Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 183591 October 14, 2008

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

DECISION

CARPIO MORALES, J.:

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

I. FACTUAL ANTECEDENTS OF THE PETITIONS

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

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

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

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

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained,
among others, the commitment of the parties to pursue peace negotiations, protect and respect human rights,
negotiate with sincerity in the resolution and pacific settlement of the conflict, and refrain from the use of threat or
force to attain undue advantage while the peace negotiations on the substantive agenda are on-going.2
Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace
process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central
Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.3 In response, then
President Joseph Estrada declared and carried out an "all-out-war" against the MILF.

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

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

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

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

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

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

II. STATEMENT OF THE PROCEEDINGS

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

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the Presidential Adviser
on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a petition, docketed
as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction
and Temporary Restraining Order.9 Invoking the right to information on matters of public concern, petitioners seek to
compel respondents to disclose and furnish them the complete and official copies of the MOA-AD including its
attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-
AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and
Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico
Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that the City of
Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the
alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public
respondents and their agents to cease and desist from formally signing the MOA-AD.13 The Court also required the
Solicitor General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD,14 to which
she complied.15

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

The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia
Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan of Zamboanga del
Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951.
They pray, inter alia, that the MOA-AD be declared null and void and without operative effect, and that respondents
be enjoined from executing the MOA-AD.

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

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

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

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

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

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft
of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered
that consultation has become fait accompli with the finalization of the draft;

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

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

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

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

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

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

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

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

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

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

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

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

III. OVERVIEW OF THE MOA-AD

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

The MOA-AD identifies the Parties to it as the GRP and the MILF.

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

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

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

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy:
there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands
where Islamic laws held sway, while the second denoted those lands where Muslims were persecuted or where
Muslim laws were outlawed or ineffective.27 This way of viewing the world, however, became more complex through
the centuries as the Islamic world became part of the international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental
organizations, the classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New
terms were drawn up to describe novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-
mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which, though under a secular
regime, maintained peaceful and cooperative relations with Muslim States, having been bound to each other by
treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not bound
by treaty with Muslim States, maintained freedom of religion for Muslims.28

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

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

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

A. CONCEPTS AND PRINCIPLES

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

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

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

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

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

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

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

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

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

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

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

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

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

C. RESOURCES

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

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

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

The sharing between the Central Government and the BJE of total production pertaining to natural resources is to
be 75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession
of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged.
Whenever restoration is no longer possible, reparation is to be in such form as mutually determined by the Parties.50

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

D. GOVERNANCE

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

The "associative" relationship between the Central Government and the BJE

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

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

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

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

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

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies.54 Courts decline to issue advisory opinions or
to resolve hypothetical or feigned problems, or mere academic questions.55 The limitation of the power of judicial
review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other branches of government.56
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety
of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.57 The Court can
decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for
judicial determination.58

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

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

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

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

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

TERRITORY

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

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

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon
the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with
due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.64 (Underscoring supplied)

The Solicitor General's arguments fail to persuade.

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

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

xxxx

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

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

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

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

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

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD
without consulting the local government units or communities affected, nor informing them of the proceedings. As
will be discussed in greater detail later, such omission, by itself, constitutes a departure by respondents from their
mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides
that "any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force
upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework,"
implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to
the MILF the amendment of the Constitution. Such act constitutes another violation of its authority. Again, these
points will be discussed in more detail later.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed
for by petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme
Court ultimately decides[,] the government will not sign the MOA."92

In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded
the GRP Peace Panel.93

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

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

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

Petitions not mooted

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

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

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

Petitions are imbued with paramount public interest

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

Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no longer
legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually
cancelled was a stand-alone government procurement contract for a national broadband network involving a one-
time contractual relation between two parties-the government and a private foreign corporation. As the issues
therein involved specific government procurement policies and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and
parties involved in the controversy.

The MOA-AD is part of a series of agreements

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

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

Need to formulate principles-guidelines

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

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

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

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

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

V. SUBSTANTIVE ISSUES

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

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

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

ON THE FIRST SUBSTANTIVE ISSUE

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

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

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

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

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

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied access to information of general interest. Information is
needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed:
"Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if
either process is interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope with the exigencies of their time, access
to information of general interest aids the people in democratic decision-making by giving them a better perspective
of the vital issues confronting the nation112 so that they may be able to criticize and participate in the affairs of the
government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited
exchange of ideas among a well-informed public that a government remains responsive to the changes desired by
the people.113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern114 faces no serious
challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous cases, the Court
found that the regularity of real estate transactions entered in the Register of Deeds,116 the need for adequate notice
to the public of the various laws,117 the civil service eligibility of a public employee,118 the proper management of
GSIS funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses' alleged ill-gotten
wealth,120 and the identity of party-list nominees,121 among others, are matters of public concern. Undoubtedly, the
MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at large.

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

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

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

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

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

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

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

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

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and
effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law
will have to be enacted by Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman
correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to
implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner
Regalado, so that the safeguards on national interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may
provide for reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the
climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or
if this is approved, revoking this principle, which is inconsistent with this policy.129 (Emphasis supplied)

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

An essential element of these freedoms is to keep open a continuing dialogue or process of communication
between the government and the people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and be responsive to the people's
will.131Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback
mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the
government provide feedback mechanisms so that the people can participate and can react where the
existing media facilities are not able to provide full feedback mechanisms to the government? I suppose
this will be part of the government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is
a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public officials but also
network of private business o[r] community-based organizations that will be reacting. As a matter of fact,
we will put more credence or credibility on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be another OMA in the making.132(Emphasis
supplied)

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

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

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing"
consultations, contrary to respondents' position that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct regular
dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments,
recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace
process."137 E.O. No. 3 mandates the establishment of the NPF to be "the principal forum for the PAPP to consult
with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on both national
and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil
society dialogue and consensus-building on peace agenda and initiatives."138

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

PAPP Esperon committed grave abuse of discretion

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

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

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

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

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

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

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

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

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision of the LGU
apply only to national programs or projects which are to be implemented in a particular local community. Among the
programs and projects covered are those that are critical to the environment and human ecology including those
that may call for the eviction of a particular group of people residing in the locality where these will be
implemented.145 The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of
a vast territory to the Bangsamoro people,146 which could pervasively and drastically result to the diaspora
or displacement of a great number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are
represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the
IPRA, the right to participate fully at all levels of decision-making in matters which may affect their rights, lives and
destinies.147 The MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-compliance with the
clear-cut mechanisms ordained in said Act,148 which entails, among other things, the observance of the free and
prior informed consent of the ICCs/IPs.

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

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

ON THE SECOND SUBSTANTIVE ISSUE

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

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

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

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on

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

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

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

Keitner and Reisman state that

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

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

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

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

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

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

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

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

The concept of association is not recognized under the present Constitution

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

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the
amendment of constitutional provisions, specifically the following provisions of Article X:
 SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras
as hereinafter provided.

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

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution

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

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

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

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

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

The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution since that provision
defines the powers of autonomous regions as follows:

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

(1) Administrative organization;

(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the
region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an
amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-
paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the
powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for
instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4
of the strand on RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade
relations with foreign countries: provided, however, that such relationships and understandings do not include
aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is
only the President who has that power. Pimentel v. Executive Secretary155 instructs:

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

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

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

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

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

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

"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens residing in
the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from
other sectors of the national community; and

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

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

SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall be done in
accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with
the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of
the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all
community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the
application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned
and shall at all times include genuine involvement and participation by the members of the communities
concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under
oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time
immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic
documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred
places and old villages;
4) Historical accounts, including pacts and agreements concerning boundaries entered into by the
ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges,
hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the community.

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

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

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

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

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

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

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

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

Among the conventions referred to are the International Covenant on Civil and Political Rights161 and the
International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of both covenants, that all
peoples, by virtue of the right of self-determination, "freely determine their political status and freely pursue their
economic, social, and cultural development."

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

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

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

External self-determination can be defined as in the following statement from the Declaration on
Friendly Relations, supra, as

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

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

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

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

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

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

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

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

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

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

Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-
government in matters relating to their internal and local affairs, as well as ways and means for financing
their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and
cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic,
social and cultural life of the State.

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

Article 8

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

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

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

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

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

(d) Any form of forced assimilation or integration;

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

Article 21

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

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

Article 26

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

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that
they possess by reason of traditional ownership or other traditional occupation or use, as well as those which
they have otherwise acquired.
 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition
shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous
peoples concerned.

Article 30

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

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

Article 32

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

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

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

Article 37

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

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples
contained in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including
legislative measures, to achieve the ends of this Declaration.

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

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own
police and internal security force. Indeed, Article 8 presupposes that it is the State which will provide protection for
indigenous peoples against acts like the forced dispossession of their lands - a function that is normally performed
by police officers. If the protection of a right so essential to indigenous people's identity is acknowledged to be the
responsibility of the State, then surely the protection of rights less significant to them as such peoples would also be
the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial
domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to
grant indigenous peoples the near-independent status of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:

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

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

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

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

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

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

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

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

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

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations
with the MILF, was not restricted by E.O. No. 3 only to those options available under the laws as they presently
stand. One of the components of a comprehensive peace process, which E.O. No. 3 collectively refers to as the
"Paths to Peace," is the pursuit of social, economic, and political reforms which may require new legislation or even
constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,167 states:
 SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the
processes known as the "Paths to Peace". These component processes are interrelated and not mutually
exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall
include, but may not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root
causes of internal armed conflicts and social unrest. This may require administrative action, new
legislation or even constitutional amendments.

x x x x (Emphasis supplied)

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

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

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

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

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

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

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

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

As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is
rarely attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nation's constitutional structure is required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
 x x x [T]he fact remains that a successful political and governance transition must form the core of any post-
conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict
cessation without modification of the political environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building, is unlikely to succeed. On average, more than
50 percent of states emerging from conflict return to conflict. Moreover, a substantial proportion of transitions
have resulted in weak or limited democracies.

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

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

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

MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to
ask them if they are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is
working very well; it has, in fact, diminished a great deal of the problems. So, my question is: since that already
exists, why do we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right
that certain definite steps have been taken to implement the provisions of the Tripoli Agreement with
respect to an autonomous region in Mindanao. This is a good first step, but there is no question that
this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state policy.173(Emphasis supplied)

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

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

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

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

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may directly submit
proposed constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have
upheld the President's action along with the majority had the President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee opined:

"Since the Constitution provides for the organization of the essential departments of government, defines and
delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent
power has not been granted to but has been withheld from the President or Prime Minister, it follows that the
President's questioned decrees proposing and submitting constitutional amendments directly to the
people (without the intervention of the interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis."176 (Emphasis supplied)

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

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

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

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

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

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

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

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

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

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

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

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to
propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the
Republic of the Philippines will certainly be adjusted to conform to all the "consensus points" found in the MOA-
AD. Hence, it must be struck down as unconstitutional.

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

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

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

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

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories.
In addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international
agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the
contrary conclusion.

The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord case) of the Special Court of
Sierra Leone is enlightening. The Lomé Accord was a peace agreement signed on July 7, 1999 between the
Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone
Government had been in armed conflict for around eight years at the time of signing. There were non-contracting
signatories to the agreement, among which were the Government of the Togolese Republic, the Economic
Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone
Government, another agreement was entered into by the UN and that Government whereby the Special Court of
Sierra Leone was established. The sole purpose of the Special Court, an international court, was to try persons who
bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since November 30, 1996.

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

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

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

xxxx

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

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

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

Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not
parties to the Agreement would not have sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine
State, binding under international law, that it would comply with all the stipulations stated therein, with the result that
it would have to amend its Constitution accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,181 also known as the Nuclear Tests Case, decided by the International Court of
Justice (ICJ).

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

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

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

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

xxxx

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

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

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ
entitled Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute. The public declaration
subject of that case was a statement made by the President of Mali, in an interview by a foreign press agency, that
Mali would abide by the decision to be issued by a commission of the Organization of African Unity on a frontier
dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with
legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances
surrounding the French declaration subject thereof, to wit:

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

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

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

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

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

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

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

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

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

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

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

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

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

An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between
the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to
public consultation was envisioned to be a species of these public rights.

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

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

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct
consultations before any project or program critical to the environment and human ecology including those that may
call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is
one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro
people, which could pervasively and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and
prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not
grant the Executive Department or any government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise.

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

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

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

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

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

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

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

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 169815 August 13, 2008

BUREAU OF FISHERIES AND AQUATIC RESOURCES (BFAR) EMPLOYEES UNION, REGIONAL OFFICE NO.
VII, CEBU CITY, petitioner, vs. COMMISSION ON AUDIT, respondent.

DECISION

PUNO, C.J.:

On appeal are the Decision1 dated April 8, 2005 of respondent Commission on Audit (COA) in LAO-N-2005-119
upholding the disallowance by the COA Legal and Adjudication Office (COA-LAO), Regional Office No. VII, Cebu
City of the P10,000.00 Food Basket Allowance granted by BFAR to each of its employees in 1999, and COA
Resolution2 dated August 5, 2005, denying petitioner’s motion for reconsideration of said Decision.

First, the facts:

On October 18, 1999, petitioner Bureau of Fisheries and Aquatic Resources (BFAR) Employees Union, Regional
Office No. VII, Cebu City issued Resolution No. 01, series of 1999 requesting the BFAR Central Office for a Food
Basket Allowance. It justified its request on the high cost of living, i.e., "the increase in prices of petroleum products
which catapulted the cost of food commodities, has greatly affected the economic conditions and living standard of
the government employees of BFAR Region VII and could hardly sustain its need to cope up with the four (4) basic
needs, i.e., food, shelter, clothing and education."3 It also relied on the Employees Suggestions and Incentive
Awards System (ESIAS), pursuant to Book V of Executive Order No. 292, or the Administrative Code of 1987, and
approved by the Civil Service Commission on December 3, 1996. The ESIAS "includes the granting of incentives
that will help employees overcome present economic difficulties, boost their morale, and further commitment and
dedication to public service."4 Regional Director Corazon M. Corrales of BFAR Region VII indorsed the Resolution,
and Malcolm I. Sarmiento, Jr., Director of BFAR recommended its approval. Honorable Cesar M. Drilon, Jr.,
Undersecretary for Fisheries and Livestock of the Department of Agriculture, approved the request for Authority to
Grant a Gift Check or the Food Basket Allowance at the rate of P10,000.00 each to the 130 employees of BFAR
Region VII, or in the total amount of P1,322,682.00.5 On the strength of the approval, Regional Director Corrales
released the allowance to the BFAR employees.

On post audit, the Commission on Audit – Legal and Adjudication Office (COA-LAO) Regional Office No. VII, Cebu
City disallowed the grant of Food Basket Allowance under Notice of Disallowance No. 2003-022-101 (1999) dated
September 19, 2003. It ruled that the allowance had no legal basis and that it violated: a) Sec. 15(d) of the General
Appropriations Act of 1999, prohibiting the payment of honoraria, allowances, or other forms of compensation to any
government official or employee, except those specifically authorized by law; b) par. 4.5 of Budget Circular No. 16
dated November 28, 1998, prohibiting the grant of food, rice, gift checks, or any other form of incentives/allowances,
except those authorized via Administrative Order by the Office of the President; and c) Sec. 12 of Republic Act
(R.A.) No. 6758, or the Salary Standardization Law of 1989, which includes all allowances in the standardized salary
rates, subject to certain exceptions.

On February 26, 2004, BFAR Regional Office No. VII, through Regional Director Corrales, moved for
reconsideration and prayed for the lifting of the disallowance. It argued that the grant of Food Basket Allowance
would enhance the welfare and productivity of the employees. Further, it contended that the approval by the
Honorable Drilon, Undersecretary for Fisheries and Livestock, of the said benefit was the law itself which vested the
specific authority for its release. The Commission on Audit – Legal and Adjudication Office (COA-LAO) Regional
Office No. VII, Cebu City denied the motion.
Petitioner appealed to the Commission on Audit – Legal and Adjudication Office (COA-LAO) National, Quezon City.
The appeal was denied in a Decision dated April 8, 2005. Petitioner’s motion for reconsideration was likewise
denied in a Resolution dated August 5, 2005.

Hence, this appeal.

Petitioner cites the following grounds for its appeal:

1. The disallowance in question is unconstitutional as it contravenes the fundamental principle of the State
enshrined under Sections 9 and 10, Article II of the 1987 Constitution, which provide as follows:
SEC. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and
independence of the nation and free the people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an improved quality of life for all.
SEC. 10. The State shall promote social justice in all phases of national development.6
2. The Undersecretary for Fisheries and Livestock is an extension of the Secretary of Agriculture who is an alter-
ego of the President. His approval was tantamount to the authority from the Office of the President, as
contemplated in DBM Budget Circular No. 16, dated November 28, 1998.7
3. The grant of the Food Basket Allowance is in conformity with Sec. 12 of the Salary Standardization Law.8

We deny the petition.

First, we rule on the issue of constitutionality. Petitioner invokes the provisions of the 1987 Constitution on social
justice to warrant the grant of the Food Basket Allowance. Time and again, we have ruled that the social justice
provisions of the Constitution are not self-executing principles ready for enforcement through the courts. They are
merely statements of principles and policies. To give them effect, legislative enactment is required. As we held
in Kilosbayan, Incorporated v. Morato,9the principles and state policies enumerated in Article II and some
sections of Article XII are "not self-executing provisions, the disregard of which can give rise to a cause of action in
the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation."10

Second, petitioner contends that the approval of the Department of Agriculture (DA) Undersecretary for Fisheries
and Livestock of the Food Basket Allowance is the law which authorizes its release. It is crystal clear that the DA
Undersecretary has no authority to grant any allowance to the employees of BFAR. Section 4.5 of Budget Circular
No. 16 dated November 28, 1998 states:

All agencies are hereby prohibited from granting any food, rice, gift checks, or any other form of
incentives/allowances except those authorized via Administrative Order by the Office of the President.

In the instant case, no Administrative Order has been issued by the Office of the President to exempt BFAR from
the express prohibition against the grant of any food, rice, gift checks, or any other form of incentive/allowance to its
employees.

Petitioner argues that the grant of the Food Basket Allowance does not violate Sec. 12 of R.A. No. 6758 or the
Salary Standardization Law. This law was passed to standardize salary rates among government personnel and do
away with multiple allowances and other incentive packages and the resulting differences in compensation among
them.11 Sec. 12 of the law provides:

Consolidation of Allowances and Compensation. — All allowances, except for representation and transportation
allowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on board
government vessels and hospital personnel; hazard pay; allowances of foreign service personnel stationed
abroad; and such other additional compensation not otherwise specified herein as may be determined by the
DBM [Department of Budget and Management], shall be deemed included in the standardized salary rates
herein prescribed. Such other additional compensation, whether in cash or in kind, being received by
incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be
authorized.

Existing additional compensation of any national government official or employee paid from local funds of a local
government unit shall be absorbed into the basic salary of said official or employee and shall be paid by the
National Government.
Under Sec. 12, as quoted, all kinds of allowances are integrated in the standardized salary rates. The exceptions
are:

1. representation and transportation allowance (RATA);

2. clothing and laundry allowance;
3. subsistence allowance of marine officers and crew on board government vessels;
4. subsistence allowance of hospital personnel;
5. hazard pay;
6. allowances of foreign service personnel stationed abroad; and
7. such other additional compensation not otherwise specified herein as may be determined by the DBM.

Petitioner contends that the Food Basket Allowance falls under the 7th category above, that of "other additional
compensation not otherwise specified herein as may be determined by the DBM."

The Court has had the occasion to interpret Sec. 12 of R.A. No. 6758. In National Tobacco Administration v.
Commission on Audit,12 we held that under the first sentence of Section 12, the benefits excluded from the
standardized salary rates are the "allowances" or those which are usually granted to officials and employees of the
government to defray or reimburse the expenses incurred in the performance of their official functions. These are
the RATA, clothing and laundry allowance, subsistence allowance of marine officers and crew on board government
vessels and hospital personnel, hazard pay, and others, as enumerated in the first sentence of Section 12. We
further ruled that the phrase "and such other additional compensation not otherwise specified herein as may be
determined by the DBM" is a catch-all proviso for benefits in the nature of allowances similar to those enumerated.
In Philippine Ports Authority v. Commission on Audit,13 we explained that if these allowances were consolidated
with the standardized salary rates, then government officials or employees would be compelled to spend their
personal funds in attending to their duties.

In the instant case, the Food Basket Allowance is definitely not in the nature of an allowance to reimburse expenses
incurred by officials and employees of the government in the performance of their official functions. It is not payment
in consideration of the fulfillment of official duty. It is a form of financial assistance to all officials and employees of
BFAR. Petitioner itself stated that the Food Basket Allowance has the purpose of alleviating the economic condition
of BFAR employees.

