a

State and Government (Chapter 3)

Collector v. Campos Rueda, 42 SCRA 23

EN BANC

G.R. No. L-13250 October 29, 1971

THE COLLECTOR OF INTERNAL REVENUE, petitioner,
vs.
ANTONIO CAMPOS RUEDA, respondent..
Assistant Solicitor General Jose P. Alejandro and Special Attorney Jose G. Azurin, (O.S.G.) for
petitioner.
Ramirez and Ortigas for respondent.

FERNANDO, J.:
The basic issue posed by petitioner Collector of Internal Revenue in this appeal from a decision of
the Court of Tax Appeals as to whether or not the requisites of statehood, or at least so much thereof
as may be necessary for the acquisition of an international personality, must be satisfied for a
"foreign country" to fall within the exemption of Section 122 of the National Internal Revenue
Code 1 is now ripe for adjudication. The Court of Tax Appeals answered the question in the negative, and
thus reversed the action taken by petitioner Collector, who would hold respondent Antonio Campos
Rueda, as administrator of the estate of the late Estrella Soriano Vda. de Cerdeira, liable for the sum of
P161,874.95 as deficiency estate and inheritance taxes for the transfer of intangible personal properties
in the Philippines, the deceased, a Spanish national having been a resident of Tangier, Morocco from
1931 up to the time of her death in 1955. In an earlier resolution promulgated May 30, 1962, this Court on
the assumption that the need for resolving the principal question would be obviated, referred the matter
back to the Court of Tax Appeals to determine whether the alleged law of Tangier did grant the reciprocal
tax exemption required by the aforesaid Section 122. Then came an order from the Court of Tax Appeals
submitting copies of legislation of Tangier that would manifest that the element of reciprocity was not
lacking. It was not until July 29, 1969 that the case was deemed submitted for decision. When the petition
for review was filed on January 2, 1958, the basic issue raised was impressed with an element of novelty.
Four days thereafter, however, on January 6, 1958, it was held by this Court that the aforesaid provision
does not require that the "foreign country" possess an international personality to come within its
terms. 2 Accordingly, we have to affirm.
The decision of the Court of Tax Appeals, now under review, sets forth the background facts as
follows: "This is an appeal interposed by petitioner Antonio Campos Rueda as administrator of the
estate of the deceased Doa Maria de la Estrella Soriano Vda. de Cerdeira, from the decision of the
respondent Collector of Internal Revenue, assessing against and demanding from the former the

sum P161,874.95 as deficiency estate and inheritance taxes, including interest and penalties, on the
transfer of intangible personal properties situated in the Philippines and belonging to said Maria de la
Estrella Soriano Vda. de Cerdeira. Maria de la Estrella Soriano Vda. de Cerdeira (Maria Cerdeira for
short) is a Spanish national, by reason of her marriage to a Spanish citizen and was a resident of
Tangier, Morocco from 1931 up to her death on January 2, 1955. At the time of her demise she left,
among others, intangible personal properties in the Philippines." 3 Then came this portion: "On
September 29, 1955, petitioner filed a provisional estate and inheritance tax return on all the properties of
the late Maria Cerdeira. On the same date, respondent, pending investigation, issued an assessment for
state and inheritance taxes in the respective amounts of P111,592.48 and P157,791.48, or a total of
P369,383.96 which tax liabilities were paid by petitioner ... . On November 17, 1955, an amended return
was filed ... wherein intangible personal properties with the value of P396,308.90 were claimed as
exempted from taxes. On November 23, 1955, respondent, pending investigation, issued another
assessment for estate and inheritance taxes in the amounts of P202,262.40 and P267,402.84,
respectively, or a total of P469,665.24 ... . In a letter dated January 11, 1956, respondent denied the
request for exemption on the ground that the law of Tangier is not reciprocal to Section 122 of the
National Internal Revenue Code. Hence, respondent demanded the payment of the sums of P239,439.49
representing deficiency estate and inheritance taxes including ad valorem penalties, surcharges, interests
and compromise penalties ... . In a letter dated February 8, 1956, and received by respondent on the
following day, petitioner requested for the reconsideration of the decision denying the claim for tax
exemption of the intangible personal properties and the imposition of the 25% and 5% ad
valorem penalties ... . However, respondent denied request, in his letter dated May 5, 1956 ... and
received by petitioner on May 21, 1956. Respondent premised the denial on the grounds that there was
no reciprocity [with Tangier, which was moreover] a mere principality, not a foreign country. Consequently,
respondent demanded the payment of the sums of P73,851.21 and P88,023.74 respectively, or a total of
P161,874.95 as deficiency estate and inheritance taxes including surcharges, interests and compromise
penalties." 4
The matter was then elevated to the Court of Tax Appeals. As there was no dispute between the
parties regarding the values of the properties and the mathematical correctness of the deficiency
assessments, the principal question as noted dealt with the reciprocity aspect as well as the insisting
by the Collector of Internal Revenue that Tangier was not a foreign country within the meaning of
Section 122. In ruling against the contention of the Collector of Internal Revenue, the appealed
decision states: "In fine, we believe, and so hold, that the expression "foreign country", used in the
last proviso of Section 122 of the National Internal Revenue Code, refers to a government of that
foreign power which, although not an international person in the sense of international law, does not
impose transfer or death upon intangible person properties of our citizens not residing therein, or
whose law allows a similar exemption from such taxes. It is, therefore, not necessary that Tangier
should have been recognized by our Government order to entitle the petitioner to the exemption
benefits of the proviso of Section 122 of our Tax. Code." 5
Hence appeal to this court by petitioner. The respective briefs of the parties duly submitted, but as
above indicated, instead of ruling definitely on the question, this Court, on May 30, 1962, resolve to
inquire further into the question of reciprocity and sent back the case to the Court of Tax Appeals for
the motion of evidence thereon. The dispositive portion of such resolution reads as follows: "While
section 122 of the Philippine Tax Code aforequoted speaks of 'intangible personal property' in both
subdivisions (a) and (b); the alleged laws of Tangier refer to 'bienes muebles situados en Tanger',
'bienes muebles radicantes en Tanger', 'movables' and 'movable property'. In order that this Court

may be able to determine whether the alleged laws of Tangier grant the reciprocal tax exemptions
required by Section 122 of the Tax Code, and without, for the time being, going into the merits of the
issues raised by the petitioner-appellant, the case is [remanded] to the Court of Tax Appeals for the
reception of evidence or proof on whether or not the words `bienes muebles', 'movables' and
'movable properties as used in the Tangier laws, include or embrace 'intangible person property', as
used in the Tax Code." 6 In line with the above resolution, the Court of Tax Appeals admitted evidence
submitted by the administrator petitioner Antonio Campos Rueda, consisting of exhibits of laws of Tangier
to the effect that "the transfers by reason of death of movable properties, corporeal or incorporeal,
including furniture and personal effects as well as of securities, bonds, shares, ..., were not subject, on
that date and in said zone, to the payment of any death tax, whatever might have been the nationality of
the deceased or his heirs and legatees." It was further noted in an order of such Court referring the matter
back to us that such were duly admitted in evidence during the hearing of the case on September 9,
1963. Respondent presented no evidence." 7
The controlling legal provision as noted is a proviso in Section 122 of the National Internal Revenue
Code. It reads thus: "That no tax shall be collected under this Title in respect of intangible personal
property (a) if the decedent at the time of his death was a resident of a foreign country which at the
time of his death did not impose a transfer tax or death tax of any character in respect of intangible
person property of the Philippines not residing in that foreign country, or (b) if the laws of the foreign
country of which the decedent was a resident at the time of his death allow a similar exemption from
transfer taxes or death taxes of every character in respect of intangible personal property owned by
citizens of the Philippines not residing in that foreign country." 8 The only obstacle therefore to a
definitive ruling is whether or not as vigorously insisted upon by petitioner the acquisition of internal
personality is a condition sine qua non to Tangier being considered a "foreign country". Deference to the
De Lara ruling, as was made clear in the opening paragraph of this opinion, calls for an affirmance of the
decision of the Court of Tax Appeals.
It does not admit of doubt that if a foreign country is to be identified with a state, it is required in line
with Pound's formulation that it be a politically organized sovereign community independent of
outside control bound by penalties of nationhood, legally supreme within its territory, acting through a
government functioning under a regime of
law. 9 It is thus a sovereign person with the people composing it viewed as an organized corporate society
under a government with the legal competence to exact obedience to its commands. 10 It has been
referred to as a body-politic organized by common consent for mutual defense and mutual safety and to
promote the general welfare. 11 Correctly has it been described by Esmein as "the juridical personification
of the nation." 12 This is to view it in the light of its historical development. The stress is on its being a
nation, its people occupying a definite territory, politically organized, exercising by means of its
government its sovereign will over the individuals within it and maintaining its separate international
personality. Laski could speak of it then as a territorial society divided into government and subjects,
claiming within its allotted area a supremacy over all other institutions. 13 McIver similarly would point to
the power entrusted to its government to maintain within its territory the conditions of a legal order and to
enter into international relations. 14 With the latter requisite satisfied, international law do not exact
independence as a condition of statehood. So Hyde did opine. 15
Even on the assumption then that Tangier is bereft of international personality, petitioner has not
successfully made out a case. It bears repeating that four days after the filing of this petition on
January 6, 1958 in Collector of Internal Revenue v. De Lara, 16 it was specifically held by us:

"Considering the State of California as a foreign country in relation to section 122 of our Tax Code we
believe and hold, as did the Tax Court, that the Ancilliary Administrator is entitled the exemption from the
inheritance tax on the intangible personal property found in the Philippines." 17 There can be no doubt that
California as a state in the American Union was in the alleged requisite of international personality.
Nonetheless, it was held to be a foreign country within the meaning of Section 122 of the National Internal
Revenue Code. 18

What is undeniable is that even prior to the De Lara ruling, this Court did commit itself to the doctrine
that even a tiny principality, that of Liechtenstein, hardly an international personality in the sense, did
fall under this exempt category. So it appears in an opinion of the Court by the then Acting Chief
Justicem Bengson who thereafter assumed that position in a permanent capacity, in Kiene v.
Collector of Internal Revenue. 19 As was therein noted: 'The Board found from the documents submitted
to it proof of the laws of Liechtenstein that said country does not impose estate, inheritance and gift
taxes on intangible property of Filipino citizens not residing in that country. Wherefore, the Board declared
that pursuant to the exemption above established, no estate or inheritance taxes were collectible, Ludwig
Kiene being a resident of Liechtestein when he passed away." 20 Then came this definitive ruling: "The
Collector hereafter named the respondent cites decisions of the United States Supreme Court and
of this Court, holding that intangible personal property in the Philippines belonging to a non-resident
foreigner, who died outside of this country is subject to the estate tax, in disregard of the principle 'mobilia
sequuntur personam'. Such property is admittedly taxable here. Without the proviso above quoted, the
shares of stock owned here by the Ludwig Kiene would be concededly subject to estate and inheritance
taxes. Nevertheless our Congress chose to make an exemption where conditions are such that demand
reciprocity as in this case. And the exemption must be honored." 21
WHEREFORE, the decision of the respondent Court of Tax Appeals of October 30, 1957 is affirmed.
Without pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Villamor and Makasiar, JJ., concur.
Reyes, J.B.L., J., concurs in the result.
Teehankee and Barredo, JJ., took no part.

Footnotes
1 Commonwealth Act No. 466 as amended (1939).
2 Collector of Internal Revenue v. De Lara, 102 Phil. 813 (1958).
3 Annex C, Petition, Decision of Court of Tax Appeals, p. 1.
4 Ibid, pp. 2-3.
5 Ibid, p. 9.

6 Resolution, pp. 4-5.

7 Order of November 19, 1963 p. 2.
8 Section 122 of the National Internal Revenue Code (1939) reads insofar as
relevant: "For the purposes of this Title the terms 'gross estate' and 'gift' include real
estate and tangible personal property, or mixed, physically located in the Philippines;
franchise which must be exercised in the Philippines; shares, obligations, or bonds
issued by any corporation or sociedad anonima organized or constituted in the
Philippines in accordance with its laws; shares, obligations, or bonds issued by any
foreign corporation eighty-five per centum of the business of which is located in the
Philippines; shares, obligations, or bonds issued by any foreign corporation if such
shares, obligations, or bonds have acquired a business situs in the Philippines;
shares or rights in any partnership, business or industry established in the
Philippines; or any personal property, whether tangible or intangible, located in the
Philippines; Provided, however, That in the case of a resident, the transmission or
transfer of any intangible personal property, regardless of its location, subject to the
taxes prescribed in this Title; And provided, further, that no tax shall be collected
under this Title in respect of intangible personal property (a) if the decedent at the
time of his death was a resident of a foreign country which at the time of his death
did not impose a transfer tax or death tax of any character in respect of intangible
personal property of citizens of the Philippines not residing in that foreign country, or
(b) if the laws of the foreign country of which the decedent was a resident at the time
of his death allow a similar exemption from transfer taxes or death taxes of every
character in respect of intangible personal property owned by citizens of the
Philippines not residing in that foreign country."
9 Cf. Pound: "The political organization of a society legally supreme within and
independent of legal control from without." II Jurisprudence, p. 346 (1959).
10 Cf. Willoughby, Fundamental Concepts of Public Law, p. 3 (1925).
11 Cf. 1 Cooley, Constitutional Limitations, p. 3 (1927).
12 Cf. Cohen, Recent Theories of Sovereignty, p. 15 (1937). Pitamic speaks of it as a
juridical organization of human beings. Treatise on the State, p. 17 (1933).
13 Laski, Grammar of Polities, p. 25 (1934).
14 Cf. McIver, The State, p. 22 (1926).
15 Hyde, International Law, 2nd ed., p. 22 (1945).
16 102 Phil. 813 (1958).
17 Ibid, p. 820.

18 In the subsequent case of Collector of Internal Revenue v. Fisher, L-11622,

January 28, 1961, 1 SCRA 93, this Court did find that the reciprocity found in the
California statutes was partial not total, thus holding that Section 122 would not
apply, without however reversing the doctrine that an international personality is not a
requisite. "
19 97 Phil. 352 (1955).
20 Ibid, p. 354.

Bacani v. NACOCO, 100 Phil 468

EN BANC
[G.R. No. L-9657. November 29, 1956.]
LEOPOLDO T. BACANI and MATEO A. MATOTO, Plaintiffs-Appellees, vs.
NATIONAL COCONUT CORPORATION, ET AL., Defendants, NATIONAL
COCONUT CORPORATION and BOARD OF LIQUIDATORS, DefendantsAppellants.
DECISION
BAUTISTA ANGELO, J.:
Plaintiffs herein are court stenographers assigned in Branch VI of the Court of First
Instance of Manila. During the pendency of Civil Case No. 2293 of said court,
entitled Francisco Sycip vs. National Coconut Corporation, Assistant Corporate
Counsel Federico Alikpala, counsel forDefendant, requested said stenographers for
copies of the transcript of the stenographic notes taken by them during the
hearing. Plaintiffs complied with the request by delivering to Counsel Alikpala the
needed transcript containing 714 pages and thereafter submitted to him their bills
for the payment of their fees. The National Coconut Corporation paid the amount of
P564 to Leopoldo T. Bacani and P150 to Mateo A. Matoto for said transcript at the
rate of P1 per page.

Upon inspecting the books of this corporation, the Auditor General disallowed the
payment of these fees and sought the recovery of the amounts paid. On January 19,
1953, the Auditor General required the Plaintiffs to reimburse said amounts on the
strength of a circular of the Department of Justice wherein the opinion was
expressed that the National Coconut Corporation, being a government entity, was
exempt from the payment of the fees in question. On February 6, 1954, the Auditor
General issued an order directing the Cashier of the Department of Justice to deduct
from the salary of Leopoldo T. Bacani the amount of P25 every payday and from the
salary of Mateo A. Matoto the amount of P10 every payday beginning March 30,
1954. To prevent deduction of these fees from their salaries and secure a judicial
ruling that the National Coconut Corporation is not a government entity within the
purview of section 16, Rule 130 of the Rules of Court, this action was instituted in
the Court of First Instance of Manila.
Defendants set up as a defense that the National Coconut Corporation is a
government entity within the purview of section 2 of the Revised Administrative
Code of 1917 and, hence, it is exempt from paying the stenographers fees under
Rule 130 of the Rules of Court. After trial, the court found for the Plaintiffs declaring
(1) that Defendant National Coconut Corporation is not a government entity within
the purview of section 16, Rule 130 of the Rules of Court;
(2) that the payments
already made by said Defendant to Plaintiffs herein and received by the latter from
the former in the total amount of P714, for copies of the stenographic transcripts in
question, are valid, just and legal;
and (3) that Plaintiffs are under no obligation
whatsoever to make a refund of these payments already received by them. This is
an appeal from said decision.
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Under section 16, Rule 130 of the Rules of Court, the Government of the Philippines
is exempt from paying the legal fees provided for therein, and among these fees are
those which stenographers may charge for the transcript of notes taken by them
that may be requested by any interested person (section 8). The fees in question
are for the transcript of notes taken during the hearing of a case in which the
National Coconut Corporation is interested, and the transcript was requested by its
assistant corporate counsel for the use of said corporation.
On the other hand, section 2 of the Revised Administrative Code defines the scope
of the term Government of the Republic of the Philippines as follows:
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The Government of the Philippine Islands is a term which refers to the corporate
governmental entity through which the functions of government are exercised
throughout the Philippine Islands, including, save as the contrary appears from the
context, the various arms through which political authority is made effective in said
Islands, whether pertaining to the central Government or to the provincial or
municipal branches or other form of local government.
The question now to be determined is whether the National Coconut Corporation
may be considered as included in the term Government of the Republic of the
Philippines for the purposes of the exemption of the legal fees provided for in Rule
130 of the Rules of Court.
As may be noted, the term Government of the Republic of the Philippines refers to
a government entity through which the functions of government are exercised,
including the various arms through which political authority is made effective in the
Philippines, whether pertaining to the central government or to the provincial or

municipal branches or other form of local government. This requires a little

digression on the nature and functions of our government as instituted in our
Constitution.
To begin with, we state that the term Government may be defined as that
institution or aggregate of institutions by which an independent society makes and
carries out those rules of action which are necessary to enable men to live in a
social state, or which are imposed upon the people forming that society by those
who possess the power or authority of prescribing them (U.S. vs. Dorr, 2 Phil., 332).
This institution, when referring to the national government, has reference to what
our Constitution has established composed of three great departments, the
legislative, executive, and the judicial, through which the powers and functions of
government are exercised. These functions are twofold:
constitute and ministrant.
The former are those which constitute the very bonds of society and are compulsory
in nature;
the latter are those that are undertaken only by way of advancing the
general interests of society, and are merely optional. President Wilson enumerates
the constituent functions as follows:
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(1) The keeping of order and providing for the protection of persons and property
from violence and robbery.
(2) The fixing of the legal relations between man and wife and between parents
and children.
(3) The regulation of the holding, transmission, and interchange of property, and
the determination of its liabilities for debt or for crime.
(4) The determination of contract rights between individuals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil cases.
(7) The determination of the political duties, privileges, and relations of citizens.
(8) Dealings of the state with foreign powers:
the preservation of the state from
external danger or encroachment and the advancement of its international
interests. (Malcolm, The Government of the Philippine Islands, p. 19.)
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The most important of the ministrant functions are:

public works, public
education, public charity, health and safety regulations, and regulations of trade
and industry. The principles deter mining whether or not a government shall
exercise certain of these optional functions are:
(1) that a government should do
for the public welfare those things which private capital would not naturally
undertake and (2) that a government should do these things which by its very
nature it is better equipped to administer for the public welfare than is any private
individual or group of individuals. (Malcolm, The Government of the Philippine
Islands, pp. 19-20.)
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From the above we may infer that, strictly speaking, there are functions which our
government is required to exercise to promote its objectives as expressed in our
Constitution and which are exercised by it as an attribute of sovereignty, and those
which it may exercise to promote merely the welfare, progress and prosperity of the
people. To this latter class belongs the organization of those corporations owned or
controlled by the government to promote certain aspects of the economic life of our
people such as the National Coconut Corporation. These are what we call

government-owned or controlled corporations which may take on the form of a

private enterprise or one organized with powers and formal characteristics of a
private corporations under the Corporation Law.
The question that now arises is:
Does the fact that these corporation perform
certain functions of government make them a part of the Government of the
Philippines?
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The answer is simple:

they do not acquire that status for the simple reason that
they do not come under the classification of municipal or public corporation. Take
for instance the National Coconut Corporation. While it was organized with the
purpose of adjusting the coconut industry to a position independent of trade
preferences in the United States and of providing Facilities for the better curing of
copra products and the proper utilization of coconut by-products, a function which
our government has chosen to exercise to promote the coconut industry, however,
it was given a corporate power separate and distinct from our government, for it
was made subject to the provisions of our Corporation Law in so far as its corporate
existence and the powers that it may exercise are concerned (sections 2 and 4,
Commonwealth Act No. 518). It may sue and be sued in the same manner as any
other private corporations, and in this sense it is an entity different from our
government. As this Court has aptly said, The mere fact that the Government
happens to be a majority stockholder does not make it a public corporation
(National Coal Co. vs. Collector of Internal Revenue, 46 Phil., 586-587). By
becoming a stockholder in the National Coal Company, the Government divested
itself of its sovereign character so far as respects the transactions of the
corporation . Unlike the Government, the corporation may be sued without its
consent, and is subject to taxation. Yet the National Coal Company remains an
agency or instrumentality of government. (Government of the Philippine Islands vs.
Springer, 50 Phil., 288.)
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cralaw

To recapitulate, we may mention that the term Government of the Republic of the
Philippines used in section 2 of the Revised Administrative Code refers only to that
government entity through which the functions of the government are exercised as
an attribute of sovereignty, and in this are included those arms through which
political authority is made effective whether they be provincial, municipal or other
form of local government. These are what we call municipal corporations. They do
not include government entities which are given a corporate personality separate
and distinct from the government and which are governed by the Corporation Law.
Their powers, duties and liabilities have to be determined in the light of that law and
of their corporate charters. They do not therefore come within the exemption clause
prescribed in section 16, Rule 130 of our Rules of Court.
Public corporations are those formed or organized for the government of a portion
of the State. (Section 3, Republic Act No. 1459, Corporation Law).
The generally accepted definition of a municipal corporation would only include
organized cities and towns, and like organizations, with political and legislative
powers for the local, civil government and police regulations of the inhabitants of
the particular district included in the boundaries of the corporation. Heller vs.
Stremmel, 52 Mo. 309, 312.
In its more general sense the phrase municipal corporation may include both
towns and counties, and other public corporations created by government for

political purposes. In its more common and limited signification, it embraces only
incorporated villages, towns and cities. Dunn vs. Court of County Revenues, 85 Ala.
144, 146, 4 So. 661. (McQuillin, Municipal Corporations, 2nd ed., Vol. 1, p. 385.)
We may, therefore, define a municipal corporation in its historical and strict sense
to be the incorporation, by the authority of the government, of the inhabitants of a
particular place or district, and authorizing them in their corporate capacity to
exercise subordinate specified powers of legislation and regulation with respect to
their local and internal concerns. This power of local government is the distinctive
purpose and the distinguishing feature of a municipal corporation proper. (Dillon,
Municipal Corporations, 5th ed., Vol. I, p. 59.)
It is true that under section 8, Rule 130, stenographers may only charge as fees
P0.30 for each page of transcript of not less than 200 words before the appeal is
taken and P0.15 for each page after the filing of the appeal, but in this case the
National Coconut Corporation has agreed and in fact has paid P1.00 per page for
the services rendered by the Plaintiffs and has not raised any objection to the
amount paid until its propriety was disputed by the Auditor General. The payment of
the fees in question became therefore contractual and as such is valid even if it
goes beyond the limit prescribed in section 8, Rule 130 of the Rules of Court.
As regards the question of procedure raised by Appellants, suffice it to say that the
same is insubstantial, considering that this case refers not to a money claim
disapproved by the Auditor General but to an action of prohibition the purpose of
which is to restrain the officials concerned from deducting from Plaintiffs salaries
the amount paid to them as stenographers fees. This case does not come under
section 1, Rule 45 of the Rules of Court relative to appeals from a decision of the
Auditor General.
Wherefore, the decision appealed from is affirmed, without pronouncement as to
costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J.
B. L., Endencia and Felix, JJ., concur.

