G.R. No.
108725 September 25, 1998 On December 24, 1992, the 12th Division of the Court of Appeals came out
PEOPLE OF THE PHILIPPINES and FARMERS COOPERATIVE
MARKETING ASSOCIATION (FACOMA), San Jose, Occidental
Mindoro, petitioners,
vs.
THE HON. EMILIO L. LEACHON, JR., Presiding Judge, RTC, Branch 46,
4th Judicial Region, San Jose, Occidental Mindoro, respondents.
PURISIMA, J.:
The People of the Philippines, represented by the Provincial Prosecutor of
Occidental Mindoro, and the private complainant, Farmers Cooperative
Marketing Association (FACOMA), brought this special civil action
for certiorariand mandamus, to annul the orders, dated January 18 and
February 4, 1993, respectively, of Presiding Judge Emilio L. Leachon, Jr. of
the Regional Trial Court, Branch 46, San Jose, occidental Mindoro, who
dismissed Criminal Case Nos. R-2877 and R-2828, and denied herein
petitioners' motion for reconsideration. Petioners further pray that respondent
Judge be ordered to proceed with the trial of said cases.
The antecedent facts that matter are, as follows:
On August 7, 1990, pursuant to the Resolution of the Municipal Trial Court of
San Jose, Occidental Mindoro, the Provincial Prosecutor of Occidental
Mindoro filed two separate informations for violation of P.D. 772, otherwise
known as the Anti-Squatting Law, against Noli Hablo. Edmundo Mapindan
and Diego Case Nos. R-2877 and R-2828, before the Regional Trial Court of
Occidental Mindoro presided over by respondent judge.
The cases proceeded to trial. After presenting its evidence, the prosecution
rested the cases, sending in a written offer of evidence on November 14,
1991.
On August 18, 1992, almost a year after the prosecution had rested the
respondent Judge issued an Order dismissing the said cases motu
proprio on the ground of "lack of jurisdiction."
From the aforesaid order of dismissal, petitioners appealed to this Court via a
Petition for Certiorari, Prohibition and Mandamus, which was referred to the
Court of Appeals for proper disposition.
with a decision reversing the appealed Order of dismissal, ordering
continuation of trial of subject criminal cases, and disposing, thus:
IN VIEW OF ALL THE FOREGOING considerations, the petition is given due
course and the orders of respondent judge dated August 19, 1992 and
September 1, 1992 are set aside and declared null and void. Respondent
judge is hereby directed to proceed with the hearing of the case, i.e., with the
presentation of evidence by the accused, then the rebuttal or surrebuttal
evidence, if necessary and thereafter, to decide the case on the basis of the
evidence adduced. No pronouncement as to costs.
SO ORDERED.
On January 19, 1993, instead of conducting the trial, as directed by the Court
of Appeals, the respondent judge dismissed the cases motu proprio, once
more, opining that P.D. 772 is rendered obsolete and deemed repealed by
Sections 9 and 10, Article XIII of the 1987 Constitution, which provide that
"urban or rural poor dwellers shall not be evicted nor their dwellings
demolished except in accordance with law and in a just and humane manner.
Petitioners' Motion for Reconsideration interposed on January 29, 1993,
having been denied by the respondent Judge on February 4, 1993,
petitioners found their way to this court via the instant petition.
The issue posited here is whether or not the respondent judge acted with
grave abuse of discretion amounting to lack or excess of jurisdiction in
dismissing subject criminal cases for violation of the Anti-Squatting Law, and
in declaring the said law as repugnant to the provisions of the provisions of
the 1987 Constitution.
To begin with, to every legislative act attaches the presumption of
constitutionality. (Misolas vs. Panga, 181 SCRA 648; Alvarez vs. Guingona,
Jr., 252 SCRA 695). Unless otherwise repealed by a subsequent law or
adjudged unconstitutional by this Court, a law will always be presumed valid
and the first and fundamental duty of the court is to apply the law. (Lim vs.
Pacquing, 240 SCRA 649; National Federation of Labor vs. Eisma, 127
SCRA 419)
Then, too, it is a basic rule of statutory construction that repeals by
implication are not favored unless it is manifest that such is the legislative
intent. (Napocor vs. Province of Lanao del Sur, 264 SCRA 271) This doctrine
is premised on the rationale that the will of the legislature cannot be
overturned by the judicial function of construction and interpretation. (Ty vs.
Trampe, 250 SCRA 500; Frivaldo vs. Comelec, 257 SCRA 727; Agujetas vs.
Court of Appeals, 261 SCRA 17)
Presidential Decree No. 772, otherwise known as the Anti-Squatting Law,
enjoys this presumption of constitutionality. At the time the respondent Judge
rendered the questioned Decision and issued the orders of dismissal in 1993,
Presidential Decree No. 772, Anti-Squatting Law, was still effective. Neither
has this Court declared its unconstitutionality, notwithstanding the social
justice provision of Article XIII of the 1987 Constitution, specifically on urban
land reform and housing.
Article XIII of the 1987 Constitution, provides:
Sec. 9. The State shall, by law, and for the common good, undertake, in
cooperation with the private sector, a continuing program of urban land
reform and housing which will make available at affordable cost decent
housing and basic services to underprivileged and homeless citizens in
urban centers and resettlement areas. It shall also promote adequate
employment opportunities to such citizens. In the implementation of such
program the State shall respect the rights of small property owners.
Sec. 10. Urban or rural poor dwellers shall not be evicted nor their dwellings
demolished, except in accordance with law and in a just and humane
manner.
No resettlement of urban or rural dwellers shall be undertaken without
adequate consultation with them and the communities where they are to be
relocated.
Presidential Decree No. 772, on the other hand, states:
Sec. 1. Any person with the use of force, intimidation or threat, or taking
advantage of the absence or tolerance of the landowner, succeeds in
occupying or possessing the property of the latter against his will for
residential, commercial or any other purposes, shall be punished by
imprisonment ranging from six months to one year or a fine not less than one
thousand or more than five thousand pesos at the discretion of the Court,
with subsidiary imprisonment in case of insolvency.
If the offender is a corporation or association, the maximum penalty of five
years and the fine of thousand pesos shall be imposed upon the president,
director, manager or managing partners thereof.
In dismissing subject criminal cases for anti-squatting, respondent Judge
ratiocinated that "if all the accused in these cases were convicted and
ordered evicted, it will run counter to the said specific constitutional
provisions because the conviction and eviction will not be in a just and
humane manner as the government has not yet undertaken the resettlement
of urban and rural dwellers (referring to all accused in the cases at bar) and
neither has the government consulted all the accused as to where they
should be relocated."
From the aforequoted portion of the questioned disposition below, it can be
gleaned that the reason of respondent Judge in dismissing subject cases is
that the eviction of the accused was not effected in a just and humane
manner as the government has not yet established a resettlement area for
the accused, and those who would be evicted have not been consulted as to
the place of their relocation. The import of the Order of dismissal under
scrutiny is that should the eviction be in a just and humane manner, the same
shall be valid and upheld.
The Court holds that the respondent judge did not err in so construing the
aforecited constitutional provision. Under the Constitution, what makes the
eviction and demolition of urban or rural poor dwellers illegal or unlawful is
when the same are not done in accordance with law and in a just and
humane manner.
However, respondent Judge erred in predicating the validity or legality of
eviction on the existence of a resettlement plan and area. The constitutional
requirement that the eviction and demolition be in accordance with law and
conducted in a just and humane manner does not mean that the validity or
legality of the demolition or eviction is hinged on the existence of a
resettlement area designated or earmarked by the government. What is
meant by "in accordance with law" and "just and humane manner" is that the
person to be evicted be accorded due process or an opportunity to controvert
the allegation that his or her occupation or possession of the property
involved is unlawful or against the will of the landowner; that should the
illegal or unlawful occupation be proven, the occupant be sufficiently notified
before actual eviction or demolition is done; and that there be no loss of lives,
physical injuries or unnecessary loss of or damage to properties.
Precisely, the enactment of an anti-squatting law affords the alleged
"squatters" the opportunity to present their case before a competent court
where their rights will be amply protected and due process strictly observed.
By filing the proper informations in court, complainants have complied with
the first requirement of due process, that is, the opportunity for the accused
to be heard and present evidence to show that his or her occupation or
possession of the property is not against the will or without the consent of the
landowner and is not tainted by the use of force, intimidation, threat or by the
taking advantage of the absence of or tolerance by the landowners.
Furthermore, what gives impetus to P.D. 772 is the constitutional mandate
that — "no person shall be deprived of life, liberty, or property, without due
process of law." Far from contravening, P.D. 772 conforms with the 1987
Constitution, in that it protects the rights of a property owner against unlawful
and illegal intrusion.
It should likewise be noted that a constitutional question will not be decided
unless it is properly raised in appropriate cases (Tropical Homes Inc. vs.
National Housing Authority, 142 SCRA 540). Before the court can assume
jurisdiction over a constitutional question, the following requisites must first
be met: (1) there must be an actual case or controversy, including a conflict
of rights susceptible of judicial determination; (2) the constitutional question
must be raised by a proper party; (3) the constitutional question must be
raised at the earliest opportunity; and (4) the resolution of the constitutional
question must be necessary for the resolution of the case. (Board of
Optometry vs. Colet, 260 SCRA 88)
In the case at bar, the respondent Judge dismissed subject cases motu
proprio, after the prosecution had rested the same and without giving the
three accused an, opportunity to present their evidence. What is more, there
is no showing that the issue of constitutionality of P.D. 772 was ever posed
by the accused. Consequently, such an issue cannot be given due course for
the simple reason that it was not raised by the proper party at the earliest
opportunity.
But the foregoing antecedent facts and proceedings notwithstanding, the
petition cannot now prosper because on October 27, 1997, Republic Act No.
8368, entitled "An Act Repealing Presidential Decree No. 772 Entitled
"Penalizing Squatting and Other Similar Acts" was enacted. Section 3 of the
said Act provides that "all pending cases under the provisions of Presidential
Decree No. 772 shall be dismissed upon the effectivity of this Act."
WHEREFORE, the Petition is hereby DISMISSED, without any
pronouncement as to costs.
SO ORDERED.
G.R. No. 152259 July 29, 2004
ALFREDO T. ROMUALDEZ, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN (Fifth Division) and the PEOPLE
of the PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
Repetitive motions to invalidate or summarily terminate a criminal indictment
prior to plea and trial, however they may be named or identified -- whether as
a motion to quash or motion to dismiss or by any other nomenclature -- delay
the administration of justice and unduly burden the court system. Grounds
not included in the first of such repetitive motions are generally deemed
waived and can no longer be used as bases of similar motions subsequently
filed.
Section 5 of the Anti-Graft Law is constitutional. It penalizes certain
presidential relatives who "intervene, directly or indirectly, in any business,
transaction, contract or application with the Government." This provision is
not vague or "impermissibly broad," because it can easily be understood with
the use of simple statutory construction. Neither may the constitutionality of a
criminal statute such as this be challenged on the basis of the "overbreadth"
and the "void-for-vagueness" doctrines, which apply only to free-speech
cases.
The Case
Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court,
seeking to set aside the November 20, 2001 2 and the March 1,
20023 Resolutions of the Sandiganbayan in Criminal Case No. 13736. The
first Resolution disposed thus:
"WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED.
The arraignment of the accused and the pre-trial of the case shall proceed as
scheduled."4
The second Resolution denied reconsideration.
The Facts
The facts of the case are narrated by the Sandiganbayan as follows:
"[The People of the Philippines], through the Presidential Commission on
Good Government (PCGG), filed on July 12, 1989 an information before [the
anti-graft court] charging the accused [with] violation of Section 5, Republic
Act No. 3019,5 as amended. The Information reads:
'That on or about and during the period from July 16, 1975 to July 29, 1975,
in Metro Manila, Philippines, and within the jurisdiction of [the
Sandiganbayan], said [petitioner], brother-in-law of Ferdinand E. Marcos,
former President of the Philippines, and therefore, related to the latter by
affinity within the third civil degree, did then and there wil[l]fully and
unlawfully, and with evident bad faith, for the purpose of promoting his self-
interested [sic] and/or that of others, intervene directly or indirectly, in a
contract between the National Shipyard and Steel Corporation (NASSCO), a
government-owned and controlled corporation and the Bataan Shipyard and
Engineering Company (BASECO), a private corporation, the majority stocks
of which is owned by former President Ferdinand E. Marcos, whereby the
NASSCO sold, transferred and conveyed to the BASECO its ownership and
all its titles and interests over all equipment and facilities including structures,
buildings, shops, quarters, houses, plants and expendable and semi-
expendable assets, located at the Engineer Island known as the Engineer
Island Shops including some of its equipment and machineries from Jose
Panganiban, Camarines Norte needed by BASECO in its shipbuilding and
ship repair program for the amount of P5,000,000.00.
'Contrary to law.'
"On December 27, 1996, the accused filed his first 'MOTION TO DISMISS
AND TO DEFER ARRAIGNMENT' claiming that no valid preliminary
investigation was conducted in the instant case. He asserts that if a
preliminary investigation could be said to have been conducted, the same
was null and void having been undertaken by a biased and partial
investigative body.
"On January 9, 1997, [the Sandiganbayan], through the First Division, issued
an order giving the accused fifteen days to file a Motion for Reinvestigation
with the Office of the Special Prosecutor.
"[Petitioner] questioned said order before the Supreme Court via a petition for
Certiorari and Prohibition with prayer for temporary restraining order. On
January 21, 1998, the Supreme Court dismissed the petition for failure to
show that [the Sandiganbayan] committed grave abuse of discretion in
issuing the assailed order.
"On November 9, 1998, the [petitioner] filed with the Office of the Special
Prosecutor a Motion to Quash.
"On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio
U. Tabanguil, manifested that the prosecution had already concluded the
reinvestigation of the case. He recommended the dismissal of the instant
case. Both the Deputy Special Prosecutor and the Special Prosecutor
approved the recommendation. However, Ombudsman Aniano A. Desierto
disagreed and directed the prosecutors to let the [petitioner] present his
evidence in Court.
"Subsequently, [petitioner] filed on October 8, 1999 his second 'MOTION TO
QUASH AND TO DEFER ARRAIGNMENT'.
"On February 9, 2000, the [Sandiganbayan] denied the motion for lack of
merit.
"On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO FILE
MOTION TO DISMISS'. On June 29, 2001, the [Sandiganbayan] admitted
the motion and admitted the attached (third) Motion to Dismiss.
"The [Motion to Dismiss] raise[d] the following grounds:
'I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF
[PETITIONER] WAS VIOLATED DURING THE PRELIMINARY
INVESTIGATION STAGE IN THE FOLLOWING WAYS:
'A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE
INSTANT CASE; AND
'B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED
AND PARTIAL INVESTIGATOR
'II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED
OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS
VIOLATED
'III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973
CONSTITUTION, [PETITIONER] IS IMMUNE FROM CRIMINAL
PROSECUTION
'IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY
PRESCRIPTION'"6
Ruling of the Sandiganbayan
The Sandiganbayan explained that all the grounds invoked by petitioner,
except the third one, had already been raised by him and passed upon in its
previous Resolutions.7 In resolving the third ground, the anti-graft court
pointed out that Section 17 of the 1973 Constitution became effective only in
1981 when the basic law was amended. Since his alleged illegal intervention
had been committed on or about 1975, the amended provision was
inapplicable to him.8
In denying the Motion for Reconsideration filed by petitioner, the
Sandiganbayan passed upon the other grounds he had raised. It ruled that
his right to a preliminary investigation was not violated, because he had been
granted a reinvestigation.9 It further held that his right to be informed of the
nature and cause of the accusation was not trampled upon, either, inasmuch
as the Information had set forth the essential elements of the offense
charged.10
Hence, this Petition.11
The Issues
In his Memorandum, petitioner assigns the following errors for our
consideration:
"Whether or not the Honorable Sandiganbayan erred and gravely abused its
discretion amounting to lack of, or in excess of jurisdiction –
I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear
and incontrovertible evidence that:
A. Section 5 of Republic Act No. 3019 is unconstitutional because its
vagueness violates the due process right of an individual to be informed of
the nature and the cause of the accusation against him;
B. Section 5 of Republic Act No. 3019 is unconstitutional because it violates
the due process right of an individual to be presumed innocent until the
contrary is proved;
C. The constitutional right of petitioner x x x to be informed of the nature and
the cause of the accusation against him was violated;
D. The constitutional right to due process of law of petitioner x x x was
violated during the preliminary investigation stage in the following ways:
[i] No valid preliminary investigation was con-ducted for Criminal Case No.
13736; and
[ii] The preliminary investigation was conducted by a biased and partial
investigator.
E. The criminal action or liability has been extinguished by prescription; and
F. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x
is immune from criminal prosecution.
And
II. In light of the foregoing, in denying petitioner['s] x x x right to equal
protection of the laws."12
Simply stated, the issues are as follows: (1) whether Section 5 of Republic
Act 3019 is unconstitutional; (2) whether the Information is vague; (3)
whether there was a valid preliminary investigation; (4) whether the criminal
action or liability has been extinguished by prescription; and (5) whether
petitioner is immune from criminal prosecution under then Section 17 of
Article VII of the 1973 Constitution.
The Court's Ruling
The Petition has no merit.
First Issue:
Constitutionality of Section 5,
Republic Act 3019
Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first
time in the Sandiganbayan through a Supplemental Motion to Dismiss.
Attached to his December 7, 2001 Motion for Reconsideration of the Order
denying his Motion to Dismiss was this Supplemental Motion which was, in
effect, his third motion to quash.13 We note that the Petition for Certiorari
before us challenges the denial of his original, not his Supplemental, Motion
to Dismiss.
Upon the denial of his original Motion to Quash on February 9, 2000,
petitioner could have filed a motion for reconsideration of the denial. Had
reconsideration been turned down, the next proper remedy would have been
either (1) a petition for certiorari 14 -- if there was grave abuse of discretion --
which should be filed within 60 days from notice of the assailed order; 15 or (2)
to proceed to trial without prejudice to his right, if final judgment is rendered
against him, to raise the same questions before the proper appellate
court.16 But instead of availing himself of these remedies, he filed a "Motion to
Dismiss" on June 19, 2001.
Impropriety of
Repetitive Motions
There is no substantial distinction between a "motion to quash" and a "motion
to dismiss." Both pray for an identical relief, which is the dismissal of the
case. Such motions are employed to raise preliminary objections, so as to
