voices of many people who were conversing downstairs, she knocked repeatedly at the door as hard as she could. She heard somebody going upstairs and when the door was opened, she saw a policeman. The policeman asked her name and the reason why she was there. She told him she was kidnapped. Downstairs, he saw about five policemen in uniform and the defendant was talking to them. "Nakikipag-areglo po sa mga pulis," Karen added. "The policeman told him to just explain at the precinct. (Id., p. 20) They went out of the house and she saw some of her neighbors in front of the house.

They rode the car of a certain person she called Kuya Boy together with defendant, the policeman, and two of her neighbors whom she called Kuya Bong Lacson and one Ate Nita. They were brought to Sub-Station I and there she was investigated by a policeman. At about 2:00 a.m., her father arrived, followed by her mother together with some of their neighbors. Then they were brought to the second floor of the police headquarters. (Id., p. 21) At the headquarters, she was asked several questions by the investigator. The written statement she gave to the police was marked as Exhibit A. Then they proceeded to the National Bureau of Investigation together with the investigator and her parents. At the NBI, a doctor, a medico-legal officer, examined her private parts. It was already 3:00 in the early morning of the following day when they reached the NBI. (TSN, Aug. 15, 1989, p. 22) The findings of the medicolegal officer has been marked as Exhibit B. She was studying at the St. Mary's Academy in Pasay City at the time of the incident but she subsequently transferred to Apolinario Mabini, Arellano University, situated along Taft Avenue, because she was ashamed to be the subject of conversation in the school. She first applied for transfer to Jose Abad Santos, Arellano University along Taft Avenue near the Light Rail Transit Station but she was denied admission after she told the school the true reason for her transfer. The reason for their denial was that they might be implicated in the case. (TSN, Aug. 15, 1989, p. 46) xxx xxx xxx After the incident, Karen has changed a lot. She does not play with her brother and sister anymore, and she is always in a state of shock; she has been absent-minded and is ashamed even to go out of the house. (TSN, Sept. 12, 1989, p. 10) She appears to be restless or sad, (Id., p. 11) The father prays for P500,000.00 moral damages for Karen for

this shocking experience which probably, she would always recall until she reaches old age, and he is not sure if she could ever recover from this experience. (TSN, Sept. 24, 1989, pp. 10-11) Pursuant to an Order granting leave to publish notice of decision, said notice was published in the Manila Bulletin once a week for three consecutive weeks. After the lapse of fifteen (15) days from the date of the last publication of the notice of judgment and the decision of the trial court had become final, petitioners tried to execute on Bartelli's dollar deposit with China Banking Corporation. Likewise, the bank invoked Section 113 of Central Bank Circular No. 960. Thus, petitioners decided to seek relief from this Court. The issues raised and the arguments articulated by the parties boil down to two: May this Court entertain the instant petition despite the fact that original jurisdiction in petitions for declaratory relief rests with the lower court? Should Section 113 of Central Bank Circular No. 960 and Section 8 of R.A. 6426, as amended by P.D. 1246, otherwise known as the Foreign Currency Deposit Act be made applicable to a foreign transient? Petitioners aver as heretofore stated that Section 113 of Central Bank Circular No. 960 providing that "Foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever." should be adjudged as unconstitutional on the grounds that: 1.) it has taken away the right of petitioners to have the bank deposit of defendant Greg Bartelli y Northcott garnished to satisfy the judgment rendered in petitioners' favor in violation of substantive due process guaranteed by the Constitution; 2.) it has given foreign currency depositors an undue favor or a class privilege in violation of the

equal protection clause of the Constitution; 3.) it has provided a safe haven for criminals like the herein respondent Greg Bartelli y Northcott since criminals could escape civil liability for their wrongful acts by merely converting their money to a foreign currency and depositing it in a foreign currency deposit account with an authorized bank; and 4.) The Monetary Board, in issuing Section 113 of Central Bank Circular No. 960 has exceeded its delegated quasi-legislative power when it took away: a.) the plaintiffs substantive right to have the claim sought to be enforced by the civil action secured by way of the writ of preliminary attachment as granted by Rule 57 of the Revised Rules of Court; b.) the plaintiffs substantive right to have the judgment credit satisfied by way of the writ of execution out of the bank deposit of the judgment debtor as granted to the judgment creditor by Rule 39 of the Revised Rules of Court, which is beyond its power to do so. On the other hand, respondent Central Bank, in its Comment alleges that the Monetary Board in issuing Section 113 of CB Circular No. 960 did not exceed its power or authority because the subject Section is copied verbatim from a portion of R.A. No. 6426 as amended by P.D. 1246. Hence, it was not the Monetary Board that grants exemption from attachment or garnishment to foreign currency deposits, but the law (R.A. 6426 as amended) itself; that it does not violate the substantive due process guaranteed by the Constitution because a.) it was based on a law; b.) the law seems to be reasonable; c.) it is enforced according to regular methods of procedure; and d.) it applies to all members of a class. Expanding, the Central Bank said; that one reason for exempting the foreign currency deposits from attachment, garnishment or any other order or process of any court, is to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the

Philippines; that another reason is to encourage the inflow of foreign currency deposits into the banking institutions thereby placing such institutions more in a position to properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country; that the subject section is being enforced according to the regular methods of procedure; and that it applies to all foreign currency deposits made by any person and therefore does not violate the equal protection clause of the Constitution. Respondent Central Bank further avers that the questioned provision is needed to promote the public interest and the general welfare; that the State cannot just stand idly by while a considerable segment of the society suffers from economic distress; that the State had to take some measures to encourage economic development; and that in so doing persons and property may be subjected to some kinds of restraints or burdens to secure the general welfare or public interest. Respondent Central Bank also alleges that Rule 39 and Rule 57 of the Revised Rules of Court provide that some properties are exempted from execution/attachment especially provided by law and R.A. No. 6426 as amended is such a law, in that it specifically provides, among others, that foreign currency deposits shall be exempted from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. For its part, respondent China Banking Corporation, aside from giving reasons similar to that of respondent Central Bank, also stated that respondent China Bank is not unmindful of the inhuman sufferings experienced by the minor Karen E. Salvacion from the beastly hands of Greg Bartelli; that it is only too willing to release the dollar deposit of Bartelli which may perhaps partly mitigate the sufferings petitioner has undergone; but it is restrained from doing so

in view of R.A. No. 6426 and Section 113 of Central Bank Circular No. 960; and that despite the harsh effect of these laws on petitioners, CBC has no other alternative but to follow the same. This Court finds the petition to be partly meritorious. Petitioner deserves to receive the damages awarded to her by the court. But this petition for declaratory relief can only be entertained and treated as a petition for mandamus to require respondents to honor and comply with the writ of execution in Civil Case No. 89-3214. This Court has no original and exclusive jurisdiction over a petition for declaratory relief. 2 However, exceptions to this rule have been recognized. Thus, where the petition has far-reaching implications and raises questions that should be resolved, it may be treated as one for mandamus. 3 Here is a child, a 12-year old girl, who in her belief that all Americans are good and in her gesture of kindness by teaching his alleged niece the Filipino language as requested by the American, trustingly went with said stranger to his apartment, and there she was raped by said American tourist Greg Bartelli. Not once, but ten times. She was detained therein for four (4) days. This American tourist was able to escape from the jail and avoid punishment. On the other hand, the child, having received a favorable judgment in the Civil Case for damages in the amount of more than P1,000,000.00, which amount could alleviate the humiliation, anxiety, and besmirched reputation she had suffered and may continue to suffer for a long, long time; and knowing that this person who had wronged her has the money, could not, however get the award of damages because of this unreasonable law. This questioned law, therefore makes futile the favorable judgment and award of damages that she and her parents fully deserve. As stated by the trial court in its decision,

Indeed, after hearing the testimony of Karen, the Court believes that it was undoubtedly a shocking and traumatic experience she had undergone which could haunt her mind for a long, long time, the mere recall of which could make her feel so humiliated, as in fact she had been actually humiliated once when she was refused admission at the Abad Santos High School, Arellano University, where she sought to transfer from another school, simply because the school authorities of the said High School learned about what happened to her and allegedly feared that they might be implicated in the case. xxx xxx xxx The reason for imposing exemplary or corrective damages is due to the wanton and bestial manner defendant had committed the acts of rape during a period of serious illegal detention of his hapless victim, the minor Karen Salvacion whose only fault was in her being so naive and credulous to believe easily that defendant, an American national, could not have such a bestial desire on her nor capable of committing such a heinous crime. Being only 12 years old when that unfortunate incident happened, she has never heard of an old Filipino adage that in every forest there is a snake, . . . . 4 If Karen's sad fate had happened to anybody's own kin, it would be difficult for him to fathom how the incentive for foreign currency deposit could be more important than his child's rights to said award of damages; in this case, the victim's claim for damages from this alien who had the gall to wrong a child of tender years of a country where he is a mere visitor. This further illustrates the flaw in the questioned provisions. It is worth mentioning that R.A. No. 6426 was enacted in 1983 or at a time when the country's economy was in a shambles; when foreign investments were minimal and presumably, this was the reason why said

statute was enacted. But the realities of the present times show that the country has recovered economically; and even if not, the questioned law still denies those entitled to due process of law for being unreasonable and oppressive. The intention of the questioned law may be good when enacted. The law failed to anticipate the iniquitous effects producing outright injustice and inequality such as the case before us. It has thus been said that But I also know, 5 that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths are disclosed and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. . . We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. In his Comment, the Solicitor General correctly opined, thus: The present petition has far-reaching implications on the right of a national to obtain redress for a wrong committed by an alien who takes refuge under a law and regulation promulgated for a purpose which does not contemplate the application thereof envisaged by the alien. More specifically, the petition raises the question whether the protection against attachment, garnishment or other court process accorded to foreign currency deposits by PD No. 1246 and CB Circular No. 960 applies when the deposit does not come from a lender or investor but from a mere transient or tourist who is not expected to maintain the deposit in the bank for long. The resolution of this question is important for the protection of nationals who are

victimized in the forum by foreigners who are merely passing through. xxx xxx xxx . . . Respondents China Banking Corporation and Central Bank of the Philippines refused to honor the writ of execution issued in Civil Case No. 89-3214 on the strength of the following provision of Central Bank Circular No. 960: Sec. 113. Exemption from attachment. Foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. Central Bank Circular No. 960 was issued pursuant to Section 7 of Republic Act No. 6426: Sec. 7. Rules and Regulations. The Monetary Board of the Central Bank shall promulgate such rules and regulations as may be necessary to carry out the provisions of this Act which shall take effect after the publication of such rules and regulations in the Official Gazette and in a newspaper of national circulation for at least once a week for three consecutive weeks. In case the Central Bank promulgates new rules and regulations decreasing the rights of depositors, the rules and regulations at the time the deposit was made shall govern. The aforecited Section 113 was copied from Section 8 of Republic Act NO. 6426, as amended by P.D. 1246, thus: Sec. 8. Secrecy of Foreign Currency Deposits . All foreign currency deposits authorized under this Act, as amended by Presidential Decree No. 1035, as well as foreign currency deposits authorized under Presidential Decree No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall such foreign currency deposits be

examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative or any other entity whether public or private: Provided, however, that said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. The purpose of PD 1246 in according protection against attachment, garnishment and other court process to foreign currency deposits is stated in its whereases, viz.: WHEREAS, under Republic Act No. 6426, as amended by Presidential Decree No. 1035, certain Philippine banking institutions and branches of foreign banks are authorized to accept deposits in foreign currency; WHEREAS, under the provisions of Presidential Decree No. 1034 authorizing the establishment of an offshore banking system in the Philippines, offshore banking units are also authorized to receive foreign currency deposits in certain cases; WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines, certain incentives were provided for under the two Systems such as confidentiality of deposits subject to certain exceptions and tax exemptions on the interest income of depositors who are nonresidents and are not engaged in trade or business in the Philippines; WHEREAS, making absolute the protective cloak of confidentiality over such foreign currency deposits, exempting such deposits from tax, and guaranteeing the vested rights of depositors would better encourage the inflow of foreign currency deposits into the banking institutions authorized to accept such deposits in the Philippines thereby placing such institutions more in a position to

properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country; Thus, one of the principal purposes of the protection accorded to foreign currency deposits is "to assure the development and speedy growth of the Foreign Currency Deposit system and the Offshore Banking in the Philippines" (3rd Whereas). The Offshore Banking System was established by PD No. 1034. In turn, the purposes of PD No. 1034 are as follows: WHEREAS, conditions conducive to the establishment of an offshore banking system, such as political stability, a growing economy and adequate communication facilities, among others, exist in the Philippines; WHEREAS, it is in the interest of developing countries to have as wide access as possible to the sources of capital funds for economic development; WHEREAS, an offshore banking system based in the Philippines will be advantageous and beneficial to the country by increasing our links with foreign lenders, facilitating the flow of desired investments into the Philippines, creating employment opportunities and expertise in international finance, and contributing to the national development effort. WHEREAS, the geographical location, physical and human resources, and other positive factors provide the Philippines with the clear potential to develop as another financial center in Asia; On the other hand, the Foreign Currency Deposit system was created by PD. No. 1035. Its purposes are as follows: WHEREAS, the establishment of an offshore banking system in the Philippines has been authorized under a separate decree;