Next, petitioner relies on National Compensation Circular No. 59 dated September 30, 1989, issued by the DBM,
which is the "List of Allowances/Additional Compensation of Government Officials and Employees which shall be
Deemed Integrated into the Basic Salary." The list enumerates the following allowances/additional compensation
which shall be incorporated in the basic salary, hence, may no longer be granted to government employees:

1. Cost of Living Allowance (COLA);

2. Inflation connected allowance;
3. Living Allowance;
4. Emergency Allowance;
5. Additional Compensation of Public Health Nurses assigned to public health nursing;
6. Additional Compensation of Rural Health Physicians;
7. Additional Compensation of Nurses in Malacañang Clinic;
8. Nurses Allowance in the Air Transportation Office;
9. Assignment Allowance of School Superintendents;
10. Post allowance of Postal Service Office employees;
11. Honoraria/allowances which are regularly given except the following:
a. those for teaching overload;
b. in lieu of overtime pay;
c. for employees on detail with task forces/special projects;
d. researchers, experts and specialists who are acknowledged authorities in their field of specialization;
e. lecturers and resource persons;
f. Municipal Treasurers deputized by the Bureau of Internal Revenue to collect and remit internal revenue
collections; and
g. Executive positions in State Universities and Colleges filled by designation from among their faculty
members.
 12. Subsistence Allowance of employees except those authorized under EO [Executive Order] No. 346 and
uniformed personnel of the Armed Forces of the Philippines and Integrated National Police;
13. Laundry Allowance of employees except those hospital/sanitaria personnel who attend directly to patients
and who by the nature of their duties are required to wear uniforms, prison guards and uniformed personnel of
the Armed Forces of the Philippines and Integrated National Police; and
14. Incentive allowance/fee/pay except those authorized under the General Appropriations Act and Section 33 of
P.D. No. 807.

Petitioner invokes the rule of statutory construction that "what is not included is excluded." Inclusio unius est
exclusio alterius. Petitioner claims that the Food Basket Allowance is distinct and separate from the specific
allowances/additional compensation listed in the circular.

Again, we reject petitioner’s contention. The Food Basket Allowance falls under the 14th category, that of incentive
allowance/fee/pay. Petitioner itself justified the Food Basket Allowance as an incentive to the employees to
encourage them to be more productive and efficient.14 Under National Compensation Circular No. 59, exceptions to
the incentive allowance/fee/pay category are those authorized under the General Appropriations Act (GAA) and
Section 33 of Presidential Decree (P.D.) No. 807. Sec. 15(d) of the GAA for Fiscal Year 1999 or R.A. No. 8745
clearly prohibits the payment of honoraria, allowances or other forms of compensation to any government official or
employee, except those specifically authorized by law. There is no law authorizing the grant of the subject Food
Basket Allowance. Further, Sec. 33 of P.D. No. 807 or the Civil Service Decree of the Philippines does not exempt
the Food Basket Allowance from the general rule. Sec. 33 states:

Section 33. Employee Suggestions and Incentive Award System. There shall be established a government-
wide employee suggestions and incentive awards system which shall be administered under such rules,
regulations, and standards as may be promulgated by the Commission.

In accordance with rules, regulations, and standards promulgated by the Commission, the President or the head
of each department or agency is authorized to incur whatever necessary expenses involved in the honorary
recognition of subordinate officers and employees of the government who by their suggestions, inventions,
superior accomplishment, and other personal efforts contribute to the efficiency, economy, or other improvement
of government operations, or who perform such other extraordinary acts or services in the public interest in
connection with, or in relation to, their official employment.

We are not convinced that the Food Basket Allowance falls under the incentive award system contemplated above.
The decree speaks of suggestions, inventions, superior accomplishments, and other personal efforts contributed by
an employee to the efficiency, economy, or other improvement of government operations, or other extraordinary
acts or services performed by an employee in the public interest in connection with, or in relation to, his official
employment. In the instant case, the Food Basket Allowance was granted to all BFAR employees, without
distinction. It was not granted due to any extraordinary contribution or exceptional accomplishment by an employee.
The Food Basket Allowance was primarily an economic monetary assistance to the employees.

Lastly, we note, as the Office of the Solicitor General, on behalf of respondent did, that petitioner failed to exhaust its
administrative remedies. It stopped seeking remedies at the level of respondent’s Legal and Adjudication Office. It
failed to appeal the latter’s adverse decision to the Commission on Audit proper. The consequence for failure to
exhaust administrative remedies is clear: the disallowance, as ruled by the Commission on Audit – Legal and
Adjudication Office Regional Office No. VII, Cebu City and upheld by the Commission on Audit – Legal and
Adjudication Office National, Quezon City, became final and executory. Sections 48 and 51 of Presidential Decree
No. 1445, or the Government Auditing Code of the Philippines provide:

Section 48. Appeal from decision of auditors. – Any person aggrieved by the decision of an auditor of any
government agency in the settlement of an account or claim may, within six months from receipt of a copy of the
decision, appeal in writing to the Commission.
Section 51. Finality of decisions of the Commission or any auditor. – A decision of the Commission or of any
auditor upon any matter within its or his jurisdiction, if not appealed as herein provided, shall be final and
executory.

IN VIEW WHEREOF, the petition is DENIED. The Decision and Resolution of the Commission on Audit – Legal and
Adjudication Office dated April 8, 2005 and August 5, 2005, respectively, in LAO-N-2005-119, are AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-32052 July 25, 1975

PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, petitioner,

vs.
COURT OF INDUSTRIAL RELATIONS,

FERNANDO, J.:

The principal issue that calls for resolution in this appeal by certiorari from an order of respondent Court of Industrial
Relations is one of constitutional significance. It is concerned with the expanded role of government necessitated by
the increased responsibility to provide for the general welfare. More specifically, it deals with the question of whether
petitioner, the Philippine Virginia Tobacco Administration, discharges governmental and not proprietary functions.
The landmark opinion of the then Justice, row Chief Justice, Makalintal in Agricultural Credit and Cooperative
Financing Administration v. Confederation of Unions in Government Corporations and offices, points the way to the
right answer.1 It interpreted the then fundamental law as hostile to the view of a limited or negative state. It is
antithetical to the laissez faire concept. For as noted in an earlier decision, the welfare state concept "is not alien to
the philosophy of [the 1935] Constitution."2 It is much more so under the present Charter, which is impressed with an
even more explicit recognition of social and economic rights.3 There is manifest, to recall Laski, "a definite increase
in the profundity of the social conscience," resulting in "a state which seeks to realize more fully the common good
of its members."4 It does not necessarily follow, however, just because petitioner is engaged in governmental rather
than proprietary functions, that the labor controversy was beyond the jurisdiction of the now defunct respondent
Court. Nor is the objection raised that petitioner does not come within the coverage of the Eight-Hour Labor Law
persuasive.5 We cannot then grant the reversal sought. We affirm.

The facts are undisputed. On December 20, 1966, claimants, now private respondents, filed with respondent Court
a petition wherein they alleged their employment relationship, the overtime services in excess of the regular eight
hours a day rendered by them, and the failure to pay them overtime compensation in accordance with
Commonwealth Act No. 444. Their prayer was for the differential between the amount actually paid to them and the
amount allegedly due them.6 There was an answer filed by petitioner Philippine Virginia Tobacco Administration
denying the allegations and raising the special defenses of lack of a cause of action and lack of jurisdiction.7 The
issues were thereafter joined, and the case set for trial, with both parties presenting their evidence.8 After the parties
submitted the case for decision, the then Presiding Judge Arsenio T. Martinez of respondent Court issued an order
sustaining the claims of private respondents for overtime services from December 23, 1963 up to the date the
decision was rendered on March 21, 1970, and directing petitioner to pay the same, minus what it had already
paid.9 There was a motion for reconsideration, but respondent Court en banc denied the same. 10 Hence this petition for certiorari.

Petitioner Philippine Virginia Tobacco Administration, as had been noted, would predicate its plea for the reversal of
the order complained of on the basic proposition that it is beyond the jurisdiction of respondent Court as it is
exercising governmental functions and that it is exempt from the operation of Commonwealth Act No. 444. 11 While,
to repeat, its submission as to the governmental character of its operation is to be given credence, it is not a
necessary consequence that respondent Court is devoid of jurisdiction. Nor could the challenged order be set aside
on the additional argument that the Eight-Hour Labor Law is not applicable to it. So it was, at the outset, made clear.

1. A reference to the enactments creating petitioner corporation suffices to demonstrate the merit of petitioner's plea
that it performs governmental and not proprietary functions. As originally established by Republic Act No. 2265, 12 its
purposes and objectives were set forth thus: "(a) To promote the effective merchandising of Virginia tobacco in the
domestic and foreign markets so that those engaged in the industry will be placed on a basis of economic security;
(b) To establish and maintain balanced production and consumption of Virginia tobacco and its manufactured
products, and such marketing conditions as will insure and stabilize the price of a level sufficient to cover the cost of
production plus reasonable profit both in the local as well as in the foreign market; (c) To create, establish, maintain,
and operate processing, warehousing and marketing facilities in suitable centers and supervise the selling and
buying of Virginia tobacco so that the farmers will enjoy reasonable prices that secure a fair return of their
investments; (d) To prescribe rules and regulations governing the grading, classifying, and inspecting of Virginia
tobacco; and (e) To improve the living and economic conditions of the people engaged in the tobacco
industry." 13The amendatory statute, Republic Act No. 4155, 14 renders even more evident its nature as a
governmental agency. Its first section on the declaration of policy reads: "It is declared to be the national policy, with
respect to the local Virginia tobacco industry, to encourage the production of local Virginia tobacco of the qualities
needed and in quantities marketable in both domestic and foreign markets, to establish this industry on an efficient
and economic basis, and, to create a climate conducive to local cigarette manufacture of the qualities desired by the
consuming public, blending imported and native Virginia leaf tobacco to improve the quality of locally manufactured
cigarettes." 15 The objectives are set forth thus: "To attain this national policy the following objectives are hereby
adopted: 1. Financing; 2. Marketing; 3. The disposal of stocks of the Agricultural Credit Administration (ACA) and
the Philippine Virginia Tobacco Administration (PVTA) at the best obtainable prices and conditions in order that a
reinvigorated Virginia tobacco industry may be established on a sound basis; and 4. Improving the quality of locally
manufactured cigarettes through blending of imported and native Virginia leaf tobacco; such importation with
corresponding exportation at a ratio of one kilo of imported to four kilos of exported Virginia tobacco, purchased by
the importer-exporter from the Philippine Virginia Tobacco Administration." 16

It is thus readily apparent from a cursory perusal of such statutory provisions why petitioner can rightfully invoke the
doctrine announced in the leading Agricultural Credit and Cooperative Financing Administration decision 17 and why
the objection of private respondents with its overtones of the distinction between constituent and ministrant functions
of governments as set forth in Bacani v. National Coconut Corporation 18 if futile. The irrelevance of such a
distinction considering the needs of the times was clearly pointed out by the present Chief Justice, who took note,
speaking of the reconstituted Agricultural Credit Administration, that functions of that sort "may not be strictly what
President Wilson described as "constituent" (as distinguished from "ministrant"),such as those relating to the
maintenance of peace and the prevention of crime, those regulating property and property rights, those relating to
the administration of justice and the determination of political duties of citizens, and those relating to national
defense and foreign relations. Under this traditional classification, such constituent functions are exercised by the
State as attributes of sovereignty, and not merely to promote the welfare, progress and prosperity of the people —
these latter functions being ministrant, the exercise of which is optional on the part of the
government." 19Nonetheless, as he explained so persuasively: "The growing complexities of modern society,
however, have rendered this traditional classification of the functions of government quite unrealistic, not to say
obsolete. The areas which used to be left to private enterprise and initiative and which the government was called
upon to enter optionally, and only "because it was better equipped to administer for the public welfare than is any
private individual or group of individuals", continue to lose their well-defined boundaries and to be absorbed within
activities that the government must undertake in its sovereign capacity if it is to meet the increasing social
challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater
socialization of economic forces. Here of course this development was envisioned, indeed adopted as a national
policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice." 20 Thus was
laid to rest the doctrine in Bacani v. National Coconut Corporation, 21 based on the Wilsonian classification of the
tasks incumbent on government into constituent and ministrant in accordance with the laissez faire principle. That
concept, then dominant in economics, was carried into the governmental sphere, as noted in a textbook on political
science, 22 the first edition of which was published in 1898, its author being the then Professor, later American
President, Woodrow Wilson. He took pains to emphasize that what was categorized by him as constituent functions
had its basis in a recognition of what was demanded by the "strictest [concept of] laissez faire, [as they] are indeed
the very bonds of society." 23 The other functions he would minimize as ministrant or optional.

It is a matter of law that in the Philippines, the laissez faire principle hardly commanded the authoritative position
which at one time it held in the United States. As early as 1919, Justice Malcolm in Rubi v. Provincial Board 24 could
affirm: "The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economic and
political theory, are of the past. The modern period has shown a widespread belief in the amplest possible
demonstration of government activity." 25 The 1935 Constitution, as was indicated earlier, continued that approach.
As noted in Edu v. Ericta:26 "What is more, to erase any doubts, the Constitutional Convention saw to it that the
concept of laissez-faire was rejected. It entrusted to our government the responsibility of coping with social and
economic problems with the commensurate power of control over economic affairs. Thereby it could live up to its
commitment to promote the general welfare through state action." 27 Nor did the opinion in Edu stop there: "To
repeat, our Constitution which took effect in 1935 erased whatever doubts there might be on that score. Its
philosophy is a repudiation of laissez-faire. One of the leading members of the Constitutional Convention, Manuel A.
Roxas, later the first President of the Republic, made it clear when he disposed of the objection of Delegate Jose
Reyes of Sorsogon, who noted the "vast extensions in the sphere of governmental functions" and the "almost
unlimited power to interfere in the affairs of industry and agriculture as well as to compete with existing business" as
"reflections of the fascination exerted by [the then] current tendencies' in other jurisdictions. He spoke thus: "My
answer is that this constitution has a definite and well defined philosophy, not only political but social and
economic.... If in this Constitution the gentlemen will find declarations of economic policy they are there because
they are necessary to safeguard the interest and welfare of the Filipino people because we believe that the days
have come when in self-defense, a nation may provide in its constitution those safeguards, the patrimony, the
freedom to grow, the freedom to develop national aspirations and national interests, not to be hampered by the
artificial boundaries which a constitutional provision automatically imposes." 28

It would be then to reject what was so emphatically stressed in the Agricultural Credit Administration decision about
which the observation was earlier made that it reflected the philosophy of the 1935 Constitution and is even more in
consonance with the expanded role of government accorded recognition in the present Charter if the plea of
petitioner that it discharges governmental function were not heeded. That path this Court is not prepared to take.
That would be to go backward, to retreat rather than to advance. Nothing can thus be clearer than that there is no
constitutional obstacle to a government pursuing lines of endeavor, formerly reserved for private enterprise. This is
one way, in the language of Laski, by which through such activities, "the harsh contract which [does] obtain between
the levels of the rich and the poor" may be minimized. 29 It is a response to a trend noted by Justice Laurel
in Calalang v. Williams 30 for the humanization of laws and the promotion of the interest of all component elements of
society so that man's innate aspirations, in what was so felicitously termed by the First Lady as "a compassionate
society" be attained. 31

2. The success that attended the efforts of petitioner to be adjudged as performing governmental rather than
proprietary functions cannot militate against respondent Court assuming jurisdiction over this labor dispute. So it
was mentioned earlier. As far back as Tabora v. Montelibano, 32 this Court, speaking through Justice Padilla,
declared: The NARIC was established by the Government to protect the people against excessive or unreasonable
rise in the price of cereals by unscrupulous dealers. With that main objective there is no reason why its function
should not be deemed governmental. The Government owes its very existence to that aim and purpose — to protect
the people." 33 In a subsequent case, Naric Worker's Union v. Hon. Alvendia, 34 decided four years later, this Court,
relying on Philippine Association of Free Labor Unions v. Tan, 35 which specified the cases within the exclusive
jurisdiction of the Court of Industrial Relations, included among which is one that involves hours of employment
under the Eight-Hour Labor Law, ruled that it is precisely respondent Court and not ordinary courts that should pass
upon that particular labor controversy. For Justice J. B. L. Reyes, the ponente, the fact that there were judicial as
well as administrative and executive pronouncements to the effect that the Naric was performing governmental
functions did not suffice to confer competence on the then respondent Judge to issue a preliminary injunction and to
entertain a complaint for damages, which as pointed out by the labor union, was connected with an unfair labor
practice. This is emphasized by the dispositive portion of the decision: "Wherefore, the restraining orders
complained of, dated May 19, 1958 and May 27, 1958, are set aside, and the complaint is ordered dismissed,
without prejudice to the National Rice and Corn Corporation's seeking whatever remedy it is entitled to in the Court
of Industrial Relations." 36 Then, too, in a case involving petitioner itself, Philippine Virginia Tobacco
Administration, 37 where the point in dispute was whether it was respondent Court or a court of first instance that is
possessed of competence in a declaratory relief petition for the interpretation of a collective bargaining agreement,
one that could readily be thought of as pertaining to the judiciary, the answer was that "unless the law speaks clearly
and unequivocally, the choice should fall on the Court of Industrial Relations." 38 Reference to a number of decisions
which recognized in the then respondent Court the jurisdiction to determine labor controversies by government-
owned or controlled corporations lends to support to such an approach. 39 Nor could it be explained only on the
assumption that proprietary rather than governmental functions did call for such a conclusion. It is to be admitted
that such a view was not previously bereft of plausibility. With the aforecited Agricultural Credit and Cooperative
Financing Administration decision rendering obsolete the Bacani doctrine, it has, to use a Wilsonian phrase, now
lapsed into "innocuous desuetude." 40 Respondent Court clearly was vested with jurisdiction.

3. The contention of petitioner that the Eight-Hour Labor Law 41 does not apply to it hardly deserves any extended
consideration. There is an air of casualness in the way such an argument was advanced in its petition for review as
well as in its brief. In both pleadings, it devoted less than a full page to its discussion. There is much to be said for
brevity, but not in this case. Such a terse and summary treatment appears to be a reflection more of the inherent
weakness of the plea rather than the possession of an advocate's enviable talent for concision. It did cite Section 2
of the Act, but its very language leaves no doubt that "it shall apply to all persons employed in any industry or
occupation, whether public or private ... ." 42 Nor are private respondents included among the employees who are
thereby barred from enjoying the statutory benefits. It cited Marcelo v. Philippine National Red Cross 43 and Boy
Scouts of the Philippines v. Araos.44 Certainly, the activities to which the two above public corporations devote
themselves can easily be distinguished from that engaged in by petitioner. A reference to the pertinent sections of
both Republic Acts 2265 and 2155 on which it relies to obtain a ruling as to its governmental character should
render clear the differentiation that exists. If as a result of the appealed order, financial burden would have to be
borne by petitioner, it has only itself to blame. It need not have required private respondents to render overtime
service. It can hardly be surmised that one of its chief problems is paucity of personnel. That would indeed be a
cause for astonishment. It would appear, therefore, that such an objection based on this ground certainly cannot
suffice for a reversal. To repeat, respondent Court must be sustained.

WHEREFORE, the appealed Order of March 21, 1970 and the Resolution of respondent Court en banc of May 8,
1970 denying a motion for reconsideration are hereby affirmed. The last sentence of the Order of March 21, 1970
reads as follows: "To find how much each of them [private respondents] is entitled under this judgment, the Chief of
the Examining Division, or any of his authorized representative, is hereby directed to make a reexamination of
records, papers and documents in the possession of respondent PVTA pertinent and proper under the premises and
to submit his report of his findings to the Court for further disposition thereof." Accordingly, as provided by the New
Labor Code, this case is referred to the National Labor Relations Commission for further proceedings conformably
to law. No costs.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9959 December 13, 1916

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by the Treasurer of the Philippine
Islands,plaintiff-appellee,
vs.
EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE MANILA, defendant-appellant.

William A. Kincaid and Thomas L. Hartigan for appellant.

Attorney-General Avanceña for appellee.

TRENT, J.:

About $400,000, were subscribed and paid into the treasury of the Philippine Islands by the inhabitants of the
Spanish Dominions of the relief of those damaged by the earthquake which took place in the Philippine Islands on
June 3, 1863. Subsequent thereto and on October 6 of that year, a central relief board was appointed, by authority
of the King of Spain, to distribute the moneys thus voluntarily contributed. After a thorough investigation and
consideration, the relief board allotted $365,703.50 to the various sufferers named in its resolution, dated
September 22, 1866, and, by order of the Governor-General of the Philippine Islands, a list of these allotments,
together with the names of those entitled thereto, was published in the Official Gazette of Manila dated April 7, 1870.
There was later distributed, inaccordance with the above-mentioned allotments, the sum of $30,299.65, leaving a
balance of S365,403.85 for distribution. Upon the petition of the governing body of the Monte de Piedad, dated
February 1, 1833, the Philippine Government, by order dated the 1st of that month, directed its treasurer to turn over
to the Monte de Piedad the sum of $80,000 of the relief fund in installments of $20,000 each. These amounts were
received on the following dates: February 15, March 12, April 14, and June 2, 1883, and are still in the possession of
the Monte de Piedad. On account of various petitions of the persons, and heirs of others to whom the above-
mentioned allotments were made by the central relief board for the payment of those amounts, the Philippine
Islands to bring suit against the Monte de Piedad a recover, "through the Attorney-General and in representation of
the Government of the Philippine Islands," the $80.000, together with interest, for the benefit of those persons or
their heirs appearing in the list of names published in the Official Gazette instituted on May 3, 1912, by the
Government of the Philippine Islands, represented by the Insular Treasurer, and after due trial, judgment was
entered in favor of the plaintiff for the sum of $80,000 gold or its equivalent in Philippine currency, together with legal
interest from February 28, 1912, and the costs of the cause. The defendant appealed and makes the following
assignment of errors:

1. The court erred in not finding that the eighty thousand dollars ($80,000), give to the Monte de Piedad y Caja
de Ahorros, were so given as a donation subject to one condition, to wit: the return of such sum of money to the
Spanish Government of these Islands, within eight days following the day when claimed, in case the Supreme
Government of Spain should not approve the action taken by the former government.