avoid the necessity of proceeding to trial. A motion to quash is generally used
in criminal proceedings to annul a defective indictment. A motion to dismiss,
the nomenclature ordinarily used in civil proceedings, is aimed at summarily
defeating a complaint. Thus, our Rules of Court use the term "motion to
quash" in criminal,17 and "motion to dismiss" in civil, proceedings.18
In the present case, however, both the "Motion to Quash" and the "Motion to
Dismiss" are anchored on basically the same grounds and pray for the same
relief. The hairsplitting distinction posited by petitioner does not really make a
difference.
By filing a Motion to Dismiss, petitioner submitted in effect a prohibited
second motion to quash. A party is not permitted to raise issues, whether
similar or different, by installment. The Rules abhor repetitive motions.
Otherwise, there would be no end to preliminary objections, and trial would
never commence. A second motion to quash delays the administration of
justice and unduly burdens the courts. Moreover, Rule 117 provides that
grounds not raised in the first motion to quash are generally deemed
waived.19 Petitioner's "Motion to Dismiss" violates this rule.
Constitutionality of
the Challenged Provision
If only for the foregoing procedural lapses, the Petition deserves to be
dismissed outright. However, given the importance of this case in curtailing
graft and corruption, the Court will nevertheless address the other issues on
their merit. Petitioner challenges the validity of Section 5 of Republic Act
3019, a penal statute, on the ground that the act constituting the offense is
allegedly vague and "impermissibly broad."
It is best to stress at the outset that the overbreadth 20 and the
vagueness21 doctrines have special application only to free-speech cases.
They are not appropriate for testing the validity of penal statutes. Mr. Justice
Vicente V. Mendoza explained the reason as follows:
"A facial challenge is allowed to be made to a vague statute and to one which
is overbroad because of possible 'chilling effect' upon protected speech. The
theory is that '[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn
with narrow specificity.' The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that
the protected speech of others may be deterred and perceived grievances
left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.
xxxxxxxxx
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute.
With respect to such statute, the established rule is that 'one to whom
application of a statute is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as applying to other
persons or other situations in which its application might be unconstitutional.'
As has been pointed out, 'vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce facial invalidation,
while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.'" 22(underscoring
supplied)
"To this date, the Court has not declared any penal law unconstitutional on
the ground of ambiguity."23 While mentioned in passing in some cases, the
void-for-vagueness concept has yet to find direct application in our
jurisdiction. In Yu Cong Eng v. Trinidad,24 the Bookkeeping Act was found
unconstitutional because it violated the equal protection clause, not because
it was vague. Adiong v. Comelec25 decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec26 held that a portion of
RA 6735 was unconstitutional because of undue delegation of legislative
powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes would result in a
mass acquittal of parties whose cases may not have even reached the
courts. Such invalidation would constitute a departure from the usual
requirement of "actual case and controversy" and permit decisions to be
made in a sterile abstract context having no factual concreteness.
In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme
Court in these words:27
"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect,
is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process
of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes, x x x ordinarily results
in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided."
For this reason, generally disfavored is an on-its-face invalidation of statutes,
described as a "manifestly strong medicine" to be employed "sparingly and
only as a last resort." In determining the constitutionality of a statute,
therefore, its provisions that have allegedly been violated must be examined
in the light of the conduct with which the defendant has been charged. 28
As conduct -- not speech -- is its object, the challenged provision must be
examined only "as applied" to the defendant, herein petitioner, and should
not be declared unconstitutional for overbreadth or vagueness.
The questioned provision reads as follows:
"Section 5. Prohibition on certain relatives. — It shall be unlawful for the
spouse or for any relative, by consanguinity or affinity, within the third civil
degree, of the President of the Philippines, the Vice-President of the
Philippines, the President of the Senate, or the Speaker of the House of
Representatives, to intervene, directly or indirectly, in any business,
transaction, contract or application with the Government: Provided, That this
section shall not apply to any person who, prior to the assumption of office of
any of the above officials to whom he is related, has been already dealing
with the Government along the same line of business, nor to any transaction,
contract or application already existing or pending at the time of such
assumption of public office, nor to any application filed by him the approval of
which is not discretionary on the part of the official or officials concerned but
depends upon compliance with requisites provided by law, or rules or
regulations issued pursuant to law, nor to any act lawfully performed in an
official capacity or in the exercise of a profession."
Petitioner also claims that the phrase "to intervene directly or indirectly, in
any business, transaction, contract or application with the Government" is
vague and violates his right to be informed of the cause and nature of the
accusation against him.29 He further complains that the provision does not
specify what acts are punishable under the term intervene, and thus
transgresses his right to be presumed innocent.30 We disagree.
Every statute is presumed valid. 31 On the party challenging its validity weighs
heavily the onerous task of rebutting this presumption. 32 Any reasonable
doubt about the validity of the law should be resolved in favor of its
constitutionality.33 To doubt is to sustain, as tersely put by Justice George
Malcolm. In Garcia v. Executive Secretary,34 the rationale for the presumption
of constitutionality was explained by this Court thus:
"The policy of the courts is to avoid ruling on constitutional questions and to
presume that the acts of the political departments are valid in the absence of
a clear and unmistakable showing to the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation of powers which enjoins
upon each department a becoming respect for the acts of the other
departments. The theory is that as the joint act of Congress and the
President of the Philippines, a law has been carefully studied and determined
to be in accordance with the fundamental law before it was finally enacted." 35
In the instant case, petitioner has miserably failed to overcome such
presumption. This Court has previously laid down the test for determining
whether a statute is vague, as follows:
"x x x [A] statute establishing a criminal offense must define the offense with
sufficient definiteness that persons of ordinary intelligence can understand
what conduct is prohibited by the statute. It can only be invoked against that
species of legislation that is utterly vague on its face, i.e., that which cannot
be clarified either by a saving clause or by construction.
"A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of
what conduct to avoid; and, it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.36 But the doctrine does not apply as against legislations
that are merely couched in imprecise language but which nonetheless
specify a standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of activities. The
first may be 'saved' by proper construction, while no challenge may be
mounted as against the second whenever directed against such
activities.37 With more reason, the doctrine cannot be invoked where the
assailed statute is clear and free from ambiguity, as in this case.
"The test in determining whether a criminal statute is void for uncertainty is
whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.38 It must be stressed, however, that the 'vagueness' doctrine merely
requires a reasonable degree of certainty for the statute to be upheld - not
absolute precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity, is permissible as long
as the metes and bounds of the statute are clearly delineated. An act will not
be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions, especially where, because of the
nature of the act, it would be impossible to provide all the details in advance
as in all other statutes."39
A simpler test was decreed in Dans v. People,40 in which the Court said that
there was nothing vague about a penal law that adequately answered the
basic query "What is the violation?" 41 Anything beyond -- the hows and the
whys -- are evidentiary matters that the law itself cannot possibly disclose, in
view of the uniqueness of every case.42
The question "What is the violation?" is sufficiently answered by Section 5 of
RA 3019, as follows:
1. The offender is a spouse or any relative by consanguinity or affinity within
the third civil degree of the President of the Philippines, the Vice-President of
the Philippines, the President of the Senate, or the Speaker of the House of
Representatives; and
2. The offender intervened directly or indirectly in any business, transaction,
contract or application with the government.
Applicability of
Statutory Construction
As to petitioner's claim that the term intervene is vague, this Court agrees
with the Office of the Solicitor General that the word can easily be
understood through simple statutory construction. The absence of a statutory
definition of a term used in a statute will not render the law "void for
vagueness," if the meaning can be determined through the judicial function of
construction.43 Elementary is the principle that words should be construed in
their ordinary and usual meaning.
"x x x. A statute is not rendered uncertain and void merely because general
terms are used therein, or because of the employment of terms without
defining them;44 much less do we have to define every word we use. Besides,
there is no positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment. Congress is not
restricted in the form of expression of its will, and its inability to so define the
words employed in a statute will not necessarily result in the vagueness or
ambiguity of the law so long as the legislative will is clear, or at least, can be
gathered from the whole act x x x.
"x x x [I]t is a well-settled principle of legal hermeneutics that words of a
statute will be interpreted in their natural, plain and ordinary acceptation and
signification,45 unless it is evident that the legislature intended a technical or
special legal meaning to those words.46 The intention of the lawmakers - who
are, ordinarily, untrained philologists and lexicographers - to use statutory
phraseology in such a manner is always presumed." 47
The term intervene should therefore be understood in its ordinary
acceptation, which is to "to come between." 48Criminally liable is anyone
covered in the enumeration of Section 5 of RA 3019 -- any person who
intervenes in any manner in any business, transaction, contract or application
with the government. As we have explained, it is impossible for the law to
provide in advance details of how such acts of intervention could be
performed. But the courts may pass upon those details once trial is
concluded. Thus, the alleged vagueness of intervene is not a ground to
quash the information prior to the commencement of the trial.
In sum, the Court holds that the challenged provision is not vague, and that
in any event, the "overbreath" and "void for vagueness" doctrines are not
applicable to this case.
Second Issue:
Allegedly Vague Information
Other than arguing on the alleged intrinsic vagueness of intervene, petitioner
further contends that the Information itself is also unconstitutionally vague,
because it does not specify the acts of intervention that he supposedly
performed.49 Again, we disagree.
When allegations in the information are vague or indefinite, the remedy of the
accused is not a motion to quash, but a motion for a bill of particulars. 50 The
pertinent provision in the Rules of Court is Section 9 of Rule 116, which we
quote:
"Section 9. Bill of particulars. -- The accused may, before arraignment, move
for a bill of particulars to enable him properly to plead and prepare for trial.
The motion shall specify the alleged defects of the complaint or information
and the details desired."
The rule merely requires the information to describe the offense with
sufficient particularity as to apprise the accused of what they are being
charged with and to enable the court to pronounce judgment. 51 The
particularity must be such that persons of ordinary intelligence may
immediately know what is meant by the information.52
While it is fundamental that every element of the offense must be alleged in
the information,53 matters of evidence -- as distinguished from the facts
essential to the nature of the offense -- need not be averred. 54 Whatever facts
and circumstances must necessarily be alleged are to be determined by
reference to the definition and the essential elements of the specific crimes. 55
In the instant case, a cursory reading of the Information shows that the
elements of a violation of Section 5 of RA 3019 have been stated sufficiently.
Likewise, the allegations describe the offense committed by petitioner with
such particularity as to enable him to prepare an intelligent defense. Details
of the acts he committed are evidentiary matters that need not be alleged in
the Information.
Third Issue:
Preliminary Investigation
Clearly, petitioner already brought the issue of lack of preliminary
investigation when he questioned before this Court in GR No. 128317 the
Sandiganbayan's Order giving him 15 days to file a Motion for
Reinvestigation with the Office of the Special Prosecutor. 56 Citing Cojuangco
v. Presidential Commission on Good Government,57 he undauntedly averred
that he was deprived of his right to a preliminary investigation, because the
PCGG acted both as complainant and as investigator. 58
In the case cited above, this Court declared that while PCGG had the power
to conduct a preliminary investigation, the latter could not do so with the "cold
neutrality of an impartial judge" in cases in which it was the agency that had
gathered evidence and subsequently filed the complaint. 59 On that basis, this
Court nullified the preliminary investigation conducted by PCGG and directed
the transmittal of the records to the Ombudsman for appropriate action.
It is readily apparent that Cojuangco does not support the quashal of the
Information against herein petitioner. True, the PCGG initiated the present
Complaint against him; hence, it could not properly conduct the preliminary
investigation. However, he was accorded his rights -- the Sandiganbayan
suspended the trial and afforded him a reinvestigation by the Ombudsman.
The procedure outlined in Cojuangco was thus followed.
The Sandiganbayan's actions are in accord also with Raro v.
Sandiganbayan,60 which held that the failure to conduct a valid preliminary
investigation would not warrant the quashal of an information. If the
information has already been filed, the proper procedure is for the
Sandiganbayan to hold the trial in abeyance while the preliminary
investigation is being conducted or completed.61
Fourth Issue:
Prescription
The issue of prescription was the principal basis of the Motion to Quash filed
by petitioner with the Sandiganbayan on October 8, 1999. 62 Such issue
should be disregarded at this stage, since he failed to challenge its ruling
debunking his Motion within the 60-day period for the filing of a petition for
certiorari. A party may not circumvent this rule by filing a subsequent motion
that raises the same issue and the same arguments.
Furthermore, it is easy to see why this argument being raised by petitioner is
utterly unmeritorious. He points out that according to the Information, the
offense was committed "during the period from July 16, 1975 to July 29,
1975." He argues that when the Information was filed on July 12,
1989,63 prescription had already set in, because the prescriptive period for a
violation of Republic Act No. 3019 is only ten (10) years from the time the
offense was allegedly committed. The increase of this prescriptive period to
fifteen (15) years took effect only on March 16, 1982, upon the enactment of
Batas Pambansa Blg. 195.64
Act No. 3326, as amended,65 governs the prescription of offenses penalized
by special laws. Its pertinent provision reads:
"Sec. 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same not be known at the time, from the
discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
"The prescription shall be interrupted when proceedings are instituted against
the guilty person, and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy."
Consistent with the provision quoted above, this Court has previously
reckoned the prescriptive period of cases involving RA 3019 (committed prior
to the February 1986 EDSA Revolution) from the discovery of the
violation.66 In Republic v. Desierto, the Court explained:
"This issue confronted this Court anew, albeit in a larger scale,
in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto. In the said recent case, the Board of Directors of the Philippine
Seeds, Inc. and Development Bank of the Philippines were charged with
violation of paragraphs (e) and (g) of Section 3 of RA No. 3019, by the
Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by
then President Fidel V. Ramos to investigate and to recover the so-called
'Behest Loans', where the Philippine Government guaranteed several foreign
loans to corporations and entities connected with the former President
Marcos. x x x In holding that the case had not yet prescribed, this Court ruled
that:
'In the present case, it was well-nigh impossible for the State, the aggrieved
party, to have known the violations of RA No. 3019 at the time the questioned
transactions were made because, as alleged, the public officials concerned
connived or conspired with the 'beneficiaries of the loans.' Thus, we agree
with the COMMITTEE that the prescriptive period for the offenses with which
the respondents in OMB-0-96-0968 were charged should be computed from
the discovery of the commission thereof and not from the day of such
commission.
xxx xxx xxx
'People v. Duque is more in point, and what was stated there stands
reiteration: In the nature of things, acts made criminal by special laws are
frequently not immoral or obviously criminal in themselves; for this reason,
the applicable statute requires that if the violation of the special law is not
known at the time, the prescription begins to run only from the discovery
thereof, i.e., discovery of the unlawful nature of the constitutive act or
acts.' (Italics supplied)
"There are striking parallelisms between the said Behest Loans Case and the
present one which lead us to apply the ruling of the former to the
latter. First, both cases arose out of seemingly innocent business
transactions; second, both were 'discovered' only after the government
created bodies to investigate these anomalous transactions; third, both
involve prosecutions for violations of RA No. 3019; and, fourth, in both cases,
it was sufficiently raised in the pleadings that the respondents conspired and
connived with one another in order to keep the alleged violations hidden from
public scrutiny.
"This Court's pronouncement in the case of Domingo v. Sandiganbayan is
quite relevant and instructive as to the date when the discovery of the
offense should be reckoned, thus:
'In the present case, it was well-nigh impossible for the government, the
aggrieved party, to have known the violations committed at the time the
questioned transactions were made because both parties to the transactions
were allegedly in conspiracy to perpetuate fraud against the government.
The alleged anomalous transactions could only have been discovered after
the February 1986 Revolution when one of the original respondents, then
President Ferdinand Marcos, was ousted from office. Prior to said date, no
person would have dared to question the legality or propriety of those
transactions. Hence, the counting of the prescriptive period would
commence from the date of discovery of the offense, which could have been
between February 1986 after the EDSA Revolution and 26 May 1987 when
the initiatory complaint was filed.'"67
The above pronouncement is squarely applicable to the present case. The
general rule that prescription shall begin to run from the day of the
commission of the crime cannot apply to the present case. It is not legally
prudent to charge the State, the aggrieved party, with knowledge of the
violation of RA 3019 at the time the alleged intervention was made. The
accused is the late President Ferdinand E. Marcos' brother-in-law. He was