WHEREAS, a number of local commercial banks, as depository bank under the Foreign Currency Deposit Act (RA No. 6426), have the resources and managerial competence to more actively engage in foreign exchange transactions and participate in the grant of foreign currency loans to resident corporations and firms; WHEREAS, it is timely to expand the foreign currency lending authority of the said depository banks under RA 6426 and apply to their transactions the same taxes as would be applicable to transaction of the proposed offshore banking units; It is evident from the above [Whereas clauses] that the Offshore Banking System and the Foreign Currency Deposit System were designed to draw deposits from foreign lenders and investors (Vide second Whereas of PD No. 1034; third Whereas of PD No. 1035). It is these deposits that are induced by the two laws and given protection and incentives by them. Obviously, the foreign currency deposit made by a transient or a tourist is not the kind of deposit encouraged by PD Nos. 1034 and 1035 and given incentives and protection by said laws because such depositor stays only for a few days in the country and, therefore, will maintain his deposit in the bank only for a short time. Respondent Greg Bartelli, as stated, is just a tourist or a transient. He deposited his dollars with respondent China Banking Corporation only for safekeeping during his temporary stay in the Philippines. For the reasons stated above, the Solicitor General thus submits that the dollar deposit of respondent Greg Bartelli is not entitled to the protection of Section 113 of Central Bank Circular No. 960 and PD No. 1246 against attachment, garnishment or other court processes. 6 In fine, the application of the law depends on the extent of its justice. Eventually, if we rule

that the questioned Section 113 of Central Bank Circular No. 960 which exempts from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever, is applicable to a foreign transient, injustice would result especially to a citizen aggrieved by a foreign guest like accused Greg Bartelli. This would negate Article 10 of the New Civil Code which provides that "in case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. "Ninguno non deue enriquecerse tortizeramente con dano de otro." Simply stated, when the statute is silent or ambiguous, this is one of those fundamental solutions that would respond to the vehement urge of conscience. (Padilla vs. Padilla, 74 Phil. 377). It would be unthinkable, that the questioned Section 113 of Central Bank No. 960 would be used as a device by accused Greg Bartelli for wrongdoing, and in so doing, acquitting the guilty at the expense of the innocent. Call it what it may but is there no conflict of legal policy here? Dollar against Peso? Upholding the final and executory judgment of the lower court against the Central Bank Circular protecting the foreign depositor? Shielding or protecting the dollar deposit of a transient alien depositor against injustice to a national and victim of a crime? This situation calls for fairness against legal tyranny. We definitely cannot have both ways and rest in the belief that we have served the ends of justice. IN VIEW WHEREOF, the provisions of Section 113 of CB Circular No. 960 and PD No. 1246, insofar as it amends Section 8 of R.A. No. 6426 are hereby held to be INAPPLICABLE to this case because of its peculiar circumstances. Respondents are hereby REQUIRED to COMPLY with the writ of execution issued in Civil Case No. 89-3214,

"Karen Salvacion, et al. vs. Greg Bartelli y Northcott, by Branch CXLIV, RTC Makati and to RELEASE to petitioners the dollar deposit of respondent Greg Bartelli y Northcott in such amount as would satisfy the judgment. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco and Panganiban, JJ., concur. Padilla, J., took no part. Mendoza and Hermosisima, Jr., JJ., are on leave. Footnotes 1 Annex "R", Petition. 2 Alliance of Government Workers (AGW) v. Ministry of Labor and Employment, 124 SCRA 1 3 Nationalista Party vs. Angelo Bautista, 85 Phil. 101; Aquino vs. Comelec, 62 SCRA 275; and Alliance of Government Workers vs. Minister of Labor and Employment, supra. 4 Decision, Regional Trial Court, Civil Case No. 89-3214, pp. 9 & 12, Rollo, pp. 66 & 69. 5 Thomas Jefferson, Democracy, ed. Saul K. Padover, (New York, Penguin, 1946) p. 171. 6 Comment of the Solicitor General, Rollo, pp. 128-129; 135-136.

Republic of the Philippines Supreme Court Baguio

THIRD DIVISION

THE SECRETARY OF JUSTICE, THE EXECUTIVE SECRETARY and THE BOARD OF COMMISSIONERS OF THE BUREAU OF IMMIGRATION, Petitioners,

G.R. No. 166199

Present:

YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO,

2004 of the Court of Appeals (CA) in CA-G.R. SP No. 76578. The assailed Decision set aside the Resolution dated April 1, 2003 of the Secretary of the Department of Justice (DOJ) and the Judgment dated February 11, 2002 of the Board of Commissioners (BOC) of the Bureau of Immigration (BI), and dismissed the deportation case filed against Christopher Koruga (respondent), an American national, for violation of Section 37(a)(4) of Commonwealth Act No. 613, as amended, otherwise known as the Philippine Immigration Act of 1940; while the assailed Resolution denied petitioners' Motion for Reconsideration.

The factual background of the case is as follows:

- versus -

NACHURA, and PERALTA, JJ.

CHRISTOPHER KORUGA, Respondent.

Promulgated: April 24, 2009

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

Sometime in August 2001, then BI Commissioner Andrea Domingo received an anonymous letter[3] requesting the deportation of respondent as an undesirable alien for having been found guilty of Violation of the Uniform Controlled Substances Act in the State of Washington, United States of America (USA) for attempted possession of cocaine sometime in 1983.

DECISION

AUSTRIA-MARTINEZ, J.:

On the basis of a Summary of Information,[4] the Commissioner issued Mission Order No. ADD-01-162[5] on September 13, 2001 directing Police Superintendent (P/Supt.) Lino G. Caligasan, Chief of the Intelligence Mission and any available BI Special Operations Team Member to conduct verification/ validation of the admission status and activities of respondent and effect his immediate arrest if he is found to have violated the Philippine Immigration Act of 1940, as amended.

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision[1] dated September 14, 2004 and the Resolution[2] datedNovember 24,

On September 17, 2001, respondent was arrested and charged before the Board of Special Inquiry (BSI) for violation of Section 37(a)

(4) of the Philippine Immigration Act of 1940, as amended. The case was docketed as BSI-D.C. No. ADD-01-126. The Charge Sheet reads:

On September 17, 2001, at about 10:00 A.M., respondent was arrested by Intelligence operatives at his residence, located at 1001 MARBELLA CONDOMINIUM II, Roxas Boulevard, Malate, Manila, pursuant to Mission Order No. ADD-01-162;

Unaware that the BOC already rendered its Resolution dated March 19, 2002, respondent filed on April 2, 2002, a Manifestation and Notice of Appeal Ex Abundanti Cautelam[14] with the Office of the President, which referred[15] the appeal to the DOJ.

That respondent was convicted and/or sentenced for Uniform Controlled Substance Act in connection with his being Drug Trafficker and/or Courier of prohibited drugs in the State of Washington, United States of America, thus, making him an undesirable alien and/or a public burden in violation of Sec. 37(4) [sic] of the Philippine Immigration Act of 1940, as amended.

On April 1, 2003, then DOJ Secretary Simeon A. Datumanong rendered a Resolution[16] dismissing the appeal. On April 15, 2003, respondent filed a Motion for Reconsideration[17] which he subsequently withdrew[18] on April 23, 2003.

On April 24, 2003, respondent filed a Petition for Certiorari and Prohibition[19] with the CA, docketed as CA-G.R. SP No. 76578, seeking to set aside the Resolution dated April 1, 2003 of the DOJ Secretary and the Judgment dated February 11, 2002 of the BOC.

CONTRARY TO LAW.[6]

On September 28, 2001, after filing a Petition for Bail[7] and Supplemental Petition for Bail,[8] respondent was granted bail and provisionally released from the custody of the BI.
[9]

Following the submission of respondent's Memorandum[10] and the BI Special Prosecutor's Memorandum,[11] the BOC rendered a Judgment[12] dated February 11, 2002 ordering the deportation of respondent under Section 37(a)(4) of the Philippine Immigration Act of 1940, as amended.

On February 26, 2002, respondent filed a Motion for Reconsideration,[13] but it was denied by the BOC in a Resolution dated March 19, 2002.

On September 14, 2004, the CA rendered a Decision[20] setting aside the Resolution dated April 1, 2003 of the DOJ Secretary and the Judgment dated February 11, 2002of the BOC and dismissing the deportation case filed against respondent. The CA held that there was no valid and legal ground for the deportation of respondent since there was no violation of Section 37(a)(4) of the Philippine Immigration Act of 1940, as amended, because respondent was not convicted or sentenced for a violation of the law on prohibited drugs since the U.S. Court dismissed the case for violation of the Uniform Controlled Substances Act in the State of Washington, USA filed against respondent; that petitioners further failed to present or attach to their pleadings any document which would support their allegations that respondent entered into a plea bargain with the U.S. Prosecutor for deferred sentence nor did they attach to the record the alleged order or judgment of the U.S.

Court which would show the conviction of respondent for violation of the prohibited drugs law in the USA; that even if respondent was convicted and sentenced for the alleged offense, his deportation under Section 37(a)(4) is improper, since the prohibited drugs law referred to therein refers not to a foreign drugs law but to the Philippine drugs law, then Republic Act No. 6425 or the Dangerous Drugs Act of 1972; that although the BOC is clothed with exclusive authority to decide as to the right of a foreigner to enter the country, still, such executive officers must act within the scope of their authority or their decision is a nullity.

IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIOR CONVICTION IS REQUIRED BEFORE RESPONDENT COULD BE DEPORTED.[23]

Petitioners' Motion for Reconsideration[21] was denied by the CA in its presently assailed Resolution[22] dated November 24, 2004.

Hence, the present petition on the following grounds:

Petitioners contend that the BI has exclusive authority in deportation proceedings and no other tribunal is at liberty to reexamine or to controvert the sufficiency of the evidence presented therein; that there was no grave abuse of discretion on the part of petitioners when they sought the deportation of respondent since he was convicted by the Supreme Court of the State of Washington for attempted Violation of the Uniform Controlled Substances Act and underwent probation in lieu of the imposition of sentence; that the dismissal of the charge against respondent was only with respect to penalties and liabilities, obtained after fulfilling the conditions for his probation, and was not an acquittal from the criminal case charged against him; that there is a valid basis to declare respondent's undesirability and effect his deportation since respondent has admitted guilt of his involvement in a drug-related case.

I. THE COURT OF APPEALS GRAVELY ERRED IN TAKING COGNIZANCE OF THE SUBJECT CASE WHICH FALLS UNDER THE EXCLUSIVE PREROGATIVE OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.