Co Kim Chan vs. Valdez Tan Keh, 75 Phil 113

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 factogovernments.
Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in
the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government,
called also by publicists a government de facto, but which might, perhaps, be more aptly
denominated a government of paramount force. Its distinguishing characteristics are (1), that its
existence is maintained by active military power with the territories, and against the rightful authority
of an established and lawful government; and (2), that while it exists it necessarily be obeyed in civil
matters by private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful
government. Actual governments of this sort are established over districts differing greatly in extent
and conditions. They are usually administered directly by military authority, but they may be
administered, also, civil authority, supported more or less directly by military force. . . . One example
of this sort of government is found in the case of Castine, in Mine, reduced to British possession in
the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico,
occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and regular
governments at war with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated in Section III of the
Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899
on the same subject of said Section III provides "the authority of the legislative power having actually
passed into the hands of the occupant, the latter shall take steps in his power to reestablish and

insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is
burdened with the duty to insure public order and safety during his military occupation, he possesses
all the powers of a de facto government, and he can suspended the old laws and promulgate new
ones and make such changes in the old as he may see fit, but he is enjoined to respect, unless
absolutely prevented by the circumstances prevailing in the occupied territory, the municipal laws in
force in the country, that is, those laws which enforce public order and regulate social and
commercial life of the country. On the other hand, laws of a political nature or affecting political
relations, such as, among others, the right of assembly, the right to bear arms, the freedom of the
press, and the right to travel freely in the territory occupied, are considered as suspended or in
abeyance during the military occupation. Although the local and civil administration of justice is
suspended as a matter of course as soon as a country is militarily occupied, it is not usual for the
invader to take the whole administration into his own hands. In practice, the local ordinary tribunals
are authorized to continue administering justice; and judges and other judicial officers are kept in
their posts if they accept the authority of the belligerent occupant or are required to continue in their
positions under the supervision of the military or civil authorities appointed, by the Commander in
Chief of the occupant. These principles and practice have the sanction of all publicists who have
considered the subject, and have been asserted by the Supreme Court and applied by the President
of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol.
2, p. 444): "The right of one belligerent to occupy and govern the territory of the enemy while in its
military possession, is one of the incidents of war, and flows directly from the right to conquer. We,
therefore, do not look to the Constitution or political institutions of the conqueror, for authority to
establish a government for the territory of the enemy in his possession, during its military occupation,
nor for the rules by which the powers of such government are regulated and limited. Such authority
and such rules are derived directly from the laws war, as established by the usage of the of the
world, and confirmed by the writings of publicists and decisions of courts in fine, from the law of
nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights,
continue in force during military occupation, excepts so far as they are suspended or changed by the
acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his
pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied territory, which were
later embodied in the said Hague Conventions, President McKinley, in his executive order to the
Secretary of War of May 19,1898, relating to the occupation of the Philippines by United States
forces, said in part: "Though the powers of the military occupant are absolute and supreme, and
immediately operate upon the political condition of the inhabitants, the municipal laws of the
conquered territory, such as affect private rights of person and property and provide for the
punishment of crime, are considered as continuing in force, so far as they are compatible with the
new order of things, until they are suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in force and to be administered by
the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is,
so far as possible, to be adhered to on the present occasion. The judges and the other officials
connected with the administration of justice may, if they accept the authority of the United States,
continue to administer the ordinary law of the land as between man and man under the supervision
of the American Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United States, in the same
case of Thorington vs. Smith, supra, recognized the government set up by the Confederate States

as a de factogovernment. In that case, it was held that "the central government established for the
insurgent States differed from the temporary governments at Castine and Tampico in the
circumstance that its authority did no originate in lawful acts of regular war; but it was not, on the
account, less actual or less supreme. And we think that it must be classed among the governments
of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States,
discussing the validity of the acts of the Confederate States, said: "The same general form of
government, the same general laws for the administration of justice and protection of private rights,
which had existed in the States prior to the rebellion, remained during its continuance and
afterwards. As far as the Acts of the States do not impair or tend to impair the supremacy of the
national authority, or the just rights of citizens under the Constitution, they are, in general, to be
treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The
existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil
government or the regular administration of the laws. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates
settled, and the transfer and descent of property regulated, precisely as in the time of peace. No
one, that we are aware of, seriously questions the validity of judicial or legislative Acts in the
insurrectionary States touching these and kindered subjects, where they were not hostile in their
purpose or mode of enforcement to the authority of the National Government, and did not impair the
rights of citizens under the Constitution'. The same doctrine has been asserted in numerous other
cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured
or was done in respect of such matters under the authority of the laws of these local de
facto governments should not be disregarded or held to be invalid merely because those
governments were organized in hostility to the Union established by the national Constitution; this,
because the existence of war between the United States and the Confederate States did not relieve
those who are within the insurrectionary lines from the necessity of civil obedience, nor destroy the
bonds of society nor do away with civil government or the regular administration of the laws, and
because transactions in the ordinary course of civil society as organized within the enemy's territory
although they may have indirectly or remotely promoted the ends of the de facto or unlawful
government organized to effect a dissolution of the Union, were without blame 'except when proved
to have been entered intowith actual intent to further invasion or insurrection:'" and "That judicial and
legislative acts in the respective states composing the so-called Confederate States should be
respected by the courts if they were not hostile in their purpose or mode of enforcement to the
authority of the National Government, and did not impair the rights of citizens under the
Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized
by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil
government established by the military forces of occupation and therefore a de facto government of
the second kind. It was not different from the government established by the British in Castine,
Maine, or by the United States in Tampico, Mexico. As Halleck says, "The government established
over an enemy's territory during the military occupation may exercise all the powers given by the
laws of war to the conqueror over the conquered, and is subject to all restrictions which that code
imposes. It is of little consequence whether such government be called a military or civil government.
Its character is the same and the source of its authority the same. In either case it is a government
imposed by the laws of war, and so far it concerns the inhabitants of such territory or the rest of the
world, those laws alone determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that
the Philippine Executive Commission was a civil and not a military government and was run by
Filipinos and not by Japanese nationals, is of no consequence. In 1806, when Napoleon occupied
the greater part of Prussia, he retained the existing administration under the general direction of a

french official (Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington,
on invading France, authorized the local authorities to continue the exercise of their functions,
apparently without appointing an English superior. (Wellington Despatches, XI, 307.). The Germans,
on the other hand, when they invaded France in 1870, appointed their own officials, at least in
Alsace and Lorraine, in every department of administration and of every rank. (Calvo, pars. 2186-93;
Hall, International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the Japanese forces of occupation. It was of
the same character as the Philippine Executive Commission, and the ultimate source of its authority
was the same the Japanese military authority and government. As General MacArthur stated in
his proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy
duress, a so-called government styled as the 'Republic of the Philippines' was established on
October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the
Government of the United States." Japan had no legal power to grant independence to the
Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of,
the Filipino people, before its military occupation and possession of the Islands had matured into an
absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in
the law of nations. For it is a well-established doctrine in International Law, recognized in Article 45
of the Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied
territory to swear allegiance to the hostile power), the belligerent occupation, being essentially
provisional, does not serve to transfer sovereignty over the territory controlled although the de
jure government is during the period of occupancy deprived of the power to exercise its rights as
such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246;
Fleming vs.Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the
Republic of the Philippines was a scheme contrived by Japan to delude the Filipino people into
believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the
rights of government into the hands of Filipinos. It was established under the mistaken belief that by
doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people in her
war against the United States and other allied nations.
Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino
who, taking advantage of the withdrawal of the American forces from the Islands, and the occupation
thereof by the Japanese forces of invasion, had organized an independent government under the
name with the support and backing of Japan, such government would have been considered as one
established by the Filipinos in insurrection or rebellion against the parent state or the Unite States.
And as such, it would have been a de facto government similar to that organized by the confederate
states during the war of secession and recognized as such by the by the Supreme Court of the
United States in numerous cases, notably those of Thorington vs. Smith, Williams vs.Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived government established by the Filipino
insurgents in the Island of Cebu during the Spanish-American war, recognized as a de
facto government by the Supreme Court of the United States in the case of McCleod vs. United
States (299 U. S., 416). According to the facts in the last-named case, the Spanish forces evacuated
the Island of Cebu on December 25, 1898, having first appointed a provisional government, and
shortly afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession thereof was surrendered
to the United States on February 22, 1898. And the said Supreme Court held in that case that "such
government was of the class of de facto governments described in I Moore's International Law
Digest, S 20, . . . 'called also by publicists a government de facto, but which might, perhaps, be more
aptly denominated a government of paramount force . . '." That is to say, that the government of a
country in possession of belligerent forces in insurrection or rebellion against the parent state, rests

upon the same principles as that of a territory occupied by the hostile army of an enemy at regular
war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of the Philippines during
the Japanese military occupation being de facto governments, it necessarily follows that the judicial
acts and proceedings of the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of postliminy
(postliminium) in international law, remained good and valid after the liberation or reoccupation of the
Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur.
According to that well-known principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government of sovereignty, "does
not, except in a very few cases, wipe out the effects of acts done by an invader, which for one
reason or another it is within his competence to do. Thus judicial acts done under his control, when
they are not of a political complexion, administrative acts so done, to the extent that they take effect
during the continuance of his control, and the various acts done during the same time by private
persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of
a community would be paralyzed by an invasion; and as between the state and the individuals the
evil would be scarcely less, it would be hard for example that payment of taxes made under
duress should be ignored, and it would be contrary to the general interest that the sentences passed
upon criminals should be annulled by the disappearance of the intrusive government ." (Hall,
International Law, 7th ed., p. 518.) And when the occupation and the abandonment have been each
an incident of the same war as in the present case, postliminy applies, even though the occupant
has acted as conqueror and for the time substituted his own sovereignty as the Japanese intended
to do apparently in granting independence to the Philippines and establishing the so-called Republic
of the Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of a political
complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant,
is confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which
declares null and void all laws, regulations and processes of the governments established in the
Philippines during the Japanese occupation, for it would not have been necessary for said
proclamation to abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the 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 socalled 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; Williamsvs. Bruffy, 96 U. S., 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7id., 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 Osmea and the members of his
cabinet; and
WHEREAS, under enemy duress, a so-called government styled as the "Republic of the
Philippines" was established on October 14, 1943, based upon neither the free expression of
the people's will nor the sanction of the Government of the United States, and is purporting
to exercise Executive, Judicial and Legislative powers of government over the people;
Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander in Chief
of the military forces committed to the liberation of the Philippines, do hereby proclaim and
declare:
1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and the only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;
2. The laws now existing on the statute books of the Commonwealth of the
Philippines and the regulation promulgated pursuant thereto are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free enemy occupation and control; and
I do hereby announce my purpose progressively to restore and extend to the people of the
Philippines the sacred right of government by constitutional process under the regularly
constituted Commonwealth Government as rapidly as the several occupied areas are
liberated to the military situation will otherwise permit;
I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other
acts of their duly constituted government whose seat is now firmly 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 voce or 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 ade facto government are good and valid, that the governments established during the
Japanese occupation. that is, the Philippine Executive Commission and the Republic of the
Philippines, were de facto governments, and that it necessarily follows that the judicial acts and
proceedings of the courts of those governments, "which are not of a political complexion," were good
and valid, and by virtue of the principle of postliminium, remain good and valid after the liberation.
In the above reasoning we will see right away how the alleged legal truism in political and
international law, stated as a premise in a sweeping way, as an absolute rule, is immediately
qualified by the exception as to judicial acts and proceedings which are of a "political complexion."
So it is the majority itself which destroys the validity of what it maintains as a legal truism in political
and international law, by stating from the beginning of the absolute proposition that all acts and
proceedings of the legislative, executive, and judicial departments of a de facto governments are
good and valid.
It is be noted that no authority, absolutely no authority, has been cited to support the absolute and
sweeping character of the majority proposition as stated in their opinion.
No authority could be cited, because the majority itself loses faith in the validity of such absolute and
sweeping proposition, by establishing an unexplained exception as regards the judicial acts and
proceedings of a "political complexion."
Besides, it is useless to try to find in the arguments of the majority anything that may challenge the
power, the authority of a de jure government to annul the official acts of a de facto government, or
the legal and indisputable authority of the restored legitimate government to refuse to recognize the
official acts, legislative, executive and judicial, of the usurping government, once the same is ousted.
As to the second question, the majority argues that the judicial proceedings and judgments of the de
factogovernments under the Japanese regime being good and valid, "it should be presumed that it
was not, and could not have been, the intention of General Douglas MacArthur to refer to judicial
processes, when he used the last word in the October Proclamation, and that it only refers to
government processes other than judicial processes or court proceedings."
The weakness and absolute ineffectiveness of the argument are self-evident.
It is maintained that when General MacArthur declared the processes of the governments under the
Japanese regime null and void, he could not refer to judicial processes, because the same are valid

and remained so under the legal truism announced by the majority to the effect that, under political
and international law, all official acts of a de facto government, legislative, executive or judicial, are
valid.
But we have seen already how the majority excepted from said legal truism the judicial processes of
"political complexion."
And now it is stated that in annulling the processes of the governments under Japanese occupation,
General MacArthur referred to "processes other than judicial processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and proceedings of legislative and executive
departments of a de facto governments are good and valid? Did it not maintain that they are so as a
"legal truism in political and international law?"
Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial
processes because they are good and valid in accordance with international law, why should the
same reasoning not apply to legislative and executive processes?
Why does the majority maintain that, notwithstanding the fact that, according that said legal truism,
legislative and executive official acts of de facto governments are good and valid, General MacArthur
referred to the latter in his annulling proclamation, but not to judicial processes?
If the argument is good so as to exclude judicial processes from the effect of the October
Proclamation, we can see no logic in considering it bad with respect to legislative and executive
processes.
If the argument is bad with respect to legislative and executive processes, there is no logic in holding
that it is not good with respect to judicial processes.
Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General
MacArthur did not declare null and void any processes, at all, whether legislative processes,
executive processes, or judicial processes, and that the word "processes" used by him in the
October Proclamation is a mere surplusage or an ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but a
mere legal pretense that cannot stand the least analysis or the test of logic.
A great legal luminary admonished that we must have courage to unmasks pretense if we are to
reach a peace that will abide beyond the fleeting hour.
It is admitted that the commanding general of a belligerent army of occupation as an agent of his
government, "may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory if and when exigencies of the military occupation demand such action," but it is doubted
whether the commanding general of the army of the restored legitimate government can exercise the
same broad legislative powers.
We beg to disagree with a theory so unreasonable and subversive.

We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an
invading army, or of a usurping army, should enjoy greater legal authority during the illegal, and in
the case of the Japanese, iniquitous and bestial occupation, than the official representative of the
legitimate government, once restored in the territory wrested from the brutal invaders and
aggressors. We cannot agree with such legal travesty.
Broad and unlimited powers are granted and recognized in the commanding general of an army of
invasion, but the shadow of the vanishing alleged principle of international law is being brandished to
gag, manacle, and make completely powerless the commander of an army of liberation to wipe out
the official acts of the government for usurpation, although said acts might impair the military
operation or neutralize the public policies of the restored legitimate government.
We are not unmindful of the interest of the persons who might be adversely affected by the
annulment of the judicial processes of the governments under the Japanese regime, but we cannot
help smiling when we hear that chaos will reign or that the world will sink.
It is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed
that the President, in the exercise of his constitutional powers of pardon and amnesty, had in the
past released many criminals from imprisonment. And let us not forget that due to human limitations,
in all countries, under all governments, in peace or in war, there were, there are, and there will
always be unpunished criminals, and that situation never caused despair to any one.
We can conceive of inconveniences and hardships, but they are necessary contributions to great
and noble purposes. Untold sacrifices were always offered to attain high ideals and in behalf of
worthy causes.
We cannot refrain from feeling a paternal emotion for those who are trembling with all sincerity
because of the belief that the avoidance of judicial proceedings of the governments under the
Japanese regime "would paralyze the social life of the country." To allay such fear we must remind
them that the country that produced many great hereos and martyrs; that contributed some of
highest morals figures that humanity has ever produced in all history; which inhabited by a race
which was able to traverse in immemorial times the vast expanses of the Indian Ocean and the
Pacific with inadequate means of navigation, and to inhabit in many islands so distantly located, from
Madagascar to the eastern Pacific; which made possible the wonderful resistance of Bataan and
Corregidor, can not have a social life so frail as to be easily paralyzed by the annulment of some
judicial proceedings. The Japanese vandalisms during the last three years of nightmares and bestial
oppression, during the long period of our national slavery, and the wholesale massacres and
destructions in Manila and many other cities and municipalities and populated areas, were not able
to paralyze the social life of our people. Let us not loss faith so easily in the inherent vitality of the
social life of the people and country of Rizal and Mabini.
It is insinuated that because of the thought that the representative of the restored sovereign power
may set aside all judicial processes of the army of occupation, in the case to courts of a future
invasions, litigants will not summit their cases to courts whose judgement may afterwards be
annulled, and criminals would not be deterred from committing offenses in the expectancy that they
may escape penalty upon liberation of the country. We hope that Providence will never allow the
Philippines to fall again under the arms of an invading army, but if such misfortune will happen, let
the October Proclamation serve as a notice to the ruthless invaders that the official acts of the
government of occupation will not merit any recognition from the legitimate government, especially if
they should not conduct themselves, as exemplified by the Japanese, in accordance with the rules of
action of a civilized state.

One conclusive evidence of the untenableness of the majority position is the fact that it had to resort
to Executive Order No. 37, issued on March 10, 1945, providing "that all cases that have heretofore
been appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision."
The far-fetched theory is advanced that this provision impliedly recognizes the court processes
during the Japanese military occupation, on the false assumption that it refers to the Court of
Appeals existing during the Japanese regime. It is self-evident that the Executive Order could have
referred only to the Commonwealth Court of Appeals, which is the one declared abolished in said
order. Certainly no one will entertain the absurd idea that the President of the Philippines could have
thought of abolishing the Court of Appeals under the government during the Japanese occupation.
Said Court of Appeals disappeared with the ouster of the Japanese military administration from
which it derived its existence and powers. The Court of Appeals existing on March 10, 1945, at the
time of the issuance of Executive Order No. 37, was the Commonwealth Court of Appeals and it was
the only one that could be abolished.
Without discussing the correctness of principle stated the majority opinion quotes from Wheaton the
following: "Moreover when it is said that occupier's acts are valid and under international law should
not be abrogated by the subsequent conqueror, it must be remembered that on crucial instances
exist to show that if his acts should be reversed, any international wrong would be committed. What
does happen is that most matters are allowed to stand by the stored government, but the matter can
hardly be put further than this." (Wheaton, International Law, War, 7th English edition of 1944, p.
245)
Then it says that there is no doubt that the subsequent conqueror has the right to abrogate most of
the acts of the occupier, such as the laws, regulations and processes other than the judicial of the
government established by the belligerent occupant.
It is evident that the statement just quoted is a complete diversion from the principle stated in the in
an unmistakable way by Wheaton, who says in definite terms that "it must be remembered that no
crucial instances exist to show that if his acts (the occupant's) should be reversed, any international
wrong would be committed."
It can be clearly seen that Wheaton does not make any distinction or point out any exception.
But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting
the right of the restored government to annul "most of the acts of the occupier" and "processes other
than judicial."
The statement made by the respondent judge after quoting the above-mentioned principle, as stated
by Wheaton, to the effect that whether the acts of military occupant should be considered valid or
not, is a question that is up to the restored government to decide, and that there is no rule of
international law that denies to the restored government the right to exercise its discretion on the
matter, is quoted without discussion in the majority opinion.
As the statement is not disputed, wee are entitled to presume that it is concurred in and, therefore,
the qualifications made in the statement in the majority opinion seem to completely groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF THE
LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many duties imposed by international
law on the military occupant of an invaded country.

And from said duties it is deduced that the legitimate government, once restored in his own territory,
is bound to respect all the official acts of the government established by the usurping army, except
judicial processes political complexion.
The reasoning calls for immediate opposition. It is absolutely contrary to all principles of logic.
Between the duties imposed in the military occupant and the legal prerogatives of the legitimate
government there are no logical relationship or connection that might bind the ones with the others.
The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the
legitimate government necessarily validate the measures adopted by the said occupant in the
performance of this duty, if the legitimate government believes his duty to annul them for weighty
reasons?
The military occupant is duty bound to establish courts of justice. Why should the legitimate
government validate the acts of said courts, if it is convinced that said courts were absolutely
powerless, as was the case during the Japanese occupation, to stop the horrible abuses of the
military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect the
fundamental human rights of the Filipinos life, property, and personal freedom?
The majority opinion recognizes in the military occupant the power to annul the official acts of the
ousted and supplanted legitimate government, a privilege which is inversely denied to the last. This
preference and predilection in favor of the military occupant, that is in favor of the invader and
usurper, and against the legitimate government, is simply disconcerting, if we have to say the least.
PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS
The invading military occupant is duty bound to establish and maintain courts of justice in the
invaded territory, for the protection of the inhabitants thereof. It is presumed that the restored
legitimate government will respect the acts of said courts of the army of occupation. Therefore, it is a
principle of international law that said acts are valid and should be respected by the legitimate
government. It is presumed that General MacArthur is acquainted with such principle, discovered or
revealed through presumptive operations, and it is presumed that he had not the intention of
declaring null and void the judicial processes of the government during the Japanese regime.
Therefore, his October Proclamation, declaring null and void and without effect "all processes" of
said governments, in fact, did not annul the Japanese regime judicial processes.
So run the logic of the majority.
They don't mind the that General MacArthur speaks in the October Proclamation as follows:
NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-in-Chief of
the military forces committed to the liberation of the Philippines, do hereby proclaim and declare:
xxx

xxx

xxx

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

General MacArthur says categorically "all processes", but the majority insists on reading differently,
that, is: "NOT ALL processes." The majority presume, suppose, against the unequivocal meaning of
simple and well known words, that when General MacArthur said "all processes", in fact, he said "not
all processes", because it is necessary, by presumption, by supposition, to exclude judicial
processes.
If where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to
foresee the consequences of such so stubborn attitude, but it is possible to understand how they
reached the unacceptable possible conclusion which we cannot be avoid opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted to our consideration, by
presumption and suppositions putting aside truths and facts? Are we to place in the documents
presented to us, such as the October Proclamation, different words than what are written therein?
Are we to read "not all", where it is written "all"?
We are afraid to such procedure is not precisely the most appropriate to keep public confidence in
the effectiveness of the administration of justice.
That is why we must insists that in the October Proclamation should be read what General
MacArthur has written in it, that is, that, besides laws and regulations, he declared and proclaimed
null and void "ALL PROCESSES", including naturally judicial processes, of the governments under
the Japanese regime.
THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE REGIME
JUDICIAL PROCESSES
Now we come to the third and last question propounded in the majority opinion.
The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by legislative
act.
It is provided so in our Constitution. (Section 2, Article VIII.)
The Commonwealth courts of justice are continuations of the courts established before the
inauguration of the Commonwealth and before the Constitution took effect on November 15, 1935.
And their jurisdiction is the same as provided by existing laws at the time of inauguration of the
Commonwealth Government.
Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the
Philippines, is the one that defines the jurisdiction of justice of the peace and municipal courts,
Courts of First Instance, and the Supreme Court. It is not necessary to mention here the jurisdiction
of the Court of Appeals, because the same has been abolished by Executive Order No. 37.
No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the
Commonwealth tribunals jurisdiction to continue the judicial processes or proceedings of tribunals
belonging to other governments, such as the governments established during the Japanese
occupation.
The jurisdiction of our justice of the peace and municipal courts is provided in section 68, chapter V,
of Act No. 136. The original and appellate jurisdiction of the Courts of First Instance is provided in the
sections 56, 57, Chapter IV, of Act No. 136. The original and appellate jurisdiction of the Supreme

Court is provided in 17 and 18, Chapter II, of the same Act. The provisions of the 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.
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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 tielrecord. (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 ade facto Government in territory belonging to a
belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments
thus established here by Japan;
3. The courts of those governments were entirely different from our Commonwealth courts before
and after the Japanese occupation;
4. The question boils down to whether the Commonwealth Government, as now restored, is to be
bound by the acts of either or both of those Japanese-sponsored governments;
5. Even consideration of policy of practical convenience militate against petitioner's contention.
I
The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148).
In this proclamation, after reciting certain now historic facts, among which was that the so-called
government styled as the "Republic of the Philippines" was established on October 14, 1943 "under
enemy duress, . . . based upon neither the free expression of the people's will nor the sanction of the
Government of the United States," the great Commander-in-Chief proclaimed and declared:
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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
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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 allinclusive 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 thenwould 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
Statesretained 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 Japanesesponsored 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 theysucceed, rebellion becomes revolution,
and the new government will justify is founders. If they fail, all their acts hostile to the rightful
government are violations of law, and originate no rights which can be recognized by the
courts of the nation whose authority and existence have been alike assailed. S.C., Chase,
Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.)
I am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion should
be applied with greater force to the case of a belligerent who loss the war. And since the founding of
the 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 Shortridgevs. Macon,
cited by Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718).
II