charged with intervening in a sale involving a private corporation, the majority
stocks of which was allegedly owned by President Marcos.
Prior to February 1986, no person was expected to have seriously dared
question the legality of the sale or would even have thought of investigating
petitioner's alleged involvement in the transaction. It was only after the
creation68of PCGG69 and its exhaustive investigations that the alleged crime
was discovered. This led to the initiation on November 29, 1988 of a
Complaint against former President Marcos and petitioner for violation of the
Anti-Graft and Corrupt Practices Act. Consequently, the filing of the
Information on July 12, 1989 was well within the prescriptive period of ten
years from the discovery of the offense.
Fifth Issue
Immunity from Prosecution
Petitioner argues that he enjoys derivative immunity, because he allegedly
served as a high-ranking naval officer -- specifically, as naval aide-de-camp --
of former President Marcos.70 He relies on Section 17 of Article VII of the
1973 Constitution, as amended, which we quote:
"The President shall be immune from suit during his tenure. Thereafter, no
suit whatsoever shall lie for official acts done by him or by others pursuant to
his specific orders during his tenure.
"x x x xxx x x x"
As the Sandiganbayan aptly pointed out, the above provision is not
applicable to petitioner because the immunity amendment became effective
only in 1981 while the alleged crime happened in 1975.
In Estrada v. Desierto,71 this Court exhaustively traced the origin of executive
immunity in order to determine the extent of its applicability. We explained
therein that executive immunity applied only during the incumbency of a
President. It could not be used to shield a non-sitting President from
prosecution for alleged criminal acts done while sitting in office. The
reasoning of petitioner must therefore fail, since he derives his immunity from
one who is no longer sitting as President. Verily, the felonious acts of public
officials and their close relatives "are not acts of the State, and the officer
who acts illegally is not acting as such but stands on the same footing as any
other trespasser."
In sum, petitioner utterly fails to show that the Sandiganbayan gravely
abused its discretion in issuing the assailed Resolutions. 72 On the contrary, it
acted prudently, in accordance with law and jurisprudence.
WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions
of the Sandiganbayan AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 112497 August 4, 1994
HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF
JUSTICE, petitioner,
vs.
MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY
TREASURER ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD
AND THE CITY OF MANILA, respondents.
The City Legal Officer for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.).
Joseph Lopez for Sangguniang Panglunsod of Manila.
L.A. Maglaya for Petron Corporation.
CRUZ, J.:
The principal issue in this case is the constitutionality of Section 187 of the
Local Government Code reading as follows:
Procedure For Approval And Effectivity Of Tax Ordinances And Revenue
Measures; Mandatory Public Hearings. — The procedure for approval of
local tax ordinances and revenue measures shall be in accordance with the
provisions of this Code: Provided, That public hearings shall be conducted
for the purpose prior to the enactment thereof; Provided, further, That any
question on the constitutionality or legality of tax ordinances or revenue
measures may be raised on appeal within thirty (30) days from the effectivity
thereof to the Secretary of Justice who shall render a decision within sixty
(60) days from the date of receipt of the appeal: Provided, however, That
such appeal shall not have the effect of suspending the effectivity of the
ordinance and the accrual and payment of the tax, fee, or charge levied
therein: Provided, finally, That within thirty (30) days after receipt of the
decision or the lapse of the sixty-day period without the Secretary of Justice
acting upon the appeal, the aggrieved party may file appropriate proceedings
with a court of competent jurisdiction.
Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil
companies and a taxpayer, declared Ordinance No. 7794, otherwise known
as the Manila Revenue Code, null and void for non-compliance with the
prescribed procedure in the enactment of tax ordinances and for containing
certain provisions contrary to law and public policy.1
In a petition for certiorari filed by the City of Manila, the Regional Trial Court
of Manila revoked the Secretary's resolution and sustained the ordinance,
holding inter alia that the procedural requirements had been observed. More
importantly, it declared Section 187 of the Local Government Code as
unconstitutional because of its vesture in the Secretary of Justice of the
power of control over local governments in violation of the policy of local
autonomy mandated in the Constitution and of the specific provision therein
conferring on the President of the Philippines only the power of supervision
over local governments.2
The present petition would have us reverse that decision. The Secretary
argues that the annulled Section 187 is constitutional and that the procedural
requirements for the enactment of tax ordinances as specified in the Local
Government Code had indeed not been observed.
Parenthetically, this petition was originally dismissed by the Court for non-
compliance with Circular 1-88, the Solicitor General having failed to submit a
certified true copy of the challenged decision. 3 However, on motion for
reconsideration with the required certified true copy of the decision attached,
the petition was reinstated in view of the importance of the issues raised
therein.
We stress at the outset that the lower court had jurisdiction to consider the
constitutionality of Section 187, this authority being embraced in the general
definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law. Specifically,
BP 129 vests in the regional trial courts jurisdiction over all civil cases in
which the subject of the litigation is incapable of pecuniary estimation, 4 even
as the accused in a criminal action has the right to question in his defense
the constitutionality of a law he is charged with violating and of the
proceedings taken against him, particularly as they contravene the Bill of
Rights. Moreover, Article X, Section 5(2), of the Constitution vests in the
Supreme Court appellate jurisdiction over final judgments and orders of lower
courts in all cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question.
In the exercise of this jurisdiction, lower courts are advised to act with the
utmost circumspection, bearing in mind the consequences of a declaration of
unconstitutionality upon the stability of laws, no less than on the doctrine of
separation of powers. As the questioned act is usually the handiwork of the
legislative or the executive departments, or both, it will be prudent for such
courts, if only out of a becoming modesty, to defer to the higher judgment of
this Court in the consideration of its validity, which is better determined after
a thorough deliberation by a collegiate body and with the concurrence of the
majority of those who participated in its discussion.5
It is also emphasized that every court, including this Court, is charged with
the duty of a purposeful hesitation before declaring a law unconstitutional, on
the theory that the measure was first carefully studied by the executive and
the legislative departments and determined by them to be in accordance with
the fundamental law before it was finally approved. To doubt is to sustain.
The presumption of constitutionality can be overcome only by the clearest
showing that there was indeed an infraction of the Constitution, and only
when such a conclusion is reached by the required majority may the Court
pronounce, in the discharge of the duty it cannot escape, that the challenged
act must be struck down.
In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the
Local Government Code unconstitutional insofar as it empowered the
Secretary of Justice to review tax ordinances and, inferentially, to annul
them. He cited the familiar distinction between control and supervision, the
first being "the power of an officer to alter or modify or set aside what a
subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for the latter," while the second is "the
power of a superior officer to see to it that lower officers perform their
functions in accordance with law."6 His conclusion was that the challenged
section gave to the Secretary the power of control and not of supervision only
as vested by the Constitution in the President of the Philippines. This was, in
his view, a violation not only of Article X, specifically Section 4 thereof, 7 and
of Section 5 on the taxing powers of local governments, 8 and the policy of
local autonomy in general.
We do not share that view. The lower court was rather hasty in invalidating
the provision.
Section 187 authorizes the Secretary of Justice to review only the
constitutionality or legality of the tax ordinance and, if warranted, to revoke it
on either or both of these grounds. When he alters or modifies or sets aside
a tax ordinance, he is not also permitted to substitute his own judgment for
the judgment of the local government that enacted the measure. Secretary
Drilon did set aside the Manila Revenue Code, but he did not replace it with
his own version of what the Code should be. He did not pronounce the
ordinance unwise or unreasonable as a basis for its annulment. He did not
say that in his judgment it was a bad law. What he found only was that it was
illegal. All he did in reviewing the said measure was determine if the
petitioners were performing their functions in accordance with law, that is,
with the prescribed procedure for the enactment of tax ordinances and the
grant of powers to the city government under the Local Government Code.
As we see it, that was an act not of control but of mere supervision.
An officer in control lays down the rules in the doing of an act. If they are not
followed, he may, in his discretion, order the act undone or re-done by his
subordinate or he may even decide to do it himself. Supervision does not
cover such authority. The supervisor or superintendent merely sees to it that
the rules are followed, but he himself does not lay down such rules, nor does
he have the discretion to modify or replace them. If the rules are not
observed, he may order the work done or re-done but only to conform to the
prescribed rules. He may not prescribe his own manner for the doing of the
act. He has no judgment on this matter except to see to it that the rules are
followed. In the opinion of the Court, Secretary Drilon did precisely this, and
no more nor less than this, and so performed an act not of control but of
mere supervision.
The case of Taule v. Santos 9 cited in the decision has no application here
because the jurisdiction claimed by the Secretary of Local Governments over
election contests in the Katipunan ng Mga Barangay was held to belong to
the Commission on Elections by constitutional provision. The conflict was
over jurisdiction, not supervision or control.
Significantly, a rule similar to Section 187 appeared in the Local Autonomy
Act, which provided in its Section 2 as follows:
A tax ordinance shall go into effect on the fifteenth day after its passage,
unless the ordinance shall provide otherwise: Provided, however, That the
Secretary of Finance shall have authority to suspend the effectivity of any
ordinance within one hundred and twenty days after receipt by him of a copy
thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust,
excessive, oppressive, or confiscatory, or when it is contrary to declared
national economy policy, and when the said Secretary exercises this
authority the effectivity of such ordinance shall be suspended, either in part
or as a whole, for a period of thirty days within which period the local
legislative body may either modify the tax ordinance to meet the objections
thereto, or file an appeal with a court of competent jurisdiction; otherwise, the
tax ordinance or the part or parts thereof declared suspended, shall be
considered as revoked. Thereafter, the local legislative body may not
reimpose the same tax or fee until such time as the grounds for the
suspension thereof shall have ceased to exist.
That section allowed the Secretary of Finance to suspend the effectivity of a
tax ordinance if, in his opinion, the tax or fee levied was unjust,
excessive, oppressive or confiscatory. Determination of these flaws would
involve the exercise of judgment or discretion and not merely an examination
of whether or not the requirements or limitations of the law had been
observed; hence, it would smack of control rather than mere supervision.
That power was never questioned before this Court but, at any rate, the
Secretary of Justice is not given the same latitude under Section 187. All he
is permitted to do is ascertain the constitutionality or legality of the tax
measure, without the right to declare that, in his opinion, it is unjust,
excessive, oppressive or confiscatory. He has no discretion on this matter. In
fact, Secretary Drilon set aside the Manila Revenue Code only on two
grounds, to with, the inclusion therein of certain ultra vires provisions and
non-compliance with the prescribed procedure in its enactment. These
grounds affected the legality, not the wisdom or reasonableness, of the tax
measure.
The issue of non-compliance with the prescribed procedure in the enactment
of the Manila Revenue Code is another matter.
In his resolution, Secretary Drilon declared that there were no written notices
of public hearings on the proposed Manila Revenue Code that were sent to
interested parties as required by Art. 276(b) of the Implementing Rules of the
Local Government Code nor were copies of the proposed ordinance
published in three successive issues of a newspaper of general circulation
pursuant to Art. 276(a). No minutes were submitted to show that the
obligatory public hearings had been held. Neither were copies of the
measure as approved posted in prominent places in the city in accordance
with Sec. 511(a) of the Local Government Code. Finally, the Manila Revenue
Code was not translated into Pilipino or Tagalog and disseminated among
the people for their information and guidance, conformably to Sec. 59(b) of
the Code.
Judge Palattao found otherwise. He declared that all the procedural
requirements had been observed in the enactment of the Manila Revenue
Code and that the City of Manila had not been able to prove such compliance
before the Secretary only because he had given it only five days within which
to gather and present to him all the evidence (consisting of 25 exhibits) later
submitted to the trial court.
To get to the bottom of this question, the Court acceded to the motion of the
respondents and called for the elevation to it of the said exhibits. We have
carefully examined every one of these exhibits and agree with the trial court
that the procedural requirements have indeed been observed. Notices of the
public hearings were sent to interested parties as evidenced by Exhibits G-1
to 17. The minutes of the hearings are found in Exhibits M, M-1, M-2, and M-
3. Exhibits B and C show that the proposed ordinances were published in
the Balita and the Manila Standard on April 21 and 25, 1993, respectively,
and the approved ordinance was published in the July 3, 4, 5, 1993 issues of
the Manila Standard and in the July 6, 1993 issue of Balita, as shown by
Exhibits Q, Q-1, Q-2, and Q-3.
The only exceptions are the posting of the ordinance as approved but this
omission does not affect its validity, considering that its publication in three
successive issues of a newspaper of general circulation will satisfy due
process. It has also not been shown that the text of the ordinance has been
translated and disseminated, but this requirement applies to the approval of
local development plans and public investment programs of the local
government unit and not to tax ordinances.
We make no ruling on the substantive provisions of the Manila Revenue
Code as their validity has not been raised in issue in the present petition.
WHEREFORE, the judgment is hereby rendered REVERSING the
challenged decision of the Regional Trial Court insofar as it declared Section
187 of the Local Government Code unconstitutional but AFFIRMING its
finding that the procedural requirements in the enactment of the Manila
Revenue Code have been observed. No pronouncement as to costs.
SO ORDERED.
G.R. No. 103982 December 11, 1992
ANTONIO A. MECANO, petitioner,
vs.
COMMISSION ON AUDIT, respondent.
CAMPOS, JR., J.:
Antonio A. Mecano, through a petition for certiorari, seeks to nullify the
decision of the Commission on Audit (COA, for brevity) embodied in its 7th
Indorsement, dated January 16, 1992, denying his claim for reimbursement
under Section 699 of the Revised Administrative Code (RAC), as amended,
in the total amount of P40,831.00.
Petitioner is a Director II of the National Bureau of Investigation (NBI). He
was hospitalized for cholecystitis from March 26, 1990 to April 7, 1990, on
account of which he incurred medical and hospitalization expenses, the total
amount of which he is claiming from the COA.
On May 11, 1990, in a memorandum to the NBI Director, Alfredo S. Lim
(Director Lim, for brevity), he requested reimbursement for his expenses on
the ground that he is entitled to the benefits under Section 699 1 of the RAC,
the pertinent provisions of which read:
Sec. 699. Allowances in case of injury, death, or sickness incurred in
performance of duty. — When a person in the service of the national
government of a province, city, municipality or municipal district is so injured
in the performance of duty as thereby to receive some actual physical hurt or
wound, the proper Head of Department may direct that absence during any
period of disability thereby occasioned shall be on full pay, though not more
than six months, and in such case he may in his discretion also authorize the
payment of the medical attendance, necessary transportation, subsistence
and hospital fees of the injured person. Absence in the case contemplated
shall be charged first against vacation leave, if any there be.
xxx xxx xxx
In case of sickness caused by or connected directly with the performance of
some act in the line of duty, the Department head may in his discretion
authorize the payment of the necessary hospital fees.
Director Lim then forwarded petitioner's claim, in a 1st Indorsement dated
June 22, 1990, to the Secretary of Justice, along with the comment, bearing
the same date, of Gerarda Galang, Chief, LED of the NBI, "recommending
favorable action thereof". Finding petitioner's illness to be service-connected,
the Committee on Physical Examination of the Department of Justice
favorably recommended the payment of petitioner's claim.
However, then Undersecretary of Justice Silvestre H. Bello III, in a 4th
Indorsement dated November 21, 1990, returned petitioner's claim to
Director Lim, having considered the statements of the Chairman of the COA
in its 5th Indorsement dated 19 September 1990, to the effect that the RAC
being relied upon was repealed by the Administrative Code of 1987.
Petitioner then re-submitted his claim to Director Lim, with a copy of Opinion
No. 73, S. 19912 dated April 26, 1991 of then Secretary of Justice Franklin M.
Drilon (Secretary Drilon, for brevity) stating that "the issuance of the
Administrative Code did not operate to repeal or abregate in its entirety the
Revised Administrative Code, including the particular Section 699 of the
latter".
On May 10, 1991, Director Lim, under a 5th Indorsement transmitted anew
Mecano's claim to then Undersecretary Bello for favorable consideration.
Under a 6th Indorsement, dated July 2, 1991, Secretary Drilon forwarded
petitioner's claim to the COA Chairman, recommending payment of the
same. COA Chairman Eufemio C. Domingo, in his 7th Indorsement of
January 16, 1992, however, denied petitioner's claim on the ground that
Section 699 of the RAC had been repealed by the Administrative Code of
1987, solely for the reason that the same section was not restated nor re-
enacted in the Administrative Code of 1987. He commented, however, that
the claim may be filed with the Employees' Compensation Commission,
considering that the illness of Director Mecano occurred after the effectivity of
the Administrative Code of 1987.
Eventually, petitioner's claim was returned by Undersecretary of Justice
Eduardo Montenegro to Director Lim under a 9th Indorsement dated
February 7, 1992, with the advice that petitioner "elevate the matter to the
Supreme Court if he so desires".
On the sole issue of whether or not the Administrative Code of 1987 repealed
or abrogated Section 699 of the RAC, this petition was brought for the
consideration of this Court.
Petitioner anchors his claim on Section 699 of the RAC, as amended, and on
the aforementioned Opinion No. 73, S. 1991 of Secretary Drilon. He further
maintains that in the event that a claim is filed with the Employees'
Compensation Commission, as suggested by respondent, he would still not
be barred from filing a claim under the subject section. Thus, the resolution of
whether or not there was a repeal of the Revised Administrative Code of
1917 would decide the fate of petitioner's claim for reimbursement.
The COA, on the other hand, strongly maintains that the enactment of the
Administrative Code of 1987 (Exec. Order No. 292) operated to revoke or