II. ASSUMING ARGUENDO THAT IT COULD TAKE COGNIZANCE OVER THE CASE, THE COURT OF APPEALS GRAVELY ERRED IN FINDING AN ABUSE OF DISCRETION ON THE PART OF HEREIN PETITIONERS.

On the other hand, respondent submits that the proceedings against him reek of persecution; that the CA did not commit any error of law; that all the arguments raised in the present petition are mere rehashes of arguments raised before and ruled upon by the CA; and that, even assuming that Section 37(a)(4) of the Philippine Immigration Act of 1940 does not apply, there is no reason, whether compelling or slight, to deport respondent.

III. THE COURT OF APPEALS ERRED IN FINDING THAT THE CHARGES AGAINST THE HEREIN RESPONDENT WERE DROPPED.

There are two issues for resolution: (1) whether the exclusive authority of the BOC over deportation proceedings bars judicial review, and (2) whether there is a valid and legal ground for the deportation of respondent.

The Court resolves the first issue in the negative.

agency a quo, for that reason, would be guilty of a grave abuse of discretion.

It is beyond cavil that the BI has the exclusive authority and jurisdiction to try and hear cases against an alleged alien, and that the BOC has jurisdiction over deportation proceedings.[24] Nonetheless, Article VIII, Section 1[25] of the Constitution has vested power of judicial review in the Supreme Court and the lower courts such as the CA, as established by law. Although the courts are without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government and are not empowered to execute absolutely their own judgment from that of Congress or of the President,[26] the Court may look into and resolve questions of whether or not such judgment has been made with grave abuse of discretion, when the act of the legislative or executive department is contrary to the Constitution, the law or jurisprudence, or when executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias.[27]

When acts or omissions of a quasijudicial agency are involved, a petition for certiorari or prohibition may be filed in the CA as provided by law or by the Rules of Court, as amended.[30] Clearly, the filing by respondent of a petition for certiorari and prohibition before the CA to assail the order of deportation on the ground of grave abuse of discretion is permitted.

This brings us to the second issue.

The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege and a matter of grace; such privilege is not absolute or permanent and may be revoked. However, aliens may be expelled or deported from the Philippines only on grounds and in the manner provided for by the Constitution, the Philippine Immigration Act of 1940, as amended, and administrative issuances pursuant thereto.[31]

In Domingo v. Scheer,[28] the Court set aside the Summary Deportation Order of the BOC over an alien for having been issued with grave abuse of discretion in violation of the alien's constitutional and statutory rights to due process, since the BOC ordered the deportation of the alien without conducting summary deportation proceedings and without affording the alien the right to be heard on his motion for reconsideration and adduce evidence thereon.

Respondent was charged with violation of Section 37(a)(4) of the Philippine Immigration Act of 1940, as amended, which provides:

In House of Sara Lee v. Rey,[29] the Court held that while, as a general rule, the factual findings of administrative agencies are not subject to review, it is equally established that the Court will not uphold erroneous conclusions which are contrary to evidence, because the

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien.

xxxx

(4) Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs;

x x x x (Emphasis supplied)

Respondent contends that the use of the definite article the immediately preceding the phrase law on prohibited drugs emphasizes not just any prohibited drugs law but the law applicable in this jurisdiction, at that time, the Dangerous Drugs Act of 1972.[32]

double standard of treatment where only aliens convicted of Philippine prohibited drugs law would be deported, while aliens convicted of foreign prohibited drugs laws would be allowed entry in the country. The Court must emphatically reject such interpretation of the law. Certainly, such a situation was not envisioned by the framers of the law, for to do so would be contrary to reason and therefore, absurd. Over time, courts have recognized with almost pedantic adherence that what is contrary to reason is not allowed in law.

The Court disagrees.

The general rule in construing words and phrases used in a statute is that in the absence of legislative intent to the contrary, they should be given their plain, ordinary, and common usage meaning.[33] However, a literal interpretation of a statute is to be rejected if it will operate unjustly, lead to absurd results, or contract the evident meaning of the statute taken as a whole.[34] After all, statutes should receive a sensible construction, such as will give effect to the legislative intention and so as to avoid an unjust or an absurd conclusion.[35] Indeed, courts are not to give words meanings that would lead to absurd or unreasonable consequences.[36]

Indubitably, Section 37(a)(4) should be given a reasonable interpretation, not one which defeats the very purpose for which the law was passed. This Court has, in many cases involving the construction of statutes, always cautioned against narrowly interpreting a statute as to defeat the purpose of the legislator and stressed that it is of the essence of judicial duty to construe statutes so as to avoid such a deplorable result of injustice or absurdity, and that therefore a literal interpretation is to be rejected if it would be unjust or lead to absurd results.[37]

Moreover, since Section 37(a) (4) makes no distinction between a foreign prohibited drugs law and the Philippine prohibited drugs law, neither should this Court. Ubi lex non distinguit nec nos distinguere debemos.[38] Thus, Section 37(a)(4) should apply to those convicted of all prohibited drugs laws, whether local or foreign.

Were the Court to follow the letter of Section 37(a)(4) and make it applicable only to convictions under the Philippine prohibited drugs law, the Court will in effect be paving the way to an absurd situation whereby aliens convicted of foreign prohibited drugs laws may be allowed to enter the country to the detriment of the public health and safety of its citizens. It suggests a

There is no dispute that respondent was convicted of Violation of the Uniform Controlled Substances Act in the State of Washington, USA for attempted possession of cocaine, as shown by the Order Deferring Imposition of Sentence (Probation).[39] While he may have pleaded guilty to a lesser offense, and was not imprisoned but applied for and underwent a one-year probation, still, there is no escaping the fact that he was

convicted under a prohibited drugs law, even though it may simply be called a misdemeanor drug offense.[40] The BOC did not commit grave abuse of discretion in ordering the deportation of respondent.

The Court quotes with approval the following acute pronouncements of the BOC:

x x x We note that the respondent admitted in his Memorandum dated 8 October 2001 that he pleaded guilty to the amended information where he allegedly attempted to have in his possession a certain controlled substance, and a narcotic drug. Further, he filed a Petition for Leave to Withdraw Plea of Guilty and Enter Plea of Not Guilty to obtain a favorable release from all penalties and disabilities resulting from the filing of the said charge.

Evidently, the U.S. Court issued the Order of Dismissal in exchange for the respondent's plea of guilty to the lesser offense. Though legally allowed in the U.S. Law, We perceive that this strategy afforded the respondent with a convenient vehicle to avoid conviction and sentencing. Moreover, the plea of guilty is by itself crystal clear acknowledgment of his involvement in a drug-related offense. Hence, respondent's discharge from conviction and sentencing cannot hide the fact that he has a prior history of drugrelated charge.

like Us to believe that his involvement in this drug case is a petty offense or a mere misdemeanor. However, the Philippine Government views all drug-related cases with grave concern; hence, the enactment of Republic Act No. 6425, otherwise known as The Dangerous Drugs Act of 1972 and the creation of various drug-enforcement agencies. While We empathize with the innocent portrayal of the respondent as a man of irreproachable conduct, not to mention the numerous written testimonies of good character submitted in his behalf, this incomplete and sanitized representation cannot, however, outweigh our commitment and sworn duty to safeguard public health and public safety. Moreover, while the U.S. Government may not have any law enforcement interest on respondent, Philippine immigration authorities certainly do in the able and competent exercise of its police powers. Thus, this case of the respondent is no different from a convicted felon abroad, who argues that he cannot be removed from the Philippines on the ground that the crime was committed abroad. Otherwise, it would open the floodgates to other similarly situated aliens demanding their admission into the country. Indeed, respondent may not be a menace to the U.S.as a result of his being discharged from criminal liability, but that does not ipso facto mean that the immigration authorities should unquestionably admit him into the country.

x x x x[41] (Emphasis supplied)

This country cannot countenance another alien with a history of a drugrelated offense. The crime may have been committed two decades ago but it cannot erase the fact that the incident actually happened. This is the very core of his inadmissibility into the Philippines. Apparently, respondent would

It must be remembered that aliens seeking entry in the Philippines do not acquire the right to be admitted into the country by the simple passage of time. When an alien, such as respondent, has already physically gained entry in the country, but such entry is later found unlawful or devoid of legal basis, the alien can be excluded anytime after it is found that he was not lawfully admissible at the time of his entry. [42] Every sovereign power has the inherent

power to exclude aliens from its territory upon such grounds as it may deem proper for its selfpreservation or public interest.[43] The power to deport aliens is an act of State, an act done by or under the authority of the sovereign power.[44] It is a police measure against undesirable aliens whose continued presence in the country is found to be injurious to the public good and the domestic tranquility of the people.[45]

MINITA V. CHICO- ANTONIO EDUARDO B. NAZARIO NACHURA Associate Justice Associate Justice

DIOSDADO M. PERALTA WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 76578 are REVERSED and SET ASIDE. The Judgment dated February 11, 2002 of the Board of Commissioners of the Bureau of Immigration ordering the deportation of respondent Christopher Koruga under Section 37(a)(4) of the Philippine Immigration Act of 1940, as amended, is REINSTATED. Associate Justice

ATTESTATION

SO ORDERED.

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

CERTIFICATION

[15]

Id. at 124. Id. at 74. Id. at 126. Id. at 133. CA rollo, p. 9. Supra note 1. CA rollo, p. 630. Supra note 2. Rollo, pp. 36-37.

[16]

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

[17]

[18]

[19]

[20]

[21]

[22]

[23]

REYNATO S. PUNO Chief Justice

[24]

Board of Commissioners (CID) v. De la Rosa, G.R. Nos. 95122-23, May 31, 1991, 197 SCRA 853, 874; Lao Gi v. Court of Appeals, G.R. No. 81798, December 29, 1989, 180 SCRA 756, 761; Miranda v. Deportation Board, 94 Phil 531, 533 (1954).
[25]

[1]

Penned by Associate Justice Mariano C. del Castillo and concurred in by Associate Justices Romeo A. Brawner and Jose L. Sabio, Jr., CA rollo, p. 610.
[2]

Article VIII, Section 1 of the 1987 Constitution, states: SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
[26]

Id. at 677. CA rollo, p.140. Id. at 139. Id. at 138. CA rollo, p. 141. Id. at 144. Id. at 154. Id. at 157. Id. at 159. Id. at 187. Id. at 243. Id. at 72. Id. at 103.

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

See Tatad v. Secretary of the Department of Energy, G.R. No. 124360, November 5, 1997, 281 SCRA 330, 347; Ledesma v. Court of Appeals, G.R. No. 113216, September 5, 1997, 278 SCRA 656, 681; Taada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49.
[27]

[12]

[13]

Republic v. Garcia, G.R No. 167741, July 12, 2007, 527 SCRA 495, 502; Information Technology Foundation of the

[14]

Philippines v. Commission on Elections, G.R. No. 159139, January 13, 2004, 419 SCRA 141, 148.
[28]

466 Phil. 235 (2004).

27489, April 30, 1970, 32 SCRA 553, 558; Automotive Parts & Equipment Co., Inc. v. Lingad, G.R. No. L-26406, October 31, 1969, 30 SCRA 248, 256.
[38]

[29]

G.R. No. 149013, August 31, 2006, 500 SCRA 419.

[30]

RULES OF COURT, Rule 65, Supra note 28, at 269-270; 487.

Section 4.
[31]

[32]

Repealed by Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002 approved on June 7, 2002, or about four (4) months after the BOC rendered its Judgment on February 11, 2002.
[33]

BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 449, 484; Pilar v. Commission on Elections, G.R. No. 115245, July 11, 1995, 245 SCRA 759, 763; Commissioner of Internal Revenue v. Commission on Audit, G.R. No. 101976, January 29, 1993, 218 SCRA 203, 214-215.
[39]

CA rollo, p. 650.