(a) The government styled as, first, the "Philippine Executive Commission" and later as the
Republic of the Philippines", established here by the Commander in Chief of the Imperial
Japanese Forces or by the his order was not a de facto government--the so-called Court of
First Instance of Manila was not a de factocourt and the who presided it was not a de
facto judge;
(b) The rules of International Law regarding the establishment of a de facto government in
territory belonging to a belligerent but occupied or controlled by an opposing belligerent are
inapplicable to the governments thus established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the short-lived
provisional government thus established by the Japanese in the Philippines should be classified, at
best, as a government of paramount force. But this is not all. The Constitution of this Commonwealth
which has been expressly approved by the United States Government, in Article II, section 3, under
the heading "Declaration of Principles", renounces war as an instrument of national policy. This
renunciation of war as an instruments of national policy follows an equal renunciation in the BriandKellog 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 Japanesesponsored government in the Philippines were valid and binding. Moreover, I am of opinion, that
although at the time of the Japanese invasion and up to the present, the United States retains over
the Philippines, a certain measure of sovereignty, it is only for certain specified purposes
enumerated in the Tydings-McDufie Act of the Commonwealth Constitution. (Ordinance appended to
the Constitution.) And our territory was at the time of the Japanese invasion not a territory of the
United States, within the meaning of the laws of war governing war-like operations on enemy
territory. Our territory is significantly called "The National Territory" in Article I of our Constitution and
this bears the stamps of express approval of the United States Government. The Philippines has

been recognized and admitted as a member of the United Nations. We, therefore, had our own
national and territorial identity previous to that invasion. Our nation was not at war with the Filipinos.
And line with this, the Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt.
Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of January 2, 1942, said:
. . . we had not the slighest intensions to make your people our enemy; rather we considered
them as our friends who will join us has hand-in-hand in the establishment of an orderly
Greater East Asia. . . ., (Official Gazette, edited at the Office of the Executive Commission,
Vol. I, p. 55.)
If the Philippines was a neutral territory when invaded by the Japanese, the following principles from
Lawrence, International Law (7th ed.), p. 603, are pertinent:
The Duties of Belligerent States Towards Neutral States. . . . To refrain from carrying on
hostilities within neutral territory. We have already seen that, though this obligation was
recognized in theory during the infancy of International law, it was often very imperfectly
observed in practice. But in modern times it has been strickly enforced, and any State which
knowingly ordered warlike operations to be carried on in neutral territory . . . would bring
down upon itself the reprobation of civilized mankind. Hostilities may be carried on in the
territory of either belligerent, on the high seas, and in territory belonging to no one. Neutral
land and neutral territorial waters are sacred. No acts of warfare may lawfully take place
within them. . . . (Emphasis ours.)
In all the cases and authorities supporting the power or right to set up a provisional government, the
belligerent had the right to invade or occupy the territory in the first instance. Such was not the case
with the Philippines. President Roosevelt, in his message to the Filipino people, soon after the
landing of American Forces in Leyte, on October 20, 1944, characterized Japan's invasion and
occupation of the Philippines as "the barbarous, unprovoked and treacherous attack upon the
Philippines," and he announced the American people's "firm determination to punish the guilty." (41
Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the United Nations could not have in more
unmistakable terms the utter illegality of that invasion and occupation. If the establishment of a
provinsional government in occupied territory by a belligerent is "a mere application or extension of
the force by which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality
of the invasion, would necessarily permeate the government, which was its mere application or
extention.
The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and
treacherous attack," the meager and almost untrained forces of the Philippine Army had been
inducted into the American Army, did not change the neutral status of the Philippines. That military
measure had been adopted for purely defensive purposes. Nothing could be farther from the minds
of the government and military leaders of the United States and the Philippines in adopting it than to
embark upon any aggressive or warlike enterprise against any other nation. It is an old and honored
rule dating as far back as the 18th century that even solemn promises of assistance made before the
war by a neutral to a nation which later becomes a belligerent, would not change the status of the
neutral even if such promises were carried out, so long as they were made for purely defensive
purposes. In the words of Vattel "when a sovereign furnishes the succor due in virtue of a former
defensive alliance, he does not associate himself in the war. Therefore he may fulfill his
engagements and yet preserve an exact neutrality." (Lawrence, Principles of International Law [7th
ed.], pp. 585, 586.)
If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and
their territory occupied by the Japanese without resistance, such invasion occupation would

undoubtedly have been considered in violation of International Law. Should the Filipinos be punished
for having had the patriotism, bravery, and heroism to fight in defense of the sacredness of their
land, the sanctity of their homes, and the honor and dignity of their government by giving validity, in
whatever limited measure, to the lawless acts of the ruthless enemy who thus overran their country,
and robbed them of the tranquility and happiness of their daily lives? And yet, to my mind, to give
any measure of validity or binding effect to the proceedings of the Japanese-sponsored Court of
First Instance of Manila, involved herein, would be to give that much validity or effect to the acts of
those same invaders. To equalize the consequences of a lawful and a wrongful invasion of
occupation, would be to equalize right and wrong, uphold the creed that might makes right, and
adopt "the law of the jungle."
If said Japanese-sponsored government was not a de facto government, it would seem clearly to
follow that its "Court of First Instance of Manila" was not a de facto court. But it should additionally be
stated that for it be a de facto court, its judge had to be a de facto judge, which he could not be, as
presently demonstrated.
As said by President Osmea, in replying to the speech of General of the Army MacArthur when the
latter turned over to him the full powers and responsibilities of the Commonwealth Government, on
February 27, 1945:
xxx

xxx

xxx

The time has come when the world should know that when our forces surrendered in Bataan
and Corregidor, resistance to the enemy was taken up by the people itself resistance
which was inarticulate and disorganized in its inception but which grew from the day to day
and from island until it broke out into an open warfare against the enemy.
The fight against the enemy was truly a people's war because it counted with the
wholehearted support of the masses. From the humble peasant to the barrio school teacher,
from the volunteer guard to the women's auxilliary service units, from the loyal local official to
the barrio folk each and every one of those contributed his share in the great crusade for
liberation.
The guerrillas knew that without the support of the civilian population, they could not survive.
Whole town and villages dared enemy reprisal to oppose the hated invader openly or give
assistance to the underground movement. . . . (41 Off. Gaz., 88, 89.)
Under these facts, taken together with the General of the Army MacArthur's accurate statement that
the "Republic of the Philippines" had been established under enemy duress, it must be presumed
to say the least that the judge who presided over the proceedings in question during the
Japanese occupation, firstly, accepted his appointment under duress; and secondly, acted by virtue
of that appointment under the same duress. In such circumstances he could not have acted in
the bona fide belief that the new "courts" created by or under the orders of the Japanese Military
Commander in chief had been legally created--among them the "Court of first Instance of Manila,"
that the Chairman of the "Philippine Executive Commission" or the President of the "Republic of the
Philippines", whoever appointed him, and conferred upon him a valid title to his office and a
legitimate jurisdiction to act as such judge. Good faith is essential for the existence of a de
facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of enemy duress would
necessarily imply that but for the duress exerted upon him by the enemy he would have refused to
accept the appointment and to act thereunder. And why? Because he must be presumed to know
that the office to which he was thus appointed had been created by the enemy in open defiance of
the Commonwealth Constitution and the laws and regulation promulgated by our Commonwealth

Government, and that his acceptance of said office and his acting therein, if willfully done, would
have been no less than an open hostility to the very sovereignty of the United Sates and to the
Commonwealth Government, and a renunciation of his allegiance to both. There is no middle ground
here. Either the judge acted purely under duress, in which case his acts would be null and void; or
maliciously in defiance of said governments, in which case his acts would be null and void for more
serious reasons.
The courts created here by the Japanese government had to look for the source of their supposed
authority to the orders of the Japanese Military Commander in chief and the so-called Constitution of
the "Republic of the Philippines," which had been adopted in a manner which would shock the
conscience of democratic peoples, and which was designed to supplant the Constitution which had
been duly adopted by the Filipino people in a Constitutional Convention of their duly elected
Constitutional Delegates. And it was decreed that the Commander in chief of the Imperial Japanese
Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese
Military Administration, cited on pp. 2, 3, of the order of the respondent judge complained of and
marked Exhibit H of the petition for mandamus.) How can our present courts legitimately recognize
any efficacy in the proceedings of such an exotic judicial system, wherein the Commander in Chief of
the Imperial Japanese Forces possessed the highest judicial jurisdiction?
III
The courts of those governments were entirely different from our Commonwealth courts
before and after the Japanese occupation.
Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first
paragraph, states the prime concern of the government "to re-establish the courts as fast as
provinces are liberated from the Japanese occupation." If the courts under the Japanese-sponsored
government of the "Republic of the Philippines" were the same Commonwealth courts that existed
here under the Constitution at the time of the Japanese invasion, President Osmea would not be
speaking of re-establishing those courts in his aforesaid Executive Order. For soothe, how could
those courts under the "Republic of the Philippines" be the courts of the Commonwealth of the
Philippines when they were not functioning under the Constitution of the Commonwealth and the
laws enacted in pursuance of said Constitution? The jurisdiction of the Commonwealth courts was
defined and conferred under the Commonwealth Constitution and the pertinent legislation enacted
thereunder, that of the 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 Japanesesponsored 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 Osmea, 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 reestablishing the courts as fast as provinces were liberated from the Japanese occupation.
IV
The question boils down to whether the Commonwealth Government, as now restored, is to
be bound by the acts of either or both of those Japanese-sponsored governments.
In the last analysis, in deciding the question of validity or nullity of the proceedings involved herein,
we are confronted with the necessity to decide whether the Court of first Instance of Manila and this
Supreme Court, as re-established under the Commonwealth Constitution, and the entire
Commonwealth Government, are to be bound by the acts of the said Japanese-sponsored court and
government. To propound this question is, to my mind, to answer it most decidedly in the negative,
not only upon the ground of the legal principles but also for the reasons of national dignity and
international decency. To answer the question in the affirmative would be nothing short for legalizing
the Japanese invasion and occupation of the Philippines. Indeed, it would be virtual submission to
the dictation of an invader our people's just hatred of whom gave rise to the epic Philippine
resistance movement, which has won the admiration of the entire civilized world.
V
Even considerations of policy or practical convenience militate against petitioner's
contention.
In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the
following to say:

It is contended, however, that the judicial system implanted by the Philippine Executive
Commission and the Republic was the same as that of the Commonwealth prior to Japanese
occupation; that the laws administered and enforced by said courts during the existence of
said regime were the same laws on the statute books of Commonwealth before Japanese
occupation, and that even the judges who presided them were, in many instances, the same
persons who held the position prior to the Japanese occupation. All this may be true, but
other facts are just as stubborn and pitiless. One of them is that said courts were of a
government alien to the Commonwealth Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to Japanese occupation, but they had become the
laws and the Courts had become the institutions-of Japan by adoption (U.S. vs. Reiter, 27
F. Case No. 16,146), as they became later on the laws and institution of the Philippine
Executive Commission and the Republic of the Philippines. No amount of argument or legal
fiction can obliterate this fact.
Besides, I am of the opinion that the validity of the acts of the courts in the "judicial system implanted
by the Philippine Executive Commission and the Republic "would not depend upon the laws that
they "administered and enforced", but upon the authority by virtue of which they acted. If the
members of this Court were to decide the instant case in strict accordance with the Constitution and
the laws of the Commonwealth but not by the authority that they possess in their official capacity as
the Supreme Court of the Philippines, but merely as lawyers, their decision would surely be null and
void. And yet, I am firmly of opinion that whoever was the "judge" of the Japanese sponsored Court
of First Instance of Manila who presided over the said court when the proceedings and processes in
the dispute were had, in acting by virtue of the supposed authority which he was supposed to have
received from that government, did so with no more legal power than if he had acted as a mere
lawyer applying the same laws to the case. If duplication of work or effort, or even if confussion,
should be alleged to possibly arise from a declaration of nullity or judicial proceedings had before
those Japanese-sponsored courts, it should suffice to answer that the party so complaining in
voluntarily resorting to such courts should be prepared to assume the consequences of his voluntary
act. On the other hand, his convenience should not be allowed to visit upon the majority of the
inhabitants of this country, the dire consequences of a sweeping and wholesale validation of judicial
proceedings in those courts. Let us set forth a few considerations apropos of this assertion. It is a
fact of general knowledge that during the Japanese occupation of the Philippines, the overwhelming
majority of our people and other resident inhabitants were literally afraid to go any place where there
were Japanese sentries, soldiers or even civilians, and that these sentries were posted at the
entrance into cities and towns and at government offices; that the feared Japanese "M. P.'s" or
Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or had
evacuated to places for from the Japanese, were found precisely in the cities and towns where the
courts were located; and as a consequence, the great majority of the people were very strongly
adverse to traveling any considerable distance from their homes and were, one might say, in
constant hiding. Add to these circumstances, the fact of the practical absence of transportation
facilities and the no less important fact of the economic structure having been so dislocated as to
have impoverished the many in exchange for the enrichment of the few and we shall have a fair
picture of the practical difficulties which the ordinary litigant would in those days have encountered in
defending his rights against anyone of the favored few who would bring him to court. It should be
easy to realize how hard it was for instances, to procure the attendance of witnesses, principally
because of the fact that most of them were in hiding or, at least, afraid to enter the cities and towns,
and also because of then generally difficult and abnormal conditions prevailing. Under such
conditions, cases or denial of a party's day in court expected. Such denial might arise from many a
cause. It might be party's fear to appear before the court because in doing so, he would have had to
get near the feared Japanese. It might be because he did not recognize any legal authority in that
court, or it might be his down-right repugnance of the hated enemy. And I dare say that among such
people would be found more than seventeen million Filipinos. These are but a few of countless
cause. So that if some form of validation of such judicial proceedings were to be attempted, all

necessary safeguards should be provided to avoid that in any particular case the validation should
violate any litigant's constitutional right to his day in court, within the full meaning of the phrase, or
any other constitutional or statutory right of his. More people, I am afraid, would be prejudiced than
would be benefited by a wholesale validation of said proceedings.
Much concern has been shown for the possible confusion which might result from a decision
declaring null and void the acts processes of the Japanese-sponsored governments in the
Philippines. I think, this aspect of the question has been unduly stressed. The situation is not without
remedy, but the remedy lies with the legislature and not with the courts. As the courts cannot create
a new or special jurisdiction for themselves, which is a legislative function, and as the situation
demands such new or special jurisdiction, let the legislature act in the premises. For instance, the
Congress may enact a law conferring a special jurisdiction upon the courts of its selection, whereby
said courts may, after hearing all the parties interested, and taking all the necessary safeguards, so
that, a party's day in court or other constitutional or statutory right under the Commonwealth
Government should not be prejudiced by any of said acts, processes or proceedings, particullarly,
those in 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.

Footnotes
1

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

North Cotabato vs. Government of the Republic of the Philippines, 568 SCRA 402

EN BANC
THE PROVINCE OF NORTH COTABATO, duly G.R. No. 183591
represented by GOVERNOR JESUS SACDALAN Present:
and/or VICE-GOVERNOR EMMANUEL PIOL,
for and in his own behalf,
PUNO, C.J.,
Petitioners,
QUISUMBING,
YNARES- versus SANTIAGO,
CARPIO,
AUSTRIATHE GOVERNMENT OF THE REPUBLIC OF
MARTINEZ,
THE PHILIPPINES PEACE PANEL ON
CORONA,
ANCESTRAL DOMAIN (GRP), represented by
CARPIO
SEC. RODOLFO GARCIA, ATTY. LEAH
MORALES,
ARMAMENTO,
ATTY.
SEDFREY
AZCUNA,
CANDELARIA, MARK RYAN SULLIVAN
TINGA,
and/or GEN. HERMOGENES ESPERON, JR.,
CHICOthe latter in his capacity as the present and dulyNAZARIO,
appointed Presidential Adviser on the Peace
VELASCO, JR.,
Process (OPAPP) or the so-called Office of the
NACHURA,
Presidential Adviser on the Peace Process,
REYES,
Respondents.
LEONARDO-DE
x--------------------------------------------x
CASTRO, &
CITY GOVERNMENT OF ZAMBOANGA, as
BRION, JJ.
represented by HON. CELSO L. LOBREGAT, Promulgated:
City Mayor of Zamboanga, and in his personal
capacity as resident of the City of Zamboanga, October 14, 2008
Rep. MA. ISABELLE G. CLIMACO, District 1,
and Rep. ERICO BASILIO A. FABIAN, District

2, City ofZamboanga,
Petitioners,
- versus G.R. No. 183752
THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C.
GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the
Presidential Adviser on Peace Process,
Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented by
CITY MAYOR LAWRENCE LLUCH CRUZ,
Petitioner,
- versus
THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO,
ATTY.
SEDFREY
CANDELARIA, MARK RYAN SULLIVAN;
GEN. HERMOGENES ESPERON, JR., in his
capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or
SEC. EDUARDO ERMITA, in his capacity as
Executive Secretary.
G.R. No. 183893
Respondents.
x--------------------------------------------x
THE PROVINCIAL GOVERNMENT OF
ZAMBOANGA DEL NORTE, as represented by
HON. ROLANDO E. YEBES, in his capacity as

Provincial Governor, HON. FRANCIS H. OLVIS,

in his capacity as Vice-Governor and Presiding
Officer of the Sangguniang Panlalawigan, HON.
CECILIA
JALOSJOS
CARREON,
st
Congresswoman, 1 Congressional District, HON.
CESAR
G.
JALOSJOS,
Congressman,
rd
3 Congressional District, and Members of the
Sangguniang Panlalawigan of the Province of
Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO
R. CABIGON, JR., HON. ULDARICO M.
MEJORADA
II,
HON.
EDIONAR
M.
ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON.FELIXBERTO
C. BOLANDO, HON. JOSEPH BRENDO C.
AJERO, HON. NORBIDEIRI B. EDDING,
HON. ANECITO
S.
DARUNDAY,
HON.
ANGELICA
J.
CARREON
and
HON.
LUZVIMINDA E. TORRINO,
Petitioners,
G.R. No. 183951
- versus THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON.
RODOLFO
C.
GARCIA
and
HON.
HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process,
Respondents.
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C. BINAY,
and AQUILINO L. PIMENTEL III,
Petitioners,
- versus -

THE GOVERNMENT OF THE REPUBLIC OF

THE PHILIPPINES PEACE NEGOTIATING
PANEL, represented by its Chairman RODOLFO
C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE NEGOTIATING
PANEL,
represented
by
its
Chairman
MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS
TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY
OF
LINAMON
duly
represented by its Municipal Mayor NOEL N.
DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILANPROVINCE
, represented by MAYOR CHERRYLYN P.
SANTOS-AKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep.
by HON. SUHARTO T. MANGUDADATU, in his
capacity as Provincial Governor and a resident of G.R. No. 183962
the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf
and on behalf of Indigenous Peoples in Mindanao
Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG,
NESARIO G. AWAT, JOSELITO C. ALISUAG

and RICHALEX G. JAGMIS, as citizens and

residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION,
INC (MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT
FOR PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process. While the facts surrounding this controversy center on
the armed conflict inMindanao 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 theGRP.[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 2022, 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. Murads position as chief peace negotiator was taken over
by Mohagher Iqbal.[6]

In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious consensus ever embodied
in an instrument the MOA-AD which is assailed principally by the present
petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral
Domain[7] and the Presidential Adviser on the Peace Process (PAPP) Hermogenes
Esperon, Jr.
On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor
Emmanuel Piol 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 Prohibition[11] 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 Iligan[16] 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, ViceGovernor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and
the members[18] of theSangguniang 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, [20] docketed 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 Isabela[21] and Mayor Cherrylyn Santos-Akbar, the Province of
Sultan Kudarat[22] 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-inIntervention.

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--vis ISSUES Nos. 4
and 5;
4. Whether there is a violation of the peoples 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-muahada (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-muahada (land of compact) anddar-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-muahada 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 definesBangsamoro 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 ofMindanao 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 internal waters, 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 BJEs 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 MOAAD 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 cites[63] 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 Generals 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 schools 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 taxpayers 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 Courts 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

publics 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. Romulo[100] and Manalo v. Calderon[101] 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 Courts 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 farreaching 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 countrys 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 partiesthe 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 Courts attention to the separate opinion of then Chief
Justice Artemio Panganiban in Sanlakas v. Reyes[104] 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 areasonable 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 nations 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 x[111]

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 nation[112] so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by the people.
[113]

The MOA-AD is a matter of public

concern

That the subject of the information sought in the present cases is a matter of
public concern[114] faces no serious challenge. In fact, respondents admit that the
MOA-AD is indeed of public concern.[115] In previous cases, the Court found that
the regularity of real estate transactions entered in the Register of Deeds, [116] the
need for adequate notice to the public of the various laws, [117] the civil service
eligibility of a public employee,[118] the proper management of GSIS funds
allegedly used to grant loans to public officials, [119] the recovery of the Marcoses
alleged ill-gotten wealth,[120] and the identity of party-list nominees,[121] among
others, are matters of public concern. Undoubtedly, the MOA-AD subject of the
present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at
large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as
to the executory nature or commercial character of agreements, the Court has
categorically ruled:
x x x [T]he right to information contemplates inclusion of negotiations leading to
the consummation of the transaction. Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can
never exercise the right if no contract is consummated, and if one is consummated,
it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the
contract, which may be grossly disadvantageous to the government or even illegal,
becomes fait accompli. This negates the State policy of full transparency on
matters of public concern, a situation which the framers of the Constitution could
not have intended. Such a requirement will prevent the citizenry from participating
in the public discussion of any proposed contract, effectively truncating a basic
right enshrined in the Bill of Rights. We can allow neither an emasculation of a
constitutional right, nor a retreat by the State of its avowed policy of full disclosure
of all its transactions involving public interest.[122] (Emphasis and italics in the
original)

Intended as a splendid symmetry[123] to the right to information under the Bill of

Rights is the policy of public disclosure under Section 28, Article II of the
Constitution reading:

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

The policy of full public disclosure enunciated in above-quoted Section

28 complements the right of access to information on matters of public
concern found in the Bill of Rights. The right to information guarantees the right of
the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.[125]
The policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the peoples 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-inhand, it is absurd to say that the broader [130] 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 peoples will.
[131]
Envisioned 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] communitybased 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 peoples
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 consensusbuilding 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 peoples 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 functionswithin 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 peoples 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. 3s explicit provisions on continuing consultation and dialogue on
both national and local levels. The executive order even recognizes the exercise
of the publics 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 Courts August 4,
2008 Resolution, without a prayer for the documents disclosure in camera, or
without a manifestation that it was complying therewithex 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 welltaken. 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 unless the 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. Pao,[144] the Court held that the above-stated policy and abovequoted 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
detre of the MOA-AD, without which all other stipulations or consensus points
necessarily must fail. In proceeding to make asweeping 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 MOAAD 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 MOAAD, namely, the international law concept of association. Significantly, the MOAAD 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 x[150] (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. TheU.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
nations 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 BJEs
capacity to enter into economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJEs 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 BJEs 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-ADs 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 acapacity 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 Secretary[155] 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. 9054[156] 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-ADs 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. Edu[159] 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 QUEBEC[160] had occasion to acknowledge that the right of a
people to self-determination is now so widely recognized in international
conventions that the principle has acquired a status beyond convention and is
considered a general principle of international law.

Among the conventions referred to are the International Covenant on Civil

and Political Rights[161] and the International Covenant on Economic, Social and
Cultural Rights[162]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 peoples 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 selfdetermination of a people is normally fulfilled through internal selfdetermination a peoples 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 apeople constitute 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 peoples 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 states 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 peoples 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 nearindependent 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 integrity of 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 MOAAD 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 inMindanao. 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
exercise

the President herself may

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 Presidents 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 Presidents 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 nations 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
regions[172] 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 TripoliAgreement 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 referendumshe 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 Presidents 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 Muoz Palma vigorously dissented. The Courts 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 Teehankees 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
Presidents 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
Presidents 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
Presidents suggestions to the people, for any further involvement in the process of
initiative by the Chief Executive may vitiate its character as a
genuine peoples initiative. The only initiative recognized by the Constitution is that
which truly proceeds from the people. As the Court stated inLambino 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. 200602, 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,
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.
[178]

The foregoing discussion focused on the Presidents 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 Presidents authority to propose constitutional
amendments, she cannot guarantee to any third party that the required
amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals as recommendations
either to Congress or the people, in whom constituent powers are vested.
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 Presidents 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 I covered 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: LOM ACCORD
AMNESTY[180] (the Lom Accord case) of the Special Court of Sierra Leone is
enlightening. The Lom 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 Lom 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 Lom 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 Lom 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 Lom Agreement created neither
rights nor obligations capable of being regulated by international
law. An agreement such as the Lom 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 Lom 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 isAustralia 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
Frances 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 boundthe 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 Malis
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
ofMalaysia, as facilitator. As held in the Lom 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 Presidents
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 peoples 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 peoples 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.
CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES- SANTIAGO

Associate Justice
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIAMARTINEZ

Associate Justice

RENATO C. CORONA

ADOLFO S. AZCUNA

Associate Justice

Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO,
JR.
Associate Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice

RUBEN T. REYES
Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, I certify that the

conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]

Eric Gutierrez and Abdulwahab Guialal, THE UNFINISHED JIHAD: THE MORO ISLAMIC LIBERATION
FRONT AND PEACE IN MINDANAO IN REBELS, WARLORDS AND ULAMA: A READER ON
MUSLIM SEPARATISM AND THE WAR IN SOUTHERN PHILIPPINES 275 (1999).
[2]
Memorandum of Respondents dated September 24, 2008, p. 10.
[3]
Memorandum of Respondents dated September 24, 2008, pp. 10-11.
[4]
Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE PROCESS 35-36 (2007).
[5]
Memorandum of Respondents dated September 24, 2008, p. 12.
[6]
Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE PROCESS 40-41 (2007).
[7]
Composed of its Chairperson, Sec. Rodolfo Garcia, and members, Atty. Leah Armamento, Atty. Sedfrey
Candelaria, with Mark Ryan Sullivan as Secretariat head.
[8]
Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piol.
[9]
Rollo (G.R. No. 183591), pp. 3-33.
[10]
Supplement to Petition (with motion for leave) of August 11, 2008, rollo (G.R. No. 183591), pp. 143-162.
[11]
Rollo (G.R. No. 183752), pp. 3-28.
[12]
Represented by Mayor Celso L. Lobregat.
[13]
Rollo (G.R. No. 183591), pp. 132-135; rollo (G.R. No. 183752), pp. 68-71.
[14]
Rollo (G.R. No. 183591), pp. 130-131; rollo (G.R. No. 183752), pp. 66-67.
[15]
Rollo (G.R. No. 183752), pp. 173-246.
[16]
Represented by Mayor Lawrence Lluch Cruz.
[17]
Represented by Governor Rolando Yebes.
[18]
Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico Mejorada II, Edionar Zamoras, Edgar Baguio,
Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito Darunday, Angelica
Carreon, and Luzviminda Torrino.
[19]
Rollo (G.R. No. 183951), pp. 3-33.
[20]
Rollo (G.R. No. 183962), pp. 3- 20.
[21]
Represented by Mayor Cherrylyn Santos-Akbar.
[22]
Represented by Gov. Suharto Mangudadatu.
[23]
Represented by Mayor Noel Deano.
[24]
Rollo (G.R. No. 183591), pp. 451-453.
[25]
R.A. No. 6734, as amended by R.A. 9054 entitled AN ACT TO STRENGTHEN AND EXPAND
THE ORGANIC ACT FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AMENDING FOR
THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED AN ACT OF PROVIDING FOR THE
AUTONOMOUS REGION IN MUSLIM MINDANAO, AS AMENDED.
[26]
R.A. No. 8371, AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS
CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON
INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS
THEREFOR, AND FOR OTHER PURPOSES, October 29, 1997.
[27]
Cesar Adib Majul, THE GENERAL NATURE OF ISLAMIC LAW AND ITS APPLICATION IN THE
PHILIPPINES, lecture delivered as part of the Ricardo Paras Lectures, a series jointly sponsored by the
Commission on Bar Integration of the Supreme Court, the Integrated Bar of the Philippines and the U.P. Law
Center, September 24, 1977.