2. The court erred in not having decreed that this donation had been cleared; said eighty thousand dollars
($80,000) being at present the exclusive property of the appellant the Monte de Piedad y Caja de Ahorros.

3. That the court erred in stating that the Government of the Philippine Islands has subrogated the Spanish
Government in its rights, as regards an important sum of money resulting from a national subscription opened
by reason of the earthquake of June 3, 1863, in these Island.
 4. That the court erred in not declaring that Act Numbered 2109, passed by the Philippine Legislature on
January 30, 1912, is unconstitutional.

5. That the court erred in holding in its decision that there is no title for the prescription of this suit brought by the
Insular Government against the Monte de Piedad y Caja de Ahorros for the reimbursement of the eighty
thousand dollars ($80,000) given to it by the late Spanish Government of these Islands.

6. That the court erred in sentencing the Monte de Piedad y Caja de Ahorros to reimburse the Philippine
Government in the sum of eighty thousand dollars ($80,000) gold coin, or the equivalent thereof in the present
legal tender currency in circulation, with legal interest thereon from February 28th, 1912, and the costs of this
suit.

In the royal order of June 29, 1879, the Governor-General of the Philippine Islands was directed to inform the home
Government in what manner the indemnity might be paid to which, by virtue of the resolutions of the relief board, the
persons who suffered damage by the earthquake might be entitled, in order to perform the sacred obligation which
the Government of Spain had assumed toward the donors.

The next pertinent document in order is the defendant's petition, dated February 1, 1883, addressed to the
Governor-General of the Philippine Islands, which reads:

Board of Directors of the Monte de Piedad of Manila Presidencia.

Excellency: The Board of Directors of the Monte de Piedad y Caja de Ahorros of Manila informs your
Excellency, First: That the funds which it has up to the present been able to dispose of have been exhausted in
loans on jewelry, and there only remains the sum of one thousand and odd pesos, which will be expended
between to-day and day after tomorrow. Second: That, to maintain the credit of the establishment, which would
be greatly injured were its operations suspended, it is necessary to procure money. Third: That your Excellency
has proposed to His Majesty's Government to apply to the funds of the Monte de Piedad a part of the funds held
in the treasury derived form the national subscription for the relief of the distress caused by the earthquake of
1863. Fourth: That in the public treasury there is held at the disposal of the central earthquake relief board over
$1090,000 which was deposited in the said treasury by order of your general Government, it having been
transferred thereto from the Spanish-Filipino Bank where it had been held. fifth: That in the straightened
circumstances of the moment, your Excellency can, to avert impending disaster to the Monte de Piedad, order
that, out of that sum of one hundred thousand pesos held in the Treasury at the disposal of the central relief
board, there be transferred to the Monte de Piedad the sum of $80,000, there to be held under the same
conditions as at present in the Treasury, to wit, at the disposal of the Relief Board. Sixth: That should this
transfer not be approved for any reason, either because of the failure of His Majesty's Government to approve
the proposal made by your Excellency relative to the application to the needs of the Monte de Piedad of a pat of
the subscription intended to believe the distress caused by the earthquake of 1863, or for any other reason, the
board of directors of the Monte de Piedad obligates itself to return any sums which it may have received on
account of the eighty thousand pesos, or the whole thereof, should it have received the same, by securing a
loan from whichever bank or banks may lend it the money at the cheapest rate upon the security of pawned
jewelry. — This is an urgent measure to save the Monte de Piedad in the present crisis and the board of
directors trusts to secure your Excellency's entire cooperation and that of the other officials who have take part
in the transaction.

The Governor-General's resolution on the foregoing petition is as follows:

GENERAL GOVERNMENT OF THE PHILIPPINES.

MANILA, February 1, 1883.

In view of the foregoing petition addressed to me by the board of directors of the Monte de Piedad of this city, in
which it is stated that the funds which the said institution counted upon are nearly all invested in loans on jewelry
and that the small account remaining will scarcely suffice to cover the transactions of the next two days, for
which reason it entreats the general Government that, in pursuance of its telegraphic advice to H. M.
Government, the latter direct that there be turned over to said Monte de Piedad $80,000 out of the funds in the
public treasury obtained from the national subscription for the relief of the distress caused by the earthquake of
1863, said board obligating itself to return this sum should H. M. Government, for any reason, not approve the
 said proposal, and for this purpose it will procure funds by means of loans raised on pawned jewelry; it stated
further that if the aid so solicited is not furnished, it will be compelled to suspend operations, which would
seriously injure the credit of so beneficient an institution; and in view of the report upon the matter made by the
Intendencia General de Hacienda; and considering the fact that the public treasury has on hand a much greater
sum from the source mentioned than that solicited; and considering that this general Government has submitted
for the determination of H. M. Government that the balance which, after strictly applying the proceeds obtained
from the subscription referred to, may remain as a surplus should be delivered to the Monte de Piedad, either as
a donation, or as a loan upon the security of the credit of the institution, believing that in so doing the wishes of
the donors would be faithfully interpreted inasmuch as those wishes were no other than to relieve distress, an
act of charity which is exercised in the highest degree by the Monte de Piedad, for it liberates needy person from
the pernicious effects of usury; and

Considering that the lofty purposes that brought about the creation of the pious institution referred to would be
frustrated, and that the great and laudable work of its establishment, and that the great and laudable and
valuable if the aid it urgently seeks is not granted, since the suspension of its operations would seriously and
regrettably damage the ever-growing credit of the Monte de Piedad; and

Considering that if such a thing would at any time cause deep distress in the public mind, it might be said that at
the present juncture it would assume the nature of a disturbance of public order because of the extreme poverty
of the poorer classes resulting from the late calamities, and because it is the only institution which can mitigate
the effects of such poverty; and

Considering that no reasonable objection can be made to granting the request herein contained, for the funds in
question are sufficiently secured in the unlikely event that H> M. Government does not approve the
recommendation mentioned, this general Government, in the exercise of the extraordinary powers conferred
upon it and in conformity with the report of the Intendencia de Hacienda, resolves as follows:

First. Authority is hereby given to deliver to the Monte de Piedad, out of the sum held in the public treasury of
these Islands obtained from the national subscription opened by reason of the earthquakes of 1863, amounts up
to the sum $80,000, as its needs may require, in installments of $20,000.

Second. The board of directors of the Monte de Piedad is solemnly bound to return, within eight days after
demand, the sums it may have so received, if H. M. Government does not approve this resolution.

Third. The Intendencia General de Hacienda shall forthwith, and in preference to all other work, proceed to
prepare the necessary papers so that with the least possible delay the payment referred to may be made and
the danger that menaces the Monte de Piedad of having to suspend its operations may be averted.

H. M. Government shall be advised hereof. lawphi 1.net

(Signed) P. DE RIVERA.

By the royal order of December 3, 1892, the Governor-General of the Philippine Islands was ordered to "inform
this ministerio what is the total sum available at the present time, taking into consideration the sums delivered to
the Monte de Piedad pursuant to the decree issued by your general Government on February 1, 1883," and after
the rights of the claimants, whose names were published in the Official Gazette of Manila on April 7, 1870, and their
heirs had been established, as therein provided, as such persons "have an unquestionable right to be paid the
donations assigned to them therein, your general Government shall convoke them all within a reasonable period
and shall pay their shares to such as shall identify themselves, without regard to their financial status," and finally
"that when all the proceedings and operations herein mentioned have been concluded and the Government can
consider itself free from all kinds of claims on the part of those interested in the distribution of the funds deposited in
the vaults of the Treasury, such action may be taken as the circumstances shall require, after first consulting the
relief board and your general Government and taking account of what sums have been delivered to the Monte de
Piedad and those that were expended in 1888 to relieve public calamities," and "in order that all the points in
connection with the proceedings had as a result of the earthquake be clearly understood, it is indispensable that the
offices hereinbefore mentioned comply with the provisions contained in paragraphs 2 and 3 of the royal order of
June 25, 1879." On receipt of this Finance order by the Governor-General, the Department of Finance was called
upon for a report in reference to the $80,000 turned over to the defendant, and that Department's report to the
Governor-General dated June 28, 1893, reads:
 Intendencia General de Hacienda de Filipinas (General Treasury of the Philippines) — Excellency. — By Royal
Order No. 1044 of December 3, last, it is provided that the persons who sustained losses by the earthquakes
that occurred in your capital in the year 1863 shall be paid the amounts allotted to them out of the sums sent
from Spain for this purpose, with observance of the rules specified in the said royal order, one of them being that
before making the payment to the interested parties the assets shall be reduced to money. These assets, during
the long period of time that has elapsed since they were turned over to the Treasury of the Philippine Islands,
were used to cover the general needs of the appropriation, a part besides being invested in the relief of
charitable institutions and another part to meet pressing needs occasioned by public calamities. On January 30,
last, your Excellency was please to order the fulfillment of that sovereign mandate and referred the same to
this Intendencia for its information and the purposes desired (that is, for compliance with its directions and, as
aforesaid, one of these being the liquidation, recovery, and deposit with the Treasury of the sums paid out of
that fund and which were expended in a different way from that intended by the donors) and this Intendencia
believed the moment had arrived to claim from the board of directors of the Monte de Piedad y Caja de
Ahorros the sum of 80,000 pesos which, by decree of your general Government of the date of February 1, 1883,
was loaned to it out of the said funds, the (Monte de Piedad) obligating itself to return the same within the period
of eight days if H. M. Government did not approve the delivery. On this Intendencia's demanding from the Monte
de Piedad the eighty thousand pesos, thus complying with the provisions of the Royal Order, it was to be
supposed that no objection to its return would be made by the Monte de Piedad for, when it received the loan, it
formally engaged itself to return it; and, besides, it was indisputable that the moment to do so had arrived,
inasmuch as H. M. Government, in ordering that the assets of the earthquake relief fund should he collected,
makes express mention of the 80,000 pesos loaned to the Monte de Piedad, without doubt considering as
sufficient the period of ten years during which it has been using this large sum which lawfully belongs to their
persons. This Intendencia also supposed that the Monte de Piedad no longer needed the amount of that loan,
inasmuch as, far from investing it in beneficient transactions, it had turned the whole amount into the voluntary
deposit funds bearing 5 per cent interests, the result of this operation being that the debtor loaned to the creditor
on interest what the former had gratuitously received. But the Monte de Piedad, instead of fulfilling the promise it
made on receiving the sum, after repeated demands refused to return the money on the ground that only your
Excellency, and not the Intendencia (Treasury), is entitled to order the reimbursement, taking no account of the
fact that this Intendencia was acting in the discharge of a sovereign command, the fulfillment of which your
Excellency was pleased to order; and on the further ground that the sum of 80,000 pesos which it received from
the fund intended for the earthquake victims was not received as a loan, but as a donation, this in the opinion of
this Intendencia, erroneously interpreting both the last royal order which directed the apportionment of the
amount of the subscription raised in the year 1863 and the superior decree which granted the loan, inasmuch as
in this letter no donation is made to the Monte de Piedad of the 80,000 pesos, but simply a loan; besides, no
donation whatever could be made of funds derived from a private subscription raised for a specific purpose,
which funds are already distributed and the names of the beneficiaries have been published in the Gaceta, there
being lacking only the mere material act of the delivery, which has been unduly delayed. In view of the
unexpected reply made by the Monte de Piedad, and believing it useless to insist further in the matter of the
claim for the aforementioned loan, or to argue in support thereof, this Intendencia believes the intervention of
your Excellency necessary in this matter, if the royal Order No. 1044 of December 3, last, is to be complied with,
and for this purpose I beg your Excellency kindly to order the Monte de Piedad to reimburse within the period of
eight days the 80,000 which it owes, and that you give this Intendencia power to carry out the provisions of the
said royal order. I must call to the attention of your Excellency that the said pious establishment, during the last
few days and after demand was made upon it, has endorsed to the Spanish-Filipino Bank nearly the whole of
the sum which it had on deposit in the general deposit funds.

The record in the case under consideration fails to disclose any further definite action taken by either the Philippine
Government or the Spanish Government in regard to the $80,000 turned over to the Monte de Piedad.

In the defendant's general ledger the following entries appear: "Public Treasury: February 15, 1883, $20,000; March
12, 1883, $20,000; April 14, 1883, $20,000; June 2, 1883, $20,000, total $80,000." The book entry for this total is as
follows: "To the public Treasury derived from the subscription for the earthquake of 1863, $80,000 received from
general Treasury as a returnable loan, and without interest." The account was carried in this manner until January 1,
1899, when it was closed by transferring the amount to an account called "Sagrada Mitra," which latter account was
a loan of $15,000 made to the defendant by the Archbishop of Manila, without interest, thereby placing the "Sagrada
Mitra" account at $95,000 instead of $15,000. The above-mentioned journal entry for January 1, 1899, reads:
"Sagrada Mitra and subscription, balance of these two account which on this date are united in accordance with an
order of the Exmo. Sr. Presidente of the Council transmitted verbally to the Presidente Gerente of these institutions,
$95,000."
On March 16, 1902, the Philippine government called upon the defendant for information concerning the status of
the $80,000 and received the following reply:

MANILA, March 31, 1902.

To the Attorney-General of the Department of Justice of the Philippine Islands.

SIR: In reply to your courteous letter of the 16th inst., in which you request information from this office as to
when and for what purpose the Spanish Government delivered to the Monte de Piedad eighty thousand pesos
obtained from the subscription opened in connection with the earthquake of 1863, as well as any other
information that might be useful for the report which your office is called upon to furnish, I must state to your
department that the books kept in these Pious Institutions, and which have been consulted for the purpose,
show that on the 15th of February, 1883, they received as a reimbursable loan and without interest, twenty
thousand pesos, which they deposited with their own funds. On the same account and on each of the dates of
March 12, April 14 and June 2 of the said year, 1883, they also received and turned into their funds a like sum of
twenty thousand pesos, making a total of eighty thousand pesos. — (Signed) Emilio Moreta.

I hereby certify that the foregoing is a literal copy of that found in the letter book No. 2 of those Pious Institutions.

Manila, November 19, 1913

(Sgd.) EMILIO LAZCANOTEGUI,
Secretary

(Sgd.) O. K. EMILIO MORETA,

Managing Director.

The foregoing documentary evidence shows the nature of the transactions which took place between the
Government of Spain and the Philippine Government on the one side and the Monte de Piedad on the other,
concerning the $80,000. The Monte de Piedad, after setting forth in its petition to the Governor-General its financial
condition and its absolute necessity for more working capital, asked that out of the sum of $100,000 held in the
Treasury of the Philippine Islands, at the disposal of the central relief board, there be transferred to it the sum of
$80,000 to be held under the same conditions, to wit, "at the disposal of the relief board." The Monte de Piedad
agreed that if the transfer of these funds should not be approved by the Government of Spain, the same would be
returned forthwith. It did not ask that the $80,000 be given to it as a donation. The Governor-General, after reciting
the substance of the petition, stated that "this general Government has submitted for the determination of H. M.
Government that the balance which, after strictly applying the proceeds obtained from the subscription referred to,
may remain as a surplus, should be delivered to the Monte de Piedad, either as a donation, or as a loan upon the
security of the credit of the institution," and "considering that no reasonable objection can be made to granting the
request herein contained," directed the transfer of the $80,000 to be made with the understanding that "the Board of
Directors of the Monte de Piedad is solemnly bound to return, within eight days after demand, the sums it may have
so received, if H. M. Government does not approve this resolution." It will be noted that the first and only time the
word "donation" was used in connection with the $80,000 appears in this resolution of the Governor-General. It may
be inferred from the royal orders that the Madrid Government did tacitly approve of the transfer of the $80,000 to the
Monte de Piedad as a loan without interest, but that Government certainly did not approve such transfer as a
donation for the reason that the Governor-General was directed by the royal order of December 3, 1892, to inform
the Madrid Government of the total available sum of the earthquake fund, "taking into consideration the sums
delivered to the Monte de Piedad pursuant to the decree issued by your general Government on February 1, 1883."
This language, nothing else appearing, might admit of the interpretation that the Madrid Government did not intend
that the Governor-General of the Philippine Islands should include the $80,000 in the total available sum, but when
considered in connection with the report of the Department of Finance there can be no doubt that it was so intended.
That report refers expressly to the royal order of December 3d, and sets forth in detail the action taken in order to
secure the return of the $80,000. The Department of Finance, acting under the orders of the Governor-General,
understood that the $80,000 was transferred to the Monte de Piedad well knew that it received this sum as a loan
interest." The amount was thus carried in its books until January, 1899, when it was transferred to the account of the
"Sagrada Mitra" and was thereafter known as the "Sagrada Mitra and subscription account." Furthermore, the Monte
de Piedad recognized and considered as late as March 31, 1902, that it received the $80,000 "as a returnable loan,
and without interest." Therefore, there cannot be the slightest doubt the fact that the Monte de Piedad received the
$80,000 as a mere loan or deposit and not as a donation. Consequently, the first alleged error is entirely without
foundation.

Counsel for the defendant, in support of their third assignment of error, say in their principal brief that:

The Spanish nation was professedly Roman Catholic and its King enjoyed the distinction of being deputy ex
officio of the Holy See and Apostolic Vicar-General of the Indies, and as such it was his duty to protect all pious
works and charitable institutions in his kingdoms, especially those of the Indies; among the latter was the Monte
de Piedad of the Philippines, of which said King and his deputy the Governor-General of the Philippines, as
royal vice-patron, were, in a special and peculiar manner, the protectors; the latter, as a result of the cession of
the Philippine Islands, Implicitly renounced this high office and tacitly returned it to the Holy See, now
represented by the Archbishop of Manila; the national subscription in question was a kind of foundation or pious
work, for a charitable purpose in these Islands; and the entire subscription not being needed for its original
purpose, the royal vice-patron, with the consent of the King, gave the surplus thereof to an analogous purpose;
the fulfillment of all these things involved, in the majority, if not in all cases, faithful compliance with the duty
imposed upon him by the Holy See, when it conferred upon him the royal patronage of the Indies, a thing that
touched him very closely in his conscience and religion; the cessionary Government though Christian, was not
Roman Catholic and prided itself on its policy of non-interference in religious matters, and inveterately
maintained a complete separation between the ecclesiastical and civil powers.

In view of these circumstances it must be quite clear that, even without the express provisions of the Treaty of
Paris, which apparently expressly exclude such an idea, it did not befit the honor of either of the contracting
parties to subrogate to the American Government in lieu of the Spanish Government anything respecting the
disposition of the funds delivered by the latter to the Monte de Piedad. The same reasons that induced the
Spanish Government to take over such things would result in great inconvenience to the American Government
in attempting to do so. The question was such a delicate one, for the reason that it affected the conscience,
deeply religious, of the King of Spain, that it cannot be believed that it was ever his intention to confide the
exercise thereof to a Government like the American. (U. S. vs. Arredondo, 6 Pet. [U. S.], 711.)

It is thus seen that the American Government did not subrogate the Spanish Government or rather, the King of
Spain, in this regard; and as the condition annexed to the donation was lawful and possible of fulfillment at the
time the contract was made, but became impossible of fulfillment by the cession made by the Spanish
Government in these Islands, compliance therewith is excused and the contract has been cleared thereof.

The contention of counsel, as thus stated, in untenable for two reason, (1) because such contention is based upon
the erroneous theory that the sum in question was a donation to the Monte de Piedad and not a loan, and (2)
because the charity founded by the donations for the earthquake sufferers is not and never was intended to be an
ecclesiastical pious work. The first proposition has already been decided adversely to the defendant's contention. As
to the second, the record shows clearly that the fund was given by the donors for a specific and definite purpose —
the relief of the earthquake sufferers — and for no other purpose. The money was turned over to the Spanish
Government to be devoted to that purpose. The Spanish Government remitted the money to the Philippine
Government to be distributed among the suffers. All officials, including the King of Spain and the Governor-General
of the Philippine Islands, who took part in the disposal of the fund, acted in their purely civil, official capacity, and the
fact that they might have belonged to a certain church had nothing to do with their acts in this matter. The church, as
such, had nothing to do with the fund in any way whatever until the $80,000 reached the coffers of the Monte de
Piedad (an institution under the control of the church) as a loan or deposit. If the charity in question had been
founded as an ecclesiastical pious work, the King of Spain and the Governor-General, in their capacities as vicar-
general of the Indies and as royal vice-patron, respectively, would have disposed of the fund as such and not in their
civil capacities, and such functions could not have been transferred to the present Philippine Government, because
the right to so act would have arisen out of the special agreement between the Government of Spain and the Holy
See, based on the union of the church and state which was completely separated with the change of sovereignty.