supplant in its entirety the Revised Administrative Code of 1917. The COA
claims that from the "whereas" clauses of the new Administrative Code, it can
be gleaned that it was the intent of the legislature to repeal the old Code.
Moreover, the COA questions the applicability of the aforesaid opinion of the
Secretary of Justice in deciding the matter. Lastly, the COA contends that
employment-related sickness, injury or death is adequately covered by the
Employees' Compensation Program under P.D. 626, such that to allow
simultaneous recovery of benefits under both laws on account of the same
contingency would be unfair and unjust to the Government.
The question of whether a particular law has been repealed or not by a
subsequent law is a matter of legislative intent. The lawmakers may
expressly repeal a law by incorporating therein a repealing provision which
expressly and specifically cites the particular law or laws, and portions
thereof, that are intended to be repealed. 3 A declaration in a statute, usually
in its repealing clause, that a particular and specific law, identified by its
number or title, is repealed is an express repeal; all others are implied
repeals.4
In the case of the two Administrative Codes in question, the ascertainment of
whether or not it was the intent of the legislature to supplant the old Code
with the new Code partly depends on the scrutiny of the repealing clause of
the new Code. This provision is found in Section 27, Book VII (Final
Provisions) of the Administrative Code of 1987 which reads:
Sec. 27. Repealing Clause. — All laws, decrees, orders, rules and
regulations, or portions thereof, inconsistent with this Code are hereby
repealed or modified accordingly.
The question that should be asked is: What is the nature of this repealing
clause? It is certainly not an express repealing clause because it fails to
identify or designate the act or acts that are intended to be repealed. 5 Rather,
it is an example of a general repealing provision, as stated in Opinion No. 73,
S. 1991. It is a clause which predicates the intended repeal under the
condition that substantial conflict must be found in existing and prior acts.
The failure to add a specific repealing clause indicates that the intent was not
to repeal any existing law, unless an irreconcilable inconcistency and
repugnancy exist in the terms of the new and old laws. 6 This latter situation
falls under the category of an implied repeal.
Repeal by implication proceeds on the premise that where a statute of later
date clearly reveals an intention on the part of the legislature to abrogate a
prior act on the subject, that intention must be given effect. 7 Hence, before
there can be a repeal, there must be a clear showing on the part of the
lawmaker that the intent in enacting the new law was to abrogate the old one.
The intention to repeal must be clear and manifest; 8 otherwise, at least, as a
general rule, the later act is to be construed as a continuation of, and not a
substitute for, the first act and will continue so far as the two acts are the
same from the time of the first enactment.9
There are two categories of repeal by implication. The first is where
provisions in the two acts on the same subject matter are in an irreconcilable
conflict, the later act to the extent of the conflict constitutes an implied repeal
of the earlier one. The second is if the later act covers the whole subject of
the earlier one and is clearly intended as a substitute, it will operate to repeal
the earlier law.10
Implied repeal by irreconcilable inconsistency takes place when the two
statutes cover the same subject matter; they are so clearly inconsistent and
incompatible with each other that they cannot be reconciled or harmonized;
and both cannot be given effect, that is, that one law cannot be enforced
without nullifying the other.11
Comparing the two Codes, it is apparent that the new Code does not cover
nor attempt to cover the entire subject matter of the old Code. There are
several matters treated in the old Code which are not found in the new Code,
such as the provisions on notaries public, the leave law, the public bonding
law, military reservations, claims for sickness benefits under Section 699,
and still others.
Moreover, the COA failed to demonstrate that the provisions of the two
Codes on the matter of the subject claim are in an irreconcilable conflict. In
fact, there can be no such conflict because the provision on sickness benefits
of the nature being claimed by petitioner has not been restated in the
Administrative Code of 1987. However, the COA would have Us consider that
the fact that Section 699 was not restated in the Administrative Code of 1987
meant that the same section had been repealed. It further maintained that to
allow the particular provisions not restated in the new Code to continue in
force argues against the Code itself. The COA anchored this argument on
the whereas clause of the 1987 Code, which states:
WHEREAS, the effectiveness of the Government will be enhanced by a new
Administrative Code which incorporate in a unified document the major
structural, functional and procedural principles and rules of governance; and
xxx xxx xxx
It argues, in effect, that what is contemplated is only one Code — the
Administrative Code of 1987. This contention is untenable.
The fact that a later enactment may relate to the same subject matter as that
of an earlier statute is not of itself sufficient to cause an implied repeal of the
prior act, since the new statute may merely be cumulative or a continuation
of the old one. 12 What is necessary is a manifest indication of legislative
purpose to repeal.13
We come now to the second category of repeal — the enactment of a statute
revising or codifying the former laws on the whole subject matter. This is only
possible if the revised statute or code was intended to cover the whole
subject to be a complete and perfect system in itself. It is the rule that a
subsequent statute is deemed to repeal a prior law if the former revises the
whole subject matter of the former statute. 14 When both intent and scope
clearly evidence the idea of a repeal, then all parts and provisions of the prior
act that are omitted from the revised act are deemed
repealed.15 Furthermore, before there can be an implied repeal under this
category, it must be the clear intent of the legislature that the later act be the
substitute to the prior act.16
According to Opinion No. 73, S. 1991 of the Secretary of Justice, what
appears clear is the intent to cover only those aspects of government that
pertain to administration, organization and procedure, understandably
because of the many changes that transpired in the government structure
since the enactment of the RAC decades of years ago. The COA challenges
the weight that this opinion carries in the determination of this controversy
inasmuch as the body which had been entrusted with the implementation of
this particular provision has already rendered its decision. The COA relied on
the rule in administrative law enunciated in the case of Sison
vs. Pangramuyen17 that in the absence of palpable error or grave abuse of
discretion, the Court would be loathe to substitute its own judgment for that of
the administrative agency entrusted with the enforcement and
implementation of the law. This will not hold water. This principle is subject to
limitations. Administrative decisions may be reviewed by the courts upon a
showing that the decision is vitiated by fraud, imposition or mistake. 18 It has
been held that Opinions of the Secretary and Undersecretary of Justice are
material in the construction of statutes in pari materia.19
Lastly, it is a well-settled rule of statutory construction that repeals of statutes
by implication are not favored. 20 The presumption is against inconsistency
and repugnancy for the legislature is presumed to know the existing laws on
the subject and not to have enacted inconsistent or conflicting statutes. 21
This Court, in a case, explains the principle in detail as follows: "Repeals by
implication are not favored, and will not be decreed unless it is manifest that
the legislature so intended. As laws are presumed to be passed with
deliberation with full knowledge of all existing ones on the subject, it is but
reasonable to conclude that in passing a statute it was not intended to
interfere with or abrogate any former law relating to some matter, unless the
repugnancy between the two is not only irreconcilable, but also clear and
convincing, and flowing necessarily from the language used, unless the later
act fully embraces the subject matter of the earlier, or unless the reason for
the earlier act is beyond peradventure renewed. Hence, every effort must be
used to make all acts stand and if, by any reasonable construction, they can
be reconciled, the later act will not operate as a repeal of the earlier. 22
Regarding respondent's contention that recovery under this subject section
shall bar the recovery of benefits under the Employees' Compensation
Program, the same cannot be upheld. The second sentence of Article 173,
Chapter II, Title II (dealing on Employees' Compensation and State Insurance
Fund), Book IV of the Labor Code, as amended by P.D. 1921, expressly
provides that "the payment of compensation under this Title shall not bar the
recovery of benefits as provided for in Section 699 of the Revised
Administrative Code . . . whose benefits are administered by the system
(meaning SSS or GSIS) or by other agencies of the government."
WHEREFORE, premises considered, the Court resolves to GRANT the
petition; respondent is hereby ordered to give due course to petitioner's claim
for benefits. No costs.
SO ORDERED.
G.R. No. 123169 November 4, 1996
DANILO E. PARAS, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula,
Cabanatuan City who won during the last regular barangay election in 1994.
A petition for his recall as Punong Barangay was filed by the registered
voters of the barangay. Acting on the petition for recall, public respondent
Commission on Elections (COMELEC) resolved to approve the petition,
scheduled the petition signing on October 14, 1995, and set the recall
election on November 13,
1995.1 At least 29.30% of the registered voters signed the petition, well
above the 25% requirement provided by law. The COMELEC, however,
deferred the recall election in view of petitioner's opposition. On December 6,
1995, the COMELEC set anew the recall election, this time on December 16,
1995. To prevent the holding of the recall election, petitioner filed before the
Regional Trial Court of Cabanatuan City a petition for injunction, docketed as
SP Civil Action No. 2254-AF, with the trial court issuing a temporary
restraining order. After conducting a summary hearing, the trial court lifted the
restraining order, dismissed the petition and required petitioner and his
counsel to explain why they should not be cited for contempt for
misrepresenting that the barangay recall election was without COMELEC
approval.2
In a resolution dated January 5, 1996, the COMELEC, for the third time, re-
scheduled the recall election an January 13, 1996; hence, the instant petition
for certiorari with urgent prayer for injunction. On January 12, 1996, the Court
issued a temporary restraining order and required the Office of the Solicitor
General, in behalf of public respondent, to comment on the petition. In view
of the Office of the Solicitor General's manifestation maintaining an opinion
adverse to that of the COMELEC, the latter through its law department filed
the required comment. Petitioner thereafter filed a reply. 3
Petitioner's argument is simple and to the point. Citing Section 74 (b) of
Republic Act No. 7160, otherwise known as the Local Government Code,
which states that "no recall shall take place within one (1) year from the date
of the official's assumption to office or one (1) year immediately preceding a
regular local election", petitioner insists that the scheduled January 13, 1996
recall election is now barred as the Sangguniang Kabataan (SK) election was
set by Republic Act No. 7808 on the first Monday of May 1996, and every
three years thereafter. In support thereof, petitioner cites Associated Labor
Union v. Letrondo-Montejo, 237 SCRA 621, where the Court considered the
SK election as a regular local election. Petitioner maintains that as the SK
election is a regular local election, hence no recall election can be had for
barely four months separate the SK election from the recall election. We do
not agree.
The subject provision of the Local Government Code provides:
Sec. 74. Limitations on Recall. — (a) Any elective local official may be the
subject of a recall election only once during his term of office for loss of
confidence.
(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local
election.
[Emphasis added]
It is a rule in statutory construction that every part of the statute must be
interpreted with reference to the context, i.e., that every part of the statute
must be considered together with the other parts, and kept subservient to the
general intent of the whole enactment.4 The evident intent of Section 74 is to
subject an elective local official to recall election once during his term of
office. Paragraph (b) construed together with paragraph (a) merely
designates the period when such elective local official may be subject of a
recall election, that is, during the second year of his term of office. Thus,
subscribing to petitioner's interpretation of the phrase regular local election to
include the SK election will unduly circumscribe the novel provision of the
Local Government Code on recall, a mode of removal of public officers by
initiation of the people before the end of his term. And if the SK election
which is set by R.A No. 7808 to be held every three years from May 1996
were to be deemed within the purview of the phrase "regular local election",
as erroneously insisted by petitioner, then no recall election can be
conducted rendering inutile the recall provision of the Local Government
Code.
In the interpretation of a statute, the Court should start with the assumption
that the legislature intended to enact an effective law, and the legislature is
not presumed to have done a vain thing in the enactment of a statute. 5 An
interpretation should, if possible, be avoided under which a statute or
provision being construed is defeated, or as otherwise expressed, nullified,
destroyed, emasculated, repealed, explained away, or rendered insignificant,
meaningless, inoperative or nugatory.6
It is likewise a basic precept in statutory construction that a statute should be
interpreted in harmony with the Constitution. 7 Thus, the interpretation of
Section 74 of the Local Government Code, specifically paragraph (b) thereof,
should not be in conflict with the Constitutional mandate of Section 3 of
Article X of the Constitution to "enact a local government code which shall
provide for a more responsive and accountable local government structure
instituted through a system of decentralization with effective mechanism of
recall, initiative, and referendum . . . ."
Moreover, petitioner's too literal interpretation of the law leads to absurdity
which we cannot countenance. Thus, in a case, the Court made the following
admonition:
We admonish against a too-literal reading of the law as this is apt to constrict
rather than fulfill its purpose and defeat the intention of its authors. That
intention is usually found not in "the letter that killeth but in the spirit that
vivifieth". . .8
The spirit, rather than the letter of a law determines its construction; hence, a
statute, as in this case, must be read according to its spirit and intent.
Finally, recall election is potentially disruptive of the normal working of the
local government unit necessitating additional expenses, hence the
prohibition against the conduct of recall election one year immediately
preceding the regular local election. The proscription is due to the proximity
of the next regular election for the office of the local elective official
concerned. The electorate could choose the official's replacement in the said
election who certainly has a longer tenure in office than a successor elected
through a recall election. It would, therefore, be more in keeping with the
intent of the recall provision of the Code to construe regular local election as
one referring to an election where the office held by the local elective official
sought to be recalled will be contested and be filled by the electorate.
Nevertheless, recall at this time is no longer possible because of the
limitation stated under Section 74 (b) of the Code considering that the next
regular election involving the barangay office concerned is barely seven (7)
months away, the same having been scheduled on May 1997. 9
ACCORDINGLY, the petition is hereby dismissed for having become moot
and academic. The temporary restraining order issued by the Court on
January 12, 1996, enjoining the recall election should be as it is hereby made
permanent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Hermosisima, Jr., Panganiban and Torres, Jr., JJ.,
concur.
G.R. No. L-15014 April 29, 1961
PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
VICTORIANO VILLANUEVA, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Romeo M. Maghirang for defendant-appellee.
REYES, J.B.L., J.:
In Criminal Case No. 2801 of the Justice of the Peace Court of Batangas,
Batangas, Victoriano Villanueva was accused of the crime of serious and
less serious physical injuries with damage to property in the amount of
P2,636.00 through reckless imprudence. After the accused had pleaded "not
guilty" to the charge as before the hearing of the case, the private prosecutor
filed a memorandum raising the question of the jurisdiction of the justice of
the peace court to try the case on the ground that the amount of the fine
imposable upon the accused, aside from the penalty for the physical injuries
committed, is beyond the jurisdiction of the justice of the peace court. On the
strength of this memorandum, the justice of the peace court issued an order
on November 24, 1958 declaring itself without jurisdiction to try the case, and
forwarding it to the Court of First Instance for further proceedings.
In the latter Court, a similar information was filed by the provincial fiscal
against the accused. Before the arraignment of the accused, however, his
counsel moved to quash the information on the ground that the court had no
jurisdiction over the complex crime charged. Finding merit in the motion, the
Court of First Instance, in an order dated January 21, 1959, declared itself
without jurisdiction over the complex crime charged on the ground that the
penalty for the more serious offense of physical injuries through reckless
imprudence is only arresto mayor in its minimum and medium periods, and
even applied in its maximum degree (for the complex crime), it would remain
within the jurisdiction of the justice of the peace court. It, therefore, ordered
the return of the case to the justice of the peace for trial on the merits. From
this order, the provincial fiscal appealed to this Court.
We find the appeal well-taken, for this case comes squarely under the rule
laid down by us in Angeles, et al. vs. Jose, 50 O.G. No. 12, 5764, wherein we
held that:
"The above-quoted provision (Art. 365, par. 3, Revised Penal Code) simply
means that if there is only damage to property the amount fixed therein shall
be imposed, but if there are also physical injuries there should be an
additional penalty for the latter. The information cannot be split into two; one
for the physical injuries and another for the damage to property, for both the
injuries and the damage committed were caused by one single act of the
defendant and constitute what may be called a complex crime of physical
injuries and damage to property. It is clear that the fine fixed by law in this
case is beyond the jurisdiction of the municipal court and within that of the
court of first instance."
Considering that it is the court of first instance that would undoubtedly have
jurisdiction if the only offense that resulted from appellant's imprudence were
the damage to property in the amount of P2,636.00, it would be absurd to
hold that for the graver offense of serious and less serious physical injuries
combined with damage to property through reckless imprudence, jurisdiction
would lie in the justice of the peace court. The presumption is against
absurdity, and it is the duty of the courts to interpret the law in such a way as
to avoid absurd results. Our system of apportionment of criminal jurisdictions
among the various trial courts proceeds on the basic theory that crimes
cognizable by the Courts of First Instance are more serious than those triable
in justice of the peace or municipal courts.
Moreover, we cannot discard the possibility that the prosecution may not be
able to prove all the supposed offenses constituting the complex crime
charged. Were we to hold that it is the justice of the peace court that has
jurisdiction in this case, if later the prosecution should fail to prove the
physical injuries aspect of the case and establish only the damage to
property in the amount of P2,636.00, the inferior court would find itself
without jurisdiction to impose the fine for the damage to property committed,
since such fine can not be less than the amount of the damage. Again, it is to
avoid this further absurdity that we must hold that the jurisdiction lies in the
court of first instance in this case.
WHEREFORE, the order appealed from is reversed, and the records are
remanded to the court a quo for trial on the merits.