[28]

Ibid., vide M.A. Muqtedar Khan Ph.D., IMMIGRANT AMERICAN MUSLIMS AND THE MORAL
DILEMMAS OF CITIZENSHIP, http://www.islamfortoday.com/khan04.htm, visited on September 18, 2008,
and Syed Shahabuddin, MUSLIM WORLD AND THE CONTEMPORARY IJMA' ON RULES OF
GOVERNANCE - II, http://www.milligazette.com/Archives/2004/01-15May04-Print-Edition/0105200471.htm,
visited on September 18, 2008.
[29]
MOA-AD Terms of Reference.
[30]
MOA-AD, Concepts and Principles, par. 1.
[31]
A traditional Muslim historical account of the acts of Shariff Kabungsuwan is quoted by historian Cesar Adib
Majul in his book, MUSLIMS IN THE PHILIPPINES (1973):
After a time it came to pass that Mamalu, who was the chief man next to Kabungsuwan, journeyed
to Cotabato. He found there that many of the people had ceased to regard the teachings of the Koran
and had fallen into evil ways. Mamamlu sent to Kabungsuwan word of these things.
Kabungsuwan with a portion of his warriors went from Malabang to Cotabato and found that the
word sent to him by Mamamlu was true. Then he assembled together all the people. Those of them,
who had done evilly and disregarded the teachings of the Koran thenceforth, he drove out of the town
into the hills, with their wives and children.
Those wicked one who were thus cast out were the beginnings of the tribes of the Tirurais
and Manobos, who live to the east of Cotabato in the country into which their evil forefathers were
driven. And even to this day they worship not God; neither do they obey the teachings of the
Koran . . . But the people of Kabungsuwan, who regarded the teachings of the Koran and lived in
fear of God, prospered and increased, and we Moros of today are their descendants. (Citation
omitted, emphasis supplied).
[32]

Id., par. 2.
Id., par. 3.
[34]
Id., par. 4.
[35]
Francisco L. Gonzales, SULTANS OF A VIOLENT LAND, in Rebels, Warlords and Ulama: A Reader on Muslim
Separatism and the War in Southern Philippines 99, 103 (1999).
[36]
The Charter of the Assembly of First Nations, the leading advocacy group for the indigenous peoples of Canada,
adopted in 1985, begins thus:
WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN CANADA HAVING DECLARED:
THAT our peoples are the original peoples of this land having been put here by the Creator; x x x.
[37]
Id., par. 6.
[38]
MOA-AD, Territory, par. 1.
[39]
Id., par. 2(c).
[40]
Id., par. 2(d).
[41]
Id., par. 2(e).
[42]
Id., par. 2(f).
[43]
Id., par, 2(g)(1).
[44]
Id., par. 2(h).
[45]
Id., par. 2(i).
[46]
MOA-AD, Resources, par. 4.
[47]
Ibid.
[48]
Id., par. 5.
[49]
Id., par. 6.
[50]
Id., par. 7.
[51]
Id., par. 9.
[52]
MOA-AD, Governance, par. 3.
[53]
IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,] hereby affix their
signatures.
[54]
Vide 1987 CONSTITUTION, Article VIII, Section 1.
[55]
Vide Muskrat v. US, 219 US 346 (1911).
[56]
Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).
[57]
Didipio Earth Savers Multi-Purpose Association, Incorporated (DESAMA) v. Gozun, G.R. No. 157882, March
30, 2006, 485 SCRA 286.
[33]

[58]

Vide U.S. v. Muskrat, 219 U.S. 346, 357 (1902).

Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998).
[60]
Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901-902 (2003) (citation omitted).
[61]
Vide Warth v. Seldin, 422 US 490, 511 (1975).
[62]
Vide id. at 526.
[63]
Solicitor Generals Comment to G.R. No. 183752, pp. 9-11.
[64]
MOA-AD, pp. 3-7, 10.
[65]
391 Phil. 43 (2000).
[66]
Id. at 107-108.
[67]
530 US 290 (2000).
[68]
Id. at 292.
[69]
505 U.S. 144 (1992).
[70]
Id. at 175.
[71]
Although only one petition is denominated a petition for certiorari, most petitions pray that the MOA-AD be
declared unconstitutional/null and void.
[72]
Vide RULES OF COURT, Rule 65, Secs. 1 and 2.
[73]
Vide RULES OF COURT, Rule 65, Sec. 3.
[74]
Taada v. Angara, 338 Phil. 546, 575 (1997).
[75]
Entitled DEFINING POLICY AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENTS PEACE
EFFORTS which reaffirms and reiterates Executive Order No. 125 of September 15, 1993.
[76]
E.O. No. 3, (2001), Sec. 1.
[77]
Vide Taada v. Angara, supra note 74.
[78]
Baker v. Carr, 369 U.S. 186 (1962).
[79]
Vicente V. Mendoza , JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2004).
[80]
Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003).
[81]
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 223.
[82]
Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995).
[83]
Macasiano v. NHA, G.R. No. 107921, July 1, 1993, 224 SCRA 236.
[84]
Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 328-329 (2000) citing Phil. Constitution Assn.,
Inc. v. Mathay, et al., 124 Phil. 890 (1966).
[85]
Vide NAACP v. Alabama, 357 U.S. 449 (1958).
[86]
Francisco, Jr. v. The House of Representatives, supra note 80.
[87]
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.
[88]
Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) citing Gibson v. Judge Revilla, 180 Phil. 645
(1979).
[89]
Supra note 81.
[90]
Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 (2000).
[91]
Tatad v. Secretary of Energy, 346 Phil. 321 (1997).
[92]
Vide Compliance of September 1, 2008 of respondents.
[93]
Vide Manifestation of September 4, 2008 of respondents.
[94]
Supra note 81.
[95]
Id. citing Province of Batangas v. Romulo, supra note 87.
[96]
Id. citing Lacson v. Perez, 410 Phil. 78 (2001).
[97]
Id. citing Province of Batangas v. Romulo, supra note 87.
[98]
Id. citing Albaa v. Comelec, 478 Phil. 941 (2004); Chief Supt. Acop v. Guingona Jr., 433 Phil. 62
(2002); SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482 (2004).
[99]
US v. W.T. Grant Co., 345 U.S. 629 (1953); US v. Trans-Missouri Freight Assn, 166 U.S. 290, 308-310
(1897); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43 (1944); Gray v. Sanders, 372 U.S. 368, 376
(1963); Defunis v. Odegaard, 416 U.S. 312 (1974).
[100]
Supra note 87.
[101]
G.R. No. 178920, October 15, 2007, 536 SCRA 290.
[102]
Chavez v. PCGG, 366 Phil. 863, 871 (1999).
[103]
G.R. No. 178830, July 14, 2008.
[104]
Supra note 98.
[105]
Ortega v. Quezon City Government, G.R. No. 161400, September 2, 2005, 469 SCRA 388.
[59]

[106]

Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III, 343 Phil. 184 (1997); Chief Superintendent Acop
v. Guingona, Jr., supra note 98; Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22, 2006, 499 SCRA
434, 447.
[107]
CONSTITUTION, Article III, Sec. 7.
[108]
80 Phil. 383 (1948).
[109]
Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530.
[110]
162 Phil. 868 (1976).
[111]
Baldoza v. Dimaano, supra at 876.
[112]
Legaspi v. Civil Service Commission, supra note 109.
[113]
Chavez v. PCGG, 360 Phil 133, 164 (1998).
[114]
In Legaspi v. Civil Service Commission, supra note 109 at 541, it was held that:
In determining whether or not a particular information is of public concern there is no rigid test which
can be applied. `Public concern' like `public interest' is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either because these directly affect their lives,
or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for
the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it
relates to or affects the public.
[115]
Respondents Comment of August 4, 2008, p. 9.
[116]
Subido v. Ozaeta, supra note 108.
[117]
Taada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Taada, v. Hon. Tuvera, 230 Phil. 528 (1986).
[118]
Legaspi v. Civil Service Commission, supra note 109.
[119]
Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170 SCRA 256.
[120]
Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102.
[121]
Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 177271, May 4, 2007, 523 SCRA 1.
[122]
Chavez v. Public Estates Authority, 433 Phil. 506, 532-533 (2002).
[123]
Vide V RECORD, CONSTITUTIONAL COMMISSION 26-28 (September 24, 1986) which is replete with such
descriptive phrase used by Commissioner Blas Ople.
[124]
CONSTITUTION, Article II, Sec. 28.
[125]
Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 100 (2003).
[126]
Vide Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS 155 (1995).
[127]
Vide Chavez v. Public Estates Authority, supra note 122.
[128]
V RECORD, CONSTITUTIONAL COMMISSION 25 (September 24, 1986).
[129]
V RECORD, CONSTITUTIONAL COMMISSION 28-29 (September 24, 1986). The phrase safeguards on
national interest that may be provided by law was subsequently replaced by reasonable conditions, as proposed
by Commissioner Davide [vide VRECORD, CONSTITUTIONAL COMMISSION 30 (September 24, 1986)].
[130]
In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 331, the Court
stated:
x x x The duty to disclose covers only transactions involving public interest, while the duty to allow
access has a broader scope of information which embraces not only transactions involving public interest, but
any matter contained in official communications and public documents of the government
agency. (Underscoring supplied)
[131]
Valmonte v. Belmonte, Jr., supra note 119.
[132]
V RECORD, CONSTITUTIONAL COMMISSION 28, 30 (September 24, 1986).
[133]
Supra note 55.
[134]
EXECUTIVE ORDER No. 3 (2001), Sec. 3 (a).
[135]
EXECUTIVE ORDER No. 3 (2001), Sec. 4 (b).
[136]
Respondents Memorandum of September 24, 2008, p. 44.
[137]
EXECUTIVE ORDER No. 3 (2001), Sec. 5 (b), par. 6.
[138]
EXECUTIVE ORDER No. 3 (2001), Sec. 8, see also Sec. 10.
[139]
Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7, 1989, 177 SCRA 374, 382-384 where it was
held that the Omnibus Investment Code of 1987 mandates the holding of consultations with affected
communities, whenever necessary, on the acceptability of locating the registered enterprise within the
community.

[140]

In their Memorandum, respondents made allegations purporting to show that consultations were conducted
on August 30, 2001 in Marawi City and Iligan City, on September 20, 2001 in Midsayap, Cotabato, and
on January 18-19, 2002 in Metro Manila. (Memorandum of September 24, 2008, p. 13)
[141]
Cf. Chavez v. Public Estates Authority, supra note 120.
[142]
REPUBLIC ACT No. 7160, Sec. 2(c).
[143]
REPUBLIC ACT No. 7160, Sec. 27.
[144]
416 Phil. 438 (2001).
[145]
Id.; vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243, November 29, 2006, 508 SCRA 498; Cf. Bangus
Fry Fisherfolk v. Lanzanas, 453 Phil. 479 (2002).
[146]
Vide MOA-AD Concepts and Principles, pars. 2 & 7 in relation to Resources, par. 9 where vested property rights
are made subject to the cancellation, modification and review by the Bangsamoro Juridical Entity.
[147]
REPUBLIC ACT No. 8371 or THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997, Sec. 16.
[148]
Id., Sec. 3 (g), Chapter VIII, inter alia.
[149]
Taada v. Tuvera, No. L-63915, December 29, 1986, 146 SCRA 446, 456.
[150]
C.I. Keitner and W.M. Reisman, FREE ASSOCIATION: THE UNITED STATES EXPERIENCE, 39 Tex. Int'l
L.J. 1 (2003).
[151]
The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the Marshall Islands, and
the Northern Mariana Islands, which extend east of the Philippines and northeast of Indonesia in the North
Pacific Ocean. (Ibid.)
[152]
H. Hills, FREE ASSOCIATION FOR MICRONESIA AND THE MARSHALL ISLANDS: A POLITICAL
STATUS MODEL, 27 U. Haw. L. Rev. 1 (2004).
[153]
Henkin, et al., INTERNATIONAL LAW: CASES AND MATERIALS, 2nd ed., 274 (1987).
[154]
Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19.
[155]
G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.
[156]
AN ACT TO STRENGTHEN AND EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS REGION IN
MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED AN
ACT PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AS AMENDED, March
31, 2001.
[157]
AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL
COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS
PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR,
AND FOR OTHER PURPOSES, October 29, 1997.
[158]
90 Phil. 70, 73-74 (1951).
[159]
177 Phil. 160, 178-179 (1979).
[160]
2 S.C.R. 217 (1998).
[161]
999 U.N.T.S. 171 (March 23, 1976).
[162]
993 U.N.T.S. 3 (January 3, 1976).
[163]
League of Nations Official Journal, Special Supp. No. 3 (October 1920).
[164]
Lorie M. Graham, RESOLVING INDIGENOUS CLAIMS TO SELF-DETERMINATION, 10 ILSA J. Int'l &
Comp. L. 385 (2004). Vide S. James Anaya, SUPERPOWER ATTITUDES TOWARD INDIGENOUS
PEOPLES AND GROUP RIGHTS, 93 Am. Soc'y Int'l L. Proc. 251 (1999): In general, the term indigenous is
used in association with groups that maintain a continuity of cultural identity with historical communities that
suffered some form of colonial invasion, and that by virtue of that continuity of cultural identity continue to
distinguish themselves from others.
[165]
Catherine J. Iorns, INDIGENOUS PEOPLES AND SELF DETERMINATION: CHALLENGING STATE
SOVEREIGNTY, 24 Case W. Res. J. Int'l L. 199 (1992).
[166]
Federico Lenzerini, SOVEREIGNTY REVISITED: INTERNATIONAL LAW AND PARALLEL
SOVEREIGNTY OF INDIGENOUS PEOPLES, 42 Tex. Int'l L.J. 155 (2006). Vide Christopher J.
Fromherz, INDIGENOUS PEOPLES' COURTS: EGALITARIAN JURIDICAL PLURALISM, SELFDETERMINATION,
AND
THE
UNITED
NATIONS DECLARATION ON
THE RIGHTS OF INDIGENOUS PEOPLES, 156 U. Pa. L. Rev. 1341 (2008): While Australia and the United
States made much of the distinction between self-government and self-determination on September 13, 2007,
the U.S. statement to the UN on May 17, 2004, seems to use these two concepts interchangeably. And, indeed,
under the DRIP [Declaration on the Rights of Indigenous Peoples], all three terms should be considered
virtually synonymous. Self-determination under the DRIP means internal self-determination when read in
conjunction with Article 46, and self-government, articulated in Article 4, is the core of the self-determination.

[167]

DEFINING THE APPROACH AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENTS

COMPREHENSIVE PEACE EFFORTS, September 15, 1993.
[168]
466 Phil. 482, 519-520 (2004).
[169]
CONSTITUTION, Article VII, Sec. 18.
[170]
Kirsti Samuels, POST-CONFLICT PEACE-BUILDING AND CONSTITUTION-MAKING, 6 Chi. J. Int'l L.
663 (2006).
[171]
Christine Bell, PEACE AGREEMENTS: THEIR NATURE AND LEGAL STATUS, 100 Am. J. Int'l L. 373
(2006).
[172]
CONSTITUTION, Article X, Sections 15-21.
[173]
III Record, Constitutional Commission, 180 (August 11, 1986).
[174]
165 Phil. 303 (1976).
[175]
Id. at 412.
[176]
Id. at 413.
[177]
G.R. No. 174153, October 25, 2006, 505 SCRA 160, 264-265.
[178]
CONSTITUTION, Art. VII, Sec. 5.
[179]
Article VI, Section 25 (1) of the Constitution states as follows: The Congress may not increase the
appropriations recommended by the President for the operation of the Government as specified in the budget.
The form, content, and manner of preparation of the budget shall be prescribed by law.
[180]
Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), March 13,
2004].
[181]
1974 I.C.J. 253, 1974 WL 3 (I.C.J.).
[182]
M. Janis and J. Noyes, INTERNATIONAL LAW, CASES AND COMMENTARY, 3rd ed. 280 (2006).
[183]
1986 I.C.J. 554, 1986 WL 15621 (I.C.J.), December 22, 1986.
[184]
Planas v. COMELEC, 151 Phil. 217, 249 (1973).

Rosas v. Montor, G.R. 204105, 14 October 2015, Third Division

THIRD DIVISION

G.R. No. 204105, October 14, 2015

GERONIMO S. ROSAS, Petitioner, v. DILAUSAN MONTOR AND IMRA-ALI M.
SABDULLAH,Respondents.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari 1 assailing the March 9, 2012 Decision2 and October 16, 2012
Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 05497 which affirmed the Office of the
Ombudsman's (OMB's) March 2, 2007 Decision4 and July 4, 2008 Order5 in OMB-V-A-05-0036-A finding
petitioner Geronimo S. Rosas, Regional Director of the Bureau of Immigration Mactan International Airport
Station, guilty of grave misconduct.
The facts follow:
On December 7, 2004, Jafar Saketi Taromsari (Taromsari) and Jalal Shokr Pour Ziveh (Ziveh), both Iranian
nationals, arrived in the Philippines at the Mactan-Cebu International Airport (MCIA). After staying in a hotel
in Cebu City for a few days, they left for Narita, Japan on December 14, 2004.
On December 16, 2004, Japanese immigration authorities discovered that Taromsari and Ziveh had
counterfeit or tampered Mexican and Italian passports and used falsified names: "Jaime Humberto Nenciares
Garcia" for Ziveh and "Marco Rabitti" for Taromsari. For using these fraudulent passports and lack of entry
visa, the Japanese immigration authorities denied entry to Taromsari and Ziveh and sent them back to the
Philippines. Taromsari and Ziveh arrived at MCIA on the same day at 6:45 p.m. and admitted at the
detention cell of the Bureau of Immigration (BI) Cebu Detention Center.6
In a Memorandum7 dated December 15, 2004 addressed to BI Commissioner Alipio F. Fernandez, petitioner
Geronimo S. Rosas, Senior Immigration Officer and Alien Control Officer of Cebu Immigration District Office,
who was then also designated as Regional Director, gave the following report:
On flight PR 433 from Narita International Airport, Japan on Thursday, 16 th of December 2004 at 18:45
Hours, passengers JAFAR SAKETI TAROMSARI @ Marco Rabitti (Italian) and JALAL SHOKR POUR ZIVEH @
Jaime Humberto Nenciares Garcia (Mexican), both Iranian nationals, were boarded back to Mactan-Cebu
International Airport after caught by the Japanese Immigration authorities thereat for using fake and
fraudulent Italian and Mexican passports, respectively.
During the investigation conducted by Atty. Serafin A. Abellon, Special Prosecutor in the presence of
Regional Director Geronimo S. Rosas, subjects admitted that they bought the Italian and Mexican passports
from a certain "KURAM" in Tehran, Iran, whom they allegedly attached their respective pictures substituting
the pictures of the real owners and paid US$3,000 at US$1,500.00 each, for the purpose of traveling in
comfort without the requirement of entry visa to Japan and finally, to work thereat, considering that JAFAR
SAKETI TAROMSARI had worked there before for three (3) years from 1999 to 2002 and earned a lot of
money until he was caught and deported by Japanese Immigration authorities, that they both arrived in the
Philippines for the first time at MCIA on December 07, 2004 on board MI 566 from Singapore using Italian
and Mexican passports under the names of MARCO RABITTI and JAIME HUMBERTO NECIARES GARCIA,
respectively. Subsequently, they left for Narita, Japan on December 14, 2004 and were sent back to MCAI on
December 16, 2004.
That the acts committed by the subjects are plain violations of our PIA of 1940 as amended under Section
29 (a) (14) and therefore, they are excludable. Recommend inclusion of their names in the Blacklist.
Thereupon, an Exclusion Order8 was issued against Taromsari and Ziveh on grounds of "Not Properly
Documented" and "No Entry Visa."
On December 17, 2004, security guards Elmer Napilot (Napilot) and Jose Ramon Ugarte (Ugarte) received a
written order from petitioner directing them to escort Taromsari and Ziveh from Bi Detention, Mandaue City
to MCIA pursuant to the aforementioned exclusion order for violation of Sec. 29 (a) (17) of Commonwealth
No. 613 or the Philippine Immigration Act(PIA)of 1940.9

On December 19, 2004, Taromsari and Ziveh were released from detention and brought by Napilot and
Ugarte to the MCIA for deportation.10 They were allowed to leave for Tehran, Iran via Kuala Lumpur, Malaysia
on board Malaysian Air Lines.11
On January 18, 2005, respondents Imra-Ali Sabdullah and Dilausan S. Montor, employees of the Bureau of
Immigration (BI), Cebu, filed a Complaint-Affidavit 12 before the OMB against petitioner, Napilot and Ugarte
for grave misconduct, violation of Section 3(e)13 of Republic Act (RA) No. 3019 and conduct prejudicial to the
interest of public service. Respondents alleged that petitioner irregularly and anomalously handled and
disposed of the case involving two restricted Iranian nationals by allowing them to leave the country without
initiating any proceeding for violation of immigration laws considering that said aliens were potential threats
to the country's national interest and security. It was further contended that the Iranian nationals should
have been charged for deportation because they violated Section 37(a)(9), in relation to Sections 45 and 46
of PI A.
In his Counter-Affidavit,14 petitioner denied the allegations against him and asserted that he should not be
made liable for acts that do not fall within his area of responsibility. He pointed out that it is the immigration
officers who are incharge of primary inspection of incoming and outgoing passengers as well as the
determination of whether a passenger should be excluded, and the management, control and supervision of
such duties pertain to the Head Supervisor, Mr. Casimiro P. Madarang III. He also averred that he did not
have prior knowledge of the two Iranian nationals' previous entry to the country as he was, in fact, not at
the MCIA on that particular date and time of their first arrival in the Philippines.
Petitioner, nonetheless, contended that the two Iranian nationals were proper subjects for exclusion under
Section 29(a)(17)15 since they used Iranian passports without the requisite Philippine entry visas when they
arrived on December 16, 2004. He explained that the counterfeit Italian and Mexican passports were
confiscated by the Japanese Immigration authorities when Japan excluded the Iranian nationals. Such use of
Iranian passports without entry visas served as the basis for their exclusion from our country. He likewise
denied giving preferential treatment to the detained Iranian nationals, citing his Memorandum dated
December 17, 2004 where he reported to the BI Commissioner that two Iranian nationals violated Section
29(a)(17) of the PIA of 1940 and recommended placing them both in the Blacklist.
On March 2, 2007, the OMB rendered its Decision finding substantial evidence of petitioner's grave
misconduct. It held that in unduly releasing the two Iranian nationals, petitioner showed manifest partiality,
evident bad faith and gross inexcusable negligence. It also stated that petitioner's claim that he had no prior
knowledge of the unlawful entry was belied by his December 17, 2004 Memorandum. Napilot and Ugarte
were acquitted from the charges as they merely acted on petitioner's orders and no evidence was presented
to suggest that they were in conspiracy with the petitioner.
The OMB thus ruled:
In view of the foregoing, this Office finds [petitioner] Rosas guilty of Grave Misconduct. Considering the
gravity of the offense and the fact that this is not the first time [petitioner] Rosas is administratively
sanctioned, the penalty of DISMISSAL is hereby imposed pursuant to Rule XIV, Section 23 of the Omnibus
Rules Implementing Book V of Executive Order No. 292.
However, finding no conspiracy between [petitioner] Rosas and respondents Elmer Napilot and Ramon
Ugarte, the case against Napilot and Ugarte is hereby dismissed for want of substantial evidence.
SO DECIDED.16

ChanRoblesVirtualawlibrary

On December 27, 2007, the OMB issued an Order 17 for the immediate implementation of the March 2, 2007
Decision. Petitioner's motion for reconsideration was likewise denied. 18
Via a petition for review,19 petitioner assailed the OMB's ruling in the CA, arguing that he should not be held
administratively liable for the release of the two Iranian nationals pursuant to a validly issued exclusion
order.
In its March 9, 2012 decision, the CA affirmed the OMB's ruling. The CA held that there was sufficient
evidence on record for the OMB's conclusion that the release of the two Iranian nationals was irregular and
not in accord with existing immigration laws. It stressed that the matter was not one that merely involved
the lack of entry visas but that petitioner had knowledge that the two Iranian nationals were excluded from

Japan for using fraudulent passports. Plainly, the results of the investigation provide sufficient basis for
deportation proceedings. The CA concurred with the OMB that petitioner had the duty to initiate deportation
and criminal proceedings against the Iranian nationals for violation of Section 37(a)(9) of the PIA in relation
to Sections 45 and 46. Thus:
WHEREFORE, in view of the foregoing premises, the Petition for Review dated November 2, 2010 is hereby
DISMISSED.
SO ORDERED.20

ChanRoblesVirtualawlibrary

Petitioner moved for reconsideration but it was denied.21

Hence, this petition.
Petitioner reiterates that he cannot be held administratively liable for a validly issued exclusion order which
is an examining immigration officer's function under the PIA of 1940. He asserts that there was lack of
substantial evidence to hold him liable for giving unwarranted benefit to the Iranian nationals.
On his part, the Solicitor General argues that Section 37 of the PIA of 1940 mandates the BI to arrest aliens
who enter the Philippines by false means and misleading statements. He explains that the two Iranian
nationals were held in detention not for the lack of entry visas but for using falsified documents when they
entered the Philippines on December 7, 2004 and when they left for Japan on December 14, 2004. Such was
evident from the investigation conducted by the BI on the two Iranian nationals.
Petitioner submits the following assignment of errors:
I.