And in their supplemental brief counsel say:

By the conceded facts the money in question is part of a charitable subscription. The donors were persons in
Spain, the trustee was the Spanish Government, the donees, the cestuis que trustent, were certain persons in
the Philippine Islands. The whole matter is one of trusteeship. This is undisputed and indisputable. It follows that
the Spanish Government at no time was the owner of the fund. Not being the owner of the fund it could not
 transfer the ownership. Whether or not it could transfer its trusteeship it certainly never has expressly done so
and the general terms of property transfer in the Treaty of Paris are wholly insufficient for such a purpose even
could Spain have transferred its trusteeship without the consent of the donors and even could the United States,
as a Government, have accepted such a trust under any power granted to it by the thirteen original States in the
Constitution, which is more than doubtful. It follows further that this Government is not a proper party to the
action. The only persons who could claim to be damaged by this payment to the Monte, if it was unlawful, are
the donors or the cestuis que trustent, and this Government is neither.

If "the whole matter is one of trusteeship," and it being true that the Spanish Government could not, as counsel say,
transfer the ownership of the fund to the Monte de Piedad, the question arises, who may sue to recover this loan? It
needs no argument to show that the Spanish or Philippine Government, as trustee, could maintain an action for this
purpose had there been no change of sovereignty and if the right of action has not prescribed. But those
governments were something more than mere common law trustees of the fund. In order to determine their exact
status with reference to this fund, it is necessary to examine the law in force at the time there transactions took
place, which are the law of June 20, 1894, the royal decree of April 27. 1875, and the instructions promulgated on
the latter date. These legal provisions were applicable to the Philippine Islands (Benedicto vs. De la Rama, 3 Phil.
Rep., 34)

The funds collected as a result of the national subscription opened in Spain by royal order of the Spanish
Government and which were remitted to the Philippine Government to be distributed among the earthquake
sufferers by the Central Relief Board constituted, under article 1 of the law of June 20, 1894, and article 2 of the
instructions of April 27, 1875, a special charity of a temporary nature as distinguished from a permanent public
charitable institution. As the Spanish Government initiated the creation of the fund and as the donors turned their
contributions over to that Government, it became the duty of the latter, under article 7 of the instructions, to exercise
supervision and control over the moneys thus collected to the end that the will of the donors should be carried out.
The relief board had no power whatever to dispose of the funds confided to its charge for other purposes than to
distribute them among the sufferers, because paragraph 3 of article 11 of the instructions conferred the power upon
the secretary of the interior of Spain, and no other, to dispose of the surplus funds, should there be any, by
assigning them to some other charitable purpose or institution. The secretary could not dispose of any of the funds
in this manner so long as they were necessary for the specific purpose for which they were contributed. The
secretary had the power, under the law above mentioned to appoint and totally or partially change the personnel of
the relief board and to authorize the board to defend the rights of the charity in the courts. The authority of the board
consisted only in carrying out the will of the donors as directed by the Government whose duty it was to watch over
the acts of the board and to see that the funds were applied to the purposes for which they were contributed .The
secretary of the interior, as the representative of His Majesty's Government, exercised these powers and duties
through the Governor-General of the Philippine Islands. The Governments of Spain and of the Philippine Islands in
complying with their duties conferred upon them by law, acted in their governmental capacities in attempting to carry
out the intention of the contributors. It will this be seen that those governments were something more, as we have
said, than mere trustees of the fund.

It is further contended that the obligation on the part of the Monte de Piedad to return the $80,000 to the
Government, even considering it a loan, was wiped out on the change of sovereignty, or inn other words, the
present Philippine Government cannot maintain this action for that reason. This contention, if true, "must result from
settled principles of rigid law," as it cannot rest upon any title to the fund in the Monte de Piedad acquired prior to
such change. While the obligation to return the $80,000 to the Spanish Government was still pending, war between
the United States and Spain ensued. Under the Treaty of Paris of December 10, 1898, the Archipelago, known as
the Philippine Islands, was ceded to the United States, the latter agreeing to pay Spain the sum of $20,000,000.
Under the first paragraph of the eighth article, Spain relinquished to the United States "all buildings, wharves,
barracks, forts, structures, public highways, and other immovable property which, in conformity with law, belonged to
the public domain, and as such belonged to the crown of Spain." As the $80,000 were not included therein, it is said
that the right to recover this amount did not, therefore, pass to the present sovereign. This, in our opinion, does not
follow as a necessary consequence, as the right to recover does not rest upon the proposition that the $80,000 must
be "other immovable property" mentioned in article 8 of the treaty, but upon contractual obligations incurred before
the Philippine Islands were ceded to the United States. We will not inquire what effect his cession had upon the law
of June 20, 1849, the royal decree of April 27, 1875, and the instructions promulgated on the latter date. In
Vilas vs.Manila (220 U. S., 345), the court said:
 That there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious.
That all laws theretofore in force which are in conflict with the political character, constitution, or institutions of
the substituted sovereign, lose their force, is also plain. (Alvarez y Sanchez vs. United States, 216 U. S., 167.)
But it is equally settled in the same public law that the great body of municipal law which regulates private and
domestic rights continues in force until abrogated or changed by the new ruler.

If the above-mentioned legal provisions are in conflict with the political character, constitution or institutions of the
new sovereign, they became inoperative or lost their force upon the cession of the Philippine Islands to the United
States, but if they are among "that great body of municipal law which regulates private and domestic rights," they
continued in force and are still in force unless they have been repealed by the present Government. That they fall
within the latter class is clear from their very nature and character. They are laws which are not political in any sense
of the word. They conferred upon the Spanish Government the right and duty to supervise, regulate, and to some
extent control charities and charitable institutions. The present sovereign, in exempting "provident institutions,
savings banks, etc.," all of which are in the nature of charitable institutions, from taxation, placed such institutions, in
so far as the investment in securities are concerned, under the general supervision of the Insular Treasurer
(paragraph 4 of section 111 of Act No. 1189; see also Act No. 701).

Furthermore, upon the cession of the Philippine Islands the prerogatives of he crown of Spain devolved upon he
United States. In Magill vs. Brown (16 Fed. Cas., 408), quoted with approval in Mormon Charch vs. United States
(136 U. S.,1, 57), the court said:

The Revolution devolved on the State all the transcendent power of Parliament, and the prerogative of the
crown, and gave their Acts the same force and effect.

In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering the opinion of the court in a charity case,
said:

When this country achieved its independence, the prerogatives of the crown devolved upon the people of the
States. And this power still remains with them except so fact as they have delegated a portion of it to the Federal
Government. The sovereign will is made known to us by legislative enactment. The State as a sovereign, is
the parens patriae.

Chancelor Kent says:

In this country, the legislature or government of the State, as parens patriae, has the right to enforce all charities
of public nature, by virtue of its general superintending authority over the public interests, where no other person
is entrusted with it. (4 Kent Com., 508, note.)

The Supreme Court of the United States in Mormon Church vs. United States, supra, after approving also the last
quotations, said:

This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged
in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted
by irresponsible monarchs to the great detriment of the people and the destruction of their liberties. On the
contrary, it is a most beneficient functions, and often necessary to be exercised in the interest of humanity, and
for the prevention of injury to those who cannot protect themselves.

The court in the same case, after quoting from Sohier vs. Mass. General Hospital (3 Cush., 483, 497), wherein the
latter court held that it is deemed indispensible that there should be a power in the legislature to authorize the same
of the estates of in facts, idiots, insane persons, and persons not known, or not in being, who cannot act for
themselves, said:

These remarks in reference to in facts, insane persons and person not known, or not in being, apply to the
beneficiaries of charities, who are often in capable of vindicating their rights, and justly look for protection to the
sovereign authority, acting as parens patriae. They show that this beneficient functions has not ceased t exist
under the change of government from a monarchy to a republic; but that it now resides in the legislative
 department, ready to be called into exercise whenever required for the purposes of justice and right, and is a
clearly capable of being exercised in cases of charities as in any other cases whatever.

In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff was not the real party in interest; that the
Attorney-General had no power to institute the action; and that there must be an allegation and proof of a distinct
right of the people as a whole, as distinguished from the rights of individuals, before an action could be brought by
the Attorney-General in the name of the people. The court, in overruling these contentions, held that it was not only
the right but the duty of the Attorney-General to prosecute the action, which related to charities, and approved the
following quotation from Attorney-General vs. Compton (1 Younge & C. C., 417):

Where property affected by a trust for public purposes is in the hands of those who hold it devoted to that trust, it
is the privilege of the public that the crown should be entitled to intervene by its officers for the purpose of
asserting, on behalf on the public generally, the public interest and the public right, which, probably, no
individual could be found effectually to assert, even if the interest were such as to allow it. (2 Knet's
Commentaries, 10th ed., 359; Lewin on Trusts, sec. 732.)

It is further urged, as above indicated, that "the only persons who could claim to be damaged by this payment to the
Monte, if it was unlawful, are the donors or the cestuis que trustent, and this Government is neither. Consequently,
the plaintiff is not the proper party to bring the action." The earthquake fund was the result or the accumulation of a
great number of small contributions. The names of the contributors do not appear in the record. Their whereabouts
are unknown. They parted with the title to their respective contributions. The beneficiaries, consisting of the original
sufferers and their heirs, could have been ascertained. They are quite numerous also. And no doubt a large number
of the original sufferers have died, leaving various heirs. It would be impracticable for them to institute an action or
actions either individually or collectively to recover the $80,000. The only course that can be satisfactorily pursued is
for the Government to again assume control of the fund and devote it to the object for which it was originally
destined.

The impracticability of pursuing a different course, however, is not the true ground upon which the right of the
Government to maintain the action rests. The true ground is that the money being given to a charity became, in a
measure, public property, only applicable, it is true, to the specific purposes to which it was intended to be devoted,
but within those limits consecrated to the public use, and became part of the public resources for promoting the
happiness and welfare of the Philippine Government. (Mormon Church vs. U. S., supra.) To deny the Government's
right to maintain this action would be contrary to sound public policy, as tending to discourage the prompt exercise
of similar acts of humanity and Christian benevolence in like instances in the future.

As to the question raised in the fourth assignment of error relating to the constitutionality of Act No. 2109, little need
be said for the reason that we have just held that the present Philippine Government is the proper party to the
action. The Act is only a manifestation on the part of the Philippine Government to exercise the power or right which
it undoubtedly had. The Act is not, as contended by counsel, in conflict with the fifth section of the Act of Congress
of July 1, 1902, because it does not take property without due process of law. In fact, the defendant is not the owner
of the $80,000, but holds it as a loan subject to the disposal of the central relief board. Therefor, there can be
nothing in the Act which transcends the power of the Philippine Legislature.

In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila as it existed before the cession of the
Philippine Islands to the United States by the Treaty of Paris of December 10, 1898. The action was brought upon
the theory that the city, under its present charter from the Government of the Philippine Islands, was the same
juristic person, and liable upon the obligations of the old city. This court held that the present municipality is a totally
different corporate entity and in no way liable for the debts of the Spanish municipality. The Supreme Court of the
United States, in reversing this judgment and in holding the city liable for the old debt, said:

The juristic identity of the corporation has been in no wise affected, and, in law, the present city is, in every legal
sense, the successor of the old. As such it is entitled to the property and property rights of the predecessor
corporation, and is, in law, subject to all of its liabilities.

In support of the fifth assignment of error counsel for the defendant argue that as the Monte de Piedad declined to
return the $80,000 when ordered to do so by the Department of Finance in June, 1893, the plaintiff's right of action
had prescribed at the time this suit was instituted on May 3, 1912, citing and relying upon article 1961, 1964 and
1969 of the Civil Code. While on the other hand, the Attorney-General contends that the right of action had not
prescribed (a) because the defense of prescription cannot be set up against the Philippine Government, (b) because
the right of action to recover a deposit or trust funds does not prescribe, and (c) even if the defense of prescription
could be interposed against the Government and if the action had, in fact, prescribed, the same was revived by Act
No. 2109.

The material facts relating to this question are these: The Monte de Piedad received the $80,000 in 1883 "to be held
under the same conditions as at present in the treasury, to wit, at the disposal of the relief board." In compliance
with the provisions of the royal order of December 3, 1892, the Department of Finance called upon the Monte de
Piedadin June, 1893, to return the $80,000. The Monte declined to comply with this order upon the ground that only
the Governor-General of the Philippine Islands and not the Department of Finance had the right to order the
reimbursement. The amount was carried on the books of the Monte as a returnable loan until January 1, 1899, when
it was transferred to the account of the "Sagrada Mitra." On March 31, 1902, the Monte, through its legal
representative, stated in writing that the amount in question was received as a reimbursable loan, without interest.
Act No. 2109 became effective January 30, 1912, and the action was instituted on May 3rd of that year.

Counsel for the defendant treat the question of prescription as if the action was one between individuals or
corporations wherein the plaintiff is seeking to recover an ordinary loan. Upon this theory June, 1893, cannot be
taken as the date when the statute of limitations began to run, for the reason that the defendant acknowledged in
writing on March 31, 1902, that the $80,000 were received as a loan, thereby in effect admitting that it still owed the
amount. (Section 50, Code of Civil Procedure.) But if counsels' theory is the correct one the action may have
prescribed on May 3, 1912, because more than ten full years had elapsed after March 31, 1902. (Sections 38 and
43, Code of Civil Procedure.)

Is the Philippine Government bound by the statute of limitations? The Supreme Court of the United States in U.
S. vs. Nashville, Chattanooga & St. Louis Railway Co. (118 U. S., 120, 125), said:

It is settled beyond doubt or controversy — upon the foundation of the great principle of public policy, applicable
to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the
officers or agents to whose care they are confided — that the United States, asserting rights vested in it as a
sovereign government, is not bound by any statute of limitations, unless Congress has clearly manifested its
intention that it should be so bound. (Lindsey vs. Miller, 6 Pet. 666; U. S. vs. Knight, 14 Pet., 301;
Gibson vs. Chouteau, 13 Wall., 92; U. S. vs. Thompson, 98 U. S., 486; Fink vs. O'Neil, 106 U. S., 272, 281.)

In Gibson vs. Choteau, supra, the court said:

It is a matter of common knowledge that statutes of limitation do not run against the State. That no laches can
be imputed to the King, and that no time can bar his rights, was the maxim of the common laws, and was
founded on the principle of public policy, that as he was occupied with the cares of government he ought not to
suffer from the negligence of his officer and servants. The principle is applicable to all governments, which must
necessarily act through numerous agents, and is essential to a preservation of the interests and property of the
public. It is upon this principle that in this country the statutes of a State prescribing periods within which rights
must be prosecuted are not held to embrace the State itself, unless it is expressly designated or the mischiefs to
be remedied are of such a nature that it must necessarily be included. As legislation of a State can only apply to
persons and thing over which the State has jurisdiction, the United States are also necessarily excluded from
the operation of such statutes.

In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated as follows:

In the absence of express statutory provision to the contrary, statute of limitations do not as a general rule run
against the sovereign or government, whether state or federal. But the rule is otherwise where the mischiefs to
be remedied are of such a nature that the state must necessarily be included, where the state goes into
business in concert or in competition with her citizens, or where a party seeks to enforces his private rights by
suit in the name of the state or government, so that the latter is only a nominal party.

In the instant case the Philippine Government is not a mere nominal party because it, in bringing and prosecuting
this action, is exercising its sovereign functions or powers and is seeking to carry out a trust developed upon it when
the Philippine Islands were ceded to the United States. The United States having in 1852, purchased as trustee for
the Chickasaw Indians under treaty with that tribe, certain bonds of the State of Tennessee, the right of action of the
Government on the coupons of such bonds could not be barred by the statute of limitations of Tennessee, either
while it held them in trust for the Indians, or since it became the owner of such coupons. (U. S. vs. Nashville, etc., R.
Co., supra.) So where lands are held in trust by the state and the beneficiaries have no right to sue, a statute does
not run against the State's right of action for trespass on the trust lands. (Greene Tp. vs. Campbell, 16 Ohio St., 11;
see also Atty.-Gen. vs. Midland R. Co., 3 Ont., 511 [following Reg. vs. Williams, 39 U. C. Q. B., 397].)

These principles being based "upon the foundation of the great principle of public policy" are, in the very nature of
things, applicable to the Philippine Government.

Counsel in their argument in support of the sixth and last assignments of error do not question the amount of the
judgment nor do they question the correctness of the judgment in so far as it allows interest, and directs its payment
in gold coin or in the equivalent in Philippine currency.

For the foregoing reasons the judgment appealed from is affirmed, with costs against the appellant. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 164785 March 15, 2010

ELISEO F. SORIANO, Petitioner,

vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television Review and
Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L.
GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO,
BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.

RESOLUTION

VELASCO, JR., J.:

Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the Decision of the Court dated April
29, 2009, modifying that of the Movie and Television Review and Classification Board (MTRCB) by imposing the
penalty of three-month suspension on the television show Ang Dating Daan, instead of on petitioner Soriano, as
host of that program.

Petitioner seeks reconsideration on the following grounds or issues: (1) the suspension thus meted out to the
program constitutes prior restraint; (2) the Court erred in ruling that his utterances1 did not constitute exercise of
religion; (3) the Court erred in finding the language used as offensive and obscene; (4) the Court should have
applied its policy of non-interference in cases of conflict between religious groups; and (5) the Court erred in
penalizing the television program for the acts of petitioner.

The motion has no merit.

Petitioner’s threshold posture that the suspension thus imposed constitutes prior restraint and an abridgement of his
exercise of religion and freedom of expression is a mere rehash of the position he articulated in the underlying
petitions for certiorari and expounded in his memorandum.2 So are the supportive arguments and some of the
citations of decisional law, Philippine and American, holding it together. They have been considered, sufficiently
discussed in some detail, and found to be without merit in our Decision. It would, thus, make little sense to embark
on another lengthy discussion of the same issues and arguments.

Suffice it to reiterate that the sanction imposed on the TV program in question does not, under the factual milieu of
the case, constitute prior restraint, but partakes of the nature of subsequent punishment for past violation committed
by petitioner in the course of the broadcast of the program on August 10, 2004. To be sure, petitioner has not
contested the fact of his having made statements on the air that were contextually violative of the program’s "G"
rating. To merit a "G" rating, the program must be "suitable for all ages," which, in turn, means that the "material for
television [does not], in the judgment of the [MTRCB], x x x contain anything unsuitable for children and minors, and
may be viewed without adult guidance or supervision."3 As previously discussed by the Court, the vulgar language
petitioner used on prime-time television can in no way be characterized as suitable for all ages, and is wholly
inappropriate for children.

Petitioner next harps on the primacy of his freedoms, referring particularly to the exercise of his religious beliefs and
profession, as presiding minister of his flock, over the right and duty of the state as parens patriae. Petitioner’s
position may be accorded some cogency, but for the fact that it fails to consider that the medium he used to make
his statements was a television broadcast, which is accessible to children of virtually all ages. As already laid down
in the Decision subject of this recourse, the interest of the government in protecting children who may be subjected
to petitioner’s invectives must take precedence over his desire to air publicly his dirty laundry. The public soapbox
that is television must be guarded by the state, which purpose the MTRCB serves, and has served, in suspending
Ang Dating Daan for petitioner’s statements. As emphasized in Gonzalez v. Kalaw Katigbak,4 the freedom of
broadcast media is, in terms of degree of protection it deserves, lesser in scope, especially as regards television,
which reaches every home where there is a set, and where children will likely be among the avid viewers of the
programs shown. The same case also laid the basis for the classification system of the MTRCB when it stated, "It
cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the
welfare of the young."5

The penalty of suspension imposed on petitioner has driven him to liken the Court to "a blind man who was asked to
describe an elephant, and by his description he stubbornly believed that an elephant is just the same as a Meralco
post after touching one if its legs."6 Petitioner makes this comparison with the view that the factual backdrop against
which his statements were made was purportedly not considered by the Court. As he presently argues:

The Honorable Court should have rendered its decision in light of the surrounding circumstances why and what
prompted herein petitioner to utter those words. Clearly, he was provoked because of the malicious and blatant
splicing by the INC ministers of his recorded voice. Verily, Petitioner submits that the choice of words he used has
been harsh but strongly maintains that the same was consistent with his constitutional right of freedom of speech
and religion.

Contrary to petitioner’s impression, the Court has, in fact, considered the factual antecedents of and his motive in
making his utterances, and has found those circumstances wanting as defense for violating the program’s "G"
rating. Consider the following excerpts from the Court’s Decision:

There is nothing in petitioner’s statements subject of the complaints expressing any particular religious belief,
nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible
exposition program does not automatically accord them the character of a religious discourse. Plain and simple
insults directed at another person cannot be elevated to the status of religious speech. Even petitioner’s attempts to
place his words in context show that he was moved by anger and the need to seek retribution, not by any religious
conviction. His claim, assuming its veracity, that some INC ministers distorted his statements respecting amounts
Ang Dating Daan owed to a TV station does not convert the foul language used in retaliation as religious speech.
We cannot accept that petitioner made his statements in defense of his reputation and religion, as they constitute no
intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that
petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have chosen to
contradict and disprove his detractors, but opted for the low road.