[40]

Ruben E. Agpalo, Statutory Construction (1990), p. 131, citing Central Azucarera Don Pedro v. Central Bank, 104 Phil. 598 (1954); Espino v. Cleofe, G.R. No. 33410, July 13, 1973, 52 SCRA 92; Philippine Acetylene Co. v. Central Bank, 120 Phil. 829 (1964).
[34]

Letters dated September 19, 2001 and September 20, 2001 of Michael A. Newbill, Vice Consul of the U.S. Embassy in the Philippines, CA rollo, pp. 148 and 149.
[41]

CA rollo, p. 245.

[42]

Board of Commissioners (CID) v. Dela Rosa, supra note 24, at 896.

[43]

Solid Homes, Inc. v. Tan, G.R. Nos. 145156-57, July 29, 2005, 465 SCRA 137, 149; Commissioner of Internal Revenue v. Solidbank Corporation, G.R. No. 148191, November 25, 2003, 416 SCRA 436, 460; In Re Allen, 2 Phil. 630, 643 (1903).
[35]

Lao Tan Bun v. Fabre, 81 Phil. In re McCulloch Dick, 38 Phil. 41

682 (1948).
[44]

(1918).
[45]

Philippine Retirement Authority (PRA) v. Buag, G.R. No. 143784, February 5, 2003, 397 SCRA 27, 37; Cosico, Jr. v. National Labor Relations Commission, G.R. No. 118432, May 23, 1997, 272 SCRA 583, 591; Commissioner of Internal Revenue v. Esso Standard Eastern, Inc., G.R. No. 28502-03, April 18, 1989, 172 SCRA 364, 370.
[36]

Forbes v. Chuoco Tiaco, 16 Phil. 534 (1910).

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169435 2008 February 27,

Commissioner of Internal Revenue v. Solidbank Corporation, supra, note 35; People v. Rivera, 59 Phil. 236, 242 (1933).
[37]

Soriano v. Offshore Shipping and Manning Corporation, G.R. No. 78309, September 14, 1989, 177 SCRA 513, 519; Bello v. Court of Appeals, G.R. No. L-38161, March 29, 1974, 56 SCRA 509, 518; Vda. de Macabanta v. Davao Stevedore Terminal Company, G.R. No. L

MUNICIPALITY OF NUEVA ERA, ILOCOS NORTE, represented by its Municipal Mayor, CAROLINE ARZADONGARVIDA, petitioner, vs.

MUNICIPALITY OF MARCOS, ILOCOS NORTE, represented by its Municipal Mayor, SALVADOR PILLOS, and the HONORABLE COURT OF APPEALS, respondents. DECISION REYES, R.T., J.: AS the law creating a municipality fixes its boundaries, settlement of boundary disputes between municipalities is facilitated by carrying into effect the law that created them. Any alteration of boundaries that is not in accordance with the law creating a municipality is not the carrying into effect of that law but its amendment, which only the Congress can do.1 For Our review on certiorari is the Decision2 of the Court of Appeals (CA) reversing to a certain extent that3 of the Regional Trial Court (RTC), Branch 12, Laoag City, Ilocos Norte, in a case that originated from the Sangguniang Panlalawigan (SP) of Ilocos Norte about the boundary dispute between the Municipalities of Marcos and Nueva Era in Ilocos Norte. The CA declared that Marcos is entitled to have its eastern boundary extended up "to the boundary line between the province of Ilocos Norte and Kalinga-Apayao." 4 By this extension of Marcos' eastern boundary, the CA allocated to Marcos a portion of Nueva Era's territory. The Facts The Municipality of Nueva Era was created from the settlements of Bugayong, Cabittaoran, Garnaden, Padpadon, Padsan, Paorpatoc, Tibangran, and Uguis which were previously organized as rancherias, each of which was under the independent control of a chief. Governor General Francis Burton Harrison, acting on a resolution passed by the provincial government of Ilocos Norte,

united these rancherias and created the township of Nueva Era by virtue of Executive Order (E.O.) No. 66 5 dated September 30, 1916. The Municipality of Marcos, on the other hand, was created on June 22, 1963 pursuant to Republic Act (R.A.) No. 3753 entitled "An Act Creating the Municipality of Marcos in the Province of Ilocos Norte." Section 1 of R.A. No. 3753 provides: SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit in the Municipality of Dingras, Province of Ilocos Norte, are hereby separated from the said municipality and constituted into a new and separate municipality to be known as the Municipality of Marcos, with the following boundaries: On the Northwest, by the barrios BidingRangay boundary going down to the barrios Capariaan-Gabon boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River which is the common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos Norte-Mt. Province boundary; on the South, by the Padsan River which is at the same time the boundary between the municipalities of Banna and Dingras; on the West and Southwest, by the boundary between the municipalities of Batac and Dingras. The Municipality of Marcos shall have its seat of government in the barrio of Biding. Based on the first paragraph of the said Section 1 of R.A. No. 3753, it is clear that Marcos shall be derived from the listed barangays of Dingras, namely: Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit. The Municipality of Nueva Era or any of its barangays was not mentioned. Hence, if based only on said paragraph, it is clear that Nueva Era may not be considered as a source of territory of Marcos.

There is no issue insofar as the first paragraph is concerned which named only Dingras as the mother municipality of Marcos. The problem, however, lies in the description of Marcos' boundaries as stated in the second paragraph, particularly in the phrase: "on the East, by the Ilocos Norte-Mt. Province boundary." It must be noted that the term "Mt. Province" stated in the above phrase refers to the present adjoining provinces of Benguet, Mountain Province, Ifugao, Kalinga and Apayao, which were then a single province. Mt. Province was divided into the four provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao by virtue of R.A. No. 4695 which was enacted on June 18, 1966. On February 14, 1995, the province of Kalinga-Apayao, which comprises the subprovinces of Kalinga and Apayao, was further converted into the regular provinces of Kalinga and Apayao pursuant to R.A. No. 7878. The part of then Mt. Province which was at the east of Marcos is now the province of Apayao. Hence, the eastern boundary referred to by the second paragraph of Section 1 of R.A. No. 3753 is the present Ilocos Norte-Apayao boundary. On the basis of the said phrase, which described Marcos' eastern boundary, Marcos claimed that the middle portion of Nueva Era, which adjoins its eastern side, formed part of its territory. Its reasoning was founded upon the fact that Nueva Era was between Marcos and the Ilocos Norte-Apayao boundary such that if Marcos was to be bounded on the east by the Ilocos NorteApayao boundary, part of Nueva Era would consequently be obtained by it.6 Marcos did not claim any part of Nueva Era as its own territory until after almost 30 years,7 or only on March 8, 1993, when its Sangguniang Bayan passed Resolution No. 93-015.8 Said resolution was entitled:

"Resolution Claiming an Area which is an Original Part of Nueva Era, But Now Separated Due to the Creation of Marcos Town in the Province of Ilocos Norte." Marcos submitted its claim to the SP of Ilocos Norte for its consideration and approval. The SP, on the other hand, required Marcos to submit its position paper.9 In its position paper, Marcos alleged that since its northeastern and eastern boundaries under R.A. No. 3753 were the Burnay River and the Ilocos Norte-Mountain Province boundary, respectively, its eastern boundary should not be limited to the former Dingras-Nueva Era boundary, which was coterminous and aligned with the eastern boundary of Dingras. According to Marcos, its eastern boundary should extend further to the east or up to the Ilocos-Norte-Mt. Province boundary pursuant to the description of its eastern boundary under R.A. No. 3753.10 In view of its claim over the middle portion of Nueva Era, Marcos posited that Nueva Era was cut into two parts. And since the law required that the land area of a municipality must be compact and contiguous, Nueva Era's northern isolated portion could no longer be considered as its territory but that of Marcos'. Thus, Marcos claimed that it was entitled not only to the middle portion 11 of Nueva Era but also to Nueva Era's isolated northern portion. These areas claimed by Marcos were within Barangay Sto. Nio, Nueva Era. Nueva Era reacted to the claim of Marcos through its Resolution No. 1, Series of 1993. It alleged that since time immemorial, its entire land area was an ancestral domain of the "tinguians," an indigenous cultural community. It argued to the effect that since the land being claimed by Marcos must be protected for the tinguians, it must be preserved as part of Nueva Era. 12

According to Nueva Era, Marcos was created out of the territory of Dingras only. And since R.A. No. 3753 specifically mentioned seven (7) barrios of Dingras to become Marcos, the area which should comprise Marcos should not go beyond the territory of said barrios. 13 From the time Marcos was created in 1963, its eastern boundary had been considered to be aligned and coterminous with the eastern boundary of the adjacent municipality of Dingras. However, based on a re-survey in 1992, supposedly done to conform to the second paragraph of Section 1 of R.A. No. 3753, an area of 15,400 hectares of Nueva Era was alleged to form part of Marcos. 14 This was the area of Barangay Sto. Nio, Nueva Era that Marcos claimed in its position paper. On March 29, 2000, the SP of Ilocos Norte ruled in favor of Nueva Era. The fallo of its decision15 reads: WHEREFORE, in view of all the foregoing, this Body has no alternative but to dismiss, as it hereby DISMISSES said petition for lack of merit. The disputed area consisting of 15,400 hectares, more or less, is hereby declared as part and portion of the territorial jurisdiction of respondent Nueva Era.16 R.A. No. 3753 expressly named the barangays that would comprise Marcos, but none of Nueva Era's barangayswere mentioned. The SP thus construed, applying the rule of expressio unius est exclusio alterius, that no part of Nueva Era was included by R.A. No. 3753 in creating Marcos.17 The SP ratiocinated that if Marcos was to be bounded by Mt. Province, it would encroach upon a portion, not only of Nueva Era but also of Abra. Thus: x x x Even granting, for the sake of argument, that the eastern boundary of Marcos is indeed Mountain Province, Marcos will then be claiming a portion of Abra because the province, specifically Barangay Sto. Nio, Nueva Era, is actually bounded on

the East by the Province of Abra. Abra is situated between and separates the Provinces of Ilocos Norte and Mountain Province. This is precisely what this body would like to avoid. Statutes should be construed in the light of the object to be achieved and the evil or mischief to be suppressed, and they should be given such construction as will advance the object, suppress the mischief and secure the benefits intended.18 (Citations omitted) The SP further explained: Invariably, it is not the letter, but the spirit of the law and the intent of the legislature that is important. When the interpretation of the statute according to the exact and literal import of its words would lead to absurdity, it should be construed according to the spirit and reason, disregarding if necessary the letters of the law. It is believed that congress did not intend to have this absurd situation to be created when it created the Municipality of Marcos. This body, by the mandate given to it by the RA 7160 otherwise known Local Government Code, so believes that respondent Nueva Era or any portion thereof has been excluded from the ambit of RA 3753. Under the principle of "espressio (sic) unios (sic) est exclusio alterius," by expressly naming the barangays that will comprise the town of Marcos, those not mentioned are deemed excluded. In Republic Act 4354, where Section 2 thereof enumerated the barrios comprising the City of Davao excluding the petitioner Barrio Central as part of the said City, the court held that there arose a prima facie conclusion that the said law abolished Barrio Central as part of Davao City. Historically, the hinterlands of Nueva Era have been known to be the home of our brothers and sisters belonging to peculiar groups of non-(C)hristian inhabitants with their own rich customs and traditions and this body takes judicial notice that the

inhabitants of Nueva Era have proudly claimed to be a part of this rich culture. With this common ancestral heritage which unfortunately is absent with Marcos, let it not be disturbed.19 (Emphasis ours and citations omitted) RTC Decision On appeal by Marcos, the RTC affirmed the decision of the SP in its decision20 of March 19, 2001. The dispositive part of the RTC decision reads: WHEREFORE, the instant appeal is hereby DISMISSED. The questioned decision of the Sangguniang Panlalawigan of Ilocos Norte is hereby AFFIRMED. No costs. SO ORDERED.21 The RTC reasoned out in this wise: The position of the Municipality of Marcos is that the provision of R.A. 3753 as regards its boundary on the East which is the "Ilocos Norte-Mt. Province" should prevail. On the other hand, the Municipality of Nueva Era posits the theory that only the barrios of the Municipality of Dingras as stated in R.A. 3753 should be included in the territorial jurisdiction of the Municipality of Marcos. The Sangguniang Panlalawigan agreed with the position of Nueva Era. xxxx An examination of the Congressional Records during the deliberations of the R.A. 3753 (House Bill No. 3721) shows the Explanatory Note of Congressman Simeon M. Valdez, 2nd District, Ilocos Norte, to wit: EXPLANATORY NOTE This bill seeks to create in the Province of Ilocos Norte a new municipality to be known as the Municipality of Marcos, to be comprised by the present barrios of