WHETHER PETITIONER ROSAS CAN BE VALIDLY SANCTIONED WITH THE SEVEREST

ADMINISTRATIVE PENALTY OF DISMISSAL FOR THE PURELY DISCRETIONARY ACTS OF THE
ASSIGNED IMMIGRATION OFFICERS IN ORDERING THE EXCLUSION OF THE IRANIAN
NATIONALS NOTWITHSTANDING THE OVERWHELMING EVIDENCES THAT WOULD SHOW
THAT PETITIONER ROSAS HAS NO INVOLVEMENT AND PARTICIPATION IN RENDERING THE
SAID EXCLUSION ORDER AND NOTWITHSTANDING THAT THE SAID EXCLUSION ORDER
WAS VALIDLY AND PROPERLY ISSUED BY THE IMMIGRATION OFFICERS UNDER THE
PREVAILING CIRCUMSTANCES;

II.

WHETHER OR NOT PETITIONER ROSAS CAN BE VALIDLY SANCTIONED WITH THE

SEVEREST ADMINISTRATIVE PENALTY OF DISMISSAL SANS ANY SPECK OF EVIDENCE THAT
HE GAVE UNWARRANTED BENEFIT TO THE IRANIAN NATIONALS AND THAT HE WAS
MOTIVATED BY CORRUPT MOTIVES WHEN HE SUBMITTED AN
INCIDENT/RECOMMENDATORY REPORT TO THE COMMISSIONER OF IMMIGRATION
AFFIRMING THE EXCLUSION ORDER OF THE ASSIGNED IMMIGRATION OFFICERS AGAINST
THE IRANIAN NATIONALS;

III.

WHETHER OR NOT PETITIONER ROSAS CAN BE VALIDLY SANCTIONED WITH THE

SEVEREST ADMINISTRATIVE PENALTY OF DISMISSAL FOR NOT INITIATING THE
DEPORTATION AND CRIMINAL PROCEEDINGS AGAINST THE IRANIAN NATIONALS WHICH
UNDER THE LAW CAN ONLY BE EXERCISED BY THE IMMIGRATION COMMISSIONER WHO
WAS FULLY INFORMED OF THE CIRCUMSTANCES PERTAINING TO THE INCIDENT
INVOLVING THE IRANIAN NATIONALS;

IV.

WHETHER THE COURT OF APPEALS HAS SUBSTANTIAL BASIS TO CONCLUDE THAT THE
DELAY IN THE EXCLUSION OF THE IRANIAN NATIONALS APPEARED TO BE IRREGULAR AND
DEVIATED FROM THE NORM NOTWITHSTANDING THE OVERWHELMING EVIDENCES ON
RECORD THAT WOULD SHOW THAT THE SAME HAS FACTUAL AND LEGAL BASIS; AND

V.

WHETHER OR NOT THE, COURT OF APPEALS GRAVELY ERRED IN DISREGARDING THE

SETTLED FACTS AND EVIDENCES THAT WOULD SHOW THAT PETITIONER ROSAS HAS NOT
DONE ANY MISCONDUCT IN RELATION TO THE INCIDENT INVOLVING THE IRANIAN
NATIONALS.22
ChanRoblesVirtualawlibrary

Essentially, the issue before us is whether there is substantial evidence to sustain the finding of gross
misconduct warranting petitioner's removal from the service. Otherwise stated, does petitioner's act of
releasing the two Iranian nationals without initiating any case for violation of immigration laws despite the
results of the investigation undertaken constitute gross misconduct?
We rule in the affirmative.
It is well-settled that findings of fact and conclusions by the Office of the Ombudsman are conclusive when
supported by substantial evidence.23 Substantial evidence is more than a mere scintilla; it means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other
minds equally reasonable might conceivably opine otherwise. 24 The factual findings of the Office of the
Ombudsman are generally accorded great weight and respect, if not finality by the courts, by reason of their
special knowledge and expertise over matters falling under their jurisdiction. 25
cralawred

We agree with the CA that there was sufficient basis to initiate deportation proceedings under Section 37(a)
(9) in relation to Section 45 of the PIA of 1940. We find no cogent reason to overturn the CA's findings the
question of whether substantial evidence being a question of fact which is beyond this Court's power of
review for it is not a trier of facts.26
PETITIONER HAD TOE DUTY TO
INITIATE CRIMINAL PROCEEDINGS
AND DEPORTATION PROCEEDINGS
UNDER SECTION 45 OF THE PIA OF
1940
Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds as it
may deem proper for its self-preservation or public interest. In the Philippines, aliens may be expelled or
deported from the Philippines on grounds and in the manner provided for by the Constitution, the PIA of
1940, as amended, and administrative issuances pursuant thereto. 27
Section 1028 of the PIA of 1940 requires non-immigrants to present their unexpired passports and valid
passport visas to immigration officers. Pursuant to their powers as outlined in Section 6 29 of the PIA of 1940,
the examining immigration officer determines whether the non-immigrant is qualified to enter the Philippines
based on Section 29(a).30 If the alien holds none of the disqualifications as stated in Section 29, he may be
admitted entry barring other circumstances that might affect his entry. If, however, the immigration officer
determines that an alien possesses any of the disqualifications under Section 29, the immigration officer is
authorized to issue an exclusion order.
Exclusion and deportation are formal removal procedures which ultimately results to an alien's removal from
the territory provided for separately under Section 29 and 37 of the PIA, respectively. The United States
in Ex Parte Domingo Corypus,31 the Washington District Court in 1925 differentiated exclusion from
deportation in the following manner:
x x x Deporting a person who is already in the country, and therefore enlarged, is depriving him of a
privilege which he, at least at the time, is enjoying in the United States; whereas a person being denied the
privilege to enter is not deprived of any liberties which he had theretofore enjoyed. The gate is simply closed
and he may not enter.
Under Philippine immigration laws, exclusion is the authorized removal of an alien by immigration officers,
performing primary inspection, or by the immigration boards of special inquiry, by secondary inspection, of
any foreigner arriving in the Philippines who, upon inspection and prior to entry or admission, is barred by
immigration laws, rules and regulations from entering or being admitted to the Philippines. 32 When an alien
is excluded he is immediately sent back to the country where he came from on the same vessel which
transported him, unless in the opinion of the Commissioner of Immigration such immediate return is not
practicable or proper.33 Under certain circumstances, when an alien is excluded, Section 25 34 of the PIA of
1940 authorizes the alien's detention until such time it is determined that he is qualified for entry and/or
admission.
Deportation proceedings, on the other hand, are governed by Sections 37 35 to 39 of the PIA. We have stated
that the power to deport aliens is an act of State, an act done by or under the authority of the sovereign
power.36 It is a police measure against undesirable aliens whose continued presence in the country is found

to be injurious to the public good and the domestic tranquility of the people. 37
Pertinently, Section 37(a)(9) provides:
Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or
of any other officer designated by him for the purposeand deported upon the warrant of the Commissioner
of Immigration after a determination by the Board of Commissioners of the existence of the "round
for deportation as charged against the alien:
xxxx
9. Any alien who commits any of the acts described in sections forty-five and forty-six of this Act,
independent of criminal action which may be brought against him: Provided, That in the case of an alien
who, for any reason, is convicted and sentenced to suffer both imprisonment and deportation, said alien
shall first serve the entire period of his imprisonment before he is actually deported: Provided however, That
the imprisonment may be waived by the Commissioner of Immigration with the consent of the Department
Head, and upon payment by the alien concerned of such amount as the Commissioner may fix and approved
by the Department Head;
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x x x x (Emphasis supplied)

ChanRoblesVirtualawlibrary

The relevant provisions of Sections 45 and 46 state:

Sec. 45. Any individual who:
xxxx
(c) Obtains, accepts or uses any immigration document, knowing it to be false; or
xxxx
Sec. 46. Any individual who shall bring into or land in the Philippines or conceal, harbor, employ, or
give comfort to any alien not duly admitted by any immigration officer or not lawfully entitled to enter or
reside within the Philippines under the terms of the immigration laws, or attempts, conspire with, or
aids another to commit any such act, and any alien who enters the Philippines without inspection and
admission by the immigration officials, or obtains entry into the Philippines by willful, false, or
misleading representation or willful concealment of a material fact, shall be guilty of an offense,
and upon conviction thereof, shall be fined not less than five thousand pesos but not more than ten
thousand pesos, imprisoned for not less than five years but not more than ten years, and
deported if he is an alien. Dismissal by the employer before or after apprehension does not relieve the
employer of the offense.
x x x x (Emphasis supplied)

ChanRoblesVirtualawlibrary

The two Iranian nationals, Taromsari and Ziveh, confessed to have knowingly used falsified passports and
obtained entry into the Philippines by using the said fraudulent immigration documents, both of which are
grounds for deportation proceedings. Upon being questioned why they were sent back from Japan, they
admitted that they entered the Philippines previously using fraudulent passports, to wit:

Q
A.
Q.
A.

Do you understand why you were sent back to [MCIA] from Narita,
Japan?
Yes sir, we were caught using fake Italian and Mexican passports by
Japanese Immigration officers at Narita International Airport, Japan.
What fake passports are you referring to?
We were using fake Italian and Mexican passports in entering the
Philippines at [MCIA].

xxxx
Q.
Where are these Italian and Mexican passports, you mentioned?

A.
Q.
A.

Q.
A.

Q.
A.
Q.
A.

The Japanese Immigration authorities confiscated them.

What was your purpose in going to Japan with fake passports?
Our only purpose is to find jobs there, so that we can support
financially our family in Tehran, Iran but Iranians are required to
secure entry visas and it is very difficult to get entry visas from their
embassy. Italians and Mexicans are not required entry visas to
Japan.
Can you narrate to us how did you and your friend able to reach our
country?
First, we applied entry visas at the Thailand Embassy in Tehran, Iran
using our Iranian passports, which visa application was granted to us
on October 26, 2004. W[e] went to Bangkok, Thailand via Dubai and
stayed there for one (1) month and came back to Iran. The last time
we left Tehran, Iran again via Dubai on December 02, 2004 to
Bangkok, Thailand. Our destination this time [was] to reach Japan
via Malaysia & Cebu, Philippines. We arrived Malaysia in December
06, 2004.
What travel documents were you using from Bangkok to Malaysia?
We were using our Iranian passports, sir.
From Malaysia to Mactan-Cebu, what travel documents were you
using?
From Malaysia, we left on December 06, 2004 and passed by
Singapore where we spent about ten (10) hours at the airport, we
were using our Iranian passports, we finally boarded Silk Air to
[MCIA] and upon arrival in [MCIA], we were using Italian and
Mexican passports.

xxxx
Q.
Are you aware that you are violating our Immigration laws in the
country?
A.
Yes, sir, but we have to use fake travel documents because of our
desire to work and earn a living.
xxxx
Q.
Have you been to Japan?
A.
Yes, sir. I was there for three (3) years, 1999 to 2002 and I earned a
lot of money but I was caught and departed back to Iran. 38
Having admitted that they knowingly entered the country with the use of fraudulent passports and false
representations when they arrived on December 7 , 2004, Taromsari and Ziveh should have been ordered
arrested and formally charged with violation of Section 37(a)(9) in relation to Section 45(c) and (d).
Deportation proceedings should have been initiated forthwith against these aliens.
While the two Iranian nationals were initially held due to lack of entry visas, after their admission that they
used fraudulent passports in entering the country, the filing of a criminal action pursuant to Section 45 is
proper, together with the initiation of deportation proceedings. While both exclusion and deportation
ultimately removes a person from our territory, Section 45 imposes an additional penalty - deportation has
an additional penalty in that it imposes a fine. Indeed, that these aliens were released without undergoing
deportation proceedings as required by law is highly irregular.

Misconduct is defined as "a transgression of some established and definite rule of action, more particularly,
unlawful behavior or gross negligence by a public officer."39 It becomes grave misconduct when it "involves
any of the additional elements of corruption, willful intent to violate the law or to disregard established rules,
which must be established by substantial evidence."40 A person charged with grave misconduct may be held
liable for simple misconduct if the misconduct does not involve any of the additional elements to qualify the
misconduct as grave.41 The charge of gross misconduct is a serious charge that warrants the removal or
dismissal of a public officer or employee from service together with the accessory penalties, such as
cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from reemployment
in government service.42
In this case, petitioner had the duty under the law to oversee the filing of criminal actions and deportation
proceedings against Taromsari and Ziveh and not merely excluding them. The facts on record established
that at the time petitioner recommended their exclusion on December 17, 2004, he was already aware that
said Iranian nationals used the falsified Mexican and Italian passports in entering and leaving the Philippines
on December 7 and 14, 2004. Such use of counterfeit passports by aliens entering our country is a criminal
offense under Sec. 45 of the PIA, as amended.
Instead of filing the appropriate criminal charge as mandated by law, petitioner allowed Taromsari and Ziveh
to depart and return to Tehran via Malaysia. While claiming that it was only on December 17, 2004 that he
came to know of the Iranian nationals' detention for illegal entry into the Philippines, official log book
records43 show that petitioner, along with security guards Napilot and Ugarte, brought the two Iranian
nationals to their detention cell on the same night of their arrival from Japan on December 16, 2004 and
detained them there for three days. Custody over the two Iranian nationals caught violating our immigration
laws was simply handed over by petitioner to the two security guards whom he later instructed to escort the
said offenders to the airport to depart for Malaysia. In failing to initiate the proper proceedings against the
Iranian nationals and allowing them to escape criminal charges and thorough investigation for possible
terrorist activities or human trafficking, petitioner displayed a blatant disregard of established immigration
rules making him liable for grave misconduct that warrants his removal from the service.
WHEREFORE, the appeal is DENIED for lack of merit and AFFIRM the March 9, 2012 Decision and October
16, 2012 Resolution of the Court of Appeals in CA-G.R. SP No. 05497.
With costs against the petitioner.
SO ORDERED.

chanroblesvirtuallawlibrary

Peralta, (Acting Chairperson), Perez,* Mendoza,** and Leonen,*** JJ., concur.

Endnotes:

Designated additional Member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Raffle dated
September 30, 2015.
*

Designated Acting Member in lieu of Associate Justice Bienvenido L. Reyes, per Special Order No. 2084
dated June 29, 2015.
**

Designated additional Member in lieu of Associate Justice Francis H. Jardeleza, per Raffle dated October
22, 2014.
***

Under Rule 45 of the Rules of Court.

Rollo, pp. 36-46. Penned by Associate Justice Eduardo B. Peralta, Jr. with Associate Justices Edgardo L.
Delos Santos and Gabriel T. Ingles concurring.
2

Id. at 47-48. Penned by Associate Justice Gabriel T. Ingles with Associate Justices Edgardo L. Delos Santos
and Pamela Ann Abella Maxino concurring.
3

Id. at 87-100. Penned by Graft Investigation and Prosecution Officer Nelia C. Lagura.

Id. at 119-123. Penned by Graft Investigation and Prosecution Officer II Nelia C. Lagura.

OMB Records, p. 6.

Rollo, p. 341.

Id. at 203.

OMB Records, p. 26.

10

Id.at 7.

11

TSN, April 3, 2008, p. 5 I (OMB Clarificatory Hearing), rollo, p. 319.

12

Id. at 49-52.

13

RA No. 3019, Section 3(e) provides:

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.
14

Rollo, pp. 53-65.

Petitioner initially stated Section 29(a)(14) as (he basis for exclusion but explained that there had been a
clerical error and said that it should have read as Section 29(a)(17). Rollo, p. 57.
15

16

Rollo, pp. 99-100.

17

Id. at 101-103.

18

Supra note 5.

19

Under Rule 43 of the Rules of Court.

20

Rollo, p. 45.

21

Supra note 3.

22

Id. at 14-15.

23

Office of the Ombudsman v. Amalio A. Mallari, G.R. No. 183 161, December 3, 2014, p. 16.

24

Gupilan-Aguilar v. Office of the Ombudsman, G.R. No. 197307, February 26, 2014, 7 17 SCRA 503, 532.

25

26

Office of the Ombudsman v. Amalio A. Mallari, supra note 23.

Secretary of Justice v. Koruga, 604 Phil. 405 (2009).

27

Id. at 419.

28

PHILIPPINE IMMIGRATION ACT of 1940, Section 10 provides:

Sec. 10. Presentation of unexpired passport. - Nonimmigrants must present for admission into the
Philippines unexpired passports or official documents in the nature of passports issued by the governments

of the countries to which they owe allegiance or other travel documents showing their origin and identity as
prescribed by regulations, and valid passport visas granted by diplomatic or consular officers, except that
such documents shall not be required of the following aliens:
(a) A child qualifying as a nonimmigrant, born subsequent to the issuance of the passport visa of an
accompanying parent, the visa not having expired; and
(b) A seaman qualifying as such under Section 9 (c) of this Act.
29

PHILIPPINE IMMIGRATION ACT of 1940, Section 6 provides:

Sec. 6. Powers of Immigration Officer. - The examination of aliens concerning their right to enter or remain
in the Philippines shall be performed by Immigrant Inspectors with the advice of medical authorities in
appropriate cases. Immigrant Inspectors are authorized to exclude any alien not properly documented as
required by this Act, admit any alien complying with the applicable provisions of the immigration laws and to
enforce the immigration laws and regulations prescribed thereunder. Immigrant Inspectors are also
empowered to administer oaths, to take and consider evidence concerning the right of any alien to enter or
reside in the Philippines, and to go aboard and search for aliens on any vessel or other conveyance in which
they believe aliens are being brought into the Philippines. Immigrant Inspectors shall have the power to
arrest, without warrant, any alien who in their presence or view is entering or is still in the course of
entering the Philippines in violation of immigration laws or regulations prescribed thereunder.
30

PHILIPPINE IMMIGRATION ACT of 1940, Section 29 provides:

Sec. 29. (a) The following classes of aliens shall be excluded from entry into the Philippines:
1.

Idiots or insane persons and persons who have been insane;

2.

Persons afflicted with a loathsome or dangerous contagious disease, or epilepsy:

3.

Persons who have been convicted of a crime involving moral turpitude;

4.

Prostitutes, or procurers, or persons coming for any immoral purposes;

5.

Persons likely to become, public charge;

6.

Paupers, vagrants, and beggars;

7.

Persons who practice polygamy or who believe in or advocate the practice of polygamy;

8.

Persons who believe in or advocate the overthrow by force and violence of the Government
of the Philippines, or of constituted lawful authority, or who disbelieve in or are opposed to
organized government, or who advocate the assault or assassination of public officials
because of their office, or who advocate or leach principles, theories, or ideas contrary to
the Constitution of the Philippines or advocate or teach the unlawful destruction of property,
or who are members of or affiliated with any organization entertaining or teaching such
doctrines;

9.

Persons over fifteen years of age, physically capable of reading, who cannot read printed
matter in ordinary use in any language selected by the alien, but this provision shall not
apply to the grandfather, grandmother, father, mother, wife, husband or child of a Philippine
citizen or of an alien lawfully resident in the Philippines;

10. Persons who are members of a family accompanying an excluded alien, unless in the
opinion of the Commissioner of Immigration no hardship would result from their admission;
11. Persons accompanying an excluded person who is helpless from mental or physical
disability or infancy, when the protection or guardianship of such accompanying person or

persons is required by the excluded person, as shall be determined by the Commissioner of

Immigration;
12. Children under fifteen years of age, unaccompanied by or not coming to a parent, except
that any such children may be admitted in the discretion of the Commissioner of
Immigration, if otherwise admissible;
13. Stowaways, except that any stowaway may lie admitted in the discretion of the
Commissioner of Immigration, if otherwise admissible;
14. Persons coming to perform unskilled manual labor in pursuance of a promise or offer of
employment, express or implied, but this provision shall not apply to persons bearing
passport visas authorized by Section Twenty of this Act;
15. Persons who have been excluded or deported from the Philippines, but this provision may
be waived in the discretion of the Commissioner of Immigration: Provided, however, That
the Commissioner of Immigration shall not exercise his discretion in favor of aliens excluded
or deported on the ground of conviction for any crime involving moral turpitude or for any
crime penalized under Sections Forty-Five and forty-Six of this Act or on the ground of
having engaged in hoarding, black-marketing or profiteering unless such aliens have
previously resided in the Philippines immediately before his exclusion or deportation for a
period often years or more or are married to native Filipino women;
16. Persons who have been removed from the Philippines at the expense of the Government of
the Philippines, as indigent aliens, under the provisions of section forty-three of this Act,
and who have not obtained the consent of the Board of Commissioners to apply for
readmission; and
17. Persons not properly documented for admission as may be required under the provisions of
this Act.
xxxx
6 F.2d 336 (W.D. Wash. 1925). Based on the U.S. Citizenship and Immigration Services, the United States,
in April 1997 eliminated the distinction between exclusion and deportation and consolidated both under a
process called Removal, (last accessed August 20, 2015).
31

Ledesma, Ronaldo. AN OUTLINE OF PHILIPPINE IMMIGRATION AND CITIZENSHIP LAWS, Rex Printing
Company; Quezon City, Manila, 1999. p. 169.
32

Ledesma, Ronaldo. AN OUTLINE OF PHILIPPINE IMMIGRATION AND CITIZENSHIP LAWS, Rex Printing
Company; Quezon City, Manila, 1999. p. 171.
33

34

PHILIPPINE IMMIGRATION ACT of 1940, Section 25 provides:

Sec. 25. Period of detention of aliens. - For the purpose of determining whether aliens arriving in the
Philippines belong to any of the classes excluded by the immigration laws, the Period examining immigration
officers may order such aliens detained on board the vessel bringing them or in such other place as the
officers may designate, such detention to be for a sufficient length of time to enable the officers to
determine whether they belong to an excluded class and their removal to such other place to be at the
expense of the vessel bringing them.
35

PHILIPPINE IMMIGRATION ACT of 1940, Sections 37 provides:

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

1.

Any alien who enters the Philippines after the effective date of this Act by means of false
and misleading statements or without inspection and admission by the immigration
authorities at a designated port of entry or at any place other than at a designated port of
entry;
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2.

Any alien who enters the Philippines after the effective date of this Act, who was not
lawfully admissible at the time of entry;
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3.

Any alien who, alter the effective date ol this Act, is convicted in the Philippines and
sentenced for a term of one year or more for a crime involving moral turpitude committed
within five years after his entry to the Philippines, or who, at any time after such entry, is
so convicted and sentenced more than once;
cralawlawlibrary

4.

Any alien who is convicted and sentenced for a violation of the law governing prohibited
drugs;
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5.

Any alien who practices prostitution or is an inmate of a house of prostitution or is

connected with the management of a house of prostitution, or is a procurer;
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6.

Any alien who becomes a public charge within five years after entry from causes not
affirmatively shown to have arisen subsequent to entry;
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7.

Any alien who remains in the Philippines in violation of any limitation or condition under
which he was admitted as a nonimmigrant;
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8.

Any alien who believes in, advises, advocates or teaches the overthrow by force and
violence of the Government of the Philippines, or of constituted law and authority, or who
disbelieves in or is opposed to organized government or who advises, advocates, or teaches
the assault or assassination of public officials because of their office, or who advises,
advocates, or teaches the unlawful destruction of property, or who is a member of or
affiliated with any organization entertaining, advocating or leaching such doctrines, or who
in any manner whatsoever lends assistance, financial or otherwise, lo the dissemination of
such doctrines;
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9.