G.R. No. 118432 May 23, 1997
CONRADO COSICO, JR., petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, EVA AIRWAYS
CORPORATION, LEWIS CHANG, and ALLEN SOONG, respondents.
KAPUNAN, J.:
Through this special civil action for certiorari, petitioner seeks the reversal
and nullification of the August 31, 1994 and the December 15, 1994
resolutions of respondent National Labor Relations Commission (NLRC) in
NLRC NCR-CA Case No. 005304-93 for having been issued with grave
abuse of discretion.
The relevant antecedents are as follows:
Petitioner Conrado Cosico, Jr. was hired by respondent Eva Airways
Corporation (Eva Air) through its General Sales Agent, Don Tim Air Service,
Inc., on April 4, 1992 as Assistant Station Manager for the Manila office for a
mutually agreed monthly salary of P30,000.00.
As Assistant Station Manager, petitioner was tasked, among others, to
supervise the construction of respondent Eva Air's office in a space reserved
for the purpose at the Ninoy Aquino International Airport (NAIA) and to see to
it that respondent Eva Air's target of flying at least sixty (60) passengers per
flight be realized in order to maintain the company's overhead operations.
After five (5) months of operation, a performance audit of respondent Eva
Air's Manila office was undertaken and the same yielded the finding that the
airline had only an average of twenty-five (25) passengers per flight, way
below its targeted passenger load. After evaluating the situation further,
respondent Eva Air decided to implement measures to make the Manila
office cost-efficient. It was decided that the position of Assistant Station
Manager be abolished.
On September 24, 1992, petitioner was advised of respondent Eva Air's
decision in a letter which reads in full:
Mr. Conrado Cosico Our Ref: PSN-81030
Asst. Station Manager Date: Sept. 24, 1992
Through: Mr. Allen Soong
EVA Taipei Representative
RE: ABOLITION OF POSITION — ASST. STATION MANAGER
We have been reviewing the developments and performance of our
Philippine station. Our reviews of the past four and one third months show
that passenger & cargo loads are below the target given by our office.
In view of this, it is Management's decision to abolish the position of the Asst.
Station Manager and also keep the position of Station Manager vacant. In
the meantime, the EVA TAIPEI REP in Manila is given charge of the
operation of the Manila Station. He will handle the day to day activities and
operations of the Airline.
You are therefore given notice that your position is hereby abolish (sic) and
your services terminated on account thereof 15 days upon receipt of this
notice. Please effect the necessary turnover within the said 15 days period.
Thank you and we hope you will understand the position taken by the
company.
Very truly yours,
(Sgd.)
Lewis Chang
Deputy Senior Vice President
Personnel Division 1
Respondent Eva Air, likewise, offered to pay the petitioner separation pay
equivalent to one (1) month salary and proportionate 13th month pay for his
six (6) months and eleven (11) days service to the company.
Petitioner rejected the offer and instead filed a complaint for illegal dismissal,
underpayment of wages and moral and exemplary damages against
respondents Eva Air and its officers, Lewis Chang and Alien Soong. The case
was docketed as NLRC NCR Case No. 00-10-05891-92.
On June 9, 1993, Labor Arbiter Ernesto Dinopal rendered a decision, the
dispositive portion of which reads:
WHEREFORE, decision is hereby rendered declaring the dismissal of
complainant CONRADO COSICO, JR. by respondents EVA AIRWAYS
CORPORATION and LEWIS CHANG as illegal and without justifiable cause
and ordering them to reinstate complainant Cosico, Jr. to his former position
without loss of seniority rights and other privileges and pay him, jointly and
severally, the following sums:
Backwages from October 9, 1992 up to the date of reinstatement, either
actually or by payroll, which if computed as of June 9, 1993 amounts to
(P30,000.00 x 8 months) P 240,000.00
Thirteenth Month Pay 30,000.00
Moral Damages 1,000,000.00
Exemplary Damages 1,000,000.00
10% attorney's fees 227,000.00
——————
TOTAL P 2,497,000.00
Respondent ALLEN SOONG is declared free from any liability it appearing
that he had no active participation in complainant's illegal dismissal.
SO ORDERED. 2
Respondents Eva Air and Lewis Chang elevated their case to respondent
NLRC where they filed their appeal memorandum and posted a surety bond
in the amount of Two Hundred Seventy Thousand Pesos (P270,00000).
Petitioner filed a motion to dismiss the appeal on the ground that the
supersedeas bond posted by private respondents was insufficient as it did
not cover the award of moral and exemplary damages as well as attorney's
fees.
Respondent NLRC denied the motion and instead gave due course to the
appeal. On August 31, 1994, it issued a resolution setting aside the decision
of the labor arbiter, disposing thusly:
WHEREFORE, in view of the foregoing premises, the Appeal is hereby given
due course and the decision of Labor Arbiter, Ernesto Dinopol dated June 09,
1993, is hereby set aside. However, respondents are ordered to pay
complainant full separation benefits equivalents (sic) to one (1) month for
every year of service and thirteenth month pay for 1992.
SO ORDERED. 3
Petitioner moved to reconsider the resolution but the same was denied on
December 15, 1994 in a resolution which reads:
After due consideration of the Motion for Reconsideration filed by
complainant on September 16, 1994, from the Resolution of August 31,
1994, the Commission (Second Division) RESOLVED to deny the same for
lack of merit. 4
Hence, this petition predicated on the following grounds for consideration, to
wit:
I
THE NLRC GRAVELY ABUSED ITS DISCRETION WHEN IT GAVE
PRIVATE RESPONDENTS' APPEAL DUE COURSE NOTWITHSTANDING
THE FACT THAT RESPONDENTS' APPEAL WAS NOT DULY PERFECTED
FOR FAILURE TO POST THE CORRECT SUPERSEDEAS BOND IN AN
AMOUNT EQUIVALENT TO THE MONETARY AWARD.
II
THE NLRC GRAVELY ABUSED ITS DISCRETION WHEN IT SET ASIDE
THE DECISION OF LABOR ARBITER ERNESTO (sic) DINOPOL AND
INSTEAD RULED THAT COMPLAINANT WAS NOT ILLEGALLY
DISMISSED.
III
THE NLRC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT
THE POSITION OF THE PETITIONER WAS DULY ABOLISHED.
IV
THE NLRC GRAVELY ABUSED ITS DISCRETION IN RULING THAT
PETITIONER IS NOT ENTITLED TO DAMAGE (sic). 5
The petition is devoid of merit.
Inceptively, petitioner asseverates that respondent NLRC gravely abused its
discretion in giving due course to the appeal of private respondents albeit the
latter's failure to post the correct supersedeas bond which is supposed to be
equivalent to the monetary award in the judgment.
Article 223 of the Labor Code, as amended by Republic Act No. 6715
(Herrera-Veloso Law), provides:
Art. 223. Appeal. — Decisions, awards, or orders of the Labor Arbiter are
final and executory unless appealed to the Commission by any or both
parties within ten (10) calendar days from receipt of such decisions, awards,
or orders. . . .
xxx xxx xxx
In case of a judgment involving a monetary award, an appeal by the
employer may be perfected only upon the posting of a cash or surety bond
issued by a reputable bonding company duly accredited by the Commission
in the amount equivalent to the monetary award in the judgment appealed
from.
xxx xxx xxx
For the proper guidance of lawyers and litigants and pursuant to the
provisions of Article 218 6 of the Labor Code, the NLRC adopted and
promulgated its New Rules of Procedure on August 31, 1990. The Rules
were published in the Manila Bulletin and the Philippine Daily Inquirer on
September 24, 1990 and became effective fifteen (15) days thereafter.
Section 6, Rule VI of the said Rules reads:
Sec. 6. Bond. — In case the decision of a Labor Arbiter involves a monetary
award, an appeal by the employer shall be perfected only upon the posting of
a cash or surety bond issued by a reputable bonding company duly
accredited by the Commission or the Supreme Court in an amount equivalent
to the monetary award.
The Commission, may, in meritorious cases and upon Motion of the
Appellant, reduce the amount of the bond. However, an appeal is deemed
perfected upon posting of the bond equivalent to the monetary award
exclusive of moral and exemplary damages as well as attorney's fees.
Nothing herein however, shall be construed as extending the period of
appeal. (Emphasis ours.)
Said provision was amended on May 21, 1991 per Resolution No. 5-01-91
which became effective ten (10) days after its publication in the Philippine
Daily Inquirer and the Philippine Star on June 2, 1991. It was again amended
on November 7, 1991 in Resolution No. 11-01-91 which became effective ten
(10) days after its publication in the Manila Bulletin and the Philippine Star on
January 5, 1992. The amended provision reads:
Sec. 6. Bond. — In case the decision of a Labor Arbiter involves a monetary
award, an appeal by the employer shall be perfected only upon the posting of
a cash or surety bond issued by a reputable bonding company duly
accredited by the Commission or the Supreme Court in an amount equivalent
to the monetary award.
The Commission may, in meritorious cases and upon Motion of the
Appellant, reduce the amount of the bond. (However, an appeal is deemed
perfected upon the posting of the bond equivalent to the monetary award
exclusive of moral and exemplary damages as well as attorney's fees.
[Deleted, effective on Jan. 14, 1992])
Nothing herein however, shall be construed as extending the period of
appeal.
On November 5, 1993, said provision was further amended by Resolution
No. 11-01-93 which became effective ten (10) days after its publication in the
Philippine Star and the Manila Times on November 20, 1993. The latest
amended provision reads:
Sec. 6. Bond. — In case the decision of a Labor Arbiter POEA Administrator
and Regional Director or his duly authorized hearing officer involves a
monetary award, an appeal by the employer shall be perfected only upon the
posting of a cash or surety bond issued by a reputable bonding company
duly accredited by the Commission or the Supreme Court in an amount
equivalent to the monetary award, exclusive of moral and exemplary
damages and attorney's fees.
The employer as well as counsel shall submit a joint declaration under oath
attesting that the surety bond posted is genuine and that it shall be in effect
until final disposition of the case.
The Commission may, in meritorious cases and upon Motion of the
Appellant, reduce the amount of the bond. (As amended by Nov. 5, 1993)
(Emphasis ours.)
As can be seen from the foregoing pertinent provisions, the phrase
"exclusive of moral and exemplary damages and attorney's fees" with
reference to the computation of the cash or surety bond to be posted by an
employer who wishes to appeal was originally contained in the new Rules. It
was later deleted sometime in 1991 and 1992, then restored on November
20, 1993.
The successive changes in the Rules only mirror the fact that respondent
NLRC in the performance of its rule-making power had considered seriously
and judiciously the ramifications of the law and came out ultimately with the
correct rule excluding from the monetary award moral and exemplary
damages, as well as attorney's fees, for purposes of computing the amount
of the appeal bond..
It may be noted that while respondent NLRC in its Resolution No. 11-01-91
dated November 7, 1991 deleted the phrase "exclusive of moral and
exemplary damages as well as attorney's fees" in the determination of the
amount of the bond, it provided a safeguard against the imposition of
excessive bonds by providing that "(T)he Commission may, in meritorious
cases and upon Motion of the Appellant, reduce the amount of the bond."
Moreover, the latest amendment is more in consonance with the right of
appeal given to the employer, which is actually a statutory right. An
unreasonable and excessive amount of bond would be oppressive and unjust
and would have the effect of depriving a party of his right to appeal. It is a
well-settled rule in statutory construction that:
. . . (S)tatutes should receive a sensible construction, such as will give effect
to the legislative intention and so as to avoid an unjust or an absurd
conclusion. INTERPRETATIO TALIS IN AMBIGUIS SEMPER FRIENDA EST,
UT EVITATUR INCONVENIENS ET ABSURDUM. Where there is ambiguity,
such interpretation as will avoid inconvenience and absurdity is to be
adopted. . . . . 7
In the case at bar, the backwages and thirteenth month pay awarded to
petitioner amounted only to P270,000.00, but the moral and exemplary
damages, plus 10% attorney's fees, totalled P2,497,000.00. In other words,
the moral and exemplary damages and attorney's fees are almost ten (10)
times greater than the basic monetary judgment. Private respondents posted
a supersedeas bond of P270,000.00, obviously, on the honest belief that the
amount was sufficient. At the very least, therefore, there was substantial
compliance with the requirement of appeal bond. For to rule otherwise would
negate the interest of justice and deviate from the mandate of the Labor
Code that the rules of procedure should be liberally construed, thus:
Sec. 2. CONSTRUCTION. — These Rules shall be liberally construed to
carry out the objectives of the Constitution and the Labor Code of the
Philippines and to assist the parties in obtaining a just, expeditious and
inexpensive settlement of labor disputes.
In Ruga v. NLRC, 8 we held:
Fundamental considerations of substantial justice persuade Us to decide the
instant case on the merits rather than to dismiss it on a mere technicality. In
so doing, we exercise the prerogative accorded to this Court enunciated
in Firestone Filipinas Employees Association, et al. v. Firestone Tire and
Rubber Co. of the Philippines, Inc., 61 SCRA 340 (1974), thus "the well-
settled doctrine is that in labor cases before this Tribunal, no undue
sympathy is to be accorded to any claim of a procedural misstep, the idea
being that its power be exercised according to justice and equity and
substantial merits of the controversy."
Since private respondents filed a bond which they honestly believed
sufficient for purposes of their appeal, respondent NLRC should have called
their attention that the bond was inadequate, which it did not.
In YBL (Your Bus Line) v. NLRC, 9 we had occasion to rule that:
The Court finds that while Article 223 of the Labor Code, as amended by
Republic Act No. 6715, requiring a cash or surety bond in the amount
equivalent to the monetary award in the judgment appealed from for the
appeal to be perfected, may be considered a jurisdictional requirement,
nevertheless, adhering to the principle that substantial justice is better served
by allowing the appeal on the merits threshed out by the NLRC, the Court
finds and so holds that the foregoing requirement of the law should be given
a liberal interpretation.
In Star Angel Handicraft v. NLRC, 10 we likewise declared that the provisions
of the Labor Code on requiring a bond on appeals involving monetary awards
must be given liberal interpretation in line with the desired objective of
resolving controversies on the merits. 11
Consequently, respondent NLRC conformably took cognizance of the appeal
filed by private respondents.
We turn then to the issue of petitioner's separation from employment.
Petitioner claims that the position he was occupying was not duly abolished,
hence, his employment was illegally terminated.
We do not agree. It is a management prerogative to abolish a position which
it deems no longer necessary and this Court, absent any findings of malice
and arbitrariness on the part of management, will not efface such privilege if
only to protect the person holding that office. 12 In the present case, the
position of Assistant Station Manager was deemed a superfluity as the
functions of the said office could be performed by trained personnel already
in the company's employ. Moreover, the abolition of the position was seen as
a cost-effective measure to cut operational expenses so as not to incur
further losses already suffered by the company's Manila office on account of
low passenger yield. Certainly, the position was not abolished because the
petitioner was the occupant thereof but because the functions of the position
had become redundant and unnecessary. Verily, therefore, the deletion of the
petitioner's position should be accepted and validated as a valid exercise of
management prerogative.
We quote with favor public respondent's ratiocination on the point:
Complainant Conrado Cosico, Jr., occupied a managerial position prior to the
abolition of his position and as such had a limited tenure of office because
the company has the prerogative to abolish managerial and confidential
positions or create new ones as the necessity for them requires (BONDOC
VS. PEOPLES'S (sic) BANK AND TRUST COMPANY, L-43835, MARCH 31,
1981, 103 SCRA 599). A managerial position must be distinguished from the
case of ordinary rank and file employees whose termination on the basis of
this same grounds requires a higher proof of involvement in the events in
question. Unfortunately, the Labor Arbiter applied the rule for rank and file
employees in this particular case.
The Supreme Court, in the case of CAFFCO INTERNATIONAL LIMITED
VS. OFFICE OF THE MINISTER — MINISTRY OF LABOR AND
EMPLOYMENT AND CAFFCO EMPLOYEES UNION ADLO, G.R. NO.
76966, AUG. 7, 1992 had the occasion to differentiate between redundancy
and retrenchment in that:
When an employer decides to reduce the number of its personnel in order to
prevent further losses, he is exercising his right to retrench employees to
prevent losses in his business operations. On the other hand, where for
purposes of economy, a company decides to reorganize its departments by
imposing on employees of one department the duties performed by the
employees of the other department, thus rendering unnecessary the job of
the latter, the service of the employees whose functions are not being
performed by the others may be validly terminated on the ground of
redundancy.
We therefore, find and so hold that respondent company's action was
justified in exercising its management prerogative in abolishing the position
of complainant without any abuse of discretion resulting in a malicious and
arbitrary manner constituting bad faith. 13
Given the preceding factual and legal milieu, petitioner's claim for moral and
exemplary damages falls to naught. Moral and exemplary damages are
recoverable only where the dismissal of an employee was attended by bad
faith or fraud, or constituted an act oppressive to labor, or was done in a
manner contrary to morals, good customs or public policy. 14 Since none of
the circumstances warranting the grant of moral and exemplary damages
obtains here, the same cannot be awarded.
WHEREFORE, the petition for certiorari is hereby DISMISSED, and the
challenged resolutions of respondent National Labor Relations Commission
are hereby AFFIRMED.
SO ORDERED.
G.R. No. 83736 January 15, 1992
COMMISSIONER OF INTERNAL REVENUE, petitioner,
vs.
TMX SALES, INC. and THE COURT OF TAX APPEALS, respondents.
F.R. Quiogue for private respondent.
GUTIERREZ, JR., J.:
In a case involving corporate quarterly income tax, does the two-year
prescriptive period to claim a refund of erroneously collected tax provided for
in Section 292 (now Section 230) of the National Internal Revenue Code
commence to run from the date the quarterly income tax was paid, as
contended by the petitioner, or from the date of filing of the Final Adjustment
Return (final payment), as claimed by the private respondent?
Section 292 (now Section 230) of the National Internal Revenue Code
provides:
Sec. 292. Recovery of tax erroneously or illegally collected. — No suit or
proceeding shall be maintained in any court for the recovery of any national
internal revenue tax hereafter alleged to have been erroneously or illegally
assessed or collected, or of any penalty claimed to have been collected
without authority, or of any sum alleged to have been excessive or in any
manner wrongfully collected, until a claim for refund or credit has been duly
filed with the Commissioner of Internal Revenue; but such suit or proceeding
may be maintained, whether or not such tax, penalty, or sum has been paid
under protest or duress.
In any case no such suit or proceeding shall be begun after the expiration of
two years from the date of payment of that tax or penalty regardless of any
supervening cause that may arise after payment: . . . (Emphasis supplied)
The facts of this case are uncontroverted.
Private respondent TMX Sales, Inc., a domestic corporation, filed its
quarterly income tax return for the first quarter of 1981, declaring an income
of P571,174.31, and consequently paying an income tax thereon of
P247,010.00 on May 15, 1981. During the subsequent quarters, however,
TMX Sales, Inc. suffered losses so that when it filed on April 15, 1982 its
Annual Income Tax Return for the year ended December 31, 1981, it
declared a gross income of P904,122.00 and total deductions of
P7,060,647.00, or a net loss of P6,156,525.00 (CTA Decision, pp. 1-2; Rollo,
pp. 45-46).
Thereafter, on July 9, 1982, TMX Sales, Inc. thru its external auditor, SGV &
Co. filed with the Appellate Division of the Bureau of Internal Revenue a
claim for refund in the amount of P247,010.00 representing overpaid income
tax. (Rollo, p. 30)
This claim was not acted upon by the Commissioner of Internal Revenue. On
March 14, 1984, TMX Sales, Inc. filed a petition for review before the Court
of Tax Appeals against the Commissioner of Internal Revenue, praying that
the petitioner, as private respondent therein, be ordered to refund to TMX
Sales, Inc. the amount of P247,010.00, representing overpaid income tax for
the taxable year ended December 31, 1981.
In his answer, the Commissioner of Internal Revenue averred that "granting,
without admitting, the amount in question is refundable, the petitioner (TMX
Sales, Inc.) is already barred from claiming the same considering that more
than two (2) years had already elapsed between the payment (May 15, 1981)
and the filing of the claim in Court (March 14, 1984). (Sections 292 and 295
of the Tax Code of 1977, as amended)."
On April 29, 1988, the Court of Tax Appeals rendered a decision granting the
petition of TMX Sales, Inc. and ordering the Commissioner of Internal
Revenue to refund the amount claimed.
The Tax Court, in granting the petition, viewed the quarterly income tax paid
as a portion or installment of the total annual income tax due. Said the Tax
Court in its assailed decision:
xxx xxx xxx
When a tax is paid in installments, the prescriptive period of two years
provided in Section 306 (now Section 292) of the Revenue Code should be
counted from the date of the final payment or last installment. . . . This rule
proceeds from the theory that in contemplation of tax laws, there is no
payment until the whole or entire tax liability is completely paid. Thus, a
payment of a part or portion thereof, cannot operate to start the
commencement of the statute of limitations. In this regard the word "tax" or
words "the tax" in statutory provisions comparable to section 306 of our
Revenue Code have been uniformly held to refer to the entire tax and not a
portion thereof (Clark v. U.S., 69 F. 2d 748; A.S. Kriedner Co. v. U.S., 30 F
Supp. 274; Hills v. U.S., 50 F 2d 302, 55 F 2d 1001), and the vocable
"payment of tax" within statutes requiring refund claim, refer to the date when
all the tax was paid, not when a portion was paid (Braun v. U.S., 8 F supp.
860, 863; Collector of Internal Revenue v. Prieto, 2 SCRA 1007;
Commissioner of Internal Revenue v. Palanca, 18 SCRA 496).
Petitioner Commissioner of Internal Revenue is now before this Court
seeking a reversal of the above decision. Thru the Solicitor General, he
contends that the basis in computing the two-year period of prescription
provided for in Section 292 (now Section 230) of the Tax Code, should be
May 15, 1981, the date when the quarterly income tax was paid and not April
15, 1982, when the Final Adjustment Return for the year ended December
31, 1981 was filed.
He cites the case of Pacific Procon Limited v. Commissioner of Internal
Revenue (G.R. No. 68013, November 12, 1984) involving a similar set of
facts, wherein this Court in a minute resolution affirmed the Court of Appeals'
decision denying the claim for refund of the petitioner therein for being barred
by prescription.
A re-examination of the aforesaid minute resolution of the Court in the Pacific
Procon case is warranted under the circumstances to lay down a categorical
pronouncement on the question as to when the two-year prescriptive period
in cases of quarterly corporate income tax commences to run. A full-blown
decision in this regard is rendered more imperative in the light of the reversal
by the Court of Tax Appeals in the instant case of its previous ruling in
the Pacific Procon case.
Section 292 (now Section 230) of the National Internal Revenue Code should
be interpreted in relation to the other provisions of the Tax Code in order to
give effect to legislative intent and to avoid an application of the law which
may lead to inconvenience and absurdity. In the case of People
vs. Rivera (59 Phil 236 [1933]), this Court stated that statutes should receive
a sensible construction, such as will give effect to the legislative intention and
so as to avoid an unjust or an absurd conclusion. INTERPRETATIO TALIS IN
AMBIGUIS SEMPER FRIENDA EST, UT EVITATUR INCONVENIENS ET
ABSURDUM. Where there is ambiguity, such interpretation as will avoid
inconvenience and absurdity is to be adopted. Furthermore, courts must give
effect to the general legislative intent that can be discovered from or is
unraveled by the four corners of the statute, and in order to discover said
intent, the whole statute, and not only a particular provision thereof, should
be considered. (Manila Lodge No. 761, et al. v. Court of Appeals, et al., 73
SCRA 162 [1976]) Every section, provision or clause of the statute must be
expounded by reference to each other in order to arrive at the effect
contemplated by the legislature. The intention of the legislator must be
ascertained from the whole text of the law and every part of the act is to be
taken into view. (Chartered Bank v. Imperial, 48 Phil. 931 [1921]; Lopez v. El
Hogar Filipino, 47 Phil. 249, cited in Aboitiz Shipping Corporation v. City of
Cebu, 13 SCRA 449 [1965]).
Thus, in resolving the instant case, it is necessary that we consider not only
Section 292 (now Section 230) of the National Internal Revenue Code but
also the other provisions of the Tax Code, particularly Sections 84, 85 (now
both incorporated as Section 68), Section 86 (now Section 70) and Section
87 (now Section 69) on Quarterly Corporate Income Tax Payment and
Section 321 (now Section 232) on keeping of books of accounts. All these FIRST QUARTER:
provisions of the Tax Code should be harmonized with each other.
Gross Income 100,000.00
Section 292 (now Section 230) provides a two-year prescriptive period to file
a suit for a refund of a tax erroneously or illegally paid, counted from the tile Less: Deductions 50,000.00
the tax was paid. But a literal application of this provision in the case at bar —————
which involves quarterly income tax payments may lead to absurdity and
inconvenience. Net Taxable Income 50,000.00