And just to set things straight, the penalty imposed is on the program, not on petitioner.

Petitioner would next have the Court adopt a hands-off approach to the conflict between him and the Iglesia Ni
Cristo. In support of his urging, he cites Iglesia ni Cristo v. Court of Appeals.7

Petitioner’s invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous. Obviously, he fails to
appreciate what the Court stated in that particular case when it rejected the argument that a religious program is
beyond MTRCB’s review and regulatory authority. We reproduce what the Court pertinently wrote in Iglesia ni
Cristo:

We thus reject petitioner’s postulate that its religious program is per se beyond review by the respondent [MTRCB].
Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a
medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious
freedom can be regulated by the State when it will bring about the clear and present danger of some substantive
evil which the State is duty bound to prevent, i.e. serious detriment to the more overriding interest of public health,
public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind
but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern
in our country today. Across the sea and in our shore, the bloodiest and bitterest wars fought by men were caused
by irreconcilable religious differences. Our country is still not safe from the recurrence of this stultifying strife
considering our warring religious beliefs and the fanaticism with which some of us cling and claw to these beliefs. x x
x For when religion divides and its exercise destroys, the State should not stand still.8 (Emphasis added.)

Lastly, petitioner claims that there was violation of due process of law, alleging that the registered producer of the
program is not a party to the proceedings. Hence, the program cannot, so petitioner asserts, be penalized.
We will let the records speak for themselves to refute that argument.

As per petitioner’s admission in his petition for certiorari filed with the Court, he is "the Executive Producer of Ang
Dating Daan, a televised bible exposition program produced by the Philippine-based religious organization, Church
of God International."9 It is unclear, then, which producer the movant is referring to in claiming that there was no
representation before the MTRCB. He was and is the representative of Ang Dating Daan, and the claim that there
was no due process of law is simply bereft of merit.

Even as the foregoing disquisitions would suffice to write finis to the instant motion, certain relevant issues have
been raised by some members of the Court that ought to be addressed if only to put things in their proper
perspective. We refer to the matter of obscenity.

As stressed at every possible turn in the challenged Court’s Decision, the defining standards to be employed in
judging the harmful effects of the statements petitioner used would be those for the average child, not those for the
average adult. We note that the ratings and regulation of television broadcasts take into account the protection of
the child, and it is from the child’s narrow viewpoint that the utterances must be considered, if not measured. The
ratings "G," "PG" (parental guidance), "PG-13," and "R" (restricted or for adults only) suggest as much. The concern
was then, as now, that the program petitioner hosted and produced would reach an unintended audience, the
average child, and so it is how this audience would view his words that matters. The average child would not be
concerned with colorful speech, but, instead, focus on the literal, everyday meaning of words used. It was this literal
approach that rendered petitioner’s utterances obscene. 1avv phi 1

The Court has taken stock of Action for Children’s Television v. FCC,10 but finds this U.S. case not to be of
governing application to this jurisdiction under the present state of things. The so-called "safe harbor" of 10:00 p.m.
to 6:00 a.m., adverted to in Action for Children’s Television as the time wherein broadcast of indecent material may
be permitted, is believed inapplicable here. As it were, there is no legislative enactment or executive issuance
setting a similar period in the Philippines wherein indecent material may be broadcast. Rather than fix a period for
allowing indecent programming, what is used in this jurisdiction is the system of classification of television programs,
which the petitioner violated. His program was rated "G," purported to be suitable for all ages. We cannot lose sight
of the violation of his program’s classification that carried with it the producer’s implied assurance that the program
did not contain anything unsuitable for children and minors. The hour at which it was broadcasted was of little
moment in light of the guarantee that the program was safe for children’s viewing.

The suspension of the program has not been arrived at lightly. Taking into account all the factors involved and the
arguments pressed on the Court, the suspension of the program is a sufficiently limited disciplinary action, both to
address the violation and to serve as an object lesson for the future. The likelihood is great that any disciplinary
action imposed on petitioner would be met with an equally energetic defense as has been put up here. The simple
but stubborn fact is that there has been a violation of government regulations that have been put in place with a
laudable purpose, and this violation must accordingly be dealt with. We are not unmindful of the concerns on the
restriction of freedoms that may occur in imposing sanctions upon erring individuals and institutions, but it cannot be
over-emphasized that the freedoms encased in the Bill of Rights are far from absolute. Each has its own limits,
responsibilities, and obligations. Everyone is expected to bear the burden implicit in the exercise of these freedoms.
So it must be here.

WHEREFORE, petitioner’s motion for reconsideration is hereby DENIED.

No further pleadings shall be entertained in this case. Let entry of judgment be made in due course.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 177728 July 31, 2009

JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA CRUZ "AQUINO," represented by JENIE SAN
JUAN DELA CRUZ, Petitioners,
vs.
RONALD PAUL S. GRACIA, in his capacity as City Civil Registrar of Antipolo City, Respondent.

DECISION

CARPIO MORALES, J.:

For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie) and then 19-year old
Christian Dominique Sto. Tomas Aquino (Dominique) lived together as husband and wife without the benefit of
marriage. They resided in the house of Dominique’s parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at
Pulang-lupa, Dulumbayan, Teresa, Rizal.

On September 4, 2005, Dominique died.1 After almost two months, or on November 2, 2005, Jenie, who continued
to live with Dominique’s parents, gave birth to her herein co-petitioner minor child Christian Dela Cruz "Aquino" at
the Antipolo Doctors Hospital, Antipolo City.

Jenie applied for registration of the child’s birth, using Dominique’s surname Aquino, with the Office of the City Civil
Registrar, Antipolo City, in support of which she submitted the child’s Certificate of Live Birth,2 Affidavit to Use the
Surname of the Father3 (AUSF) which she had executed and signed, and Affidavit of Acknowledgment executed by
Dominique’s father Domingo Butch Aquino.4 Both affidavits attested, inter alia, that during the lifetime of Dominique,
he had continuously acknowledged his yet unborn child, and that his paternity had never been questioned. Jenie
attached to the AUSF a document entitled "AUTOBIOGRAPHY" which Dominique, during his lifetime, wrote in his
own handwriting, the pertinent portions of which read:

AQUINO, CHRISTIAN DOMINIQUE S.T.

AUTOBIOGRAPHY

I’M CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20 THIS COMING
OCTOBER 31, 2005.5 I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM THE
YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED JOSEPH BUTCH STO. TOMAS AQUINO. MY
FATHER’S NAME IS DOMINGO BUTCH AQUINO AND MY MOTHER’S NAME IS RAQUEL STO. TOMAS
AQUINO. x x x.

xxxx

AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN OUR HOMETOWN,
TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE FELL IN LOVE WITH EACH OTHER,
THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE IS PREGNANT AND FOR THAT WE LIVE
TOGETHER IN OUR HOUSE NOW. THAT’S ALL.6 (Emphasis and underscoring supplied)

By letter dated November 11, 2005,7 the City Civil Registrar of Antipolo City, Ronald Paul S. Gracia
(respondent), denied Jenie’s application for registration of the child’s name in this wise:

7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and Regulations of Republic Act No.
9255 ["An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the Purpose, Article
176 of Executive Order No. 209, otherwise Known as the ‘Family Code of the Philippines’"]) provides that:
Rule 7. Requirements for the Child to Use the Surname of the Father

7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father, either
at the back of the Certificate of Live Birth or in a separate document.

7.1.2 If admission of paternity is made through a private handwritten instrument, the child shall use the surname of
the father, provided the registration is supported by the following documents:

a. AUSF8
b. Consent of the child, if 18 years old and over at the time of the filing of the document.
c. Any two of the following documents showing clearly the paternity between the father and the child:
1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)

In summary, the child cannot use the surname of his father because he was born out of wedlock and the father
unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to the child (either
through the back of Municipal Form No. 102 – Affidavit of Acknowledgment/Admission of Paternity – or the Authority
to Use the Surname of the Father). (Underscoring supplied)

Jenie and the child promptly filed a complaint9 for injunction/registration of name against respondent before the
Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539, which was raffled to Branch 73 thereof.
The complaint alleged that, inter alia, the denial of registration of the child’s name is a violation of his right to use the
surname of his deceased father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No.
9255,10 which provides:

Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and
shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their
father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his
lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (Emphasis
and underscoring supplied)

They maintained that the Autobiography executed by Dominique constitutes an admission of paternity in a "private
handwritten instrument" within the contemplation of the above-quoted provision of law.

For failure to file a responsive pleading or answer despite service of summons, respondent was declared in default.

Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her common-law relationship
with Dominique and affirmed her declarations in her AUSF that during his lifetime, he had acknowledged his yet
unborn child.11 She offered Dominique’s handwritten Autobiography (Exhibit "A") as her documentary evidence-in-
chief.12 Dominique’s lone brother, Joseph Butch S.T. Aquino, also testified, corroborating Jenie’s declarations.13

By Decision14 of April 25, 2007, the trial court dismissed the complaint "for lack of cause of action" as the
Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms) of Administrative Order (A.O.) No.
1, Series of 2004 (the Rules and Regulations Governing the Implementation of R.A. 9255) which defines
"private handwritten document" through which a father may acknowledge an illegitimate child as follows:

2.2 Private handwritten instrument – an instrument executed in the handwriting of the father and duly signed by
him where he expressly recognizes paternity to the child. (Underscoring supplied)
The trial court held that even if Dominique was the author of the handwritten Autobiography, the same does not
contain any express recognition of paternity. 1avv phi1

Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely legal issue of:

WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED FATHER OF MINOR
CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A "PRIVATE
HANDWRITTEN INSTRUMENT" WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS
AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID MINOR TO USE HIS FATHER’S
SURNAME.15(Underscoring supplied)

Petitioners contend that Article 176 of the Family Code, as amended, does not expressly require that the private
handwritten instrument containing the putative father’s admission of paternity must be signed by him. They add that
the deceased’s handwritten Autobiography, though unsigned by him, is sufficient, for the requirement in the above-
quoted paragraph 2.2 of the Administrative Order that the admission/recognition must be "duly signed" by the father
is void as it "unduly expanded" the earlier-quoted provision of Article 176 of the Family Code.16

Petitioners further contend that the trial court erred in not finding that Dominique’s handwritten Autobiography
contains a "clear and unmistakable" recognition of the child’s paternity.17

In its Comment, the Office of the Solicitor General (OSG) submits that respondent’s position, as affirmed by the trial
court, is in consonance with the law and thus prays for the dismissal of the petition. It further submits that
Dominique’s Autobiography "merely acknowledged Jenie’s pregnancy but not [his] paternity of the child she was
carrying in her womb."18

Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use the surname of his/her
father if the latter had expressly recognized him/her as his offspring through the record of birth appearing in the civil
register, or through an admission made in a public or private handwritten instrument. The recognition made in any of
these documents is, in itself, a consummated act of acknowledgment of the child’s paternity; hence, no separate
action for judicial approval is necessary.19

Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private handwritten
instrument acknowledging the child’s paternity must be signed by the putative father. This provision must, however,
be read in conjunction with related provisions of the Family Code which require that recognition by the father must
bear his signature, thus:

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.

xxxx

Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.

x x x x (Emphasis and underscoring supplied)

That a father who acknowledges paternity of a child through a written instrument must affix his signature thereon is
clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely
articulated such requirement; it did not "unduly expand" the import of Article 176 as claimed by petitioners.

In the present case, however, special circumstances exist to hold that Dominique’s Autobiography, though unsigned
by him, substantially satisfies the requirement of the law.
First, Dominique died about two months prior to the child’s birth. Second, the relevant matters in the Autobiography,
unquestionably handwritten by Dominique, correspond to the facts culled from the testimonial evidence Jenie
proffered.20 Third, Jenie’s testimony is corroborated by the Affidavit of Acknowledgment of Dominique’s father
Domingo Aquino and testimony of his brother Joseph Butch Aquino whose hereditary rights could be affected by the
registration of the questioned recognition of the child. These circumstances indicating Dominique’s paternity of the
child give life to his statements in his Autobiography that "JENIE DELA CRUZ" is "MY WIFE" as "WE FELL IN LOVE
WITH EACH OTHER" and "NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER."

In Herrera v. Alba,21 the Court summarized the laws, rules, and jurisprudence on establishing filiation, discoursing in
relevant part:

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.

xxxx

ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed
by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two persons is shown by evidence other than
such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of
family history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous
to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other
family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.

This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe
Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such
conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278
of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement
before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the
putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a
child whose filiation is admitted by the putative father was considered acceptable evidence. Letters to the mother
vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions,
together with the certificate of live birth, proved filiation. However, a student permanent record, a written consent to
a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic
writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation.
(Emphasis and underscoring supplied.)
In the case at bar, there is no dispute that the earlier quoted statements in Dominique’s Autobiography have been
made and written by him. Taken together with the other relevant facts extant herein – that Dominique, during his
lifetime, and Jenie were living together as common-law spouses for several months in 2005 at his parents’ house in
Pulang-lupa, Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and
about two months after his death, Jenie gave birth to the child – they sufficiently establish that the child of Jenie is
Dominique’s.

In view of the pronouncements herein made, the Court sees it fit to adopt the following rules respecting the
requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an
admission of filiation of a legitimate or illegitimate child is made:

1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there
should be strict compliance with the requirement that the same must be signed by the acknowledging parent;
and

2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it
suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging
parent as it is merely corroborative of such other evidence.

Our laws instruct that the welfare of the child shall be the "paramount consideration" in resolving questions affecting
him.22 Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is
similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration.23(Underscoring supplied)

It is thus "(t)he policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of
children, especially of illegitimate children x x x."24 Too, "(t)he State as parens patriae affords special protection to
children from abuse, exploitation and other conditions prejudicial to their development."25

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor child’s
best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate.

WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is DIRECTED to
immediately enter the surname of the late Christian Dominique Sto. Tomas Aquino as the surname of petitioner
minor Christian dela Cruz in his Certificate of Live Birth, and record the same in the Register of Births.

SO ORDERED.
 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.

FERIA, J.:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. The second question hinges upon the interpretation of the phrase "processes of any other government" as used
in the above-quoted proclamation of General Douglas MacArthur of October 23, 1944 — that is, whether it was the
intention of the Commander in Chief of the American Forces to annul and void thereby all judgments and judicial
proceedings of the courts established in the Philippines during the Japanese military occupation.

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

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

Moreover, from a contrary construction great inconvenience and public hardship would result, and great public
interests would be endangered and sacrificed, for disputes or suits already adjudged would have to be again settled
accrued or vested rights nullified, sentences passed on criminals set aside, and criminals might easily become
immune for evidence against them may have already disappeared or be no longer available, especially now that
almost all court records in the Philippines have been destroyed by fire as a consequence of the war. And it is
another well-established rule of statutory construction that where great inconvenience will result from a particular
construction, or great public interests would be endangered or sacrificed, or great mischief done, such construction
is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law,
unless required by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his representatives who reoccupies a
territory occupied by an enemy, may set aside or annul all the judicial acts or proceedings of the tribunals which the
belligerent occupant had the right and duty to establish in order to insure public order and safety during military
occupation, would be sufficient to paralyze the social life of the country or occupied territory, for it would have to be
expected that litigants would not willingly submit their litigation to courts whose judgements or decisions may
afterwards be annulled, and criminals would not be deterred from committing crimes or offenses in the expectancy
that they may escaped the penalty if judgments rendered against them may be afterwards set aside.

That the proclamation has not invalidated all the judgements and proceedings of the courts of justice during the
Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force of law, issued by the
President of the Philippines on March 10, 1945, by virtue of the emergency legislative power vested in him by the
Constitution and the laws of the Commonwealth of the Philippines. Said Executive order abolished the Court of
Appeals, and provided "that all case which have heretofore been duly appealed to the Court of Appeals shall be
transmitted to the Supreme Court final decision." This provision impliedly recognizes that the judgments and
proceedings of the courts during the Japanese military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or refer to cases which have been duly
appealed to said court prior to the Japanese occupation, but to cases which had therefore, that is, up to March 10,
1945, been duly appealed to the Court of Appeals; and it is to be presumed that almost all, if not all, appealed cases
pending in the Court of Appeals prior to the Japanese military occupation of Manila on January 2, 1942, had been
disposed of by the latter before the restoration of the Commonwealth Government in 1945; while almost all, if not all,
appealed cases pending on March 10, 1945, in the Court of Appeals were from judgments rendered by the Court of
First Instance during the Japanese regime.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Separate Opinions

DE JOYA, J., concurring:

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

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

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

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

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

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

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

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

ARTICLE XLIII. The authority of the legitimate power having actually passed into the hands of the occupant,
the later shall take all steps in his power to reestablish and insure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the laws in force in the country. (32 Stat. II, 1821.)
The above provisions of the Hague Convention have been adopted by the nations giving adherence to them, among
which is United States of America (32 Stat. II, 1821).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PERFECTO, J., dissenting:

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

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

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

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

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

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

THE OCTOBER PROCLAMATION

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

When victory in islands was accomplished, after the most amazing and spectacular war operations, General of the
Army Douglas MacArthur as a commander in Chief of the American Army, decided to reestablish, in behalf of the
United States, the Commonwealth Government.

Then he was confronted with the question as to what policy to adopt in regards to the official acts of the
governments established in the Philippines by the Japanese regime. He might have thought of recognizing the
validity of some of said acts, but, certainly, there were acts which he should declare null and void, whether against
the policies of the American Government, whether inconsistent with military strategy and operations, whether
detrimental to the interests of the American or Filipino peoples, whether for any other strong or valid reasons.

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

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

GENERAL HEADQUARTERS

SOUTHWEST PACIFIC AREA

OFFICE OF THE COMMANDER IN CHIEF

PROCLAMATION

To the People of the Philippines:

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

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

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

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

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

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

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

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

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

October 23, 1944.

DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief
 IS THE OCTOBER PROCLAMATION LAW?

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

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

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

In May, 1862, after the capture of New Orleans by the United States Army, General Butler, then in command
of the army at that place, issued a general order appointing Major J. M. Bell, volunteer aide-de-camp, of the
division staff, provost judge of the city, and directed that he should be obeyed and respected accordingly.
The same order appointed Capt. J. H. French provost marshal of the city, the Capt. Stafford deputy provost
marshal. A few days after this order the Union Bank lent to the plaintiffs the sum of $130,000, and
subsequently, the loan not having been repaid, brought suit before the provost judge to recover the debt.
The defense was taken that the judge had no jurisdiction over the civil cases, but judgement was given
against the borrowers, and they paid the money under protest. To recover it back is the object of the present
suit, and the contention of the plaintiffs is that the judgement was illegal and void, because the Provost Court
had no jurisdiction of the case. The judgement of the District Court was against the plaintiffs, and this
judgement was affirmed by the Supreme Court of the State. To this affirmance error is now assigned.

The argument of the plaintiffs in error is that the establishment of the Provost Court, the appointment of the
judge, and his action as such in the case brought by the Union Bank against them were invalid, because in
violation of the Constitution of the United States, which vests the judicial power of the General government
in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish,
and under this constitutional provision they were entitled to immunity from liability imposed by the judgment
of the Provost Court. Thus, it is claimed, a Federal question is presented, and the highest court of the State
having decided against the immunity claimed, our jurisdiction is invoked.

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

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

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

In view of these decisions it is not to be questioned that the Constitution did not prohibit the creation by the
military authority of court for the trial of civil causes during the civil war in conquered portions of the
insurgent States. The establishment of such courts is but the exercise of the ordinary rights of conquest. The
plaintiffs in error, therefore, had no constitutional immunity against subjection to the judgements of such
courts. They argue, however, that if this be conceded, still General Butler had no authority to establish such
a court; that the President alone, as a Commander in Chief, had such authority. We do not concur in this
view. General Butler was in command of the conquering and the occupying army. He was commissioned to
carry on the war in Louisina. He was, therefore, invested with all the powers of making war, so far as they
were denied to him by the Commander in Chief, and among these powers, as we have seen, was of
establishing courts in conquered territory. It must be presumed that he acted under the orders of his superior
officer, the President, and that his acts, in the prosecution of the war, were the acts of his commander in
chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)

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

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

"PROCESS" IN THE OCTOBER PROCLAMATION

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

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

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

PROCESS. In Practice. — The means of compelling a defendant to appear in court after suing out the
original writ, in civil, and after indictment, in criminal cases.
The method taken by law to compel a compliance with the original writ or command as of the court.

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

A. Process generally. 1. Definition. — As a legal term process is a generic word of every comprehensive
signification and many meanings. It is broadest sense it is equivalent to, or synonymous with, "proceedings"
or "procedure," and embraces all the steps and proceedings in a cause from its commencement to its
conclusion. Sometimes the term is also broadly defined as the means whereby a court compels a
compliance with it demands. "Process" and "writ" or "writs" are synonymous in the sense that every writ is a
process, and in a narrow sense of the term "process" is limited to judicial writs in an action, or at least to
writs or writings issued from or out of court, under the seal thereof, and returnable thereto; but it is not
always necessary to construe the term so strictly as to limit it to a writ issued by a court in the exercise of its
ordinary jurisdiction; the term is sometimes defined as a writ or other formal writing issued by authority of law
or by some court, body, or official having authority to issue it; and it is frequently used to designate a means,
by writ or otherwise , of acquiring jurisdiction of defendant or his property, or of bringing defendant into, or
compelling him to appear in, court to answer.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is evident from the above-mentioned words that it was the purpose of General MacArthur to declare null and void
all acts of government under the Japanese regime, and he used, in section 3 of he dispositive part, the word laws,
as pertaining to the legislative branch, the word regulations, as pertaining to the executive branch, and lastly, the
word processes, as pertaining to the judicial branch of the government which functioned under the Japanese
regime.