Capariaan, Biding Escoda, Culao, Alabaan, Ragas and Agunit, all in the Municipality of Dingras of the same province. The seat of government will be in the sitio of San Magro in the present barrio of Ragas. xxxx On the other hand, the Municipality of Dingras will not be adversely affected too much because its finances will still be sound and stable. Its capacity to comply with its obligations, especially to its employees and personnel, will not be diminished nor its operations paralyzed. On the contrary, economic development in both the mother and the proposed municipalities will be accelerated. In view of the foregoing, approval of this bill is earnestly requested. (Sgd.) SIMEON M. VALDEZ Congressman, 2nd District Ilocos Norte22 Parenthetically, the legislative intent was for the creation of the Municipality of Marcos, Ilocos Norte from the barrios (barangays) of the Municipality of Dingras, Ilocos Norte only. Hence, the Municipality of Marcos cannot add any area beyond the territorial jurisdiction of the Municipality of Dingras, Ilocos Norte. This conclusion might have been different only if the area being claimed by the Municipality of Marcos is within the territorial jurisdiction of the Municipality of Dingras and not the Municipality of Nueva Era. In such case, the two conflicting provisions may be harmonized by including such area within the territorial jurisdiction of the Municipality of Dingras as within the territorial jurisdiction of the Municipality of Marcos.23 (Emphasis ours) CA Disposition Still determined to have a more extensive eastern boundary, Marcos filed a petition for review24 of the RTC decision before the CA.

The issues raised by Marcos before the CA were: 1. Whether or not the site of Hercules Minerals and Oil, Inc. which is within a Government Forest Reservation in Barangay Sto. Nio, formerly of Nueva Era, is a part of the newly created Municipality of Marcos, Ilocos Norte. 2. Whether or not the portion of Barangay Sto. Nio on the East which is separated from Nueva Era as a result of the full implementation of the boundaries of the new Municipality of Marcos belongs also to Marcos or to Nueva Era.25 The twin issues involved two portions of Nueva Era, viz.: (1) middle portion, where Hercules Minerals and Oil, Inc. is located; and (2) northern portion of Nueva Era, which, according to Marcos, was isolated from Nueva Era in view of the integration to Marcos of said middle portion. Marcos prayed before the CA that the above two portions of Nueva Era be declared as part of its own territory. It alleged that it was entitled to the middle portion of Nueva Era in view of the description of Marcos' eastern boundary under R.A. No. 3753. Marcos likewise contended that it was entitled to the northern portion of Nueva Era which was allegedly isolated from Nueva Era when Marcos was created. It posited that such isolation of territory was contrary to law because the law required that a municipality must have a compact and contiguous territory.26 In a Decision27 dated June 6, 2005, the CA partly reversed the RTC decision with the following disposition: WHEREFORE, we partially GRANT the petition treated as one for certiorari. The Decisions of both the Sangguniang Panlalawigan and Regional Trial Court of Ilocos Norte are REVERSED and SET ASIDEinsofar as they made the eastern

boundary of the municipality of Marcos coterminous with the eastern boundary of Dingras town, and another is rendered extending the said boundary of Marcos to the boundary line between the province of Ilocos Norte and Kalinga-Apayao, but the same Decisions are AFFIRMEDwith respect to the denial of the claim of Marcos to the detached northern portion of barangay Sto. Nio which should, as it is hereby ordered to, remain with the municipality of Nueva Era. No costs. SO ORDERED.28 In concluding that the eastern boundary of Marcos was the boundary line between Ilocos Norte and Kalinga-Apayao, the CA gave the following explanation: Clearly then, both the SP and the RTC erred when they ruled that the eastern boundary of Marcos is only coterminous with the eastern boundary of the adjacent municipality of Dingras and refused to extend it up to the boundary line between the provinces of Ilocos Norte and Mountain Province (Kalinga-Apayao). R.A. No. 3753, the law creating Marcos, is very explicit and leaves no room for equivocation that the boundaries of Marcos town are: "On the Northwest by the barrios BidingRangay boundary going down to the barrios Capariaan-Gabon boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River which is the common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos Norte-Mt. Province boundary; on the South by the Padsan River, which is at the same time the boundary between the municipalities of Banna and Dingras; on the West and Southwest by the boundary between the municipalities of Batac and Dingras." To stop short at the eastern boundary of Dingras as the eastern boundary also of Marcos and refusing to go farther to the

boundary line between Ilocos Norte and Mountain Province (Kalinga-Apayao) is tantamount to amending the law which Congress alone can do. Both the SP and RTC have no competence to undo a valid act of Congress. It is not correct to say that Congress did not intend to take away any part of Nueva Era and merge it with Marcos for it is chargeable with conclusive knowledge that when it provided that the eastern boundary of Marcos is the boundary line between Ilocos Norte and Mountain Province, (by the time of both the SB and RTC Decision was already Kalinga-Apayao), it would be cutting through a portion of Nueva Era. As the law is written so must it be applied. Dura lex sed lex!29 The CA likewise held that the province Abra was not located between Marcos and Kalinga-Apayao; and that Marcos would not encroach upon a portion of Abra for it to be bounded by Kalinga-Apayao, to wit: Nueva Era's contention that to lay out the eastern jurisdiction of Marcos to the boundary line between Ilocos Norte and Mountain Province (Kalinga-Apayao) would mean annexing part of the municipality of Itnig, province of Abra to Marcos as Abra is between Ilocos Norte and Mountain Province is geographically erroneous. From Nueva Era's own map of Region 1, which also depicts the locations of Kalinga-Apayao, Abra, Mountain Province, Benguet and Nueva Vizcaya after the partition of the old Mountain Province into the provinces of Kalinga-Apayao, Ifugao, Mountain Province and Benguet, the province of Abra is situated far to the south of Kalinga Apayao and is between the latter and the present Mountain Province, which is farther south of Abra. Abra is part of the eastern boundary of Ilocos Sur while Kalinga-Apayao is the eastern boundary of Ilocos Norte. Hence, in no way will the eastern boundary of the municipality of Marcos encroach upon a portion of Abra.30

However, Marcos' claim over the alleged isolated northern portion of Nueva Era was denied. The CA ruled: Going now to the other area involved, i.e., the portion of Sto. Nio that is separated from its mother town Nueva Era and now lies east of the municipalities of Solsona and Dingras and north of Marcos, it bears stressing that it is not included within the area of Marcos as defined by law. But since it is already detached from Sto. Nio, Marcos is laying claim to it to be integrated into its territory by the SP because it is contiguous to a portion of said municipality. We hold that the SP has no jurisdiction or authority to act on the claim, for it will necessarily substantially alter the north eastern and southern boundaries of Marcos from that defined by law and unduly enlarge its area. Only Congress can do that. True, the SP may substantially alter the boundary of a barangay within its jurisdiction. But this means the alteration of the boundary of a barangay in relation to another barangaywithin the same municipality for as long as that will not result in any change in the boundary of that municipality. The area in dispute therefore remains to be a part of Sto. Nio, a barangay of Nueva Era although separated by the newly created Marcos town pursuant to Section 7(c) of the 1991 Local Government Code which states: SEC. 7. Creation and Conversion. - As a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: xxxx (c) Land Area. - It must be contiguous, unless it comprises two or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with

technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.31 The CA also expressed the view that Marcos adopted the wrong mode of appeal in bringing the case to it. The case, according to the CA, was appealable only to the RTC. Nonetheless, despite its pronouncement that the case was dismissible, the CA took cognizance of the same by treating it as one for certiorari, to wit: A final word. At the outset, we agonized over the dilemma of choosing between dismissing outright the petition at bar or entertaining it. This is for the simple reason that a petition for review is a mode of appeal and is not appropriate as the Local Government Code provides for the remedy of appeal in boundary disputes only to the Regional Trial Court but not any further appeal to this Court. Appeal is a purely statutory right. It cannot be exercised unless it is expressly granted by law. This is too basic to require the citation of supporting authority. xxxx By the same token, since the Local Government Code does not explicitly grant the right of further appeal from decisions of the RTCs in boundary disputes between or among local government units, Marcos town cannot exercise that right from the adverse decision of the RTC of Ilocos Norte. Nonetheless, because of the transcendental legal and jurisdictional issues involved, we solved our inceptive dilemma by treating the petition at bar as a special civil action for certiorari.32 Nueva Era was not pleased with the decision of the CA. Hence, this petition for review on certiorari under Rule 45. Issues Nueva Era now raises the following issues:

a) Whether or not, the Court of Appeals has jurisdiction on the Petition for Review on Appeal, since Sec. 119 of the Local Government Code, which provides that "An appeal to the Decision of the Sangguniang Panlalawigan is exclusively vested to the Regional Trial Court, without further Appeal to the Court of Appeals"; b) Whether or not, the Court of Appeals gravely abused its discretion, in treating the Petition for Review On Appeal, filed under Rule 45, Revised Rules of Court, as a Petition for Certiorari, under Rule 65 of the Revised Rules of Court; c) Whether or not, the Court of Appeals erred in its appreciation of facts, in declaring that MARCOS East is not coterminous with the Eastern boundary of its mother townDingras. That it has no factual and legal basis to extend MARCOS territory beyond Brgys. Agunit (Ferdinand) and Culao (Elizabeth) of Marcos, and to go further East, by traversing and disintegrating Brgy. Sto. Nio, and drawing parallel lines from Sto. Nio, there lies Abra, not Mt. Province or Kalinga-Apayao.33 Basically, there are two (2) issues to resolve here: (1) whether or not the mode of appeal adopted by Marcos in bringing the case to the CA is proper; and (2) whether or not the eastern boundary of Marcos extends over and covers a portion of Nueva Era. Our Ruling Marcos correctly appealed the RTC judgment via petition for review under Rule 42. Under Section 118(b) of the Local Government Code, "(b)oundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned." The dispute shall be formally tried by the said sanggunian in case the disputing municipalities fail to effect an amicable settlement.34

The SP of Ilocos validly took cognizance of the dispute between the parties. The appeal of the SP judgment to the RTC was likewise properly filed by Marcos before the RTC. The problem, however, lies in whether the RTC judgment may still be further appealed to the CA. The CA pronounced that the RTC decision on the boundary dispute was not appealable to it. It ruled that no further appeal of the RTC decision may be made pursuant to Section 119 of the Local Government Code35 which provides: SECTION 119. Appeal. - Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes. The CA concluded that since only the RTC was mentioned as appellate court, the case may no longer be further appealed to it. The CA stated that "(a)ppeal is a purely statutory right. It cannot be exercised unless it is expressly granted by law. This is too basic to require the citation of supporting authority."36 The CA, however, justified its taking cognizance of the case by declaring that: "because of the transcendental legal and jurisdictional issues involved, we solved our inceptive dilemma by treating the petition at bar as a special civil action for certiorari."37 The CA erred in declaring that only the RTC has appellate jurisdiction over the judgment of the SP. True, appeal is a purely statutory right and it cannot be exercised unless it is expressly granted by law. Nevertheless, the CA can

pass upon the petition for review precisely because the law allows it. Batas Pambansa (B.P.) Blg. 129 or the Judiciary Reorganization Act of 1980, as amended by R.A. No. 7902,38vests in the CA the appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasijudicial agencies, instrumentalities, boards or commissions, among others.39 B.P. Blg. 129 has been further supplemented by the 1997 Rules of Civil Procedure, as amended, which provides for the remedy of appeal via petition for review under Rule 42 to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction. Thus, the CA need not treat the appeal via petition for review filed by Marcos as a petition for certiorari to be able to pass upon the same. B.P. Blg. 129, as amended, which is supplemented by Rule 42 of the Rules of Civil Procedure, gives the CA the authority to entertain appeals of such judgments and final orders rendered by the RTC in the exercise of its appellate jurisdiction. At the time of creation of Marcos, approval in a plebiscite of the creation of a local government unit is not required. Section 10, Article X of the 1987 Constitution provides that: No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.40 The purpose of the above constitutional provision was acknowledged by the Court through Justice Reynato S. Puno in Miranda v. Aguirre,41 where it was held that:

The 1987 Constitution, more than any of our previous Constitutions, gave more reality to the sovereignty of our people for it was borne out of the people power in the 1986 EDSA revolution. Its Section 10, Article X addressed the undesirable practice in the past whereby local government units were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people. Thus, the consent of the people of the local government unit directly affected was required to serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of local government units. It is one instance where the people in their sovereign capacity decide on a matter that affects them - direct democracy of the people as opposed to democracy thru people's representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution granting more autonomy to local government units.42 Nueva Era contends that the constitutional and statutory43 plebiscite requirement for the creation of a local government unit is applicable to this case. It posits that the claim of Marcos to its territory should be denied due to lack of the required plebiscite. We agree with Nueva Era's contention that Marcos' claim over parts of its territory is not tenable. However, the reason is not the lack of the required plebiscite under the 1987 and 1973 constitutions and the Local Government Code of 1991 but other reasons as will be discussed below. At the time Marcos was created, a plebiscite was not required by law to create a local government unit. Hence, Marcos was validly created without conducting a plebiscite. As a matter of fact, no plebiscite was conducted in Dingras, where it was derived. Lex prospicit, non respicit. The law looks forward, not backward.44 It is the basic norm that provisions of the fundamental law

should be given prospective application only, unless legislative intent for its retroactive application is so provided.45 In the comparable case of Ceniza v. Commission on Elections46 involving the City of Mandaue, the Court has this to say: Petitioners assail the charter of the City of Mandaue as unconstitutional for not having been ratified by the residents of the city in a plebiscite. This contention is untenable. The Constitutional requirement that the creation, division, merger, abolition, or alteration of the boundary of a province, city, municipality, or barrio should be subject to the approval by the majority of the votes cast in a plebiscite in the governmental unit or units affected is a new requirement that came into being only with the 1973 Constitution. It is prospective in character and therefore cannot affect the creation of the City of Mandaue which came into existence on June 21, 1969.47 (Citations omitted and underlining supplied). Moreover, by deciding this case, We are not creating Marcos but merely interpreting the law that created it. Its creation was already a fait accompli. Therefore, there is no reason for Us to further require a plebiscite. As pointed out by Justice Isagani Cruz, to wit: Finally, it should be observed that the provisions of the Constitution should be given only a prospective application unless the contrary is clearly intended. Were the rule otherwise, rights already acquired or vested might be unduly disturbed or withdrawn even in the absence of an unmistakable intention to place them within the scope of the Constitution.48 No part of Nueva Era's territory was taken for the creation of Marcos under R.A. No. 3753. Only the barrios (now barangays) of Dingras from which Marcos obtained its territory are named in R.A. No. 3753. To wit:

SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit in the Municipality of Dingras, Province of Ilocos Norte, are hereby separated from the said municipality and constituted into a new and separate municipality to be known as the Municipality of Marcos, with the following boundaries: Since only the barangays of Dingras are enumerated as Marcos' source of territory, Nueva Era's territory is, therefore, excluded. Under the maxim expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another thing not mentioned. If a statute enumerates the things upon which it is to operate, everything else must necessarily and by implication be excluded from its operation and effect. 49 This rule, as a guide to probable legislative intent, is based upon the rules of logic and natural workings of the human mind.50 Had the legislature intended other barangays from Nueva Era to become part of Marcos, it could have easily done so by clear and concise language. Where the terms are expressly limited to certain matters, it may not by interpretation or construction be extended to other matters.51 The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned.52 Moreover, since the barangays of Nueva Era were not mentioned in the enumeration of barangays out of which the territory of Marcos shall be set, their omission must be held to have been done intentionally. This conclusion finds support in the rule of casus omissus pro omisso habendus est, which states that a person, object or thing omitted from an enumeration must be held to have been omitted intentionally.53

Furthermore, this conclusion on the intention of the legislature is bolstered by the explanatory note of the bill which paved the way for the creation of Marcos. Said explanatory note mentioned only Dingras as the mother municipality of Marcos. Where there is ambiguity in a statute, as in this case, courts may resort to the explanatory note to clarify the ambiguity and ascertain the purpose and intent of the statute.54 Despite the omission of Nueva Era as a mother territory in the law creating Marcos, the latter still contends that said law included Nueva Era. It alleges that based on the description of its boundaries, a portion of Nueva Era is within its territory. The boundaries of Marcos under R.A. No. 3753 read: On the Northwest, by the barrios BidingRangay boundary going down to the barrios Capariaan-Gabon boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River which is the common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos NorteMt. Province boundary; on the South, by the Padsan River which is at the same time the boundary between the municipalities of Banna and Dingras; on the West and Southwest, by the boundary between the municipalities of Batac and Dingras. Marcos contends that since it is "bounded on the East, by the Ilocos Norte-Mt. Province boundary," a portion of Nueva Era formed part of its territory because, according to it, Nueva Era is between the Marcos and Ilocos Norte-Mt. Province boundary. Marcos posits that in order for its eastern side to reach the Ilocos Norte-Mt. Province boundary, it will necessarily traverse the middle portion of Nueva Era. Marcos further claims that it is entitled not only to the middle portion of Nueva Era but also to its northern portion which, as a

consequence, was isolated from the major part of Nueva Era. We cannot accept the contentions of Marcos. Only Dingras is specifically named by law as source territory of Marcos. Hence, the said description of boundaries of Marcos is descriptive only of the listed barangays of Dingras as a compact and contiguous territory. Considering that the description of the eastern boundary of Marcos under R.A. No. 3753 is ambiguous, the same must be interpreted in light of the legislative intent. The law must be given a reasonable interpretation, to preclude absurdity in its application.55 We thus uphold the legislative intent to create Marcos out of the territory of Dingras only.

Statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Thus, in construing a statute, the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers.59 WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is partly REVERSED. The Decision of the Regional Trial Court in Ilocos Norte is Reinstated. SO ORDERED. RUBEN T. REYES Associate Justice

Courts must give effect to the general legislative intent that can be discovered from or is unraveled by the four corners of the statute, and in order to discover said intent, WE CONCUR: the whole statute, and not only a particular provision thereof, should be REYNATO S. PUNO 56 considered. Every section, provision or clause of the statute must be expounded by reference to each other in order to arrive at A. QUISUMBING LEONARDO the effect contemplated by the legislature. Associate Justice The intention of the legislator must be ascertained from the whole text of the law, ANGELINA SANDOVAL-GUTIERREZ and every part of the act is to be taken into Associate Justice view.57 It is axiomatic that laws should be given a MA. ALICIA M. AUSTRIA-MARTINEZ reasonable interpretation, not one which Associate Justice defeats the very purpose for which they were passed. This Court has in many cases CONCHITA CARPIO MORALES involving the construction of statutes always Associate Justice cautioned against narrowly interpreting a statute as to defeat the purpose of the legislature and stressed that it is DANTE of the O. TINGA Associate Justice essence of judicial duty to construe statutes so as to avoid such a deplorable result (of PRESBITERO J. VELASCO, JR. injustice or absurdity) and that therefore "a Associate literal interpretation is to be rejected if it Justice would be unjust or lead to absurd results." 58

**

CONSUELO YNARES-SAN Associate Justice ANTONIO T. CARPIO Associate Justice RENATO C. CORONA Associate Justice ADOLFO S. AZCUNA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

ANTONIO EDUARDO B. NA Associate Justice

. LEONARDO-DE CASTRO stice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

Garnaden, Padpadon, Padsan, Paor-patoc, Tibangran, and Uguis in the Province of Ilocos Norte, are hereby consolidated and organized in to a township to be known as the township of Nueva Era. The seat of the township government of the township of Nueva Era shall be at the settlement of Bugayong.
6

Rollo, pp. 256-258. Id. at 32. Id.; records, pp. 2-3. Id. Id. at 33. Id. at 33-34. Records, p. 13; id. Id. at 14-15. Rollo, pp. 35-36. Records, pp. 341-344. Id. at 344. Id. at 342-344. Id. at 343. Id. at 343-344. Id. at 437-443; rollo, pp. 123-129. Id. at 443.

10

11

Footnotes
12 *

On official leave per Special Order No. 485 dated February 14, 2008.
**

13

On leave per Special Order No. 486 dated February 15, 2008.
1

14

15

Municipality of Jimenez v. Baz, 333 Phil. 1, 18 (1996).

2

16

Rollo, pp. 31-46. Dated June 6, 2005 in CAG.R. SP No. 64147, entitled "Municipality of Marcos, Ilocos Norte v. Municipality of Nueva Era, Ilocos Norte." Penned by Associate Justice Salvador J. Valdez, Jr., with Associate Justices Mariano C. Del Castillo and Magdangal M. de Leon, concurring.
3

17

18

19

20

21

Id. at 123-129; records, pp. 437-443. Dated March 19, 2001 in Sp. Civil Action No. 12073. Penned by Judge Perla B. Querubin.
4

22

Rollo, p. 128; id. at 442. Congressional Record, Proceedings and Debates (1963), Vol. II, Part I, p. 1474.
23

Id. at 45-46.

Id. at 127-129. CA rollo, pp. 2-12. Id. at 5-6. Id. at 9. Rollo, pp. 31-46. Id. at 45-46.

E.O. No. 66 signed by Governor-General Francis Burton Harrison reads: Upon the recommendation of the Honorable, Secretary of the Interior and the Provincial Board of Ilocos Norte, and pursuant to the provisions of section twenty-three hundred and ninetyone of the Administrative Code, the settlements of Bugayong, Cabittaoran,

24

25

26

27

28

29

Id. at 41-42. Id. at 42-43. Id. at 43-44. Id. at 44-45. Id. at 9.

30

31

32

33

34

Local Government Code (1991), Sec. 118(e).

35

substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.
44

Republic Act No. 7160 (1991). Rollo, p. 44. Id. at 45.

36

Grego v. Commission on Elections, G.R. No. 125955, June 19, 1997, 274 SCRA 481, 493.
45

37

38

Effective March 18, 1995, entitled "An Act Expanding the Jurisdiction of the Court of Appeals, Amending for the Purpose Section Nine of Batas Pambansa Blg. 129, As Amended, Known As the Judiciary Reorganization Act of 1980."
39

Union Carbide Labor Union v. Union Carbide Philippines, Inc., G.R. No. L-41314, November 13, 1992, 215 SCRA 554, 558.
46

G.R. No. L-52304, January 28, 1980, 95 SCRA 763.

47

Ceniza v. Commission on Elections, id. at 774.

48

Keswani v. Republic, G.R. No. 153986, June 8, 2007, 524 SCRA 145, 150.
40

Cruz, I.A., Constitutional Law, 1998 ed., p. 10.