Section 85 (now Section 68) provides for the method of computing corporate =========
quarterly income tax which is on a cumulative basis, to wit:
Tax Due & Paid [Sec. 24 NIRC (25%)] 12,500.00
Sec. 85. Method of computing corporate quarterly income tax. — Every
=========
corporation shall file in duplicate a quarterly summary declaration of its gross
income and deductions on a cumulative basis for the preceding quarter or SECOND QUARTER:
quarters upon which the income tax, as provided in Title II of this Code shall
be levied, collected and paid. The tax so computed shall be decreased by Gross Income 1st Quarter 100,000.00
the amount of tax previously paid or assessed during the preceding
2nd Quarter 50,000.00 150,000.00
quarters and shall be paid not later than sixty (60) days from the close of
each of the first three (3) quarters of the taxable year, whether calendar or —————
fiscal year. (Emphasis supplied)
Less: Deductions 1st Quarter 50,000.00
while Section 87 (now Section 69) requires the filing of an adjustment returns
and final payment of income tax, thus: 2nd Quarter 75,000.00 125,000.00

Sec. 87. Filing of adjustment returns final payment of income tax. — On or —————
before the fifteenth day of April or on or before the fifteenth day of the fourth
Net Taxable Income 25,000.00
month following the close of the fiscal year, every taxpayer covered by this
Chapter shall file an Adjustment Return covering the total net taxable income =========
of the preceding calendar or fiscal year and if the sum of the quarterly tax
payments made during that year is not equal to the tax due on the entire net Tax Due Thereon 6,250.00
taxable income of that year the corporation shall either (a) pay the excess Less: Tax Paid 1st Quarter 12,500.00
tax still due or (b) be refunded the excess amount paid as the case may
be. . . . (Emphasis supplied) —————