Any alien who commits any of the acts described in sections forty-five and forty-six of this
Act, independent of criminal action which may be brought against him: Provided, That in
the case of an alien who, for any reason, is convicted and sentenced to suffer both
imprisonment and deportation, said alien shall first serve the entire period of his
imprisonment before he is actually deported: Provided however, That the imprisonment
may be waived by the Commissioner of Immigration with the consent of the Department
Head, and upon payment by the alien concerned of such amount as (he Commissioner may
fix and approved by the Department Head;
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10. Any alien who, at any time within five years alter entry, shall have been convicted of
violating the provisions of the Philippine Commonwealth Act Numbered Six Hundred and
Fifty-Three, otherwise known as the Philippine Alien Registration Act of 1941, or who, at any
time after entry, shall have been convicted more than once of violating the provisions of the
same Act;
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11. Any alien who engages in profiteering, hoarding, or black-marketing, independent of any
criminal action which may be brought against him;
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12. Any alien who is convicted of any offense penalized under Commonwealth Act Numbered
Four hundred and seventy-three, otherwise known as the Revised Naturalization Laws of
the Philippines, or any law relating to acquisition of Philippine citizenship;
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13. Any alien who defrauds his creditor by absconding or alienating properties to prevent them
from being attached or executed;

(b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of this Section at any
time after entry, but shall not be effected under any other clause unless the arrest in the deportation
proceedings is made within five years after the cause for deportation arises. Deportation under clauses 3
and 4 shall not be effected if the court, or judge thereof, when sentencing the alien, shall recommend to the
Commissioner of Immigration that the alien be not deported.
(c) No alien shall be deported without being informed of the specific grounds for deportation nor without
being given a hearing under rules of procedure to be prescribed by the Commissioner of Immigration.
(d) In any deportation proceeding involving the entry of an alien the burden of proof shall be upon the alien
to show that he entered the Philippines lawfully, and the time, place, and manner of such entry, and for this
purpose he shall be entitled lo a statement of the facts in connection with his arrival as shown by any record
in the custody of the Bureau of Immigration.
(e) Any alien under arrest in a deportation proceeding may lie released under bond or under such other
conditions as may be imposed by the Commissioner of Immigration.
36

37

Secretary of Justice v. Koruga, supra note 26, at 419.

Id.

38

Rollo, pp. 342-344.

39

Office of the Ombudsman v. Apolonio, 683 Phil. 553, 571 (2012).

40

Id. at 571-572.

41

Civil Service Commission v. Ledesma, 508 Phil. 569, 579-580 (2005).

42

Pleyto v. PNP-CIDG, 563 Phil. 842, 911 (2007).

43

OMB Records, p. 6.

Sovereignty and Jurisdiction

Caltex vs. Customs Arrastre Service, 33 SCRA 160

EN BANC

G.R. No. L-26632 May 29, 1970

CALTEX (PHILIPPINES), INC., plaintiff-appellant,
vs.
CUSTOMS ARRASTRE SERVICE, ET AL., defendants-appellees.
Ross, Selph, Salcedo, Del Rosario, Bito & Misa for plaintiff-appellant.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Isidro G. Borromeo,
Tomas M. Dilig and Felipe T. Cuison for defendants-appellees.

FERNANDO, J.:
Had plaintiff-appellant Caltex (Philippines), Inc. been aware that four days prior to the filing of its brief
seeking a reversal of an order of the lower court of March 9, 1966 dismissing its complaint against
the Customs Arrastre Service, the Bureau of Customs, and the Republic of the Philippines for lost or
undelivered cargo in the amount of P9, 859.49 intended for it as consignee, more specifically on
December 19, 1966, this Court in Mobil Philippines Exploration, Inc. v. Customs Arrastre
Service 1 held that the doctrine of non-suability of the government without its consent bars such an action,
it would likely have desisted from pursuing its appeal. For since then, a similar fate was visited on other
litigants, the latest decision, the forty-first, having been promulgated only the other month. 2 The efforts of

appellant to reverse the order of dismissal are thus in vain. We affirm. All that the lower court did in
sustaining the motion to dismiss of January 18, 1966 was to submit to the binding force of a fundamental
postulate in constitutional law.

The Mobil Philippines doctrine cannot be indicted for unorthodoxy. It represents a continuing
manifestation of our commitment, in this respect at least, to the Austinian or positivist concept of law.
Under this view, it can be created only by the state. It can flow from no other source. Since without
law, there can be no legal right, the state itself is immune from suit unless there be a manifestation of
its will through the appropriate mode conferring such a right to sue. To so view the matter, according
to Holmes, is both "logical and practical." 3
That there are practical, as distinguished from merely logical, reasons in support of such a view
should be apparent from the recognition of the likelihood that the government would ever so often be
hailed into court considering that engaged as it has lately been in varied activities, appropriate to a
welfare state the probability of private parties being adversely affected by action taken by it is not
remote. A loss of property rights could always be plausibly alleged. A claim for money could as easily
be conjured. Thus the demands on the governments time and energy could reach limits well-nigh
intolerable. After all, it is an admitted fact that our people display no hesitancy in going to court
whenever they feel aggrieved, even if the injury is more fancied than real. Thus the functional or
sociological approach to law would seem to call for a similar conclusion.
It might be argued however that precisely because the government is now committed to so many
undertakings, it would be an injustice to those who feel adversely the pinch of its actuations if they
cannot vindicate whatever legal rights they may have in court. Providence Washington Insurance
Co. v. Republic 4 supplies the answer: At any rate, in case of a money claim arising from contract,
express or implied, which could serve as a basis for civil action between private parties, such a consent
has been given by a statute enacted by the Philippine legislature, even before the Constitution took effect
and still applicable at present. The procedure provided for in such a statute was made more expeditious
by a Commonwealth Act, enabling the party or entity, who feels aggrieved by the final decision of the
Auditor General required to decide the claim within sixty days, having the right to go to this Court for final
adjudication. It is worthy of note likewise that in the pursuit of its activities affecting business, the
government has increasingly relied on private corporations possessing the power to sue and be sued."
It could be correctly concluded then, to quote anew from the same case; "Thus the doctrine of nonsuability of the government without its consent, as it has operated in practice, hardly lends itself to
the charge that it could be the fruitful parent of injustice, considering the vast and ever-widening
scope of state activities at present being undertaken. Whatever difficulties for private claimants may
still exist, is from an objective appraisal of all factors, minimal. In the balancing of interests, so
unavoidable in the determination of what principles must prevail if government is to satisfy the public
weal, the verdict must be, as it has been these so many years, for its continuing recognition as a
fundamental postulate of constitutional law."
WHEREFORE, the order of dismissal of March 9, 1966 is affirmed, with costs against plaintiffappellant.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee and Villamor, JJ.,
concur.

Barredo, J., took no part.

Footnotes
1 L-23129, Dec. 17, 1966, 18 SCRA 1120.
2 Switzerland General Insurance Co. v. Republic of the Philippines, L-27389, March 30,
1970.
3 In the felicitous language of Holmes: "A sovereign is exempt from suit, not because of any
formal conception or obsolete theory, but on the logical and practical ground that there can
be no legal right as against the authority that makes the law on which the right depends."
Kawawanakoa v. Polyblank, 205 US 3A9 (1907).
4 L-26386, Sept. 30, 1969, 29 SCRA 598.

Reagan vs. Commissioner, 30 SCRA 968

EN BANC
G.R. No. L-26379

December 27, 1969

WILLIAM C. REAGAN, ETC., petitioner,

vs.
COMMISSIONER OF INTERNAL REVENUE, respondent.
Quasha, Asperilla, Blanco, Zafra and Tayag for petitioner.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete,
Solicitor Lolita O. Gal-lang and Special Attorney Gamaliel H. Mantolino for respondent.
FERNANDO, J.:
A question novel in character, the answer to which has far-reaching implications, is raised by
petitioner William C. Reagan, at one time a civilian employee of an American corporation providing
technical assistance to the United States Air Force in the Philippines. He would dispute the payment
of the income tax assessed on him by respondent Commissioner of Internal Revenue on an amount
realized by him on a sale of his automobile to a member of the United States Marine Corps, the
transaction having taken place at the Clark Field Air Base at Pampanga. It is his contention,
seriously and earnestly expressed, that in legal contemplation the sale was made outside Philippine
territory and therefore beyond our jurisdictional power to tax.

Such a plea, far-fetched and implausible, on its face betraying no kinship with reality, he would justify
by invoking, mistakenly as will hereafter be more fully shown an observation to that effect in a 1951
opinion, 1 petitioner ignoring that such utterance was made purely as a flourish of rhetoric and by way
of emphasizing the decision reached, that the trading firm as purchaser of army goods must respond
for the sales taxes due from an importer, as the American armed forces being exempt could not be
taxed as such under the National Internal Revenue Code.2 Such an assumption, inspired by the
commendable aim to render unavailing any attempt at tax evasion on the part of such vendee, found
expression anew in a 1962 decision,3 coupled with the reminder however, to render the truth
unmistakable, that "the areas covered by the United States Military Bases are not foreign territories
both in the political and geographical sense."
As thus clarified, it is manifest that such a view amounts at most to a legal fiction and is
moreover obiter. It certainly cannot control the resolution of the specific question that confronts us.
We declare our stand in an unequivocal manner. The sale having taken place on what indisputably is
Philippine territory, petitioner's liability for the income tax due as a result thereof was unavoidable. As
the Court of Tax Appeals reached a similar conclusion, we sustain its decision now before us on
appeal.
In the decision appealed from, the Court of Tax Appeals, after stating the nature of the case, started
the recital of facts thus: "It appears that petitioner, a citizen of the United States and an employee of
Bendix Radio, Division of Bendix Aviation Corporation, which provides technical assistance to the
United States Air Force, was assigned at Clark Air Base, Philippines, on or about July 7, 1959 ... .
Nine (9) months thereafter and before his tour of duty expired, petitioner imported on April 22, 1960
a tax-free 1960 Cadillac car with accessories valued at $6,443.83, including freight, insurance and
other charges."4 Then came the following: "On July 11, 1960, more than two (2) months after the
1960 Cadillac car was imported into the Philippines, petitioner requested the Base Commander,
Clark Air Base, for a permit to sell the car, which was granted provided that the sale was made to a
member of the United States Armed Forces or a citizen of the United States employed in the U.S.
military bases in the Philippines. On the same date, July 11, 1960, petitioner sold his car for
$6,600.00 to a certain Willie Johnson, Jr. (Private first class), United States Marine Corps, Sangley
Point, Cavite, Philippines, as shown by a Bill of Sale . . . executed at Clark Air Base. On the same
date, Pfc. Willie (William) Johnson, Jr. sold the car to Fred Meneses for P32,000.00 as evidenced by
a deed of sale executed in Manila."5
As a result of the transaction thus made, respondent Commissioner of Internal Revenue, after
deducting the landed cost of the car as well as the personal exemption to which petitioner was
entitled, fixed as his net taxable income arising from such transaction the amount of P17,912.34,
rendering him liable for income tax in the sum of P2,979.00. After paying the sum, he sought a
refund from respondent claiming that he was exempt, but pending action on his request for refund,
he filed the case with the Court of Tax Appeals seeking recovery of the sum of P2,979.00 plus the
legal rate of interest.
As noted in the appealed decision: "The only issue submitted for our resolution is whether or not the
said income tax of P2,979.00 was legally collected by respondent for petitioner." 6 After discussing
the legal issues raised, primarily the contention that the Clark Air Base "in legal contemplation, is a
base outside the Philippines" the sale therefore having taken place on "foreign soil", the Court of Tax
Appeals found nothing objectionable in the assessment and thereafter the payment of P2,979.00 as
income tax and denied the refund on the same. Hence, this appeal predicated on a legal theory we
cannot accept. Petitioner cannot make out a case for reversal.
1. Resort to fundamentals is unavoidable to place things in their proper perspective, petitioner
apparently feeling justified in his refusal to defer to basic postulates of constitutional and

international law, induced no doubt by the weight he would accord to the observation made by this
Court in the two opinions earlier referred to. To repeat, scant comfort, if at all is to be derived from
such an obiter dictum, one which is likewise far from reflecting the fact as it is.
Nothing is better settled than that the Philippines being independent and sovereign, its authority may
be exercised over its entire domain. There is no portion thereof that is beyond its power. Within its
limits, its decrees are supreme, its commands paramount. Its laws govern therein, and everyone to
whom it applies must submit to its terms. That is the extent of its jurisdiction, both territorial and
personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution of its
sovereignty.
It is to be admitted that any state may, by its consent, express or implied, submit to a restriction of its
sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character.
That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is
the property of a state-force due to which it has the exclusive capacity of legal self-determination and
self-restriction."7 A state then, if it chooses to, may refrain from the exercise of what otherwise is
illimitable competence.
Its laws may as to some persons found within its territory no longer control. Nor does the matter end
there. It is not precluded from allowing another power to participate in the exercise of jurisdictional
right over certain portions of its territory. If it does so, it by no means follows that such areas become
impressed with an alien character. They retain their status as native soil. They are still subject to its
authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under
lease to the American armed forces by virtue of the military bases agreement of 1947. They are not
and cannot be foreign territory.
Decisions coming from petitioner's native land, penned by jurists of repute, speak to that effect with
impressive unanimity. We start with the citation from Chief Justice Marshall, announced in the
leading case of Schooner Exchange v. M'Faddon,8 an 1812 decision: "The jurisdiction of the nation
within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not
imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to
the same extent in that power which could impose such restriction." After which came this
paragraph: "All exceptions, therefore, to the full and complete power of a nation within its own
territories, must be traced up to the consent of the nation itself. They can flow from no other
legitimate source."
Chief Justice Taney, in an 1857 decision,9 affirmed the fundamental principle of everyone within the
territorial domain of a state being subject to its commands: "For undoubtedly every person who is
found within the limits of a government, whether the temporary purposes or as a resident, is bound
by its laws." It is no exaggeration then for Justice Brewer to stress that the United States government
"is one having jurisdiction over every foot of soil within its territory, and acting directly upon each
[individual found therein]; . . ."10
Not too long ago, there was a reiteration of such a view, this time from the pen of Justice Van
Devanter. Thus: "It now is settled in the United States and recognized elsewhere that the territory
subject to its jurisdiction includes the land areas under its dominion and control the ports, harbors,
bays, and other in closed arms of the sea along its coast, and a marginal belt of the sea extending
from the coast line outward a marine league, or 3 geographic miles." 11 He could cite moreover, in
addition to many American decisions, such eminent treatise-writers as Kent, Moore, Hyde, Wilson,
Westlake, Wheaton and Oppenheim.

As a matter of fact, the eminent commentator Hyde in his three-volume work on International Law,
as interpreted and applied by the United States, made clear that not even the embassy premises of
a foreign power are to be considered outside the territorial domain of the host state. Thus: "The
ground occupied by an embassy is not in fact the territory of the foreign State to which the premises
belong through possession or ownership. The lawfulness or unlawfulness of acts there committed is
determined by the territorial sovereign. If an attache commits an offense within the precincts of an
embassy, his immunity from prosecution is not because he has not violated the local law, but rather
for the reason that the individual is exempt from prosecution. If a person not so exempt, or whose
immunity is waived, similarly commits a crime therein, the territorial sovereign, if it secures custody
of the offender, may subject him to prosecution, even though its criminal code normally does not
contemplate the punishment of one who commits an offense outside of the national domain. It is not
believed, therefore, that an ambassador himself possesses the right to exercise jurisdiction, contrary
to the will of the State of his sojourn, even within his embassy with respect to acts there committed.
Nor is there apparent at the present time any tendency on the part of States to acquiesce in his
exercise of it."12
2. In the light of the above, the first and crucial error imputed to the Court of Tax Appeals to the effect
that it should have held that the Clark Air Force is foreign soil or territory for purposes of income tax
legislation is clearly without support in law. As thus correctly viewed, petitioner's hope for the reversal
of the decision completely fades away. There is nothing in the Military Bases Agreement that lends
support to such an assertion. It has not become foreign soil or territory. This country's jurisdictional
rights therein, certainly not excluding the power to tax, have been preserved. As to certain tax
matters, an appropriate exemption was provided for.
Petitioner could not have been unaware that to maintain the contrary would be to defy reality and
would be an affront to the law. While his first assigned error is thus worded, he would seek to impart
plausibility to his claim by the ostensible invocation of the exemption clause in the Agreement by
virtue of which a "national of the United States serving in or employed in the Philippines in
connection with the construction, maintenance, operation or defense of the bases and residing in the
Philippines only by reason of such employment" is not to be taxed on his income unless "derived
from Philippine source or sources other than the United States sources." 13 The reliance, to repeat, is
more apparent than real for as noted at the outset of this opinion, petitioner places more faith not on
the language of the provision on exemption but on a sentiment given expression in a 1951 opinion of
this Court, which would be made to yield such an unwarranted interpretation at war with the
controlling constitutional and international law principles. At any rate, even if such a contention were
more adequately pressed and insisted upon, it is on its face devoid of merit as the source clearly
was Philippine.
In Saura Import and Export Co. v. Meer,14 the case above referred to, this Court affirmed a decision
rendered about seven months previously,15 holding liable as an importer, within the contemplation of
the National Internal Revenue Code provision, the trading firm that purchased army goods from a
United States government agency in the Philippines. It is easily understandable why. If it were not
thus, tax evasion would have been facilitated. The United States forces that brought in such
equipment later disposed of as surplus, when no longer needed for military purposes, was beyond
the reach of our tax statutes.
Justice Tuason, who spoke for the Court, adhered to such a rationale, quoting extensively from the
earlier opinion. He could have stopped there. He chose not to do so. The transaction having
occurred in 1946, not so long after the liberation of the Philippines, he proceeded to discuss the role
of the American military contingent in the Philippines as a belligerent occupant. In the course of such
a dissertion, drawing on his well-known gift for rhetoric and cognizant that he was making an as

if statement, he did say: "While in army bases or installations within the Philippines those goods
were in contemplation of law on foreign soil."
It is thus evident that the first, and thereafter the controlling, decision as to the liability for sales taxes
as an importer by the purchaser, could have been reached without any need for such expression as
that given utterance by Justice Tuason. Its value then as an authoritative doctrine cannot be as
much as petitioner would mistakenly attach to it. It was clearly obiter not being necessary for the
resolution of the issue before this Court.16It was an opinion "uttered by the way."17 It could not then be
controlling on the question before us now, the liability of the petitioner for income tax which, as
announced at the opening of this opinion, is squarely raised for the first time. 18
On this point, Chief Justice Marshall could again be listened to with profit. Thus: "It is a maxim, not to
be disregarded, that general expressions, in every opinion, are to be taken in connection with the
case in which those expressions are used. If they go beyond the case, they may be respected, but
ought not to control the judgment in a subsequent suit when the very point is presented for
decision."19
Nor did the fact that such utterance of Justice Tuason was cited in Co Po v. Collector of Internal
Revenue,20 a 1962 decision relied upon by petitioner, put a different complexion on the matter. Again,
it was by way of pure embellishment, there being no need to repeat it, to reach the conclusion that it
was the purchaser of army goods, this time from military bases, that must respond for the advance
sales taxes as importer. Again, the purpose that animated the reiteration of such a view was clearly
to emphasize that through the employment of such a fiction, tax evasion is precluded. What is more,
how far divorced from the truth was such statement was emphasized by Justice Barrera, who
penned the Co Po opinion, thus: "It is true that the areas covered by the United States Military Bases
are not foreign territories both in the political and geographical sense." 21
Justice Tuason moreover made explicit that rather than corresponding with reality, what was said by
him was in the way of a legal fiction. Note his stress on "in contemplation of law." To lend further
support to a conclusion already announced, being at that a confirmation of what had been arrived at
in the earlier case, distinguished by its sound appreciation of the issue then before this Court and to
preclude any tax evasion, an observation certainly not to be taken literally was thus given utterance.
This is not to say that it should have been ignored altogether afterwards. It could be utilized again,
as it undoubtedly was, especially so for the purpose intended, namely to stigmatize as without
support in law any attempt on the part of a taxpayer to escape an obligation incumbent upon him. So
it was quoted with that end in view in the Co Po case. It certainly does not justify any effort to render
futile the collection of a tax legally due, as here. That was farthest from the thought of Justice
Tuason.
What is more, the statement on its face is, to repeat, a legal fiction. This is not to discount the uses
of a fictio jurisin the science of the law. It was Cardozo who pointed out its value as a device "to
advance the ends of justice" although at times it could be "clumsy" and even "offensive". 22 Certainly,
then, while far from objectionable as thus enunciated, this observation of Justice Tuason could be
misused or misconstrued in a clumsy manner to reach an offensive result. To repeat, properly used,
a legal fiction could be relied upon by the law, as Frankfurter noted, in the pursuit of legitimate
ends.23 Petitioner then would be well-advised to take to heart such counsel of care and
circumspection before invoking not a legal fiction that would avoid a mockery of the law by avoiding
tax evasion but what clearly is a misinterpretation thereof, leading to results that would have
shocked its originator.

The conclusion is thus irresistible that the crucial error assigned, the only one that calls for
discussion to the effect that for income tax purposes the Clark Air Force Base is outside Philippine
territory, is utterly without merit. So we have said earlier.
3. To impute then to the statement of Justice Tuason the meaning that petitioner would fasten on it
is, to paraphrase Frankfurter, to be guilty of succumbing to the vice of literalness. To so conclude is,
whether by design or inadvertence, to misread it. It certainly is not susceptible of the mischievous
consequences now sought to be fastened on it by petitioner.
That it would be fraught with such peril to the enforcement of our tax statutes on the military bases
under lease to the American armed forces could not have been within the contemplation of Justice
Tuason. To so attribute such a bizarre consequence is to be guilty of a grave disservice to the
memory of a great jurist. For his real and genuine sentiment on the matter in consonance with the
imperative mandate of controlling constitutional and international law concepts was categorically set
forth by him, not as an obiter but as the rationale of the decision, in People v. Acierto24 thus: "By the
[Military Bases] Agreement, it should be noted, the Philippine Government merely consents that the
United States exercise jurisdiction in certain cases. The consent was given purely as a matter of
comity, courtesy, or expediency over the bases as part of the Philippine territory or divested itself
completely of jurisdiction over offenses committed therein."
Nor did he stop there. He did stress further the full extent of our territorial jurisdiction in words that do
not admit of doubt. Thus: "This provision is not and can not on principle or authority be construed as
a limitation upon the rights of the Philippine Government. If anything, it is an emphatic recognition
and reaffirmation of Philippine sovereignty over the bases and of the truth that all jurisdictional rights
granted to the United States and not exercised by the latter are reserved by the Philippines for
itself."25
It is in the same spirit that we approach the specific question confronting us in this litigation. We hold,
as announced at the outset, that petitioner was liable for the income tax arising from a sale of his
automobile in the Clark Field Air Base, which clearly is and cannot otherwise be other than, within
our territorial jurisdiction to tax.
4. With the mist thus lifted from the situation as it truly presents itself, there is nothing that stands in
the way of an affirmance of the Court of Tax Appeals decision. No useful purpose would be served
by discussing the other assigned errors, petitioner himself being fully aware that if the Clark Air
Force Base is to be considered, as it ought to be and as it is, Philippine soil or territory, his claim for
exemption from the income tax due was distinguished only by its futility.
There is further satisfaction in finding ourselves unable to indulge petitioner in his plea for reversal.
We thus manifest fealty to a pronouncement made time and time again that the law does not look
with favor on tax exemptions and that he who would seek to be thus privileged must justify it by
words too plain to be mistaken and too categorical to be misinterpreted. 26 Petitioner had not done so.
Petitioner cannot do so.
WHEREFORE, the decision of the Court of Tax Appeals of May 12, 1966 denying the refund of
P2,979.00 as the income tax paid by petitioner is affirmed. With costs against petitioner.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Teehankee, JJ., concur.
Reyes, J.B.L., J., concurs in the result.

Barredo, J., took no part.

Footnotes
Saura Import and Export Co. v. Meer, 88 Phil. 199, 202 affirming Go Cheng Tee v. Meer, 87
Phil. 18 (1950).
1

Sec. 186, National Internal Revenue Code.

Co Po v. Collector of Internal Revenue, 5 SCRA 1057.

Decision, Annex 4, Brief for Petitioner-Appellant, pp. 20-21.

Ibid., p. 21.

Ibid., p. 23.

Jellinek as quoted in Cohen, Recent Theories of Sovereignty, p. 35 (1937).

7 Cranch 116, 136.

Brown v. Duchesne, 19 How. 183, 194.

10

In re Debs. 158 US 564 (1894).

11

Cunard Steamship Co. v. Mellon, 262 US 100 (1922).

2 Hyde, International Law Chiefly as Interpreted and Applied by the United States, pp.
1285-1286 (1947).
12

Act XII of the Military Bases Agreement, par. 2, reads: "No national of the United States
serving in or employed in the Philippines in connection with the construction, maintenance,
operation or defense of the bases and residing in the Philippines by reason only of such
employment, or his spouse and minor children and dependent parents of either spouse, shall
be liable to pay income tax in the Philippines except in respect of income derived from
Philippine source or sources other than the United States sources." (1 Philippine Treaty
Series, 357, 362 [1968]).
13

14

88 Phil. 199 (1951).

15

Go Cheng Tee v. Meer, 87 Phil. 18 (1950).

Uy Po v. Collector of Customs, 34 Phil. 153 (1916); Morales v. Paredes, 55 Phil. 565

(1930); Abad v. Carganillo Vda. de Yance, 95 Phil. 51 (1954).
16

17

People v. Macadaeg, 91 Phil. 410 (1952).

18

Cf. de los Reyes v. de Villa, 48 Phil. 227 (1925).

6 Wheat, 264, 399 (1821) reiterated in Myers v. United States, 272 US 52, (1926). Cf.
Northern Nat. Bank. v. Porter Township, 110 US 608 (1884); Weyerhaeuser v. Hoyt, 219 US
380 (1911); Osaka Shosen Kaisha Line v. United States, 300 US 98; Wright v. United States,
302 US 583 (1938); Green v. United States, 355 US 184 (1957).
19

20

25 SCRA 1057.

21

Ibid., p. 1059.

22

Cardozo, The Paradoxes of Legal Science, 34 (1928).

23

Nashville C. St. Louis Ry v. Browning, 310 US 362 (1940).