It is reasonable to assume that he might include in the word "process." besides those judicial character, those of
executive or administrative character. At any rate, judicial processes cannot be excluded.
 THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY

THE INTENTION OF THE AUTHOR

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

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

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

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

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

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

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

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

As we have already seen, the annulled processes are precisely judicial processes, procedures and proceedings,
including the one which is under our consideration.

THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY

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

It is a matter of judicial knowledge that in the global war just ended on September 2, 1945, by the signatures on the
document of unconditional surrender affixed by representatives of the Japanese government, the belligerents on
both sides resorted to what may call war weapons of psychological character.
So Japan, since its military forces occupied Manila, had waged an intensive campaign propaganda, intended to
destroy the faith of the Filipino people in America, to wipe out all manifestations of American or occidental
civilization, to create interest in all things Japanese, which the imperial officers tried to present as the acme of
oriental culture, and to arouse racial prejudice among orientals and occidentals, to induce the Filipinos to rally to the
cause of Japan, which she tried to make us believe is the cause of the inhabitants of all East Asia.

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

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

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

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

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

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

There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a people which as
confessed in a book we have at our desk, written by a Japanese, insists in doing many things precisely in a way
opposite to that followed by the rest of the world.

It is the ideology of a people which insists in adopting the policy of self-delusion; that believes that their Emperor is a
direct descendant of gods and he himself is a god, and that the typhoon which occured on August 14, 1281, which
destroyed the fleet with which Kublai Khan tried to invade Japan was the divine wind of Ise; that defies the heinous
crime of the ronin, the 47 assassins who, in order to avenge the death of their master Asano Naganori, on February
3, 1703, entered stealthily into the house of Yoshinaka Kiro and killed him treacherously.

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

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

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

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

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

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

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

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

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

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

The most noble of all professions, so much so that the universities of the world could not conceive of higher honor
that may be conferred than that of Doctor of Laws, became the most despised. It was dangerous to practice the
profession by which faith in the effectiveness of law is maintained; citizens feel confident in the protection of their
liberties, honor, and dignity; the weak may face the powerful; the lowest citizen is not afraid of the highest official;
civil equality becomes reality; justice is admnistered with more efficiency; and democracy becomes the best system
of government and the best guaranty for the welfare and happiness of the individual human being. In fact, the
profession of law was annulled, and the best lawyers for the unfortunate prisoners in Fort Santiago and other
centers of torture were the military police, concubines, procurers, and spies, the providers of war materials and
shameful pleasures, and the accomplices in fraudulent transactions, which were the specialty of many naval and
military Japanese officers.
The courts and Filipino government officials were completely helpless in the question of protecting the constitutional
liberties and fundamental rights of the citizens who happen to be unfortunate enough to fall under the dragnet of the
hated kempei. Even the highest government officials were not safe from arrest and imprisonment in the dreaded
military dungeons, where torture or horrible death were always awaiting the defenseless victim of the Japanese
brutality.

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

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

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

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

INTERNATIONAL LAW

Nobody dared challenge the validity of the October Proclamation.

Nobody dared challenge the authority of the military Commander in Chief who issued it.

Certainly not because of the awe aroused by the looming figure of General of the Army Douglas MacArthur, the
Allied Supreme Commander, the military hero, the greatest American general, the Liberator of the Philippines, the
conqueror of Japan, the gallant soldier under whose authority the Emperor of the Japan, who is supposed to rule
supreme for ages as a descendant of gods, is receiving orders with the humility of a prisoner of war.

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

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

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

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

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

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

Another author has this to say:

International law, if it is or can be a science at all, or can be, at most a regulative science, dealing with the
conduct of States, that is, human beings in a certain capacity; and its principles and prescriptions are not,
like those of science proper, final and unchanging. The substance of science proper is already made for
man; the substance of international is actually made by man, — and different ages make differently."
(Coleman Philippson, The International Law and Custom of Ancient Greece of Rome, Vol. I, p. 50.)
"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of Legal History., p. 1. ) Justice Cardozo
adds: "Here is the great antimony confronting us at every turn. Rest and motion, unrelieved and unchecked, are
equally destructive. The law, like human kind, if life is to continue, must find some path compromise." (The Growth
of Law p. 2.) Law is just one of the manifestations of human life, and "Life has relations not capable of division into
inflexible compartments. The moulds expand and shrink," (Glanzer vs. Shepard, 233 N.Y., 236, 241.)

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

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

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

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

Our Constitution provides:

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

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

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

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

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

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

THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW

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

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

No principle of international law has been, or could be invoked as a basis for denying the author of the document
legal authority to issue the same or any part thereof.
We awaited in vain for any one to dare deny General MacArthur the authority, under international law, to declare null
and void and without effect, not only the laws and regulations of the governments under the Japanese regime, but
all the processes of said governments, including judicial processes.

If General MacArthur, as commander in Chief of the American Armed Forces of Liberation, had authority, full and
legal, to issue the proclamation, the inescapable result will be the complete viodance and nullity of all judicial
processes, procedures, and proceedings of all courts under the Japanese regime.

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

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

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

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

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

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

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

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

WEAKNESS OF THE MAJORITY POSITION

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

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

In the above reasoning we will see right away how the alleged legal truism in political and international law, stated
as a premise in a sweeping way, as an absolute rule, is immediately qualified by the exception as to judicial acts
and proceedings which are of a "political complexion."

So it is the majority itself which destroys the validity of what it maintains as a legal truism in political and international
law, by stating from the beginning of the absolute proposition that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto governments are good and valid.
It is be noted that no authority, absolutely no authority, has been cited to support the absolute and sweeping
character of the majority proposition as stated in their opinion.

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

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

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

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

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

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

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

That is, the legislative and executive processes.

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

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

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

If the argument is good so as to exclude judicial processes from the effect of the October Proclamation, we can see
no logic in considering it bad with respect to legislative and executive processes.

If the argument is bad with respect to legislative and executive processes, there is no logic in holding that it is not
good with respect to judicial processes.

Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General MacArthur did
not declare null and void any processes, at all, whether legislative processes, executive processes, or judicial
processes, and that the word "processes" used by him in the October Proclamation is a mere surplusage or an
ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but a mere legal
pretense that cannot stand the least analysis or the test of logic.

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

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

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

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

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

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

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

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

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

It is insinuated that because of the thought that the representative of the restored sovereign power may set aside all
judicial processes of the army of occupation, in the case to courts of a future invasions, litigants will not summit their
cases to courts whose judgement may afterwards be annulled, and criminals would not be deterred from committing
offenses in the expectancy that they may escape penalty upon liberation of the country. We hope that Providence
will never allow the Philippines to fall again under the arms of an invading army, but if such misfortune will happen,
let the October Proclamation serve as a notice to the ruthless invaders that the official acts of the government of
occupation will not merit any recognition from the legitimate government, especially if they should not conduct
themselves, as exemplified by the Japanese, in accordance with the rules of action of a civilized state.
One conclusive evidence of the untenableness of the majority position is the fact that it had to resort to Executive
Order No. 37, issued on March 10, 1945, providing "that all cases that have heretofore been appealed to the Court
of Appeals shall be transmitted to the Supreme Court for final decision." The far-fetched theory is advanced that this
provision impliedly recognizes the court processes during the Japanese military occupation, on the false assumption
that it refers to the Court of Appeals existing during the Japanese regime. It is self-evident that the Executive Order
could have referred only to the Commonwealth Court of Appeals, which is the one declared abolished in said order.
Certainly no one will entertain the absurd idea that the President of the Philippines could have thought of abolishing
the Court of Appeals under the government during the Japanese occupation. Said Court of Appeals disappeared
with the ouster of the Japanese military administration from which it derived its existence and powers. The Court of
Appeals existing on March 10, 1945, at the time of the issuance of Executive Order No. 37, was the Commonwealth
Court of Appeals and it was the only one that could be abolished.

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

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

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

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

But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting the right of the
restored government to annul "most of the acts of the occupier" and "processes other than judicial."

The statement made by the respondent judge after quoting the above-mentioned principle, as stated by Wheaton, to
the effect that whether the acts of military occupant should be considered valid or not, is a question that is up to the
restored government to decide, and that there is no rule of international law that denies to the restored government
the right to exercise its discretion on the matter, is quoted without discussion in the majority opinion.

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

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

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

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

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

Between the duties imposed in the military occupant and the legal prerogatives of the legitimate government there
are no logical relationship or connection that might bind the ones with the others.
The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the legitimate
government necessarily validate the measures adopted by the said occupant in the performance of this duty, if the
legitimate government believes his duty to annul them for weighty reasons?

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

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

PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS

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

So run the logic of the majority.

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

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

xxx xxx xxx

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

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

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

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

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

That is why we must insists that in the October Proclamation should be read what General MacArthur has written in
it, that is, that, besides laws and regulations, he declared and proclaimed null and void "ALL PROCESSES",
including naturally judicial processes, of the governments under the Japanese regime.
 THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE REGIME JUDICIAL
PROCESSES

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

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

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

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

Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the Philippines, is the
one that defines the jurisdiction of justice of the peace and municipal courts, Courts of First Instance, and the
Supreme Court. It is not necessary to mention here the jurisdiction of the Court of Appeals, because the same has
been abolished by Executive Order No. 37.

No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the Commonwealth
tribunals jurisdiction to continue the judicial processes or proceedings of tribunals belonging to other governments,
such as the governments established during the Japanese occupation.

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

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

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

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

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

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

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

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

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

Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of cases and processes
pending in the abolished Spanish Courts of First Instance to the tribunals of the same name established by the
Philippine Commission.

SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing Courts of First
Instance. — All records, books, papers, actions, proceedings, and appeals lodged, deposited, or pending in
the Court of First Instance as now constituted of or any province are transferred to the Court of First
Instance of such province hereby established, which shall have the same power and jurisdiction over them
as if they had been primarily lodged, deposited, filed, or commenced therein, or in case of appeal, appealed
thereto.

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

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

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

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

MUNICIPAL COURTS UNDER ACT NO. 183

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

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

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

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

THE CABANTAG CASE

On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission. (Cabantag vs. Wolfe, 6
Phil., 273.) The decision was confirmed on December 10, 1901, and his execution by hanging was set for January
12,1902. .
On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The Civil Governor on
December 2, 1903, commuted the death penalty to 20 years imprisonment. The commutation was approved by the
Secretary of War, following instructions of the President.

Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the military commission which
convicted him, there was no existing tribunal which could order the execution of the penalty of imprisonment.

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

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

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

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

THE DOCTRINE IN THE UNITED STATES

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

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

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

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

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

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

On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings in the Provisional Court,
proper for the jurisdiction of the Circuit Court of the United States for the Eastern District of Louisiana,
should be transferred to that court, and heard, and determined therein; and that all judgements, orders, and
decrees of the Provisional Court in causes transferred to the Circuit Court should at once become the
orders, judgements, and decrees of that court, and might be enforced, pleaded, and proved accordingly.
 It is questioned upon these facts whether the establishment by the President of a Provisional Court was
warranted by the Constitution.

xxx xxx xxx

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

JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE VALIDATED BY CONSTITUTIONAL

PROVISION

During the civil war in 1861, the prevailing rebel forces established their own government in Louisiana.

When the rebel forces were overpowered by the Union Forces and the de facto government was replaced by the de
jure government, to give effect to the judgments and other judicial acts of the rebel government, from January 26,
1861, up to the date of the adoption of the State Constitution, a provision to said effect was inserted in said
document.

Section 149 of the Louisiana Constitution reads as follows:

All the rights, actions, prosecutions, claims, contracts, and all laws in force at the time of the adoption of this
Constitution, and not inconsistent therewith, shall continue as if it had not been adopted; all judgments and
judicial sales, marriages, and executed contracts made in good faith and in accordance with existing laws in
this State rendered, made, or entered into, between the 26th day of January, 1861, and the date when this
constitution shall be adopted, are hereby declared to be valid, etc. (U. S. Report, Wallace, Vol. 22,
Mechanics' etc. Bank vs. Union Bank, 281.)

EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE NOT EXECUTORY

The member states of the United States of America belong to the same nation, to the country, and are under the
same sovereignty.

But judgements rendered in one state are not executory in other states.

To give them effect in other states it is necessary to initiate an original judicial proceedings, and therein the
defendants in the domestic suit may plead bar the sister state judgement puis darrien continuance. (Wharton, on the
Conflict of Laws, Vol. II, p. 1411.)

Under the Constitution of the United States, when a judgement of one state in the Union is offered in a court
of a sister state as the basis of a suit nil debet cannot be pleaded. The only proper plea is nul tiel record.
(Id., p. 1413.).

It is competent for the defendant, however, to an action on a judgement of a sister state, as to an action on a
foreign judgement, to set up as a defense, want of jurisdiction of the court rendering the judgement; and, as
indicating such want of jurisdiction, to aver by plea that the defendant was not an inhabitant of the state
rendering the judgement, and had not been served with process, and did not enter his appearance; or that
the attorney was without authority to appear. (Id., pp. 1414-1415.)

The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the absence of an
enabling act or of an express legislative grant, have no jurisdiction to take cognizance and continue the judicial
processes, procedures, and proceedings of the tribunals which were created by the Japanese Military
Administration and functioned under the Vargas Philippine Executive Commission of the Laurel Republic of the
Philippines, deriving their authority from the Emperor, the absolute ruler of Japan, the invading enemy, and not from
the Filipino people in whom, according to the Constitution, sovereignty resides, and from whom all powers of
government emanate.

The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the First Instance of Manila in
declaring himself without jurisdiction nor authority to continue the proceedings which provoked the present
controversy, being a judicial process of a Japanese sponsored government, is absolutely correct, under the legal
doctrines established by the United States and the Philippine Government, and consistently, invariably, and without
exception, followed by the same.

If we accept, for the sake of argument, the false hypothesis that the Commonwealth tribunals have jurisdiction to
continue the judicial processes left pending by the courts of the governments established under the Japanese
regime, the courts which disappeared and, automatically, ceased to function with the ouster of the enemy, the
position of the Judge Dizon, in declining to continue the case, is still unassailable, because, for all legal purposes, it
is the same as if the judicial processes in said case were not taken at all, as inevitable result of the sweeping and
absolute annulment declared by the General MacArthur in the October Proclamation.

In said proclamation it is declared in unmistakable and definite terms that "ALL PROCESSES" of the Japanese
sponsored governments "ARE NULL AND VOID AND WITHOUT LEGAL EFFECT", and they shall remain so until
the Commonwealth, through its legislative power, decides otherwise in a proper validating act.

The fact that the Japanese invaders, under international law, were in duty bound to establish courts of justice during
the occupation, although they made them completely powerless to safeguard the constitutional rights of the citizens,
and mere figureheads as regards the fundamental liberties of the helpless men, women and children of our people,
so much so that said courts could not offer even the semblance of protection when the life, the liberty, the honor and
dignity of our individual citizens were wantonly trampled by any Japanese, military or civilian, does not change the
situation. "ALL PROCESSES" of said court are declared "NULL AND VOID AND WITHOUT LEGAL EFFECT" in the
October proclamation, and we do not have any other alternative but to accept the law, as said proclamation has the
full force of a law.

The fact that in the past, the legitimate governments, once restored in their own territory, condescended in many
cases to recognize and to give effect to judgments rendered by courts under the governments set up by an invading
military occupant or by a rebel army, does not elevate such condescension to the category of a principle, when
Wheaton declares that no international wrong is done if the acts of the invader are reversed.

Many irrelevant authorities were cited to us as to the duties imposed by the international law on military occupants,
but no authority has been cited to the effect that the representative of the restored legitimate government is a bound
to recognize and accept as valid the acts and processes of said occupants. On the contrary, Wheaton says that if
the occupant's acts are reversed "no international wrong would be committed."

Following the authority of Wheaton, undisputed by the majority, General MacArthur thought, as the wisest course, of
declaring "NULL AND VOID AND WITHOUT EFFECT," by official proclamation, "ALL PROCESSES" under the
Japanese regime, that is legislative, executive and judicial processes, which fall under the absolute adjective "ALL".

That declaration is a law. It is a law that everybody bound to accept and respect, as all laws must be accepted and
respected. It is a law that the tribunals are duty bound to give effect and apply.

We are not unmindful of the adverse consequences to some individuals of the annullment of all the judicial
processes under the Japanese regime, as provided in the October Proclamation, but the tribunals are not guardians
of the legislative authorities, either an army commander in chief, during war, or a normal legislature, in peace time.
The tribunals are not called upon to guide the legislative authorities to the wisdom of the laws to be enacted. That is
the legislative responsibility. Our duty and our responsibility is to see to it that the law, once enacted, be applied and
complied with.

No matter the consequences, no matter who might be adversely affected, a judge must have the firm resolve and
the courage to do his duty, as, in the present case, Judge Dizon did, without fear nor favor. We cannot see any
reason why we should not uphold him in his stand in upholding the law.
It is our official duty, national and international duty. Yes. Because this Supreme Court is sitting, not only as a
national court, but as an international court, as is correctly stated in the concurring opinion of Justice De Joya, and
we should feel the full weight of the corresponding responsibility, as the American courts with admiralty jurisdiction
and the Prize Courts of England did feel. In fact, it is in the judiciary where, more than in any point of view is more
pressing, more imperative, more unavoidable. Justice has no country. It is of all countries. The horizon of justice
cannot be limited by the scene where our tribunals are functioning and moving. That horizon is boundless. That is
why in our constitution the bill of rights has been written not for Filipinos, but for all persons. They are rights that
belong to men, not as Filipinos, Americans, Russians, Chinese or Malayan, but as a members of humanity. The
international character of our duty to administer justice has become more specific by the membership of our country
in the United Nations. And let us not forget, as an elemental thing, that our primary duty is to uphold and apply the
law, as it is; that we must not replace the words of the law with what we might be inclined to surmise; that what is
clearly and definitely provided should not be substituted with conjectures and suppositions; that we should not try to
deduce a contrary intention to that which is unequivocally stated in the law; that we should not hold valid what is
conclusively declared null and void.

The October Proclamation declared "ALL PROCESSES" under the Japanese regime "AND VOID WITHOUT
EFFECT", so they must stand. There is no possible way of evasion. "ALL PROCESSES", in view of the meaning of
the absolute adjective "ALL", include "JUDICIAL PROCESSES". Allegatio contra factum non est admittenda.

CONCLUSION

For all the foregoing reasons we conclude:

1. That General MacArthur had full legal authority to issue the October Proclamation, and that no principle of the
international law is violated by said proclamation, no international wrong being committed by the reversal by the
legitimate government of the acts of the military invader.

2. That said proclamation was issued in full conformity with the official policies to which the United States and
Philippine Governments were committed, and the annulment of all the facts of the governments under the Japanese
regime, legislative, executive, and judicial, is legal, and justified by the wrongs committed by the Japanese.

3. That when General MacArthur proclaimed and declared in the October Proclamation "That all laws, regulations
and processes" of the Japanese sponsored governments, during enemy occupation, "are null and void and without
effect", he meant exactly what he said.

4. That where General MacArthur said "all processes" we must read and understand precisely and exactly "all
processes", and not "some processes". "All" and "some" have incompatible meanings and are not interchangeable.

5. That the word "processes" includes judicial procedures, proceedings, processes, and cases. Therefore, "all
processes" must include "all judicial processes.".

6. That we have no right to attribute General MacArthur an intention different from what he has plainly, clearly,
unmistakably expressed in unambiguous words with familiar meaning generally understood by the common man.

7. That the judicial proceedings here in question are included among those adversely affected by the October
Proclamation.

8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor to continue the judicial
proceedings under the Japanese regime.

9. That to exercise said jurisdiction an enabling act of the Congress is necessary.

10. That respondent Judge Dizon did not commit the error complained of in the petition, and that the petition has no
merits at all.
We refuse to follow the course of action taken by the majority in the present case. It is a course based on a
mistaken conception of the principles of international law and their interpretation and application, and on a
pinchbeck. It is a course based on misconstruction or misunderstanding of the October Proclamation, in utter
disregard of the most elemental principles of legal here meneutics. It is a course that leads to nowhere, except to
the brink of disaster, because it is following the dangerous path of ignoring or disobeying the law.

Let us not allow ourselves to be deceived. The issue confronting us is not of passing importance. It is an issue of
awesome magnitude and transcendency. It goes to and reaches the very bottom. It is simple. Lacking in
complexities. But it may shake the very foundation of society, the cornerstone of the state, the primary pillar of the
nation. It may dry the very foundation of social life, the source of vitalizing sap that nurtures the body politic. The
issue is between the validity of one or more Japanese regime processes and the sanctity of the law.