In the case at bar, the amount of P247,010.00 claimed by private respondent Creditable Income Tax (6,250.00)
TMX Sales, Inc. based on its Adjustment Return required in Section 87 (now
Section 69), is equivalent to the tax paid during the first quarter. A literal —————
application of Section 292 (now Section 230) would thus pose no problem as THIRD QUARTER:
the two-year prescriptive period reckoned from the time the quarterly income
tax was paid can be easily determined. However, if the quarter in which the Gross Income 1st Quarter 100,000.00
overpayment is made, cannot be ascertained, then a literal application of
Section 292 (Section 230) would lead to absurdity and inconvenience. 2nd Quarter 50,000.00

The following application of Section 85 (now Section 68) clearly illustrates 3rd Quarter 100,000.00 250,000.00
this point:
————— 2nd Quarter —

Less: Deductions 1st Quarter 50,000.00 3rd Quarter 12,500.00 25,000.00

2nd Quarter 75,000.00 ————— —————

3rd Quarter 25,000.00 150,000.00 Creditable Income Tax (to be REFUNDED) (6,250.00)

————— ————— =========

100,000.00 Based on the above hypothetical data appearing in the Final Adjustment
Return, the taxpayer is entitled under Section 87 (now Section 69) of the Tax
========= Code to a refund of P6,250.00. If Section 292 (now Section 230) is literally
Tax Due Thereon 25,000.00 applied, what then is the reckoning date in computing the two-year
prescriptive period? Will it be the 1st quarter when the taxpayer paid
Less: Tax Paid 1st Quarter 12,500.00 P12,500.00 or the 3rd quarter when the taxpayer also paid P12,500.00?
Obviously, the most reasonable and logical application of the law would be to
2nd Quarter — 12,500.00
compute the two-year prescriptive period at the time of filing the Final
————— ========= Adjustment Return or the Annual Income Tax Return, when it can be finally
ascertained if the taxpayer has still to pay additional income tax or if he is
FOURTH QUARTER: (Adjustment Return required in Sec. 87) entitled to a refund of overpaid income tax.
Gross Income 1st Quarter 100,000.00 Furthermore, Section 321 (now Section 232) of the National Internal
Revenue Code requires that the books of accounts of companies or persons
2nd Quarter 50,000.00
with gross quarterly sales or earnings exceeding Twenty Five Thousand
3rd Quarter 100,000.00 Pesos (P25,000.00) be audited and examined yearly by an independent
Certified Public Accountant and their income tax returns be accompanied by
4th Quarter 75,000.00 325,000.00 certified balance sheets, profit and loss statements, schedules listing income
producing properties and the corresponding incomes therefrom and other
————— —————
related statements.
Less: Deductions 1st Quarter 50,000.00
It is generally recognized that before an accountant can make a certification
2nd Quarter 75,000.00 on the financial statements or render an auditor's opinion, an audit of the
books of accounts has to be conducted in accordance with generally
3rd Quarter 25,000.00 accepted auditing standards.
4th Quarter 100,000.00 250,000.00 Since the audit, as required by Section 321 (now Section 232) of the Tax
————— ————— Code is to be conducted yearly, then it is the Final Adjustment Return, where
the figures of the gross receipts and deductions have been audited and
Net Taxable Income 75,000.00 adjusted, that is truly reflective of the results of the operations of a business
enterprise. Thus, it is only when the Adjustment Return covering the whole
========= year is filed that the taxpayer would know whether a tax is still due or a
Tax Due Thereon 18,750.00 refund can be claimed based on the adjusted and audited figures.

Less: Tax Paid 1st Quarter 12,500.00 Therefore, the filing of quarterly income tax returns required in Section 85
(now Section 68) and implemented per BIR Form 1702-Q and payment of
quarterly income tax should only be considered mere installments of the
annual tax due. These quarterly tax payments which are computed based on
the cumulative figures of gross receipts and deductions in order to arrive at a
net taxable income, should be treated as advances or portions of the annual
income tax due, to be adjusted at the end of the calendar or fiscal year. This
is reinforced by Section 87 (now Section 69) which provides for the filing of
adjustment returns and final payment of income tax. Consequently, the two-
year prescriptive period provided in Section 292 (now Section 230) of the Tax
Code should be computed from the time of filing the Adjustment Return or
Annual Income Tax Return and final payment of income tax.
In the case of Collector of Internal Revenue v. Antonio Prieto (2 SCRA 1007
[1961]), this Court held that when a tax is paid in installments, the
prescriptive period of two years provided in Section 306 (Section 292) of the
National internal Revenue Code should be counted from the date of the final
payment. This ruling is reiterated in Commission of Internal Revenue
v. Carlos Palanca (18 SCRA 496 [1966]), wherein this Court stated that
where the tax account was paid on installment, the computation of the two-
year prescriptive period under Section 306 (Section 292) of the Tax Code,
should be from the date of the last installment.
In the instant case, TMX Sales, Inc. filed a suit for a refund on March 14,
1984. Since the two-year prescriptive period should be counted from the
filing of the Adjustment Return on April 15, 1982, TMX Sales, Inc. is not yet
barred by prescription.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby
DENIED. The decision of the Court of Tax Appeals dated April 29, 1988 is
AFFIRMED. No costs.
SO ORDERED.
G.R. Nos. 141104 & 148763 June 8, 2007
ATLAS CONSOLIDATED MINING AND DEVELOPMENT
CORPORATION, petitioner,
vs.
COMMISSIONER OF INTERNAL REVENUE, respondent.
DECISION
CHICO-NAZARIO, J.:
Before this Court are the consolidated cases involving the unsuccessful
claims of herein petitioner Atlas Consolidated Mining and Development
Corporation (petitioner corporation) for the refund/credit of the input Value
Added Tax (VAT) on its purchases of capital goods and on its zero-rated
sales in the taxable quarters of the years 1990 and 1992, the denial of which
by the Court of Tax Appeals (CTA), was affirmed by the Court of Appeals.
Petitioner corporation is engaged in the business of mining, production, and
sale of various mineral products, such as gold, pyrite, and copper
concentrates. It is a VAT-registered taxpayer. It was initially issued VAT
Registration No. 32-A-6-002224, dated 1 January 1988, but it had to register
anew with the appropriate revenue district office (RDO) of the Bureau of
Internal Revenue (BIR) when it moved its principal place of business, and it
was re-issued VAT Registration No. 32-0-004622, dated 15 August 1990. 1
G.R. No. 141104
Petitioner corporation filed with the BIR its VAT Return for the first quarter of
1992.2 It alleged that it likewise filed with the BIR the corresponding
application for the refund/credit of its input VAT on its purchases of capital
goods and on its zero-rated sales in the amount of P26,030,460.00.3 When
its application for refund/credit remained unresolved by the BIR, petitioner
corporation filed on 20 April 1994 its Petition for Review with the CTA,
docketed as CTA Case No. 5102. Asserting that it was a "zero-rated VAT
person," it prayed that the CTA order herein respondent Commissioner of
Internal Revenue (respondent Commissioner) to refund/credit petitioner
corporation with the amount of P26,030,460.00, representing the input VAT it
had paid for the first quarter of 1992. The respondent Commissioner
opposed and sought the dismissal of the petition for review of petitioner
corporation for failure to state a cause of action. After due trial, the CTA
promulgated its Decision4 on 24 November 1997 with the following
disposition –
WHEREFORE, in view of the foregoing, the instant claim for refund is
hereby DENIED on the ground of prescription, insufficiency of evidence and
failure to comply with Section 230 of the Tax Code, as amended. Accordingly,
the petition at bar is hereby DISMISSED for lack of merit.
The CTA denied the motion for reconsideration of petitioner corporation in a
Resolution5 dated 15 April 1998.
When the case was elevated to the Court of Appeals as CA-G.R. SP No.
47607, the appellate court, in its Decision, 6 dated 6 July 1999, dismissed the
appeal of petitioner corporation, finding no reversible error in the CTA
Decision, dated 24 November 1997. The subsequent motion for
reconsideration of petitioner corporation was also denied by the Court of
Appeals in its Resolution,7 dated 14 December 1999.
Thus, petitioner corporation comes before this Court, via a Petition for
21 August 1990 2nd Quarter, 1990 P 54,014,722.04
Review on Certiorari under Rule 45 of the Revised Rules of Court, assigning
the following errors committed by the Court of Appeals –
21 November 1990 3rd Quarter, 1990 75,304,774.77
I

THE COURT OF APPEALS ERRED IN AFFIRMING THE REQUIREMENT 19 February 1991 4th Quarter, 1990 43,829,766.10
OF REVENUE REGULATIONS NO. 2-88 THAT AT LEAST 70% OF THE
SALES OF THE [BOARD OF INVESTMENTS (BOI)]-REGISTERED FIRM When the BIR failed to act on its applications for refund/credit, petitioner
MUST CONSIST OF EXPORTS FOR ZERO-RATING TO APPLY. corporation filed with the CTA the following petitions for review –

II Date Filed Period Covered CTA Case No.