49

A similar provision is likewise provided in Section 3, Article XI of the 1973 Constitution, thus: SECTION 3. No province, city, municipality, or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes cast in a plebiscite in the unit or units affected.
41

Tolentino v. Paqueo, G.R. No. 150606, June 7, 2007, 523 SCRA 377, 387; Commissioner of Internal Revenue v. The Philippine American Accident Insurance Company, Inc. , G.R. No. 141658, March 18, 2005, 453 SCRA 668, 688; Commissioner of Internal Revenue v. Michel J. Lhuillier Pawnshop, Inc., G.R. No. 150947, July 15, 2003, 406 SCRA 178, 186, citing Vera v. Fernandez, G.R. No. L-31364, March 30, 1979, 89 SCRA 199, 203.
50

373 Phil. 386 (1999). Miranda v. Aguirre, id. at 400.

42

Commissioner of Internal Revenue v. Michel J. Lhuillier Pawnshop, Inc., supra, citing Republic v. Estenzo,G.R. No. L-35376, September 11, 1980, 99 SCRA 651, 656.
51

43

The constitutional requirement of a plebiscite is incorporated in the Local Government Code of 1991, particularly in Section 10, Chapter II, Title I of its Book I, to wit: SECTION 10. Plebiscite Requirement. - No creation, division, merger, abolition, or

Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 642 (2000), citing Sarmiento III v. Mison, G.R. No. L79974, December 17, 1987, 156 SCRA 549.
52

Romualdez v. Marcelo, G.R. Nos. 16551033, July 28, 2006, 497 SCRA 89, 108; Canet

v. Decena, 465 Phil. 325, 333 (2004); Centeno v. Villalon-Pornillos, G.R. No. 113092, September 1, 1994, 236 SCRA 197, 203; Commissioner of Customs v. Court of Tax Appeals, G.R. Nos. 48886-88, July 21, 1993, 224 SCRA 665, 670, citing Agpalo, Statutory Construction, 2nd ed., 1990, pp. 160-161.
53

G.R. No. L-37251 August 31, 1981 CITY OF MANILA and CITY TREASURER, petitioners-appellants, vs. JUDGE AMADOR E. GOMEZ of the Court of First Instance of Manila and ESSO PHILIPPINES, INC.,respondents-appellees.

La Bugal-B'laan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 932 (2004); Chua v. Civil Service Commission, G.R. No. 88979, February 7, 1992, 206 SCRA 65, 76, citing People v. Manantan, 115 Phil. 657, 664 (1962).
54

AQUINO, J.: This case is about the legality of the additional one-half percent (%) realty tax imposed by the City of Manila. Section 64 of the Revised Charter of Manila, Republic Act No. 409, which took effect on June 18, 1949, fixes the annual realty tax at one and one-half percent (1- %). On the other hand, section 4 of the Special Education Fund Law, Republic Act No. 5447, which took effect on January 1, 1969, imposed "an annual additional tax of one per centum on the assessed value of real property in addition to the real property tax regularly levied thereon under existing laws" but "the total real property tax shall not exceed a maximum of three per centrum. That maximum limit gave the municipal board of Manila the Idea of fixing the realty tax at three percent. So, by means of Ordinance No. 7125, approved by the city mayor on December 26, 1971 and effective beginning the third quarter of 1972, the board imposed an additional one-half percent realty tax. The ordinance reads: SECTION 1. An additional annual realty tax of one-half percent (1/2%), or in short a total of three percent (3%) realty tax (1-% pursuant to the Revised Charter of Manila; 1% per Republic Act No. 5447; and % per this Ordinance) on the assessed value ... is hereby levied and imposed. Esso Philippines, Inc. paid under protest the sum of P16,092.69 as additional one-half

Agpalo, Statutory Construction, 3rd ed., 1995, p. 73.

55

Brent School, Inc. v. Zamora , G.R. No. 48494, February 5, 1990, 181 SCRA 702, 715.
56

Atlas Consolidated Mining and Development Corporation v. Commissioner of Internal Revenue, G.R. Nos. 141104 & 148763, June 8, 2007, 524 SCRA 73, 93, citing Commissioner of Internal Revenue v. TMX Sales, Inc., G.R. No. 83736, January 15, 1992, 205 SCRA 184, 188.
57

Commissioner of Internal Revenue v. TMX Sales, Inc., supra.

58

Soriano v. Offshore Shipping and Manning Corporation, G.R. No. 78409, September 14, 1989, 177 SCRA 513, 519, citing Bello v. Court of Appeals, G.R. No. L-38161, March 29, 1974, 56 SCRA 509.
59

In re: Request of Justice Bernardo P. Pardo for Adjustment of His Longevity Pay, A.M. No. 02-1-12-SC, March 14, 2007, 518 SCRA 263, 267; Ursua v. Court of Appeals, G.R. No. 112170, April 10, 1996, 256 SCRA 147, 152. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

percent realty tax for the third quarter of 1972 on its land and machineries located in Manila. On November 9, 1972, Esso filed a complaint in the Court of First Instance of Manila for the recovery of the said amount. It contended that the additional one-half percent tax is void because it is not authorized by the city charter nor by any law (Civil Case No. 88827). After hearing, the trial court declared the tax ordinance void and ordered the city treasurer of Manila to refund to Esso the said tax. The City of Manila and its treasurer appealed to this Court under Republic Act No. 5440 (which superseded Rule 42 of the Rules of Court). The only issue is the validity of the tax ordinance or the legality of the additional one-half percent realty tax. The petitioners in their manifestation of March 17, 1981 averred that the said tax ordinance is still in force; that Ordinance No. 7566, which was enacted on September 10, 1974, imposed a two percent tax on commercial real properties (like the real properties of Esso and that that two percent tax plus the one percent tax under the Special Education Fund Law gives a total of three percent realty tax on commercial properties. Esso Philippines, Inc., now Petrophil Corporation, in its manifestation of March 2, 1981, revealed that up to this time it has been paying the additional one-half percent tax and that from 1975 to 1980 it paid the total sum of P4,206,240.71 as three percent tax on its real properties. In this connection, it is relevant to note that section 39(2) of the Real Property Tax Code, Presidential Decree No. 464, which took effect on June 1, 1974, provides that a city council may, by ordinance, impose a realty tax "of not less than one half of one percent

but not more than two percent of the assessed value of real property". Section 41 of the said Code reaffirms the one percent tax on real property for the Special Education Fund in addition to the basic two percent realty tax. So, there is no question now that the additional one-half percent realty tax is valid under the Real Property Tax Code. What is in controversy is the legality of the additional one-half percent realty tax for the two-year period from the third quarter of 1972 up to the second quarter of 1974. We hold that the doctrine of implications in statutory construction sustains the City of Manila's contention that the additional onehalf percent realty tax is sanctioned by the provision in section 4 of the Special Education Fund Law that "the total real property tax shall not exceed a maximum of three per centum. The doctrine of implications means that "that which is plainly implied in the language of a statute is as much a part of it as that which is expressed" (In re McCulloch Dick, 38 Phil. 41, 45, 90; 82 C.J.S. 632, 73 Am Jur 2nd 404). While the 1949 Revised Charter of Manila fixed the realty tax at one and a half percent, on the other hand, the 1968 Special Education Fund Law definitively fixed three percent as the maximum real property tax of which one percent would accrue to the Special Education Fund. The obvious implication is that an additional one-half percent tax could be imposed by municipal corporations. Inferentially, that law fixed at two percent the realty tax that would accrue to a city or municipality. And the fact that the 1974 Real Property Tax Code specifically fixes the real property tax at two percent confirms the prior intention of the lawmaker to impose two percent as the realty tax proper. That was also the avowed intention of the questioned ordinance.

In invalidating the ordinance, the trial court upheld the view of Esso Philippines, Inc, that the Special Education Fund Law refers to a contingency where the application of the additional one percent realty tax would have the effect of raising the total realty tax to more than three percent and that it cannot be construed as an authority to impose an additional realty tax beyond the one percent fixed by the said law. At first glance, that appears to be a specious or reasonable contention. But the fact remains that the city charter fixed the realty tax at 1-% and the later law, the Special Education Fund Law, provides for three percent as the maximum realty tax of which one percent would be earmarked for the education fund. The unavoidable inference is that the later law authorized the imposition of an additional one-half percent realty tax since the contingency referred to by the complaining taxpayer would not arise in the City of Manila. It is true, as contended by the taxpayer, that the power of a municipal corporation to levy a tax should be expressly granted and should not be merely inferred. But in this case, the power to impose a realty tax is not controverted. What is disputed is the amount thereof, whether one and one-half percent only or two percent. (See sec. 2 of Rep. Act No. 2264.) As repeatedly observed, section 4 of the Special Education Fund Law, as confirmed by the Real Property Tax Code, in prescribing a total realty tax of three percent impliedly authorizes the augmentation by one-half percent of the pre-existing one and one- half percent realty tax. WHEREFORE, the decision of the trial court is reversed and set aside. The complaint of Esso Philippines, Inc. for recovery of the realty tax paid under protest is dismissed. No costs.

SO ORDERED. Barredo (Chairman), Concepcion Jr., Fernandez and De Castro, JJ., concur. Justice Abad Santos is on leave. Justice Fernandez was designated to sit in the Second Division.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-44113 March 31, 1977 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE MERICIA B. PALMA and ROMULO INTIA Y MORADA, respondents. Solicitor General Estelito P. Mendoza, Assistant Guillermo C. Nakar, Jr. and Solicitor Celia Lipana-Reyes for petitioner. Hon Judge Mericia B. Palma for and in her own behalf.

TEEHANKEE, J.: The Court resolves the sole issue of conflict of jurisdiction between the City Court of Naga (presided by respondent judge) and the Juvenile and Domestic Relations Courts for Camarines Sur and Cities of Naga and Iriga over criminal cases where the accused is 16 but under 21 years of age and rules that the issuance of the Child and Youth Welfare Code (PD 603) which includes such accused within the definition of youthful offenders (over 9 years but under 21 years at the time of the commission of the offense) did not transfer jurisdiction over such cases from the regular courts (the City Court in this case) to the Juvenile Courts.

Respondent-accused Romulo Intia y Morada, 17 years of age, was charged on February 10, 1976 by the Naga City fiscal's office with vagrancy (Article 202, paragraph 2 of the Revised Penal Code) in respondent judge's court. In an Order dated March 6, 1976, respondent judge dismissed the case on the ground that her court "has no jurisdiction to continue to take further cognizance of this case" without prejudice to the refiling thereof in the Juvenile Court. The prosecution shares the view of the Camarines Sur Juvenile and Domestic Relations Court presided by Judge Ma. Rosario Quetulio-Losa that jurisdiction over 16-year olds up to under 21 years remains with the regular courts and has not been by implication transferred to the Juvenile Court. Hence, the petition at bar. The Court sustains the petition on the following grounds: 1. Republic Act 6591 which took effect on September 30, 1972 created the Camarines nand limited jurisdiction over "criminal cases wherein the accused is under sixteen years of age at the time of the filing of the case. 1 The subsequent issuance of P. D. 603 known as the Child and Youth Welfare Code which took effect on June 11, 1975 and defines in Article 189 a youthful offender as "one who is over nine years but under twenty-one years of age at the time of the commission of the offense" did not by such definition transfer jurisdiction over criminal cases involving accused who are 16 years and below 21 years of age from the regular courts 2 to the Juvenile Court, as opined by respondent judge. 2. The Child and Youth Welfare Code (P.D. 603) concerning the welfare of the child and youth throughout the country is a general law while R.A. 6591 which defined and confer jurisdiction on the Juvenile and Domestic Relations Court for Camarines Sur is a special law 3 classifying expressly that it can

try in criminal cases involving offenders below the age of majority only those accused who are under 16 years of age at the time of the filing of the case. Jurisdiction is conferred by law and there is nothing in either R.A. 6591 or P.D. 603 that would sustain respondent judge's ruling on reconsideration that "together, these two laws, the latter amending the former confer jurisdiction on youthful offenders who are above 16 years but under 21 years of age at the time of the commission of the crime upon the JDRC of Camarines Sur and remove the same from the City Court." A general law cannot repeal a special law by mere implication. The repeal must be express and specific. Furthermore, the Juvenile and Domestic Relations Court of Camarines Sur is a court of special and limited jurisdiction and the enlargement or conferment of additional jurisdiction on said court to include accused persons who are 16 years and under 21 years of age must positively appear in express terms. It is quite patent that the mere definition in a single article of the Child and Youth Welfare Code (P. D. 603, Article 189) of youthful offenders (over 9 and under 21 years of age) did not withdraw from the regular courts their jurisdiction to try accused persons who are 16 but below 21 years of age and transfer the same to the Juvenile Courts whose criminal jurisdiction is expressly limited to those where the accused is under 16 years of age. 3. If it were the intent and purpose of P.D. 603 to remove from the City Court the jurisdiction over youthful accused who are 16 but below 21 years of age and transfer the same to the Juvenile Court, it would have expressly so provided for repeal of the corresponding provision as when it repealed the Civil Code provisions on Adoption in Article 26 thereof. 4