That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. It is the alpha and the
omega of the whole issue. Either the processes, or the law. We have to select between two, which to uphold. It is a
dilemma that does not admit of middle terms, or of middle ways where we can loiter with happy unconcern . We are
in the cross road: which way shall we follow? The processes and the law are placed in the opposite ends of the
balance. Shall we inclined the balance of justice to uphold the processes and defeat law, or vice versa?

We feel jittery because some judicial processes might be rescinded or annulled, but we do not tremble with sincere
alarm at the thought of putting the law under the axe, of sentencing law to be executed by the guillotine. We feel
uneasy, fancying chaos and paralyzation of social life, because some litigants in cases during the Japanese regime
will be affected in their private interests, with the annulment of some judicial processes, but we adopt an attitude of
complete nonchalance in throwing law overboard. This baffling attitude is a judicial puzzle that nobody will
understand. So it is better that we should shift to a more understandable way, that which is conformable to the
standard that the world expects in judicial action.

No amount of arguments and lucubration's, no amount of speculative gymnastics, no amount of juggling of

immaterial principles of international law, no amount of presumptions and suppositions, surmises and conjectures,
no amount of dexterity in juridical exegesis can divert our attention from the real, simple, looming, hypostasis of the
issue before us: Law. It is Law with all its majestic grandeur which we are defying and intending to overthrow from
the sacred pedestal where the ages had placed her as a goddess, to be enshrined, obeyed, and venerated by men,
forever. Let us not dare to lay our profaning hands on her vestal virginity, lest the oracle should fling at us the
thunder of his prophetic anathema.

We cannot therefore vote except for the denial of the petition.

HILADO, J., dissenting:

I dissent from the opinion of the majority and, pursuant to the Constitution, proceed to state the reason for my
dissent.

The proceeding involved in the case at bar were commenced by a complaint filed by the instant petitioner, as
plaintiff, on November 18, 1944, in civil case No. 3012 of the so-called Court of First Instance of Manila, the
complaint bearing this heading and title: "The Republic of the Philippines — In the Court of First Instance of Manila"
(Annex X of Exhibit A of petition for mandamus). The farthest that said proceedings had gone before the record was
burned or destroyed during the battle for Manila, was the filing by counsel for plaintiff therein of their opposition to a
motion for dismissal filed by opposing counsel.

It is, therefore, plain that the case had not been heard on the merits when the record was burned or destroyed.

The respondent judge, in his order dated June 6, 1945, disposing of the petition dated May 25, 1945 filed by
petitioner, as a plaintiff in said case, and of the petition filed by respondent Eusebio Valdez Tan Keh, as defendant
therein, on May 31, 19045, held: " first, that by virtue of the proclamation of General MacArthur quoted above, all
laws, regulations and processes of any other government in the Philippines than that of the Commonwealth became
null and void and without legal effect in Manila on February 3, 1945 or, at the lates, on February 27 of the same
year; second that the proceedings and processes had in the present case having been before a court of the
Republic of the Philippines and in accordance with the laws and regulations of said Republic, the same are now void
and without legal effect; third, that this Court as one of the different courts of general jurisdiction of the
Commonwealth of the Philippines, has no authority to take cognizance of and continue said proceedings to final
judgement, until and unless the Government of the Commonwealth of the Philippines, in the manner and form
provided by law, shall have provided for the transfer of the jurisdiction of the courts of the now defunct Republic of
the Philippines, and the causes commenced and left pending therein, to the courts created and organized by virtue
of the provisions of Act No. 4007, as revived by Executive Order No. 36, or for the validation of all proceedings had
in said courts."

Petitioner prays that this Court declare that the respondent judge should not have ordered the suspension of the
proceedings in civil case No. 3012 and should continue and dispose of all the incidents in said case till its complete
termination. In my opinion, the petition should denied.

In stating the reasons for this dissent, we may divide the arguments under the following propositions:

1. The proceedings in said civil case No. 3012 are null and void under General of the Army MacArthur's
proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);

2. (a) The government styled as, first, the "Philippine Executive Commission "and later as the Republic of the
Philippines", established here by the Commander in Chief of the Imperial Japanese Forces or by his order was not
a de-facto government — the so-called Court of First Instance of Manila was not a de facto court, and the judge who
presided it was not a de facto judge; (b) the rules of International Law regarding the establishment of a de
factoGovernment in territory belonging to a belligerent but occupied or controlled by an opposing belligerent are
inapplicable to the governments thus established here by Japan;

3. The courts of those governments were entirely different from our Commonwealth courts before and after the
Japanese occupation;

4. The question boils down to whether the Commonwealth Government, as now restored, is to be bound by the acts
of either or both of those Japanese-sponsored governments;

5. Even consideration of policy of practical convenience militate against petitioner's contention.

The proceedings in said civil case No. 3012 are null and void under General of the Army MacArthur's
proclamation of October 23, 1944 (41 Off. Gaz., 147, 148).

In this proclamation, after reciting certain now historic facts, among which was that the so-called government styled
as the "Republic of the Philippines" was established on October 14, 1943 "under enemy duress, . . . based upon
neither the free expression of the people's will nor the sanction of the Government of the United States," the great
Commander-in-Chief proclaimed and declared:

xxx xxx xxx

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

xxx xxx xxx

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the
Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted
government whose seat is now firmly re-established on Philippine soil.
The evident meaning and effect of the 3rd paragraph above quoted is, I think, that as the different areas of the
Philippines were progressively liberated, the declaration of nullity therein contained shall attach to the laws,
regulations and processes thus condemned in so far as said areas were concerned. Mark that the proclamation did
not provide that such laws, regulations and processes shall be or are annulled, but that they are null and void.
Annulment implies some degree of the effectiveness in the act annulled previous to the annulment, but a declaration
of nullity denotes that the act is null and void ab initio — the nullity precedes the declaration. The proclamation
speaks in the present tense, not in the future. If so, the fact that the declaration of nullity as to the condemned laws,
regulations, and processes in areas not yet free from enemy occupation and control upon the date of the
proclamation, would attach thereto at a later date, is no argument for giving them validity or effectiveness in
the interregnum. By the very terms of the proclamation itself, that nullity had to date back from the inception of such
laws, regulations and processes; and to dispel any shadow of doubt which may still remain, we need only consider
the concluding paragraph of the proclamation wherein the Commander in Chief of the army liberation solemnly
enjoined upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the
Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted government. This
is all-inclusive — it comprises not only the loyal citizens in the liberated areas but also those in areas still under
enemy occupation and control. It will be noticed that the complaint in said civil case No. 3012 was filed twenty-six
days after the above-quoted proclamations of General of the Army MacArthur. If the parties to said case were to
consider the proceedings therein up to the date of the liberation of Manila valid and binding, they would hardly be
complying with the severe injunction to render full respect for and obedience to our Constitution and the laws,
regulations and other acts of our duly constituted government from October 23, 1944, onwards. Indeed, to my mind,
in choosing between these two courses of action, they would be dangerously standing on the dividing line between
loyalty and disloyalty to this country and its government.

The proceeding in question, having been had before the liberation of Manila, were unquestionably "processes" of
the Japanese-sponsored government in the Philippines within the meaning of the aforesaid proclamation of General
of the Army MacArthur and, consequently, fall within the condemnation of the proclamation. Being processes of a
branch of a government which had been established in the hostility to the Commonwealth Government, as well as
the United States Government, they could not very well be considered by the parties to be valid and binding, at least
after October 23, 1944, without said parties incurring in disobedience and contempt of the proclamation which
enjoins them to render full respect for the obedience to our Constitution and the laws, regulations and other acts of
our duly constituted government. Nine days after the inauguration of the so-called "Republic of the Philippines,"
President Franklin Delano Roosevelt of the United States declared in one of his most memorable pronouncements
about the activities of the enemy in the Philippines, as follows:

One of the fourtheenth of this month, a puppet government was set up in the Philippine Island with Jose P.
Laurel, formerly a justice of the Philippine Supreme Court, as "president." Jorge Vargas, formerly as a
member of the Commonwealth Cabinet, and Benigno Aquino, also formerly a member of that cabinet, were
closely associated with Laurel in this movement. The first act of the new puppet regime was to sign a military
alliance with Japan. The second act was a hyphocritical appeal for American sympathy which was made in
fraud and deceit, and was designed to confuse and mislead the Filipino people.

I wish to make it clear that neither the former collaborationist "Philippine Executive Commission" nor the
present "Philippine Republic " has the recognition or sympathy of the Government of the United States. . . .

Our symphaty goes out to those who remain loyal to the United States and the Commonwealth — that great
majority of the Filipino people who have not been deceived by the promises of the enemy.

October 23, 1943.

FRANKLIN DELANO ROOSEVELT

President of the United States

(Form U.S. Naval War College International Law Documents, 1943, pp. 93, 94.).

It is a fact of contemporary history that while President Manuel L. Quezon of the Philippines was in Washington,
D.C., with his exiled government, he also repeatedly condemned both the "Philippine Executive Commission" and
the "Philippine Republic," as they had been established by or under orders of the Commander in Chief of the
Imperial Japanese Forces. With these two heads of the Governments of the United States and the Commonwealth
of the Philippines condemning the "puppet regime" from its very inception, it is beyond my comprehension to see
how the proceedings in question could be considered valid and binding without adopting an attitude incompatible
with theirs. As President Roosevelt said in his above quoted message, "Our symphaty goes out to those remain
loyal to the United States and the Commonwealth — that great majority of the Filipino people who have not been
deceived by the promises of the enemy.

The most that I can concede is that while the Japanese Army of occupation was in control in the Islands and their
paramount military strength gave those of our people who were within their reach no other alternative, these had to
obey their orders and decrees, but the only reason for such obedience would be that paramount military strength
and not any intrinsic legal validity in the enemy's orders and decrees. And once that paramount military strength
disappeared, the reason for the obedience vanished, and obedience should likewise cease.

As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S., 176; 24 Law.
ed., 719), "In the face of an overwhelming force, obedience in such matters may often be a necessity and, in the
interest of order, a duty. No concession is thus made to the rightfulness of the authority exercised." (Emphasis
ours.) The court there refers to its own former decision in Thorington vs. Smith, and makes it clear that the doctrine
in the Thorington case, so far as the effects of the acts of the provisional government maintained by the British in
Casetine, from September, 1814 to the Treaty of Peace in 1815, and the consideration of Tampico as United States
territory, were concerned, was limited to the period during which the British, in the first case, retained possession of
Castine, and the United States, in the second, retained possession of Tampico. In referring to the Confederate
Government during the Civil War, as mentioned in the Thorington case, the court again says in effect that the actual
supremacy of the Confederate Government over a portion of the territory of the Union was the only reason for
holding that its inhabitants could not but obey its authority. But the court was careful to limit this to the time when
that actual supremacy existed, when it said: . . . individual resistance to its authority then would have been futile
and, therefore, unjustifiable." (Emphasis ours.)

Because of its pertinence, we beg leave to quote the following paragraph from that leading decision:

There is nothing in the language used in Thorington vs. Smith (supra), which conflicts with these views. In
that case, the Confederate Government is characterized as one of paramount force, and classed among the
governments of which the one maintained by great Britain in Castine, from September 1814, to the Treaty of
Peace in 1815, and the one maintained by the United States in Tampico, during our War with Mexico, are
examples. Whilst the British retained possession of Castine, the inhabitants were held to be subject to such
laws as the British Government chose to recognize and impose. Whilst the United
States retained possession of Tampico, it was held that it must regarded and respected as their territory.
The Confederate Government, the court observed, differed from these temporary governments in the
circumstance that its authority did not justifying acts of hostility to the United States, "Made obedience to its
authority in civil and local matters not only a necessity, but a duty." All that was meant by this language was,
that as the actual supremancy of the Confederate Government existed over certain territory, individual
resistance to its authority then would have been futile and, therefore, unjustifiable. In the face of an
overwhelming force, obedience in such matters may often be a necessity and, in the interest of order, a
duty. No concession is thus made to the rightfulness of the authority exercised. (Williams vs. Bruffy, 24 Law
ed., 719; emphasis ours.)

The majority opinion, in considering valid the proceedings in question, invokes the rule that when a belligerent army
occupies a territory belonging to the enemy, the former through its Commander in Chief, has the power to establish
thereon what the decisions and treaties have variously denominated provisional or military government, and the
majority holds that the Japanese-sponsored government in the Philippines was such a government. Without
prejudice to later discussing the effects which the renunciation of war as an instrument of national policy contained
in our Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have produced in this rule in so far as
the Philippines is concerned, let us set forth some considerations apropos of this conclusion of the majority. If the
power to establish here such a provisional government is recognized in the Commander in Chief of the invasion
army, why should we not recognize at least an equal power in the Commander in Chief of the liberation army to
overthrow that government will all of its acts, at least of those of an executory nature upon the time of liberation?
Considering the theory maintained by the majority, it would seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the Commonwealth Government, and all of its acts and institutions if he
had choosen to. Why should at least an equal power be denied the Commander in Chief of the United States Army
to overthrow the substitute government thus erected by the enemy with all of its acts and institutions which are still
not beyond retrieve? Hereafter we shall have occasion to discuss the aspects of this question from the point of view
of policy or the practical convenience of the inhabitants. If the Japanese Commander in Chief represented
sovereignty of Japan, the American Commander in Chief represented the sovereignty of the United States, as well
as the Government of the Commonwealth. If Japan had won this war, her paramount military supremacy would have
continued to be exerted upon the Filipino people, and out of sheer physical compulsion this country would have had
to bow to the continuance of the puppet regime that she had set up here for an indefinite time. In such a case, we
admit that, not because the acts of that government would then have intrinsically been legal and valid, but simply
because of the paramount military force to which our people would then have continued to be subjected, they would
have had to recognize as binding and obligatory the acts of the different departments of that government. But
fortunately for the Filipinos and for the entire civilized world, Japan was defeated. And I now ask: Now that Japan
has been defeated, why should the Filipinos be still bound to respect or recognize validity in the acts of the
Japanese-sponsored government which has been so severely condemned by both the heads of the United States
and our Commonwealth Government throughout the duration of the war? If we were to draw a parallel between that
government and that which was established by the Confederate States during the American Civil War, we will find
that both met with ultimate failure. And, in my opinion, the conclusion to be drawn should be the same in both cases.

As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the Confederate
Government, its failure carried with it the dissipation of its pretentions and the breaking down in pieces of the whole
fabric of its government. The Court said among other things:

The immense power exercised by the government of the Confederate States for nearly four years, the
territory over which it extended, the vast resources it wielded, and the millions who acknowledged its
authority, present an imposing spectacle well fitted to mislead the mind in considering the legal character of
that organization. It claimed to represent an independent nation and to posses sovereign powers; as such to
displace to jurisdiction and authority of the United States from nearly half of their territory and, instead of
their laws, to substitute and enforce those of its own enactment. Its pretentions being resisted, they were
submitted to the arbitrament of war. In that contest the Confederacy failed; and in its failure its pretentions
were dissipated, its armies scattered, and the whole fabric of its government broken in pieces. (24 Law, ed.,
719; emphasis ours.)

By analogy, if the Japanese invasion and occupation of the Philippines had been lawful — which, however, is not
the case — and if Japan had succeeded in permanently maintaining the government that she established in the
Philippines, which would have been the case had victory been hers, there would be more reason for holding the acts
of that government valid, but because Japan has lost the war and, therefore, failed in giving permanence to that
government, the contrary conclusion should legitimately follow.

The validity of legislation exercised by either contestant "depends not upon the existence of hostilities but upon
the ultimate success of the party which it is adopted" (emphasis ours). And, referring to the overthrow of the of the
Confederacy, the Court, said, "when its military forces were overthrown, it utterly perished, and with it all its
enactments" (emphasis ours)

The majority cite on page 9-10 of their opinion a passage from the same case of Williams vs. Bruffy, supra, which is
a mere obiter dictum. The majority opinion says that in this passage the Court was "discussing the validity of the
acts of the Confederate States." In the first place, an examination of the decision will reveal that the controversy
dealt with an act of the Confederate Government, not of the Confederate States individually; and in the second
place, the quoted passage refers to something which was not in issue in the case, namely, the acts of the individual
States composing the Confederacy. But even this passage clearly places the case at bar apart from the Court's
pronouncement therein. The quoted passage commences by stating that "The same general form of government
the same general laws for the administration of justice and the protection of private rights, which has existed in the
States prior to the rebellion, remanded during (its) continuance and afterwards. "In the case at bar, the same
general form of the Commonwealth Government did not continue under the Japanese, for the simple reason that
one of the first acts of the invaders was to overthrow the Commonwealth Constitution and, therefore, the
constitutional government which existed thereunder, as an effect of the following acts and decrees of the
Commander in Chief of the Imperial Japanese Forces:

1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial Japanese Forces to the
Chairman of the Philippine Executive Commission directed that, in the exercise of legislative, executive and judicial
powers in the Philippines, the "activities" of the "administrative organs and judicial courts in the Philippines shall be
based upon the existing status, order, ordinances and the Commonwealth Constitution (1 Official Journal of the
Japanese Military Administration, page 34). Under the frame of government existing in this Commonwealth upon the
date of the Japanese invasion, the Constitution was the very fountain-head of the validity and effects of all the
"status, orders, and ordinances" mentioned by the Japanese Commander in Chief, and in overthrowing the
Constitution he, in effect, overthrew all of them.

2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official Gazette, edited at the
Office of the Executive Commission) gave the "Detailed Instruction Based on Guiding Principle of the
Administration," and among other things required "The entire personnel shall be required to pledge their loyalty to
the Imperial Japanese Forces. . . ." (This, of course, was repugnant to the frame of government existing here under
the Commonwealth Constitution upon the date of invasion.)

3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in paragraph 3 that "The
Authorities and the People of the Commonwealth should sever their relations with the U.S. o . . ." (This is, likewise,
repugnant to the Commonwealth Constitution and the to the Government of that Commonwealth Constitution and to
the Government of that Commonwealth which was expressly made subject to the supreme sovereignty of the United
States until complete independence is granted, not by the mere will of the United States, but by virtue of an
agreement between that Government and ours, under the Tydings-McDuffie Act.)

The individual States of the Confederate and their governments existed prior to the Civil War and had received the
sanction and recognition of the Union Government, for which the Federal Supreme Court was speaking in the
Williams-Bruffy case; while the Japanese-sponsored governments of the "Philippine Executive Commission" and the
Republic of the Philippines" neither existed here before the war nor had received the recognition or sanction of
either the United States or the Commonwealth Government — nay, they had received the most vigorous
condemnation of both.

The Court further says in Williams vs. Bruffy (supra):

No case has been cited in argument, and we think unsuccesfully attempting to establish a separate
revolutionary government have been sustained as a matter of legal right. As justly observed by the late Chief
Justice in the case of Shortridge vs. Macon, I Abb. U.S., 58, decided at the circuit, and, in all material
respects like the one at bar, "Those who engage in rebellion must consider the consequences. If
they succeed, rebellion becomes revolution, and the new government will justify is founders. If they fail, all
their acts hostile to the rightful government are violations of law, and originate no rights which can be
recognized by the courts of the nation whose authority and existence have been alike assailed. S.C., Chase,
Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.)

I am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion should be applied with
greater force to the case of a belligerent who loss the war. And since the founding of the Japanese-sponsored
government in the Philippines was designed to supplant and did actually supplant the rightful government and since
all its acts could not but a hostile to the latter (however blameless the officials who acted under enemy duress might
be), and since Japan failed, all said acts, particularly those of the Japanese-sponsored court in said civil case No.
3012, "are violations of law, and originate no rights which can be recognized by the courts of the nation whose
authority and existence have been alike assailed", quoting the language of the court in Shortridge vs. Macon, cited
by Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718).

II

(a) The government styled as, first, the "Philippine Executive Commission" and later as the Republic of the
Philippines", established here by the Commander in Chief of the Imperial Japanese Forces or by the his
order was not a de facto government--the so-called Court of First Instance of Manila was not a de facto court
and the who presided it was not a de facto judge;

(b) The rules of International Law regarding the establishment of a de facto government in territory belonging
to a belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments
thus established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the short-lived provisional
government thus established by the Japanese in the Philippines should be classified, at best, as a government of
paramount force. But this is not all. The Constitution of this Commonwealth which has been expressly approved by
the United States Government, in Article II, section 3, under the heading "Declaration of Principles", renounces war
as an instrument of national policy. This renunciation of war as an instruments of national policy follows an equal
renunciation in the Briand-Kellog Pact. The rules of International Law , cited in support of the power or right of a
belligerent army of occupation to set up a provisional government on occupied enemy territory, were evolved prior to
the first World War, but the horrors and devastations of that war convinced, at least the governments of the United
States and France, that they should thereafter renounce war as an instrument of national policy, and they
consequently subscribed the Briand-Kellog Pact. Those horrors and devastations were increased a hundred fold, if
not more, in this second World War, but even before this war occurred, our own people, through our Constitutional
delegates, who framed the Commonwealth Constitution also adopted the same doctrine, and embodied an express
renunciation of war as an instrument of national policy in the instrument that they drafted. It is true that in section 3,
Article II, above-cited, our Constitution adopts the generally accepted principles of International Law as a part of the
law of the Nation. But, of course, this adoption is exclusive of those principles of International Law which might
involve recognition of war as an instrument of national policy. It is plain that on the side of the Allies, the present war
is purely defensive. When Japan started said war, treacherously and without previous declaration, and attacked
Pearl Harbor and the Philippines on those two fateful days of December 7 and 8, 1941, she employed war as an
instrument of the national policy. Under the Briand-Kellog Pact and our Commonwealth Constitution, the United
States and the Commonwealth Government could not possibly have recognized in Japan any right, as against them,
to employ that war as an instrument of her national policy, and, consequently, they could not have recognized in
Japan power to set up in the Philippines the puppet government that she later set up, because such power would be
a mere incident or consequence of the war itself. The authorities agree that such a power, under the cited rules, is
said to a right derived from war. (67 C.J., p. 421, sec. 171.) There can be no question that the United States and the
Commonwealth Governments were free to refuse to be bound by those rules when they made their respective
renunciations above referred to. Indeed, all the United Nations have exercised this free right in their Charter recently
signed at San Francisco.