24

92 Phil. 534, 542 (1953).

25

Ibid., p. 534.

Cf. Commissioner of Internal Revenue v. Guerrero, 21 SCRA 180 (1967) and the cases
therein cited. See also E. Rodriguez, Inc. v. Collector of Internal Revenue, 28 SCRA 1119
(1969).
26

ACCFA v. Confederation, 30 SCRA 649

EN BANC
G.R. No. L-21484

November 29, 1969

THE AGRICULTURAL CREDIT and COOPERATIVE FINANCING ADMINISTRATION

(ACCFA), petitioner,
vs.
ACCFA SUPERVISORS' ASSOCIATION, ACCFA WORKERS' ASSOCIATION, and THE COURT
OF INDUSTRIAL RELATIONS, respondents.
Deogracias E. Lerma and Esmeraldo U. Guloy for petitioner Agricultural Credit and Cooperative
Financing Administration.
Office of the Agrarian Counsel, Department of Justice for petitioner Agricultural Credit Administration
J. C. Espinas and Associates for respendents Confederation of Unions in Government Corporations
Offices, et al. Mariano B. Tuason for respondent Court of Industrial Relations.
MAKALINTAL, J.:
These are two separate appeals by certiorari from the decision dated March 25, 1963 (G.R. No. L21484) and the order dated May 21, 1964 (G.R. No. L-23605) as affirmed by the resolutions en
banc, of the Court of Industrial Relations, in Cases Nos. 3450-ULP and 1327-MC, respectively. The

parties, except the Confederation of Unions in Government Corporations and Offices (CUGCO),
being practically the same and the principal issues involved related, only one decision is now
rendered in these two cases.
The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a government
agency created under Republic Act No. 821, as amended. Its administrative machinery was
reorganized and its name changed to Agricultural Credit Administration (ACA) under the Land
Reform Code (Republic Act No. 3844). On the other hand, the ACCFA Supervisors' Association
(ASA) and the ACCFA Workers' Association (AWA), hereinafter referred to as the Unions, are labor
organizations composed of the supervisors and the rank-and-file employees, respectively, in the
ACCFA (now ACA).
G.R. No. L-21484
On September 4, 1961 a collective bargaining agreement, which was to be effective for a period of
one (1) year from July 1, 1961, was entered into by and between the Unions and the ACCFA. A few
months thereafter, the Unions started protesting against alleged violations and non-implementation
of said agreement. Finally, on October 25, 1962 the Unions declared a strike, which was ended
when the strikers voluntarily returned to work on November 26, 1962.
On October 30, 1962 the Unions, together with its mother union, the Confederation of Unions in
Government Corporations and Offices (CUGCO), filed a complaint with the Court of Industrial
Relations against the ACCFA (Case No. 3450-ULP) for having allegedly committed acts of unfair
labor practice, namely: violation of the collective bargaining agreement in order to discourage the
members of the Unions in the exercise of their right to self-organization, discrimination against said
members in the matter of promotions, and refusal to bargain. The ACCFA denied the charges and
interposed as affirmative and special defenses lack of jurisdiction of the CIR over the case, illegality
of the bargaining contract, expiration of said contract and lack of approval by the office of the
President of the fringe benefits provided for therein. Brushing aside the foregoing defenses, the CIR
in its decision dated March 25, 1963 ordered the ACCFA:
1. To cease and desist from committing further acts tending to discourage the members of
complainant unions in the exercise of their right to self-organization;
2. To comply with and implement the provision of the collective bargaining contract executed
on September 4, 1961, including the payment of P30.00 a month living allowance;
3. To bargain in good faith and expeditiously with the herein complainants.
The ACCFA moved to reconsider but was turned down in a resolution dated April 25, 1963 of the
CIR en banc. Thereupon it brought this appeal by certiorari.
The ACCFA raises the following issues in its petition, to wit:
1. Whether or not the respondent court has jurisdiction over this case, which in turn depends
on whether or not ACCFA exercised governmental or proprietary functions.
2. Whether or not the collective bargaining agreement between the petitioner and the
respondent union is valid; if valid, whether or not it has already lapsed; and if not, whether or
not its (sic) fringe benefits are already enforceable.

3. Whether or not there is a legal and/or factual basis for the finding of the respondent court
that the petitioner had committed acts of unfair labor practice.
4. Whether or not it is within the competence of the court to enforce the collective bargaining
agreement between the petitioner and the respondent unions, the same having already
expired.
G.R. No. L-23605
During the pendency of the above mentioned case (G.R. No. L-21484), specifically on August 8,
1963, the President of the Philippines signed into law the Agricultural Land Reform Code (Republic
Act No. 3844), which among other things required the reorganization of the administrative machinery
of the Agricultural Credit and Cooperative Financing Administration (ACCFA) and changed its name
to Agricultural Credit Administration (ACA). On March 17, 1964 the ACCFA Supervisors' Association
and the ACCFA Workers' Association filed a petition for certification election with the Court of
Industrial Relations (Case No. 1327-MC) praying that they be certified as the exclusive bargaining
agents for the supervisors and rank-and-file employees, respectively, in the ACA. The trial Court in
its order dated March 30, 1964 directed the Manager or Officer-in-Charge of the ACA to allow the
posting of said order "for the information of all employees and workers thereof," and to answer the
petition. In compliance therewith, the ACA, while admitting most of the allegations in the petition,
denied that the Unions represented the majority of the supervisors and rank-and-file workers,
respectively, in the ACA. It further alleged that the petition was premature, that the ACA was not the
proper party to be notified and to answer the petition, and that the employees and supervisors could
not lawfully become members of the Unions, nor be represented by them. However, in a joint
manifestation of the Unions dated May 7, 1964, with the conformity of the ACA Administrator and of
the Agrarian Counsel in his capacity as such and as counsel for the National Land Reform Council, it
was agreed "that the union petitioners in this case represent the majority of the employees in their
respective bargaining units" and that only the legal issues raised would be submitted for the
resolution of the trial Court.
Finding the remaining grounds for ACA's opposition to the petition to be without merit, the trial Court
in its order dated May 21, 1964 certified "the ACCFA Workers' Association and the ACCFA
Supervisors' Association as the sole and exclusive bargaining representatives of the rank-and-file
employees and supervisors, respectively, of the Agricultural Credit Administration." Said order was
affirmed by the CIR en banc in its resolution dated August 24, 1964.
On October 2, 1964 the ACA filed in this Court a petition for certiorari with urgent motion to stay the
CIR order of May 21, 1964. In a resolution dated October 6, 1964, this Court dismissed the petition
for "lack of adequate allegations," but the dismissal was later reconsidered when the ACA complied
with the formal requirement stated in said resolution. As prayed for, this Court ordered the CIR to
stay the execution of its order of May 21, 1964.
In this appeal, the ACA in effect challenges the jurisdiction of the CIR to entertain the petition of the
Unions for certification election on the ground that it (ACA) is engaged in governmental functions.
The Unions join the issue on this single point, contending that the ACA forms proprietary functions.
Under Section 3 of the Agricultural Land Reform Code the ACA was established, among other
governmental agencies,1 to extend credit and similar assistance to agriculture, in pursuance of the
policy enunciated in Section 2 as follows:
SEC. 2. Declaration of Policy. It is the policy of the State:

(1) To establish owner-cultivatorships and the economic family-size farm as the basis of
Philippine agriculture and, as a consequence, divert landlord capital in agriculture to
industrial development;
(2) To achieve a dignified existence for the small farmers free from pernicious institutional
restraints and practices;
(3) To create a truly viable social and economic structure in agriculture conducive to greater
productivity and higher farm incomes;
(4) To apply all labor laws equally and without discrimination to both industrial and
agricultural wage earners;
(5) To provide a more vigorous and systematic land resettlement program and public land
distribution; and
(6) To make the small farmers more independent, self-reliant and responsible citizens, and a
source of genuine strength in our democratic society.
The implementation of the policy thus enunciated, insofar as the role of the ACA therein is
concerned, is spelled out in Sections 110 to 118, inclusive, of the Land Reform Code. Section 110
provides that "the administrative machinery of the ACCFA shall be reorganized to enable it to align
its activities with the requirements and objective of this Code and shall be known as the Agricultural
Credit Administration." Under Section 112 the sum of P150,000,000 was appropriated out of national
funds to finance the additional credit functions of the ACA as a result of the land reform program laid
down in the Code. Section 103 grants the ACA the privilege of rediscounting with the Central Bank,
the Development Bank of the Philippines and the Philippine National Bank. Section 105 directs the
loaning activities of the ACA "to stimulate the development of farmers' cooperatives," including those
"relating to the production and marketing of agricultural products and those formed to manage and/or
own, on a cooperative basis, services and facilities, such as irrigation and transport systems,
established to support production and/or marketing of agricultural products." Section 106 deals with
the extension by ACA of credit to small farmers in order to stimulate agricultural production. Sections
107 to 112 lay down certain guidelines to be followed in connection with the granting of loans, such
as security, interest and supervision of credit. Sections 113 to 118, inclusive, invest the ACA with
certain rights and powers not accorded to non-governmental entities, thus:
SEC. 113. Auditing of Operations. For the effective supervision of farmers' cooperatives,
the head of the Agricultural Credit Administration shall have the power to audit their
operations, records and books of account and to issue subpoena and subpoena duces
tecum to compel the attendance of witnesses and the production of books, documents and
records in the conduct of such audit or of any inquiry into their affairs. Any person who,
without lawful cause, fails to obey such subpoena or subpoena duces tecum shall, upon
application of the head of Agricultural Credit Administration with the proper court, be liable to
punishment for contempt in the manner provided by law and if he is an officer of the
Association, to suspension or removal from office.
SEC. 114. Prosecution of officials. The Agricultural Credit Administration, through the
appropriate provincial or city fiscal, shall have the power to file and prosecute any and all
actions which it may have against any and all officials or employees of farmers' cooperatives
arising from misfeasance or malfeasance in office.

SEC. 115. Free Notarial Service. Any justice of the peace, in his capacity as notary exofficio, shall render service free of charge to any person applying for a loan under this Code
either in administering the oath or in the acknowledgment of instruments relating to such
loan.
SEC. 116. Free Registration of Deeds. Any register of deeds shall accept for registration,
free of charge any instrument relative to a loan made under this Code.
SEC. 117. Writing-off Unsecured and Outstanding Loans. Subject to the approval of the
President upon recommendation of the Auditor General, the Agricultural Credit
Administration may write-off from its books, unsecured and outstanding loans and accounts
receivable which may become uncollectible by reason of the death or disappearance of the
debtor, should there be no visible means of collecting the same in the foreseeable future, or
where the debtor has been verified to have no income or property whatsoever with which to
effect payment. In all cases, the writing-off shall be after five years from the date the debtor
defaults.
SEC. 118. Exemption from Duties, Taxes and Levies. The Agricultural Credit
Administration is hereby exempted from the payment of all duties, taxes, levies, and fees,
including docket and sheriff's fees, of whatever nature or kind, in the performance of its
functions and in the exercise of its powers hereunder.
The power to audit the operations of farmers' cooperatives and otherwise inquire into their affairs, as
given by Section 113, is in the nature of the visitorial power of the sovereign, which only a
government agency specially delegated to do so by the Congress may legally exercise.
On March 19, 1964 Executive Order No. 75 was promulgated. It is entitled: "Rendering in Full Force
and Effect the Plan of Reorganization Proposed by the Special Committee on Reorganization of
Agencies for Land Reform for the Administrative Machinery of the Agricultural Land Reform Code,"
and contains the following pertinent provisions:
Section 3. The Land Reform Project Administration2 shall be considered a single organization
and the personnel complement of the member agencies including the legal officers of the
Office of the Agrarian Counsel which shall provide legal services to the LRPA shall be
regarded as one personnel pool from which the requirements of the operations shall be
drawn and subject only to the civil service laws, rules and regulations, persons from one
agency may be freely assigned to positions in another agency within the LRPA when the
interest of the service so demands.
Section 4. The Land Reform Project Administration shall be considered as one organization
with respect to the standardization of job descriptions position classification and wage and
salary structures to the end that positions involving the same or equivalent qualifications and
equal responsibilities and effort shall have the same remuneration.
Section 5. The Civil Service laws, rules and regulations with respect to promotions,
particularly in the consideration of person next in rank, shall be made applicable to the Land
Reform Project Administration as a single agency so that qualified individuals in one member
agency must be considered in considering promotion to higher positions in another member
agency.
The implementation of the land reform program of the government according to Republic Act No.
3844 is most certainly a governmental, not a proprietary, function; and for that purpose Executive

Order No. 75 has placed the ACA under the Land Reform Project Administration together with the
other member agencies, the personnel complement of all of which are placed in one single pool and
made available for assignment from one agency to another, subject only to Civil Service laws, rules
and regulations, position classification and wage structures.
The appointing authority in respect of the officials and employees of the ACA is the President of the
Philippines, as stated in a 1st indorsement by his office to the Chairman of the National Reform
Council dated May 22, 1964, as follows:
Appointments of officials and employees of the National Land Reform Council and its
agencies may be made only by the President, pursuant to the provisions of Section 79(D) of
the Revised Administrative Code. In accordance with the policy and practice, such
appointments should be prepared for the signature of the Executive Secretary, "By Authority
ofthe President".3
When the Agricultural Reform Code was being considered by the Congress, the nature of the ACA
was the subject of the following exposition on the Senate floor:
Senator Tolentino: . . . . "The ACA is not going to be a profit making institution. It is supposed
to be a public service of the government to the lessees and farmer-owners of the lands that
may be bought after expropriation from owners. It is the government here that is the lender.
The government should not exact a higher interest than what we are telling a private
landowner now in his relation to his tenants if we give to their farmers a higher rate of
interest . . . ." (pp. 17 & 18, Senate Journal No. 16, July 3, 1963)
The reason is obvious, to pinpoint responsibility for many losses in the government, in order to avoid
irresponsible lending of government money to pinpoint responsibility for many losses . . . .
Senator Manglapus: ". . . But assuming that hypothesis, that is the reason why we are
appropriating P150,000,000.00 for the Agricultural Credit Administration which will go to
intensified credit operations on the barrio level . . ." (p. 3, Senate Journal No. 7).
That it is the reason why we are providing for the expansion of the ACCFA and the weeding out of
the cooperative activity of the ACCFA and turning this over to the Agricultural Productivity
Commission, so that the Agricultural Credit Administration will concentrate entirely on the facilitation
of credit on the barrio level with the massive support of 150 million provided by the government. . . .
(pp. 4 & 5 of Senate Journal No. 7, July 3, 1963)
. . . But by releasing them from this situation, we feel that we are putting them in a much better
condition than that in which they are found by providing them with a business-like way of obtaining
credit, not depending on a paternalistic system but one which is business-like that is to say, a
government office, which on the barrio level will provide them that credit directly . . . . (p. 40, Senate
Journal No. 7, July 3, 1963) (emphasis supplied).
The considerations set forth above militate quite strongly against the recognition of collective
bargaining powers in the respondent Unions within the context of Republic Act No. 875, and hence
against the grant of their basic petition for certification election as proper bargaining units. The ACA
is a government office or agency engaged in governmental, not proprietary functions. These
functions may not be strictly what President Wilson described as "constituent" (as distinguished from
"ministrant"),4 such as those relating to the maintenance of peace and the prevention of crime, those
regulating property and property rights, those relating to the administration of justice and the
determination of political duties of citizens, and those relating to national defense and foreign

relations. Under this traditional classification, such constituent functions are exercised by the State
as attributes of sovereignty, and not merely to promote the welfare, progress and prosperity of the
people these letter functions being ministrant he exercise of which is optional on the part of the
government.
The growing complexities of modern society, however, have rendered this traditional classification of
the functions of government quite unrealistic, not to say obsolete. The areas which used to be left to
private enterprise and initiative and which the government was called upon to enter optionally, and
only "because it was better equipped to administer for the public welfare than is any private
individual or group of individuals,"5 continue to lose their well-defined boundaries and to be absorbed
within activities that the government must undertake in its sovereign capacity if it is to meet the
increasing social challenges of the times. Here as almost everywhere else the tendency is
undoubtedly towards a greater socialization of economic forces. Here of course this development
was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of
principle concerning the promotion of social justice.
It was in furtherance of such policy that the Land Reform Code was enacted and the various
agencies, the ACA among them, established to carry out its purposes. There can be no dispute as to
the fact that the land reform program contemplated in the said Code is beyond the capabilities of any
private enterprise to translate into reality. It is a purely governmental function, no less than, say, the
establishment and maintenance of public schools and public hospitals. And when, aside from the
governmental objectives of the ACA, geared as they are to the implementation of the land reform
program of the State, the law itself declares that the ACA is a government office, with the formulation
of policies, plans and programs vested no longer in a Board of Governors, as in the case of the
ACCFA, but in the National Land Reform Council, itself a government instrumentality; and that its
personnel are subject to Civil Service laws and to rules of standardization with respect to positions
and salaries, any vestige of doubt as to the governmental character of its functions disappears.
In view of the foregoing premises, we hold that the respondent Unions are not entitled to the
certification election sought in the Court below. Such certification is admittedly for purposes of
bargaining in behalf of the employees with respect to terms and conditions of employment, including
the right to strike as a coercive economic weapon, as in fact the said unions did strike in 1962
against the ACCFA (G.R. No. L-21824).6 This is contrary to Section 11 of Republic Act No. 875,
which provides:
SEC. 11. Prohibition Against Strike in the Government The terms and conditions of
employment in the Government, including any political subdivision or instrumentality thereof,
are governed by law and it is declared to be the policy of this Act that employees therein
shall not strike for the purposes of securing changes or modification in their terms and
conditions of employment. Such employees may belong to any labor organization which
does not impose the obligation to strike or to join in strike: Provided, However, that this
section shall apply only to employees employed in governmental functions of the
Government including but not limited to governmental corporations.7
With the reorganization of the ACCFA and its conversion into the ACA under the Land Reform Code
and in view of our ruling as to the governmental character of the functions of the ACA, the decision
of the respondent Court dated March 25, 1963, and the resolution en banc affirming it, in the unfair
labor practice case filed by the ACCFA, which decision is the subject of the present review in G. R.
No. L-21484, has become moot and academic, particularly insofar as the order to bargain
collectively with the respondent Unions is concerned.

What remains to be resolved is the question of fringe benefits provided for in the collective
bargaining contract of September 4, 1961. The position of the ACCFA in this regard is that the said
fringe benefits have not become enforceable because the condition that they should first be
approved by the Office of the President has not been complied with. The Unions, on the other hand,
contend that no such condition existed in the bargaining contract, and the respondent Court upheld
this contention in its decision.
It is to be listed that under Section 3, Article XIV, of the agreement, the same "shall not become
effective unless and until the same is duly ratified by the Board of Governors of the Administration."
Such approval was given even before the formal execution of the agreement, by virtue of
"Resolution No. 67, Regular Meeting No. 7, FY 1960-61, held on August 17, 1961," but with the
proviso that "the fringe benefits contained therein shall take effect only if approved by the office of
the President." The condition is, therefore, deemed to be incorporated into the agreement by
reference.
On October 23, 1962 the Office of the President, in a letter signed by the Executive Secretary,
expressed its approval of the bargaining contract "provided the salaries and benefits therein fixed
are not in conflict with applicable laws and regulations, are believed to be reasonable considering
the exigencies of the service and the welfare of the employees, and are well within the financial
ability of the particular corporation to bear."
On July 1, 1963 the ACCFA management and the Unions entered into an agreement for the
implementation of the decision of the respondent Court concerning the fringe benefits, thus:
In the meantime, only Cost of Living Adjustment, Longevity Pay, and Night Differential
Benefits accruing from July 1, 1961 to June 30, 1963 shall be paid to all employees entitled
thereto, in the following manner:
A) The sum of P180,000 shall be set aside for the payment of:
1) Night differential benefits for Security Guards.
2) Cost of Living Adjustment and Longevity Pay.
3) The unpaid balance due employees on Item A (1) and (2) this paragraph shall be paid in
monthly installments as finances permit but not beyond December 20, 1963.
3. All benefits accruing after July 1, 1963, shall be allowed to accumulate but payable only
after all benefits accruing up to June 30, 1963, as per CIR decision hereinabove referred to
shall have been settled in full; provided, however, that commencing July 1, 1963 and for a
period of only two (2) months thereafter (during which period the ACCFA and the Unions
shall negotiate a new Collective Bargaining Agreement) the provisions of the September 4,
1961 Collective Bargaining Agreement shall be temporarily suspended, except as to Cost of
Living Adjustment and "political" or non-economic privileges and benefits thereunder.
On July 24, 1963 the ACCFA Board of Governors ratified the agreement thus entered into, pursuant
to the provision thereof requiring such ratification, but with the express qualification that the same
was "without prejudice to the pending appeal in the Supreme Court . . . in Case No. 3450-ULP." The
payment of the fringe benefits agreed upon, to our mind, shows that the same were within the
financial capability of the ACCFA then, and hence justifies the conclusion that this particular

condition imposed by the Office of the President in its approval of the bargaining contract was
satisfied.
We hold, therefore, that insofar as the fringe benefits already paid are concerned, there is no reason
to set aside the decision of the respondent Court, but that since the respondent Unions have no right
to the certification election sought by them nor, consequently, to bargain collectively with the
petitioner, no further fringe benefits may be demanded on the basis of any collective bargaining
agreement.
The decisions and orders appealed from are set aside and/or modified in accordance with the
foregoing pronouncements. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Castro, Teehankee and Barredo, JJ., concur.
Zaldivar, J., concurs in the result.

Separate Opinions
FERNANDO, J., concurring:
The decision reached by this Court so ably given expression in the opinion of Justice Makalintal,
characterized with vigor, clarity and precision, represents what for me is a clear tendency not to be
necessarily bound by our previous pronouncements on what activities partake of a nature that is
governmental.1 Of even greater significance, there is a definite rejection of the "constituentministrant" criterion of governmental functions, followed in Bacani v. National Coconut
Corporation.2 That indeed is cause for gratification. For me at least, there is again full adherence to
the basic philosophy of the Constitution as to the extensive and vast power lodged in our
government to cope with the social and economic problems that even now sorely beset us. There is
therefore full concurrence on my part to the opinion of the Court, distinguished by its high quality of
juristic craftsmanship. I feel however that the matter is of such vital importance that a separate
concurring opinion is not inappropriate. It will also serve to give expression to my view, which is that
of the Court likewise, that our decision today does not pass upon the rights of labor employed in
instrumentalities of the state discharging governmental functions.
1. In the above Bacani decision, governmental functions are classified into constituent and
ministrant. "The former are those which constitute the very bonds of society and are compulsory in
nature; the latter are those that are undertaken only by way of advancing the general interests of
society, and are merely optional. President Wilson enumerates the constituent functions as follows:
'(1) The keeping of order and providing for the protection of persons and property from violence and
robbery. (2) The fixing of the legal relations between man and wife and between parents and
children. (3) The regulation of the holding, transmission, and interchange of property, and the
determination of its liabilities for debt or for crime. (4) The determination of contract rights between
individuals. (5) The definition and punishment of crime. (6) The administration of justice in civil
cases. (7) The determination of the political duties, privileges, and relations of citizens. (8) Dealings
of the state with foreign powers: the preservation of the state from external danger or encroachment
and the advancement of its international interests.' " 3
The ministrant functions were then enumerated, followed by a statement of the basis that would
justify engaging in such activities. Thus: "The most important of the ministrant functions are: public
works, public education, public charity, health and safety regulations, and regulations of trade and

industry. The principles determining whether or not a government shall exercise certain of these
optional functions are: (1) that a government should do for the public welfare those things which
private capital would not naturally undertake and (2) that a government should do these things which
by its very nature it is better equipped to administer for the public welfare than is any private
individual or group of individuals."4
Reference is made in the Bacani decision to the first of the many publications of Justice Malcolm on
the Philippine government, which appeared in 1916, 5 adopting the formulation of the then Professor,
later President, Woodrow Wilson of the United States, in a textbook on political science the first
edition of which was published in 1898. The Wilson classification reflected the primacy of the
dominant laissez-faire concept carried into the sphere of government.
A most spirited defense of such a view was given by former President Hadley of Yale in a series of
three lectures delivered at Oxford University in 1914. According to President Hadley: "I shall begin
with a proposition which may sound somewhat startling, but which I believe to be literally true. The
whole American political and social system is based on industrial property right, far more completely
than has ever been the case in any European country. In every nation of Europe there has been a
certain amount of traditional opposition between the government and the industrial classes. In the
United States no such tradition exists. In the public law of European communities industrial
freeholding is a comparatively recent development. In the United States, on the contrary, industrial
freeholding is the foundation on which the whole social order has been established and built up." 6
The view is widely accepted that such a fundamental postulate did influence American court
decisions on constitutional law. As was explicitly stated by Justice Cardozo, speaking of that era:
"Laissez-faire was not only a counsel of caution which statesmen would do well to heed. It was a
categorical imperative which statesmen as well as judges, must obey." 7 For a long time, legislation
tending to reduce economic inequality foundered on the rock that was the due process clause,
enshrining as it did the liberty of contract. To cite only one instance, the limitation of employment in
bakeries to sixty hours a week and ten hours a day under a New York statute was stricken down for
being tainted with a due process objection in Lochner v. New York. 8 It provoked one of the most
vigorous dissents of Justice Holmes, who was opposed to the view that the United States
Constitution did embodylaissez-faire. Thus: "General propositions do not decide concrete cases. The
decision will depend on a judgment or intuition more subtle than any articulate major premise. But I
think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion
tends to become a law. I think that the word 'liberty,' in the 14th Amendment, is perverted when it is
held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and
fair man necessarily would admit that the statute proposed would infringe fundamental principles as
they have been understood by the traditions of our people and our law. It does not need research to
show that no such sweeping condemnation can be passed upon the statute before us. A reasonable
man might think it a proper measure on the score of health. Men whom I certainly could not
pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of
work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary
to discuss." It was not until 1908, in Muller v. Oregon,9 that the American Supreme Court held valid a
ten-hour maximum for women workers in laundries and not until 1917 in Bunting v. Oregon10 that
such a regulatory ten-hour law applied to men and women passed the constitutional test.
Similarly, state legislation fixing minimum wages was deemed offensive to the due process clause in
a 1923 decision in Adkins v. Children's Hospital.11 Only in 1937, in the leading case of West Coast
Hotel v. Parrish,12 was the Adkins case overruled and a minimum wage law New York statute upheld.
The same unsympathetic attitude arising from the laissez-faire concept was manifest in decisions
during such period, there being the finely-spun distinctions in the Wolff Packing Co. v. Court of
Industrial Relations13 decision, as to when certain businesses could be classified as affected with