The issuance of a later decree, P.D. No. 798, which went into effect on September 11, 1975 strengthens the prosecution's stand that jurisdiction over accused who are 16years old up to 21 years remains with the regular courts while the Juvenile Courts retain their limited jurisdiction only over those under 16 years. Thus, P. D. No. 798, "Authorizing the Confinement in Rehabilitation Centers or Reformatories of Truants and Youths out of School for No Legitimate Reason," retains the classification and provides that the application for confinement of truants or out of school youths shall be filed with the proper court of First Instance of the province or city save that in the case of youths under 16 years of age the application shall be filed with the Juvenile Court where such a court has been established. 5 4. The Solicitor General has properly acknowledged respondent judge's "impressive and commendable dissertation" on the State's objective of rehabilitating juvenile delinquents and the role that Juvenile Courts should play in the attainment of such objective. The role and jurisdiction of Juvenile Courts are matters of policy and wisdom, however, and in the face of the clear letter of the law, the special jurisdiction granted to juvenile Courts which is limited to cases where the accused is under 16 years of age cannot be expanded by judicial fiat. The lawmakers have limited the jurisdiction of Juvenile Courts only where the accused is relatively younger, i.e. under 16 years at the time of the filing of the case and have conferred jurisdiction over the older offenders, i.e. 16 years up to below 21 years at the time of the commission of the offense to the regular courts, and there has been no claim that this is an unfair or unreasonable classification. 5. Furthermore, a reading of the provisions of P.D. 603 shows that measures to promote and enhance the general welfare and rehabilitation of youthful offenders are

therein spelled out and provided for. The Code establishes the criteria and guidelines under which all youthful offenders under 21 years are to be tried and attended to, regardless of whether the cases be filed with the Juvenile Courts for those under 16 years or with the regular courts for the older ones. Thus the Solicitor General points out that Chapter 3 of the Code on youthful offenders decrees special provisions on the following: Art. 190. Physical and mental examination of the youthful offender 191. Care of youthful offender held for examination or trial 192. Suspension of sentence and commitment of youthful offender 193. Appeal by the youthful offenders as in criminal case 194. Care and maintenance of youthful offender 195. Report on the conduct of the child 196. Dismissal of the case against the youthful offender 197. Return of the youthful offender to court 198. Effect of release of child based on good conduct 199. Living quarters for youthful offenders sentenced The cited codal articles, it may be stressed, adequately provide as in Article 192 that the courts in general shall suspend sentence instead of pronouncing a judgment of conviction and commit the youthful offender "to the custody or care of the Department of Social Welfare, or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached twentyone years of age or, for a shorter period as the court may deem proper, after considering the reports and

recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed." ACCORDINGLY, the dismissal orders of respondent judge dated March 6, 1976 and April 1, 1976 are set aside. The case filed with respondent judge's court is ordered reinstated for prompt trial and determination on the merits. In the public interest 6 this decision resolving the jurisdictional conflict shall be immediately executory upon promulgation. Castro C.J., Barredo, Makasiar, Antonio, Muoz-Palma, Aquino, Concepcion, Jr., and Martin, JJ., concur. Fernando, J, reserves his vote.

this Chapter shall remain in force. Provides-', that Articles 334 up to 348 inclusive on Adoption, are hereby expressly repealed and replaced by Section B of this Chapter. 5 P.D. 798, section 3, provides: Upon verified petition of either of a youth's parents, or, in their default, his guardian, or of any person in authority in the municipality or city where such youth resides, filed with the proper Court of First Instance of the province or city, as the case may be, or, where such youth is under 16 years of age, with the Juvenile and Domestic Relations Court in provinces or cities where such court has been established, such youth may upon due finding by said court that he is out of school for no legitimate reason or a truant within the purview of section 1 or 2 hereof, respectively, be ordered confined at any rehabilitation center or reformatory as shall be determined by the same court. 6 In the Solicitor General's manifestation dated January 25, 1977, an early resolution of this case was requested, since cases in Naga City involving youthful offenders who are 16-year olds and above are not being tried either by the Juvenile Court or the City Court pending resolution of the issue at bar as to which court should properly exercise jurisdiction over such cases. Respondent judge joined in the request for early decision per her Manifestation of February 7, 1977.

Footnotes 1 Par, 3 (a), section 1 of the Act, Judge Losa after appointment took her oath as presiding judge of the Juvenile Court of June 11, 1975. 2 Here the charge of vagrancy filed on February 10, 1976 against the 17-year old respondent accused undisputedly falls within the expressly conferred general criminal jurisdiction of respondent court. The only question raised by respondent judge is whether such jurisdiction was transferred by implication to the Juvenile Court because of the accused falling within the Child and Youth Welfare Code definition of youthful offender. 3 A general law is one which applies to the whole State and operates throughout the State alike upon all the people or all of a class. A special law is one which applies to a particular community, individual or thing. 4 Article 26 of P.D. 603 provides: Art, 26. Repealing Clause-All provisions of the Civil Code on parental authority which are not inconsistent with the provisions of

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-501-512 1948 May 21,

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs. TIMOTEO ESGUERRA, ET AL., defendantsappellees. Assistant Solicitor General Roberto A. Gianzon and Solicitor Jose G. Bautista for appellant. FERIA, J.: The defendant in these twelved cases were each charged with violation of municipal ordinance No. 4, series 1944, enacted by the municipal council of Tacloban, Leyte, which provides the following: SECTION 1. It shall be unlawful for any person, association, or firm, to manufacture, distill, produce, cure, sell, barter, offer or give or dispose of in favor of another, posses or to have under control any intoxicating liquor, drink or beverage, locally manufactured, distilled, produce or cured wine, whisky, gin, brandy and other drinks containing liquor including tuba. SEC. 2. All permits and licenses issued for the manufacture, production or establishment or distilleries and sale of tuba, wine, whiskey, and other alcoholic beverages, are hereby revoke and cancelled. SEC. 3. Any person, association or firm, who violates the provisions of this ordinance, shall be punish upon conviction by competent court, by a fine or not less than one hundred pesos or more than two hundred pesos and imprisonment of not less than three months nor more than six months. In case of reincidence or second offense committed, the violator shall suffer the maximum penalty herein prescribed, and in the event of insolvency, the violator shall suffer imprisonment of one day for each one peso fine imposed in addition to the imprisonment already impose thereof by the court. SEC. 4. Any provisions of municipal ordinance, rules and regulations, which are

inconsistent hereof, are hereby repealed, void and null. SEC. 5. This ordinance shall take effect immediately upon its approval. Approved, December 2, 1944. The information filed with against Timoteo Esguerra, criminal case No. 2 of the Court of First Instance of Leyte, G.R. No. L-501, and aginst Teofilo Decatoria, criminal case No. 4 of the same court, G.R. No. L-502, charged that each of said defendants did then and there, wilfully, unlawfully, and feloniously sell, barter, convey, offer, give, or dispose of whisky or intoxicating liquor to or in favor of soldiers of the United States Army, which wine or intoxicating liquor the acused had then in their possession under their custody and control without any legal authority to do so. The infomation against Jose Chan, criminal case No. 7 of the Court of First Instance of Leyte, G.R. No. L-505, Felix Labordo, criminal case No. 15, G.R. No. L-510, and Pilar E. Pascual, criminal case No. 16 G.R. No. L-511, and against the defendants in other seven (7) separate cases, charges the defendants with having, wilfully, unlawfully, and feloniously, had in their possession and under their control and custody "tuba" or intoxicating liquor without any autority to do so. The cases against Timoteo Esguerra, Jose Chan, Felix Labordo, and Pilar E. Pascual were jointly heard, and the defendant moved the dismissal of the charge on the ground that the ordinance No. 4, series 1944, which, according to the information, was by then violated is null and void, because the municipal council of Tacloban, Leyte, had no power to enact it. The lower court, after hearing the arguments of the prosecution of the defense, declared the ordinance in question null and void, and dismissed the cases against the said defendants; and also dismissed the cases against the defendants

in all other cases against the defendants in all other cases, presumably because the ordinance which penalizes as an offense the selling, bartering, offering, giving away or dispencing of liquiors, having been declared null and void, the part of the same ordinance which penalizes the possession, custody and control of liquors had to be daclared null and void also, since the latter cannot be separated from the former. The prosecuting attorney, in behalf of the plaintiff, The People of the Philippines, appealed from the decision of the lower court in the twelve cases, and all of them are now before us on appeal. The appellant contends that the ordinance at bar was enacted by virtue of the police power of the municipality of Tacloban conferred by the general welfare clause, section 2238 of the Revised Administrative Code, and is therefore valid. Said section reads as follows: SEC. 2238. General power of council to enact ordinances and make regulations. The municipal court shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper provide for the health and safety, promote and prosperity, improve the morals, peace, and good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. We are of the opinion, and so to hold, that the lower court has not erred in declaring the ordinance No. 44, series 1944, ultravires and therefore null and void. Under the general welfare clause, section 2238 of the Revised Administrative Code, a municipal council may enact such ordinances, not repugnant to law, as shall seem necessary and proper to provide for the health and safety, etc., of the inhabitants of the municipality. But as the ordinance in question prohibiting the

selling, giving away and dispensing of liquor is repugnant to the provision of section 2242 (g) of the same Revised Administrative Code, the Municipal council of Tacloban had no power under said section 2238 to enact the ordinance under consideration. The prohibition is contrary to the power granted by section 2242 (g) "to regulate the selling, giving away and dispensing of intoxicating malt, vinous, mixed or fermented liquors at retail"; because the word "regulates" means and includes the power to control, to govern and to restrain; and cannot be construed as synonymous with "suppress" or "prohibit" (Kwong Sing vs. City of Manila, 41 Phil., 103). Since the municipality of Tacloban is empowered only to regulate, it cannot prohibit the selling, giving away and dispensing of intoxicating liquors, for that which is prohibited or does not legally exist can not be regulated. The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the Revised Administrative Code, refers to matters not covered by the other provisions of the same Code, and therefore it can not be applied to intoxicating liquors, for the power to regulate the selling, giving away and dispensing thereof is granted specifically by section 2242 (g) to municipal councils. To hold that, under the general power granted by section 2238, a municipal council may enact the ordinance in question, notwithstanding the provisions of section 2242 (g), would be to make the latter superfluous and nugatory, because the power to prohibit, includes power to regulate, the selling, giving away and dispensing of intoxicating liquors. Under the charters of municipal corporation in the States of the Union, from which the provisions of the Organic Act of our cities and municipalities were taken, municipal corporations are generally granted, not only the specific power to regulate the sale or traffic of intoxicating liquors, but also the general welfare power similar to that

confered by section 2238 of the Revised Administrative Code. And the courts of last resort in the said States have uniformly held that the "legislative authority to license or regulate the sale of intoxicating liquors does not authorize a municipality to prohibit it, either in express terms or by imposing prohibitive license fees." (15 R.C.L., p. 262.) And the general power granted in the general welfare clause does not autorized the municipal council to prohibit the sale of intoxicants, because, as stated in the American Jurisprudence, vol. 30, p. 367, "as a general rule when a municipal corporation is specifically given authority or power to regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld." In view of the foregoing, the appealed orders or resolutions of the lower court dismissing the informations in the above entitled cases, are affirmed, without pronouncement as to costs. So ordered. Paras, Perfecto, Bengzon and Tuazon, JJ., concur.