As necessary consequence of this, those rules of International Law were no longer applicable to the Philippines and
to the United States at the time of the Japanese invasion as a corollary, it follows that we have no legal foundation
on which to base the proposition that the acts of that Japanese-sponsored government in the Philippines were valid
and binding. Moreover, I am of opinion, that although at the time of the Japanese invasion and up to the present, the
United States retains over the Philippines, a certain measure of sovereignty, it is only for certain specified purposes
enumerated in the Tydings-McDufie Act of the Commonwealth Constitution. (Ordinance appended to the
Constitution.) And our territory was at the time of the Japanese invasion not a territory of the United States, within
the meaning of the laws of war governing war-like operations on enemy territory. Our territory is significantly called
"The National Territory" in Article I of our Constitution and this bears the stamps of express approval of the United
States Government. The Philippines has been recognized and admitted as a member of the United Nations. We,
therefore, had our own national and territorial identity previous to that invasion. Our nation was not at war with the
Filipinos. And line with this, the Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt. Gen.
Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of January 2, 1942, said:

. . . we had not the slighest intensions to make your people our enemy; rather we considered them as our
friends who will join us has hand-in-hand in the establishment of an orderly Greater East Asia. . . ., (Official
Gazette, edited at the Office of the Executive Commission, Vol. I, p. 55.)

If the Philippines was a neutral territory when invaded by the Japanese, the following principles from Lawrence,
International Law (7th ed.), p. 603, are pertinent:

The Duties of Belligerent States Towards Neutral States. — . . . To refrain from carrying on hostilities within
neutral territory. — We have already seen that, though this obligation was recognized in theory during the
infancy of International law, it was often very imperfectly observed in practice. But in modern times it has
been strickly enforced, and any State which knowingly ordered warlike operations to be carried on in neutral
territory . . . would bring down upon itself the reprobation of civilized mankind. Hostilities may be carried on
in the territory of either belligerent, on the high seas, and in territory belonging to no one. Neutral land and
neutral territorial waters are sacred. No acts of warfare may lawfully take place within them. . . . (Emphasis
ours.)
In all the cases and authorities supporting the power or right to set up a provisional government, the belligerent had
the right to invade or occupy the territory in the first instance. Such was not the case with the Philippines. President
Roosevelt, in his message to the Filipino people, soon after the landing of American Forces in Leyte, on October 20,
1944, characterized Japan's invasion and occupation of the Philippines as "the barbarous, unprovoked and
treacherous attack upon the Philippines," and he announced the American people's "firm determination to punish
the guilty." (41 Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the United Nations could not have in more
unmistakable terms the utter illegality of that invasion and occupation. If the establishment of a provinsional
government in occupied territory by a belligerent is "a mere application or extension of the force by which the
invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality of the invasion, would necessarily
permeate the government, which was its mere application or extention.

The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and treacherous attack," the
meager and almost untrained forces of the Philippine Army had been inducted into the American Army, did not
change the neutral status of the Philippines. That military measure had been adopted for purely defensive purposes.
Nothing could be farther from the minds of the government and military leaders of the United States and the
Philippines in adopting it than to embark upon any aggressive or warlike enterprise against any other nation. It is an
old and honored rule dating as far back as the 18th century that even solemn promises of assistance made before
the war by a neutral to a nation which later becomes a belligerent, would not change the status of the neutral even if
such promises were carried out, so long as they were made for purely defensive purposes. In the words of Vattel
"when a sovereign furnishes the succor due in virtue of a former defensive alliance, he does not associate himself in
the war. Therefore he may fulfill his engagements and yet preserve an exact neutrality." (Lawrence, Principles of
International Law [7th ed.], pp. 585, 586.)

If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and their territory
occupied by the Japanese without resistance, such invasion occupation would undoubtedly have been considered in
violation of International Law. Should the Filipinos be punished for having had the patriotism, bravery, and heroism
to fight in defense of the sacredness of their land, the sanctity of their homes, and the honor and dignity of their
government by giving validity, in whatever limited measure, to the lawless acts of the ruthless enemy who thus
overran their country, and robbed them of the tranquility and happiness of their daily lives? And yet, to my mind, to
give any measure of validity or binding effect to the proceedings of the Japanese-sponsored Court of First Instance
of Manila, involved herein, would be to give that much validity or effect to the acts of those same invaders. To
equalize the consequences of a lawful and a wrongful invasion of occupation, would be to equalize right and wrong,
uphold the creed that might makes right, and adopt "the law of the jungle."

If said Japanese-sponsored government was not a de facto government, it would seem clearly to follow that its
"Court of First Instance of Manila" was not a de facto court. But it should additionally be stated that for it be a de
facto court, its judge had to be a de facto judge, which he could not be, as presently demonstrated.

As said by President Osmeña, in replying to the speech of General of the Army MacArthur when the latter turned
over to him the full powers and responsibilities of the Commonwealth Government, on February 27, 1945:

xxx xxx xxx

The time has come when the world should know that when our forces surrendered in Bataan and
Corregidor, resistance to the enemy was taken up by the people itself — resistance which was inarticulate
and disorganized in its inception but which grew from the day to day and from island until it broke out into an
open warfare against the enemy.

The fight against the enemy was truly a people's war because it counted with the wholehearted support of
the masses. From the humble peasant to the barrio school teacher, from the volunteer guard to the women's
auxilliary service units, from the loyal local official to the barrio folk — each and every one of those
contributed his share in the great crusade for liberation.

The guerrillas knew that without the support of the civilian population, they could not survive. Whole town
and villages dared enemy reprisal to oppose the hated invader openly or give assistance to the underground
movement. . . . (41 Off. Gaz., 88, 89.)
Under these facts, taken together with the General of the Army MacArthur's accurate statement that the "Republic of
the Philippines" had been established under enemy duress, it must be presumed — to say the least — that the
judge who presided over the proceedings in question during the Japanese occupation, firstly, accepted his
appointment under duress; and secondly, acted by virtue of that appointment under the same duress. In such
circumstances he could not have acted in the bona fide belief that the new "courts" created by or under the orders of
the Japanese Military Commander in chief had been legally created--among them the "Court of first Instance of
Manila," — that the Chairman of the "Philippine Executive Commission" or the President of the "Republic of the
Philippines", whoever appointed him, and conferred upon him a valid title to his office and a legitimate jurisdiction to
act as such judge. Good faith is essential for the existence of a de facto judge (Tayko vs. Capistrano, 53 Phil., 866,
872). The very idea of enemy duress would necessarily imply that but for the duress exerted upon him by the enemy
he would have refused to accept the appointment and to act thereunder. And why? Because he must be presumed
to know that the office to which he was thus appointed had been created by the enemy in open defiance of the
Commonwealth Constitution and the laws and regulation promulgated by our Commonwealth Government, and that
his acceptance of said office and his acting therein, if willfully done, would have been no less than an open hostility
to the very sovereignty of the United Sates and to the Commonwealth Government, and a renunciation of his
allegiance to both. There is no middle ground here. Either the judge acted purely under duress, in which case his
acts would be null and void; or maliciously in defiance of said governments, in which case his acts would be null and
void for more serious reasons.

The courts created here by the Japanese government had to look for the source of their supposed authority to the
orders of the Japanese Military Commander in chief and the so-called Constitution of the "Republic of the
Philippines," which had been adopted in a manner which would shock the conscience of democratic peoples, and
which was designed to supplant the Constitution which had been duly adopted by the Filipino people in a
Constitutional Convention of their duly elected Constitutional Delegates. And it was decreed that the Commander in
chief of the Imperial Japanese Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of
the Japanese Military Administration, cited on pp. 2, 3, of the order of the respondent judge complained of and
marked Exhibit H of the petition for mandamus.) How can our present courts legitimately recognize any efficacy in
the proceedings of such an exotic judicial system, wherein the Commander in Chief of the Imperial Japanese Forces
possessed the highest judicial jurisdiction?

III

The courts of those governments were entirely different from our Commonwealth courts before and after the
Japanese occupation.

Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first paragraph, states
the prime concern of the government "to re-establish the courts as fast as provinces are liberated from the
Japanese occupation." If the courts under the Japanese-sponsored government of the "Republic of the Philippines"
were the same Commonwealth courts that existed here under the Constitution at the time of the Japanese invasion,
President Osmeña would not be speaking of re-establishing those courts in his aforesaid Executive Order. For
soothe, how could those courts under the "Republic of the Philippines" be the courts of the Commonwealth of the
Philippines when they were not functioning under the Constitution of the Commonwealth and the laws enacted in
pursuance of said Constitution? The jurisdiction of the Commonwealth courts was defined and conferred under the
Commonwealth Constitution and the pertinent legislation enacted thereunder, that of the Japanese-sponsored
courts was defined and conferred by the orders and decrees of the Japanese Commander in Chief, and, perhaps,
the decrees of the "Philippine Executive Commission" and the laws of the so-called Legislature under the Republic,
which was not composed of the elected representatives of the people. The Justices and Judges of the
Commonwealth courts had to be appointed by the President of the Commonwealth with confirmation by the
Commission on Appointments, pursuant to the Commonwealth Constitution. The Chief Justice of the Supreme
Court, under the "Philippine Executive Commission" was appointed by the Commander in Chief of the Imperial
Japanese Forces, and the Associate Justices of the Supreme Court, the Presiding Justice and Associate Justices of
the Court of Appeals, the Judges of first Instance and of all inferior courts were appointed by the Chairman of the
Executive Commission, at first, and later, by the President of the Republic, of course, without confirmation by the
Commission on Appointments under the Commonwealth Constitution. The Chief Justice and Associate Justices of
the Supreme Court, the President and Associate Justices of the Court of Appeals, and the Judges of First Instance
and of all inferior courts in the Commonwealth judicial system, had to swear to support and defend the
Commonwealth Constitution, while this was impossible under the Japanese-sponsored government. In the
Commonwealth judicial system, if a Justice or Judge should die or incapacitated to continue in the discharge of his
official duties, his successor was appointed by the Commonwealth President with confirmation by the Commission
on Appointments, and said successor had to swear to support and defend the Commonwealth Constitution; in the
exotic judicial system implanted here by the Japanese, if a Justice or Judge should die or incapacitated, his
successor would be appointed by the Japanese Commander in Chief, if the dead or incapacitated incumbent should
be the Chief Justice of the Supreme Court, or otherwise, by the Chairman of the "Executive Commission" or the
President of the "Republic", of course without confirmation by the Commission on Appointments of the
Commonwealth Congress, and, of course, without the successor swearing to support and defend the
Commonwealth Constitution.

If, as we believe having conclusively shown, the Japanese-sponsored courts were not the same Commonwealth
courts, the conclusion is unavoidable that any jurisdiction possessed by the former and any cases left pending
therein, were not and could not be automatically transfered to the Commonwealth courts which we re-established
under Executive Order No. 36. For the purpose, a special legislation was necessary.

Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the President
recognized as valid the proceedings in all cases appealed to the Court of Appeals. Section 2 of that order simply
provides that all cases which have been duly appealed to the Court of Appeals shall be transmitted to the Supreme
Court for final decision. The adverb "duly" would indicate that the President foresaw the possibility of appeals not
having been duly taken. All cases appealed to the Court of Appeals before the war and the otherwise duly appealed,
would come under the phrase "duly appealed" in this section of the Executive Order. But considering the determined
and firm attitude of the Commonwealth Government towards those Japanese-sponsored governments since the
beginning, it would seem inconceivable that the President Osmeña, in section 2 of Executive Order No. 37, intended
to include therein appeals taken to the Japanese-sponsored Court of Appeals, or from the Japanese-sponsored
inferior courts. It should be remembered that in the Executive Order immediately preceeding and issued on the
same date, the President speaks of re-establishing the courts as fast as provinces were liberated from the Japanese
occupation.

IV

The question boils down to whether the Commonwealth Government, as now restored, is to be bound by the
acts of either or both of those Japanese-sponsored governments.

In the last analysis, in deciding the question of validity or nullity of the proceedings involved herein, we are
confronted with the necessity to decide whether the Court of first Instance of Manila and this Supreme Court, as re-
established under the Commonwealth Constitution, and the entire Commonwealth Government, are to be bound by
the acts of the said Japanese-sponsored court and government. To propound this question is, to my mind, to
answer it most decidedly in the negative, not only upon the ground of the legal principles but also for the reasons of
national dignity and international decency. To answer the question in the affirmative would be nothing short for
legalizing the Japanese invasion and occupation of the Philippines. Indeed, it would be virtual submission to the
dictation of an invader our people's just hatred of whom gave rise to the epic Philippine resistance movement, which
has won the admiration of the entire civilized world.

Even considerations of policy or practical convenience militate against petitioner's contention.

In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the following to say:

It is contended, however, that the judicial system implanted by the Philippine Executive Commission and the
Republic was the same as that of the Commonwealth prior to Japanese occupation; that the laws
administered and enforced by said courts during the existence of said regime were the same laws on the
statute books of Commonwealth before Japanese occupation, and that even the judges who presided them
were, in many instances, the same persons who held the position prior to the Japanese occupation. All this
may be true, but other facts are just as stubborn and pitiless. One of them is that said courts were of a
government alien to the Commonwealth Government. The laws they enforced were, true enough, laws of
the Commonwealth prior to Japanese occupation, but they had become the laws — and the Courts had
become the institutions-of Japan by adoption (U.S. vs. Reiter, 27 F. Case No. 16,146), as they became later
 on the laws and institution of the Philippine Executive Commission and the Republic of the Philippines. No
amount of argument or legal fiction can obliterate this fact.

Besides, I am of the opinion that the validity of the acts of the courts in the "judicial system implanted by the
Philippine Executive Commission and the Republic "would not depend upon the laws that they "administered and
enforced", but upon the authority by virtue of which they acted. If the members of this Court were to decide the
instant case in strict accordance with the Constitution and the laws of the Commonwealth but not by the authority
that they possess in their official capacity as the Supreme Court of the Philippines, but merely as lawyers, their
decision would surely be null and void. And yet, I am firmly of opinion that whoever was the "judge" of the Japanese
sponsored Court of First Instance of Manila who presided over the said court when the proceedings and processes
in the dispute were had, in acting by virtue of the supposed authority which he was supposed to have received from
that government, did so with no more legal power than if he had acted as a mere lawyer applying the same laws to
the case. If duplication of work or effort, or even if confussion, should be alleged to possibly arise from a declaration
of nullity or judicial proceedings had before those Japanese-sponsored courts, it should suffice to answer that the
party so complaining in voluntarily resorting to such courts should be prepared to assume the consequences of his
voluntary act. On the other hand, his convenience should not be allowed to visit upon the majority of the inhabitants
of this country, the dire consequences of a sweeping and wholesale validation of judicial proceedings in those
courts. Let us set forth a few considerations apropos of this assertion. It is a fact of general knowledge that during
the Japanese occupation of the Philippines, the overwhelming majority of our people and other resident inhabitants
were literally afraid to go any place where there were Japanese sentries, soldiers or even civilians, and that these
sentries were posted at the entrance into cities and towns and at government offices; that the feared Japanese "M.
P.'s" or Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or had evacuated
to places for from the Japanese, were found precisely in the cities and towns where the courts were located; and as
a consequence, the great majority of the people were very strongly adverse to traveling any considerable distance
from their homes and were, one might say, in constant hiding. Add to these circumstances, the fact of the practical
absence of transportation facilities and the no less important fact of the economic structure having been so
dislocated as to have impoverished the many in exchange for the enrichment of the few — and we shall have a fair
picture of the practical difficulties which the ordinary litigant would in those days have encountered in defending his
rights against anyone of the favored few who would bring him to court. It should be easy to realize how hard it was
for instances, to procure the attendance of witnesses, principally because of the fact that most of them were in
hiding or, at least, afraid to enter the cities and towns, and also because of then generally difficult and abnormal
conditions prevailing. Under such conditions, cases or denial of a party's day in court expected. Such denial might
arise from many a cause. It might be party's fear to appear before the court because in doing so, he would have had
to get near the feared Japanese. It might be because he did not recognize any legal authority in that court, or it
might be his down-right repugnance of the hated enemy. And I dare say that among such people would be found
more than seventeen million Filipinos. These are but a few of countless cause. So that if some form of validation of
such judicial proceedings were to be attempted, all necessary safeguards should be provided to avoid that in any
particular case the validation should violate any litigant's constitutional right to his day in court, within the full
meaning of the phrase, or any other constitutional or statutory right of his. More people, I am afraid, would be
prejudiced than would be benefited by a wholesale validation of said proceedings.

Much concern has been shown for the possible confusion which might result from a decision declaring null and void
the acts processes of the Japanese-sponsored governments in the Philippines. I think, this aspect of the question
has been unduly stressed. The situation is not without remedy, but the remedy lies with the legislature and not with
the courts. As the courts cannot create a new or special jurisdiction for themselves, which is a legislative function,
and as the situation demands such new or special jurisdiction, let the legislature act in the premises. For instance,
the Congress may enact a law conferring a special jurisdiction upon the courts of its selection, whereby said courts
may, after hearing all the parties interested, and taking all the necessary safeguards, so that, a party's day in court
or other constitutional or statutory right under the Commonwealth Government should not be prejudiced by any of
said acts, processes or proceedings, particullarly, those in Japanese-sponsored courts, and subject to such other
conditions as the special law may provide, validate the corresponding acts, processes or proceedings. This, to my
mind, would be more conducive to a maximum of benefit and a minimum of prejudice to the inhabitants of this
country, rather than the procedure favored by the majority.

Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the provinces, where the
greater number of the people where then living outside the towns, in the farms and the hills. These people constitute
the great majority of the eighteen million Filipinos. To them the semblance of an administration of justice which
Japanese allowed, was practically unknown. But they constituted the majority of loyal citizens to whom President
Roosevelt's message of October 23, 1943 refers. They — the majority of our people — had an unshaken faith in the
arrival of American aid here and the final triumph of the Allied cause. They were willing to wait for the restoration of
their rightful government, with its courts and other institutions, for the settlement of their differences. May in their
common hardship and sufferings under yoke of foreign oppression, they had not much time to think of such
differences, if they did not utterly forget them. Their undoubted hatred of the invader was enough to keep them away
from the judicial system that said invader allowed to have. Those who voluntarily went to the courts in those tragic
days belong to the small minority.

As to the public order — why! any public order which then existed was not due to the courts or other departments of
the puppet government. It was maintained at the point of the bayonet by the Japanese army, and in their own
unique fashion.

Minute Resolutions of the Supreme Court

EN BANC

G.R. No. 73748, May 22, 1986

LAWYERS LEAGUE FOR A BETTER PHILIPPINES AND/OR OLIVER A. LOZANO VS. PRESIDENT CORAZON C.
AQUINO, ET AL.

SIRS/MESDAMES:

Quoted hereunder, for your information, is a resolution of this Court MAY 22, 1986.

In G.R. No. 73748, Lawyers League for a Better Philippines vs. President Corazon C. Aquino, et al.; G.R. No.
73972, People's Crusade for Supremacy of the Constitution vs. Mrs. Cory Aquino, et al., and G.R. No. 73990,
Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al., the legitimacy of the government of President Aquino is
questioned. It is claimed that her government is illegal because it was not established pursuant to the 1973
Constitution.

As early as April 10, 1986, this Court* had already voted to dismiss the petitions for the reasons to be stated below.
On April 17, 1986, Atty. Lozano as counsel for the petitioners in G.R. Nos. 73748 and 73972 withdrew the petitions
and manifested that they would pursue the question by extra-judicial methods. The withdrawal is functus oficio.

The three petitions obviously are not impressed with merit. Petitioners have no personality to sue and their petitions
state no cause of action. For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the
realm of politics where only the people of the Philippines are the judge. And the people have made the judgment;
they have accepted the government of President Corazon C. Aquino which is in effective control of the entire
country so that it is not merely a de factogovernment but is in fact and law a de jure government. Moreover, the
community of nations has recognized the legitimacy of the present government. All the eleven members of this
Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government.

In view of the foregoing, the petitions are hereby dismissed.

Very truly yours,

(Sgd.) GLORIA C. PARAS

Clerk of Court