public interest to justify state regulation as to prices. After eleven years, in 1934, in Nebbia v. New
York,14 the air of unreality was swept away by this explicit pronouncement from the United States
Supreme Court: "The phrase 'affected with a public interest' can, in the nature of things, mean no
more than that an industry, for adequate reason, is subject to control for the public good."
It is thus apparent that until the administration of President Roosevelt, the laissez-faire principle
resulted in the contraction of the sphere where governmental entry was permissible. The object was
to protect property even if thereby the needs of the general public would be left unsatisfied. This was
emphatically put forth in a work of former Attorney General, later Justice, Jackson, citing an opinion
of Judge Van Orsdel. Thus: "It should be remembered that of the three fundamental principles which
underlie government, and for which government exists, the protection of life, liberty, and property,
the chief of these is property . . . ."15 The above excerpt from Judge Van Orsdel forms part of his
opinion in Children's Hospital v. Adkins, when decided by the Circuit Court of Appeals.16
Nonetheless, the social and economic forces at work in the United States to which the new deal
administration of President Roosevelt was most responsive did occasion, as of 1937, greater
receptivity by the American Supreme Court to a philosophy less rigid in its obeisance to property
rights. Earlier legislation deemed offensive to thelaissez-faire concept had met a dismal fate. Their
nullity during his first term could, more often than not, be expected.17
As a matter of fact, even earlier, in 1935, Professor Coker of Yale, speaking as a historian, could
already discern a contrary drift. Even then he could assert that the range of governmental activity in
the United States had indeed expanded. According to him: "Thus both liberals and conservatives
approve wide and varied governmental intervention; the latter condemning it, it is true, when the
former propose it, but endorsing it, after it has become a fixed part of the status quo, as so beneficial
in its effects that no more of it is needed. Our history for the last half-century shows that each
important governmental intervention we have adopted has been called socialistic or communistic by
contemporary conservatives, and has later been approved by equally conservative men who now
accept it both for its proved benefits and for the worthy traditions it has come to represent. Both
liberal and conservative supporters of our large-scale business under private ownership advocate or
concede the amounts and kinds of governmental limitation and aid which they regard as necessary
to make the system work efficiently and humanely. Sooner or later, they are willing to have
government intervene for the purpose of preventing the system from being too oppressive to the
masses of the people, protecting it from its self-destructive errors, and coming to its help in other
ways when it appears not to be able to take care of itself."18
At any rate, by 1943, the United States was reconciled to laissez-faire having lost its dominance. In
the language of Justice Jackson in the leading case of West Virginia State Board of Education v.
Barnette:19 "We must transplant these rights to a soil in which the laissez-faire concept or principle of
non-interference has withered at least as to economic affairs, and social advancements are
increasingly sought through closer integration of society and through expanded and strengthened
governmental controls."
2. The influence exerted by American constitutional doctrines unavoidable when the Philippines was
still under American rule notwithstanding, an influence that has not altogether vanished even after
independence, thelaissez-faire principle never found full acceptance in this jurisdiction, even during
the period of its full flowering in the United States. Moreover, to erase any doubts, the Constitutional
Convention saw to it that our fundamental law embodies a policy of the responsibility thrust on
government to cope with social and economic problems and an earnest and sincere commitment to
the promotion of the general welfare through state action. It would thus follow that the force of any
legal objection to regulatory measures adversely affecting property rights or to statutes organizing
public corporations that may engage in competition with private enterprise has been blunted. Unless

there be a clear showing of any invasion of rights guaranteed by the Constitution, their validity is a
foregone conclusion. No fear need be entertained that thereby spheres hitherto deemed outside
government domain have been enchroached upon. With our explicit disavowal of the "constituentministrant" test, the ghost of the laissez-faire concept no longer stalks the juridical stage.
As early as 1919, in the leading case of Rubi V. Provincial Board of Mindoro, 20 Justice Malcolm
already had occasion to affirm: "The doctrines of laissez-faire and of unrestricted freedom of the
individual, as axioms of economic and political theory, are of the past. The modern period has shown
a widespread belief in the amplest possible demonstration of governmental activity. The Courts
unfortunately have sometimes seemed to trail after the other two branches of the Government in this
progressive march."
It was to be expected then that when he spoke for the Court in Government of the Philippine Islands
v. Springer,21 a 1927 decision, he found nothing objectionable in the government itself organizing and
investing public funds in such corporations as the National Coal Co., the Phil. National Bank, the
National Petroleum Co., the National Development Co., the National Cement Co. and the National
Iron Co. There was not even a hint that thereby the laissez-faire concept was not honored at all. It is
true that Justice Malcolm concurred with the majority in People v. Pomar,22 a 1924 opinion, which
held invalid under the due process clause a provision providing for maternity leave with pay thirty
days before and thirty days after confinement. It could be that he had no other choice as the
Philippines was then under the United States, and only recently the year before, the above-cited
case of Adkins v. Children's Hospital,23 in line with the laissez-faire principle, did hold that a statute
providing for minimum wages was constitutionally infirm on the same ground.
Our constitution which took effect in 1935, upon the inauguration of the Commonwealth of the
Philippines, erased whatever doubts there might be on that score. Its philosophy is antithetical to
the laissez-faire concept. Delegate, later President, Manuel Roxas, one of the leading members of
the Constitutional Convention, in answer precisely to an objection of Delegate Jose Reyes of
Sorsogon, who noted the "vast extensions in the sphere of governmental functions" and the "almost
unlimited power to interfere in the affairs of industry and agriculture as well as to compete with
existing business" as "reflections of the fascination exerted by [the then] current tendencies" in other
jurisdictions,24 spoke thus: "My answer is that this constitution has a definite and well defined
philosophy, not only political but social and economic. A constitution that in 1776 or in 1789 was
sufficient in the United States, considering the problems they had at that time, may not now be
sufficient with the growing and ever-widening complexities of social and economic problems and
relations. If the United States of America were to call a constitutional convention today to draft a
constitution for the United States, does any one doubt that in the provisions of that constitution there
will be found definite declarations of policy as to economic tendencies; that there will be matters
which are necessary in accordance with the experience of the American people during these years
when vast organizations of capital and trade have succeeded to a certain degree to control the life
and destiny of the American people? If in this constitution the gentleman will find declarations of
economic policy, they are there because they are necessary to safeguard the interests and welfare
of the Filipino people because we believe that the days have come when in self-defense, a nation
may provide in its constitution those safeguards, the patrimony, the freedom to grow, the freedom to
develop national aspirations and national interests, not to be hampered by the artificial boundaries
which a constitutional provision automatically imposes."25
Delegate Roxas continued further: "The government is the creature of the people and the
government exercises its powers and functions in accordance with the will and purposes of the
people. That is the first principle, the most important one underlying this document. Second, the
government established in this document is, in its form, in our opinion, the most adapted to
prevailing conditions, circumstances and the political outlook of the Filipino people. Rizal said, 'Every

people has the kind of government that they deserve.' That is just another form of expressing the
principle in politics enunciated by the French philosophers when they said: 'Every people has the
right to establish the form of government which they believe is most conducive to their welfare and
their liberty.' Why have we preferred the government that is established in this draft? Because it is
the government with which we are familiar. It is the form of government fundamentally such as it
exists today; because it is the only kind of government that our people understand; it is the kind of
government we have found to be in consonance with our experience, with the necessary
modification, capable of permitting a fair play of social forces and allowing the people to conduct the
affairs of that government."26
One of the most prominent delegates, a leading intellectual, former President Rafael Palma of the
University of the Philippines, stressed as a fundamental principle in the draft of the Constitution the
limitation on the right to property. He pointed out that the then prevailing view allowed the
accumulation of wealth in one family down to the last remote descendant, resulting in a grave
disequilibrium and bringing in its wake extreme misery side by side with conspicuous luxury. He did
invite attention to the few millionaires at one extreme with the vast masses of Filipinos deprived of
the necessities of life at the other. He asked the Convention whether the Filipino people could long
remain indifferent to such a deplorable situation. For him to speak of a democracy under such
circumstances would be nothing but an illusion. He would thus emphasize the urgent need to
remedy the grave social injustice that had produced such widespread impoverishment, thus
recognizing the vital role of government in this sphere. 27
Another delegate, Tomas Confesor of Iloilo, was quite emphatic in his assertion for the need of a
social justice provision which is a departure from the laissez-faire principle. Thus: "Take the case of
the tenancy system in the Philippines. You have a tenant. There are hundreds of thousands of
tenants working day in and day out, cultivating the fields of their landlords. He puts all his time, all his
energy, the labor and the assistance of his wife and children, in cultivating a piece of ground for his
landlord but when the time comes for the partition of the products of his toil what happens? If he
produces 25 cavanes of rice, he gets only perhaps five and the twenty goes to the landlord. Now can
he go to court? Has he a chance to go to court in order to secure his just share of the products of his
toil? No. Under our present regime of law, under our present regime of justice, you do not give that
to the poor tenant. Gentlemen, you go to the Cagayan Valley and see the condition under which
those poor farmers are being exploited day in and day out. Can they go to court under our present
regime of justice, of liberty, or democracy? The other day, workmen were shot by the police just
because they wanted to increase or they desired that their wages be increased from thirty centavos
a day to forty or fifty centavos. Is it necessary to spill human blood just to secure an increase of ten
centavos in the daily wages of an ordinary laborer? And yet under our present regime of social
justice, liberty and democracy, these things are happening; these things, I say, are happening. Are
those people getting any justice? No. They cannot get justice now from our courts. For this reason, I
say it is necessary that we insert 'social justice' here and that social justice must be established by
law. Proper legal provisions, proper legal facilities must be provided in order that there be a regime
not of justice alone, because we have that now and we are seeing the oppression arising from such
a regime. Consequently, we must emphasize the term 'social justice'."28
Delegate Ventenilla of Pangasinan reflected the attitude of the Convention as to why laissezfaire was no longer acceptable. After speaking of times having changed, he proceeded: "Since then
new problems have arisen. The spiritual mission of government has descended to the level of the
material. Then its function was primarily to soothe the aching spirit. Now, it appears, it must also
appease hunger. Now that we may read history backwards, we know for instance, that the old theory
of 'laissez-faire' has degenerated into 'big business affairs' which are gradually devouring the rights
of the people the same rights intended to be guarded and protected by the system of
constitutional guaranties. Oh, if the Fathers were now alive to see the changes that the centuries
have wrought in our life! They might contemplate the sad spectacle of organized exploitation greedily

devouring the previous rights of the individual. They might also behold the gradual disintegration of
society, the fast disappearance of the bourgeois the middle class, the backbone of the nation
and the consequent drifting of the classes toward the opposite extremes the very rich and the
very poor."29
Shortly after the establishment of the Commonwealth, the then Justice Jose P. Laurel, himself one of
the foremost delegates of the Constitutional Convention, in a concurring opinion, later quoted with
approval in the leading case of Antamok Goldfields Mining Co. v. Court of Industrial
Relations,30 decided in 1940, explained clearly the need for the repudiation of the laissezfaire doctrine. Thus: "It should be observed at the outset that our Constitution was adopted in the
midst of surging unrest and dissatisfaction resulting from economic and social distress which was
threatening the stability of governments the world over. Alive to the social and economic forces at
work, the framers of our Constitution boldly met the problems and difficulties which faced them and
endeavored to crystallize, with more or less fidelity, the political, social and economic propositions of
their age, and this they did, with the consciousness that the political and philosophical aphorism of
their generation will, in the language of a great jurist, 'be doubted by the next and perhaps entirely
discarded by the third.' . . . Embodying the spirit of the present epoch, general provisions were
inserted in the Constitution which are intended to bring about the needed social and economic
equilibrium between component elements of society through the application of what may be termed
as the justitia communis advocated by Grotius and Leibnits many years ago to be secured through
the counterbalancing of economic and social forces and opportunities which should be regulated, if
not controlled, by the State or placed, as it were, in custodia societatis. 'The promotion of social
justice to insure the well-being and economic security of all the people' was thus inserted as vital
principle in our Constitution. ... ."31 In the course of such concurring opinion and after noting the
changes that have taken place stressing that the policy of laissez-faire had indeed given way to the
assumption by the government of the right to intervene although qualified by the phrase "to some
extent", he made clear that the doctrine in People v. Pomar no longer retain, "its virtuality as a living
principle."32
3. It must be made clear that the objection to the "constituent-ministrant" classification of
governmental functions is not to its formulation as such. From the standpoint of law as logic, it is not
without merit. It has neatness and symmetry. There are hardly any loose ends. It has the virtue of
clarity. It may be said in its favor likewise that it reflects all-too-faithfully the laissez-faire notion that
government cannot extend its operation outside the maintenance of peace and order, protection
against external security, and the administration of justice, with private rights, especially so in the
case of property, being safeguarded and a hint that the general welfare is not to be entirely ignored.
It must not be lost sight of though that logic and jural symmetry while undoubtedly desirable are not
the prime consideration. This is especially so in the field of public law. What was said by Holmes,
almost nine decades ago, carry greater conviction now. "The life of the law has not been logic; it has
been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions
of public policy avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men
should be governed."33 Then too, there was the warning of Geny cited by Cardozo that undue stress
or logic may result in confining the entire system of positive law, "within a limited number of logical
categories, predetermined in essence, immovable in basis, governed by inflexible dogmas," thus
rendering it incapable of responding to the ever varied and changing exigencies of life. 34,
It is cause enough for concern if the objection to the Bacani decision were to be premised on the
score alone that perhaps there was fidelity to the requirements of logic and jural symmetry carried to
excess. What appears to me much more deplorable is that it did fail to recognize that there was a
repudiation of the laissez-faire concept in the Constitution. As was set forth in the preceding pages,

the Constitution is distinguished precisely by a contrary philosophy. The regime of liberty if provided
for, with the realization that under the then prevalent social and economic conditions, it may be
attained only through a government with its sphere of activity ranging far and wide, not excluding
matters hitherto left to the operation of free enterprise. As rightfully stressed in our decision today in
line with what was earlier expressed by Justice Laurel, the government that we have established has
as a fundamental principle the promotion of social justice.35 The same jurist gave it a comprehensive
and enduring definition as the "promotion of the welfare of all the people, the adoption by the
government of measures calculated to insure economic stability of all the component elements of
society, through the maintenance of a proper economic and social equilibrium in the interrelations of
the members of the community, constitutionally, through the adoption of measures legally justifiable,
or extra-constitutionally, through the exercise of powers underlying the existence of all governments
in the time honored principle of salus populi estsuprema lex."36
There is thus from the same distinguished pen, this time writing for the Court, a reiteration of the
view of thelaissez-faire doctrine being repugnant to the fundamental law. It must be added though
that the reference to extra-constitutional measures being allowable must be understood in the sense
that there is no infringement of specific constitutional guarantees. Otherwise, the judiciary will be
hard put to sustain their validity if challenged in an appropriate legal proceeding.
The regime of liberty contemplated in the Constitution with social justice as a fundamental principle
to reinforce the pledge in the preamble of promoting the general welfare reflects traditional concepts
of a democratic policy infused with an awareness of the vital and pressing need for the government
to assume a much more active and vigorous role in the conduct of public affairs. The framers of our
fundamental law were as one in their strongly-held belief that thereby the grave and serious infirmity
then confronting our body-politic, on the whole still with us now, of great inequality of wealth and
mass poverty, with the great bulk of our people ill-clad, ill-housed, ill-fed, could be remedied. Nothing
else than communal effort, massive in extent and earnestly engaged in, would suffice.
To paraphrase Laski, with the necessary modification in line with such worthy constitutional ends, we
look upon the state as an organization to promote the happiness of individuals, its authority as a
power bound by subordination to that purpose, liberty while to be viewed negatively as absence of
restraint impressed with a positive aspect as well to assure individual self-fulfillment in the attainment
of which greater responsibility is thrust on government; and rights as boundary marks defining areas
outside its domain.37 From which it would follow as Laski so aptly stated that it is the individual's
"happiness and not its well-being [that is] the criterion by which its behavior [is] to be judged. His
interests, and not its power, set the limits to the authority it [is] entitled to exercise." 38 We have under
such a test enlarged its field of competence. 4. With the decision reached by us today, the
government is freed from the compulsion exerted by the Bacani doctrine of the "constituentministrant" test as a criterion for the type of activity in which it may engage. Its constricting effect is
consigned to oblivion. No doubts or misgivings need assail us that governmental efforts to promote
the public weal, whether through regulatory legislation of vast scope and amplitude or through the
undertaking of business activities, would have to face a searching and rigorous scrutiny. It is clear
that their legitimacy cannot be challenged on the ground alone of their being offensive to the
implications of the laissez-faire concept. Unless there be a repugnancy then to the limitations
expressly set forth in the Constitution to protect individual rights, the government enjoys a much
wider latitude of action as to the means it chooses to cope with grave social and economic problems
that urgently press for solution. For me, at least, that is to manifest deference to the philosophy of
our fundamental law. Hence my full concurrence, as announced at the outset.
5. The opinion of Justice Makalintal contains this footnote: "It must be stated, however, that we do
not here decide the question not at issue in this case of whether or not a labor organization
composed employees discharging governmental functions, which is allowed under the legal

provision just quoted, provided such organization does not impose the obligation to strike or to join in
strike, may petition for a certification election and compel the employer to bargain collectively with it
for purposes other than to secure changes or conditions in the terms and conditions of employment."
With such an affirmation as to the scope of our decision there being no holding on the vexing
question of the effects on the rights of labor in view of the conclusion reached that the function
engaged in is governmental in character, I am in full agreement. The answer to such a vital query
must await another day.

Footnotes
Land Authority, Land Bank, Agricultural Productivity Commission; Office of the Agrarian
Counsel.
1

The Land Reform Project Administration is the organization through which the field
operations of member agencies (of which the ACA is one) shall be undertaken by their
respective personnel under a unified administration. (Section 2 of Article 1, Executive Order
No. 75)
2

Section 79 (D) of the Revised Administrative Code provides in part: "The Department Head,
upon the recommendation of the Chief of bureaus or office concerned, shall appoint all
subordinate officers and employees whose appointment is not expressly vested by law in the
President of the Philippines. . . . ."
3

Bacani vs. National Coconut Corporation, G.R. No. L-9657, Nov. 29, 1956, 53 O.G. p. 2800.

Malcolm, The Government of the Philippines, pp. 19-20; Bacani vs. National Coconut
Corporation, supra.
5

It must be stated, however, that we do not here decide the question not at issue in this
case of whether or not a labor organization composed of employees discharging
governmental functions, which is allowed under the legal provision just quoted provided such
organization does not impose the obligation to strike or to join in strike, may petition for a
certification election and compel the employer to bargain collectively with it for purposes
other than to secure changes or modifications in the terms and conditions of their
employment. Withal, it may not be amiss to observe, albeit obiter, that the right to organize
thus allowed would be meaningless unless there is a correlative right on the part of the
organization to be recognized as the proper representative of the employees and to bargain
in their behalf in relation to matters outside the limitations imposed by the statute, such as
those provided for in Section 28 (b) of Republic Act No. 2260, concerning complaints and
grievances of the employees.
6

Reenacted in Sec. 28 (c) of the Civil Service Act of 1959, R.A. No. 2260.

FERNANDO, J., CONCURRING:

National Coal Co. v. Collector, 46 Phil. 583 (1924); Gov't. of P.I. v. Springer, 50 Phil. 259
(1927); Govt. of P.I. v. China Banking Corp., 54 Phil. 845 (1930); Association Cooperativa de
Credito Agricola de Miagao v. Monteclaro, 74 Phil. 281 (1943); Abad Santos v. Auditor
General, 79 Phil. 190 (1947); National Airports Corp. v. Teodoro, 91 Phil. 203 (1952); GSIS v.
Castillo, 98 Phil. 876 (1956); Price Stabilization Corp., 102 Phil. 515 (1957); Boy Scouts of
Phil. v. Araos, 102 Phil. 1080 (1958); Naric Worker's Union v. Alvendia, 107 Phil. 404 (1960);
GSIS Employees Asso. v. Alvendia, L-15614, May 30, 1960; National Dev. Co. v. Tobias, 7
SCRA 692 (1963); SSS Employees Asso. v. Soriano, 7 SCRA 1016 (1963); PAL Employees'
Asso. v. Phil. Airlines, Inc., 11 SCRA 387 (1964); Nawasa v. NWSA Consolidated Unions, 11
SCRA 766 (1964); Phil. Mfg. Co. v. Manila Port Service, 16 SCRA 95 (1966) and Phil. Postal
Savings Bank v. Court, 21 SCRA 1330 (1967).
1

100 Phil. 468 (1956).

Ibid., p. 472.

Ibid.

Malcolm, The Government of Philippine Islands.

The Constitutional Position of the Property Owner in 2 Selected Essays on Constitutional

Law, p. 2 (1938).
6

Cardozo, The Nature of Judicial Process, p. 77 (1921).

198 US 45 (1905).

208 US 412.

10

243 US 426.

11

261 Us 525. Again there was a vigorous dissent from Holmes.

12

300 US 379.

13

262 US 522.

14

291 US 502.

15

Jackson, Struggle for Judicial Supremacy, p. 74, (1941).

16

284 Fed. 613 (1922).

As was stated in the above work of Jackson: "But in just three years, beginning with the
October 1933 term, the Court refused to recognize the power of Congress in twelve cases.
Five of these twelve decisions occurred during a single year: that is, the October 1935 term;
four of the five, by a sharply divided court." Jackson, op. cit. p. 41..
17

18

2 Selected Essays on Constitutional Law, op, cit., p. 27.

19

319 US 624.

20

39 Phil. 660, 717-718.

21

50 Phil. 259.

22

46 Phil. 440.

23

261 US 525.

24

III Proceedings of the Philippine Constitutional Convention, Laurel ed., pp. 173-174 (1966).

25

Ibid., pp. 177-178.

26

Ibid., p. 178.

Cf. Ibid., pp. 227-228. To quote from Delegate Palma: "Uno de los principios
constitucionales es el referente a la limitacion de la propiedad individual. Por que se va a
limitar la adquisicion de la propiedad. Ese es otro de los prejuicios y preocupaciones que
tenemos nosotros, cuando en realidad el mundo esta sufiendo actualmente por causa de las
teorias antiguas sobre la propiedad. Ya he dicho aqui, o no se si en otra parte, que la nocion
actual sobre propiedad es la vinculacion perpetua de todos los bienes que se pueden
acumular por una familia, hasta el ultimo de sus mas remotos descendientes, ha producido
ese enorme desnivel de riqueza que se nota en todas partes del mundo, la extrema miseria
al lado del extremo lujo. Una docena de enormes millonarios, al lado de millones y millones
de seres desprovistos de lo mas elemental y rudimentario, para satisfacer las necesidades
ordinarias. Y que? Vamos a permanecer indiferentes antes que ante nuestra propia
situacion? Hablamos tanto de democracia, de prosperidad para el gran numero hacemos
algo a favor de ese gran numero que constituye la fuerza de la nacion? No vamos siquiera a
dedicar un momento de nuestra atencion a la gran injusticia social que supone el resultado
de una extrema miseria y de un lujo extremo? Fue Henry George el primero que llamo la
atencion del mundo sobre este problema. Toda la bendicion de nuestra civilizacion, las
enormes conquistas que el mundo ha realizado en el orden cientifico, han tendido
solamente a producir la felicidad de unos pocos y la miseria de las grandes muchedumbres.
Creo que este problema es digno de atencion en todas partes del mundo, y a menos que
nosotros pongamos las medidas que han de atajar los peligros de futuro, nuestra sociedad
estara siempre sujeta a las alarmas que puedan producir las muchedumbres hambrientas y
deseosas de su propio bienestar."
27

28

Ibid., pp. 293-294.

29

Ibid., I, Laurel ed., pp. 471-472.

30

70 Phil. 340.

31

Ibid., pp. 356-357.

32

Ibid., p. 360.

33

Holmes, The Common Law, p. 1 (1881).

34

Cardozo, op. cit., p. 47.

35

Art. II, Sec. 5, Constitution.

36

Calalang v. Williams, 70 Phil. 726, 734-735 (1940).

37

Laski, The State in Theory and Practice, p. 35 (1935).

38

Ibid., at p. 36.