THE COURT OF APPEALS ERRED IN AFFIRMING THAT PETITIONER
FAILED TO SUBMIT SUFFICIENT EVIDENCE SINCE FAILURE TO SUBMIT 20 July 1992 2nd Quarter, 1990 4831
PHOTOCOPIES OF VAT INVOICES AND RECEIPTS IS NOT A FATAL
DEFECT.
9 October 1992 3rd Quarter, 1990 4859
III

THE COURT OF APPEALS ERRED IN RULING THAT THE JUDICIAL
CLAIM WAS FILED BEYOND THE PRESCRIPTIVE PERIOD SINCE THE
JUDICIAL CLAIM WAS FILED WITHIN TWO (2) YEARS FROM THE FILING
OF THE VAT RETURN.
IV
THE COURT OF APPEALS ERRED IN NOT ORDERING CTA TO ALLOW
THE RE-OPENING OF THE CASE FOR PETITIONER TO PRESENT
ADDITIONAL EVIDENCE.8
G.R. No. 148763
G.R. No. 148763 involves almost the same set of facts as in G.R. No.
141104 presented above, except that it relates to the claims of petitioner
corporation for refund/credit of input VAT on its purchases of capital goods
and on its zero-rated sales made in the last three taxable quarters of 1990.
Petitioner corporation filed with the BIR its VAT Returns for the second, third,
and fourth quarters of 1990, on 20 July 1990, 18 October 1990, and 20
January 1991, respectively. It submitted separate applications to the BIR for
the refund/credit of the input VAT paid on its purchases of capital goods and
on its zero-rated sales, the details of which are presented as follows –
Date of Application Period Covered Amount Applied For
14 January 1993 4th Quarter, 1990 4944
which were eventually consolidated. The respondent Commissioner
contested the foregoing Petitions and prayed for the dismissal thereof. The
CTA ruled in favor of respondent Commissioner and in its Decision, 9 dated 30
October 1997, dismissed the Petitions mainly on the ground that the
prescriptive periods for filing the same had expired. In a Resolution, 10 dated
15 January 1998, the CTA denied the motion for reconsideration of petitioner
corporation since the latter presented no new matter not already discussed in
the court's prior Decision. In the same Resolution, the CTA also denied the
alternative prayer of petitioner corporation for a new trial since it did not fall
under any of the grounds cited under Section 1, Rule 37 of the Revised
Rules of Court, and it was not supported by affidavits of merits required by
Section 2 of the same Rule.
Petitioner corporation appealed its case to the Court of Appeals, where it was
docketed as CA-G.R. SP No. 46718. On 15 September 2000, the Court of
Appeals rendered its Decision,11 finding that although petitioner corporation
timely filed its Petitions for Review with the CTA, it still failed to substantiate
its claims for the refund/credit of its input VAT for the last three quarters of
1990. In its Resolution,12 dated 27 June 2001, the appellate court denied the
motion for reconsideration of petitioner corporation, finding no cogent reason
to reverse its previous Decision.
Aggrieved, petitioner corporation filed with this Court another Petition for
Review on Certiorari under Rule 45 of the Revised Rules of Court, docketed
as G.R. No. 148763, raising the following issues –
A.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING
THAT PETITIONER'S CLAIM IS BARRED UNDER REVENUE
REGULATIONS NOS. 2-88 AND 3-88 I.E., FOR FAILURE TO PTOVE [sic]
THE 70% THRESHOLD FOR ZERO-RATING TO APPLY AND FOR
FAILURE TO ESTABLISH THE FACTUAL BASIS FOR THE INSTANT
CLAIM.
B.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT
THERE IS NO BASIS TO GRANT PETITIONER'S MOTION FOR NEW
TRIAL.
There being similarity of parties, subject matter, and issues, G.R. Nos.
141104 and 148763 were consolidated pursuant to a Resolution, dated 4
September 2006, issued by this Court. The ruling of this Court in these cases
hinges on how it will resolve the following key issues: (1) prescription of the
claims of petitioner corporation for input VAT refund/credit; (2) validity and
applicability of Revenue Regulations No. 2-88 imposing upon petitioner
corporation, as a requirement for the VAT zero-rating of its sales, the burden
of proving that the buyer companies were not just BOI-registered but also
exporting 70% of their total annual production; (3) sufficiency of evidence
presented by petitioner corporation to establish that it is indeed entitled to
input VAT refund/credit; and (4) legal ground for granting the motion of
petitioner corporation for re-opening of its cases or holding of new trial before
the CTA so it could be given the opportunity to present the required evidence.
Prescription
The prescriptive period for filing an application for tax refund/credit of input
VAT on zero-rated sales made in 1990 and 1992 was governed by Section
106(b) and (c) of the Tax Code of 1977, as amended, which provided that –
SEC. 106. Refunds or tax credits of input tax. – x x x.
(b) Zero-rated or effectively zero-rated sales. – Any person, except those
covered by paragraph (a) above, whose sales are zero-rated may, within two
years after the close of the quarter when such sales were made, apply for the
issuance of a tax credit certificate or refund of the input taxes attributable to
such sales to the extent that such input tax has not been applied against
output tax.
xxxx
(e) Period within which refund of input taxes may be made by the
Commissioner. – The Commissioner shall refund input taxes within 60 days
from the date the application for refund was filed with him or his duly
authorized representative. No refund of input taxes shall be allowed unless
the VAT-registered person files an application for refund within the period
prescribed in paragraphs (a), (b) and (c) as the case may be.
By a plain reading of the foregoing provision, the two-year prescriptive period
for filing the application for refund/credit of input VAT on zero-rated sales
shall be determined from the close of the quarter when such sales were
made.
Petitioner contends, however, that the said two-year prescriptive period
should be counted, not from the close of the quarter when the zero-rated
sales were made, but from the date of filing of the quarterly VAT return and
payment of the tax due 20 days thereafter, in accordance with Section 110(b)
of the Tax Code of 1977, as amended, quoted as follows –
SEC. 110. Return and payment of value-added tax. – x x x.
(b) Time for filing of return and payment of tax. – The return shall be filed and
the tax paid within 20 days following the end of each quarter specifically
prescribed for a VAT-registered person under regulations to be promulgated
by the Secretary of Finance: Provided, however, That any person whose
registration is cancelled in accordance with paragraph (e) of Section 107
shall file a return within 20 days from the cancellation of such registration.
It is already well-settled that the two-year prescriptive period for instituting a
suit or proceeding for recovery of corporate income tax erroneously or
illegally paid under Section 230 13 of the Tax Code of 1977, as amended, was
to be counted from the filing of the final adjustment return. This Court already
set out in ACCRA Investments Corporation v. Court of Appeals, 14 the
rationale for such a rule, thus –
Clearly, there is the need to file a return first before a claim for refund can
prosper inasmuch as the respondent Commissioner by his own rules and
regulations mandates that the corporate taxpayer opting to ask for a refund
must show in its final adjustment return the income it received from all
sources and the amount of withholding taxes remitted by its withholding
agents to the Bureau of Internal Revenue. The petitioner corporation filed its
final adjustment return for its 1981 taxable year on April 15, 1982. In our
Resolution dated April 10, 1989 in the case of Commissioner of Internal
Revenue v. Asia Australia Express, Ltd. (G.R. No. 85956), we ruled that the
two-year prescriptive period within which to claim a refund commences to
run, at the earliest, on the date of the filing of the adjusted final tax return.
Hence, the petitioner corporation had until April 15, 1984 within which to file
its claim for refund.
Considering that ACCRAIN filed its claim for refund as early as December
29, 1983 with the respondent Commissioner who failed to take any action
thereon and considering further that the non-resolution of its claim for refund
with the said Commissioner prompted ACCRAIN to reiterate its claim before
the Court of Tax Appeals through a petition for review on April 13, 1984, the
respondent appellate court manifestly committed a reversible error in
affirming the holding of the tax court that ACCRAIN's claim for refund was
barred by prescription.
It bears emphasis at this point that the rationale in computing the two-year
prescriptive period with respect to the petitioner corporation's claim for refund
from the time it filed its final adjustment return is the fact that it was only then
that ACCRAIN could ascertain whether it made profits or incurred losses in
its business operations. The "date of payment", therefore, in ACCRAIN's
case was when its tax liability, if any, fell due upon its filing of its final
adjustment return on April 15, 1982.
In another case, Commissioner of Internal Revenue v. TMX Sales, Inc.,15 this
Court further expounded on the same matter –
A re-examination of the aforesaid minute resolution of the Court in the Pacific
Procon case is warranted under the circumstances to lay down a categorical
pronouncement on the question as to when the two-year prescriptive period
in cases of quarterly corporate income tax commences to run. A full-blown
decision in this regard is rendered more imperative in the light of the reversal
by the Court of Tax Appeals in the instant case of its previous ruling in
the Pacific Procon case.
Section 292 (now Section 230) of the National Internal Revenue Code should
be interpreted in relation to the other provisions of the Tax Code in order to
give effect the legislative intent and to avoid an application of the law which
may lead to inconvenience and absurdity. In the case of People vs.
Rivera (59 Phil. 236 [1933]), this Court stated that statutes should receive a
sensible construction, such as will give effect to the legislative intention and
so as to avoid an unjust or an absurd conclusion. INTERPRETATIO TALIS IN
AMBIGUIS SEMPER FRIENDA EST, UT EVITATUR INCONVENIENS ET
ABSURDUM. Where there is ambiguity, such interpretation as will avoid
inconvenience and absurdity is to be adopted. Furthermore, courts must give
effect to the general legislative intent that can be discovered from or is
unraveled by the four corners of the statute, and in order to discover said
intent, the whole statute, and not only a particular provision thereof, should
be considered. (Manila Lodge No. 761, et al. vs. Court of Appeals, et al. 73
SCRA 162 [1976) Every section, provision or clause of the statute must be
expounded by reference to each other in order to arrive at the effect
contemplated by the legislature. The intention of the legislator must be
ascertained from the whole text of the law and every part of the act is to be
taken into view. (Chartered Bank vs. Imperial, 48 Phil. 931 [1921]; Lopez vs.
El Hoger Filipino, 47 Phil. 249, cited in Aboitiz Shipping Corporation vs. City
of Cebu, 13 SCRA 449 [1965]).
Thus, in resolving the instant case, it is necessary that we consider not only
Section 292 (now Section 230) of the National Internal Revenue Code but
also the other provisions of the Tax Code, particularly Sections 84, 85 (now
both incorporated as Section 68), Section 86 (now Section 70) and Section
87 (now Section 69) on Quarterly Corporate Income Tax Payment and
Section 321 (now Section 232) on keeping of books of accounts. All these
provisions of the Tax Code should be harmonized with each other.
xxxx
Therefore, the filing of a quarterly income tax returns required in Section 85
(now Section 68) and implemented per BIR Form 1702-Q and payment of
quarterly income tax should only be considered mere installments of the
annual tax due. These quarterly tax payments which are computed based on
the cumulative figures of gross receipts and deductions in order to arrive at a
net taxable income, should be treated as advances or portions of the annual
income tax due, to be adjusted at the end of the calendar or fiscal year. This
is reinforced by Section 87 (now Section 69) which provides for the filing of
adjustment returns and final payment of income tax. Consequently, the two-
year prescriptive period provided in Section 292 (now Section 230) of the Tax
Code should be computed from the time of filing the Adjustment Return or
Annual Income Tax Return and final payment of income tax.
In the case of Collector of Internal Revenue vs. Antonio Prieto (2 SCRA 1007
[1961]), this Court held that when a tax is paid in installments, the
prescriptive period of two years provided in Section 306 (Section 292) of the
National Internal Revenue Code should be counted from the date of the final
payment. This ruling is reiterated in Commissioner of Internal Revenue vs.
Carlos Palanca (18 SCRA 496 [1966]), wherein this Court stated that where
the tax account was paid on installment, the computation of the two-year
prescriptive period under Section 306 (Section 292) of the Tax Code, should
be from the date of the last installment.
In the instant case, TMX Sales, Inc. filed a suit for a refund on March 14, amounts which are currently in the hands of the government but must
1984. Since the two-year prescriptive period should be counted from the rightfully be returned to the taxpayer. Therefore, whether claiming
filing of the Adjustment Return on April 15,1982, TMX Sales, Inc. is not yet refund/credit of illegally or erroneously collected national internal revenue
barred by prescription. tax, or input VAT, the taxpayer must be given equal opportunity for filing and
pursuing its claim.
The very same reasons set forth in the afore-cited cases concerning the two-
year prescriptive period for claims for refund of illegally or erroneously For the foregoing reasons, it is more practical and reasonable to count the
collected income tax may also apply to the Petitions at bar involving the two-year prescriptive period for filing a claim for refund/credit of input VAT on
same prescriptive period for claims for refund/credit of input VAT on zero- zero-rated sales from the date of filing of the return and payment of the tax
rated sales. due which, according to the law then existing, should be made within 20 days
from the end of each quarter. Having established thus, the relevant dates in
It is true that unlike corporate income tax, which is reported and paid on the instant cases are summarized and reproduced below –
installment every quarter, but is eventually subjected to a final adjustment at
the end of the taxable year, VAT is computed and paid on a purely quarterly
Period Covered Date of Date of Date o
basis without need for a final adjustment at the end of the taxable year.
Filing (Return w/ Filing (Application w/ w/ CTA
However, it is also equally true that until and unless the VAT-registered
BIR) BIR)
taxpayer prepares and submits to the BIR its quarterly VAT return, there is no
way of knowing with certainty just how much input VAT 16 the taxpayer may
apply against its output VAT; 17 how much output VAT it is due to pay for the 2nd Quarter, 1990 20 July 1990 21 August 1990 20 July
quarter or how much excess input VAT it may carry-over to the following
quarter; or how much of its input VAT it may claim as refund/credit. It should 3rd Quarter, 1990 18 October 1990 21 November 1990 9 Octob
be recalled that not only may a VAT-registered taxpayer directly apply against
his output VAT due the input VAT it had paid on its importation or local
purchases of goods and services during the quarter; the taxpayer is also 4th Quarter, 1990 20 January 1991 19 February 1991 14 Janu
given the option to either (1) carry over any excess input VAT to the
succeeding quarters for application against its future output VAT liabilities, or 1st Quarter, 1992 20 April 1992 -- 20 Apri
(2) file an application for refund or issuance of a tax credit certificate covering
the amount of such input VAT. 18 Hence, even in the absence of a final The above table readily shows that the administrative and judicial claims of
adjustment return, the determination of any output VAT payable necessarily petitioner corporation for refund of its input VAT on its zero-rated sales for the
requires that the VAT-registered taxpayer make adjustments in its VAT return last three quarters of 1990 were all filed within the prescriptive period.
every quarter, taking into consideration the input VAT which are creditable for
the present quarter or had been carried over from the previous quarters. However, the same cannot be said for the claim of petitioner corporation for
refund of its input VAT on its zero-rated sales for the first quarter of 1992.
Moreover, when claiming refund/credit, the VAT-registered taxpayer must be Even though it may seem that petitioner corporation filed in time its judicial
able to establish that it does have refundable or creditable input VAT, and the claim with the CTA, there is no showing that it had previously filed an
same has not been applied against its output VAT liabilities – information administrative claim with the BIR. Section 106(e) of the Tax Code of 1977, as
which are supposed to be reflected in the taxpayer's VAT returns. Thus, an amended, explicitly provided that no refund of input VAT shall be allowed
application for refund/credit must be accompanied by copies of the taxpayer's unless the VAT-registered taxpayer filed an application for refund with
VAT return/s for the taxable quarter/s concerned. respondent Commissioner within the two-year prescriptive period. The
application of petitioner corporation for refund/credit of its input VAT for the
Lastly, although the taxpayer's refundable or creditable input VAT may not be
first quarter of 1992 was not only unsigned by its supposed authorized
considered as illegally or erroneously collected, its refund/credit is a privilege
representative, Ma. Paz R. Semilla, Manager-Finance and Treasury, but it
extended to qualified and registered taxpayers by the very VAT system
was not dated, stamped, and initialed by the BIR official who purportedly
adopted by the Legislature. Such input VAT, the same as any illegally or
erroneously collected national internal revenue tax, consists of monetary
received the same. The CTA, in its Decision, 19 dated 24 November 1997, in
CTA Case No. 5102, made the following observations –
This Court, likewise, rejects any probative value of the Application for Tax
Credit/Refund of VAT Paid (BIR Form No. 2552) [Exhibit "B'] formally offered
in evidence by the petitioner on account of the fact that it does not bear the
BIR stamp showing the date when such application was filed together with
the signature or initial of the receiving officer of respondent's Bureau. Worse
still, it does not show the date of application and the signature of a certain
Ma. Paz R. Semilla indicated in the form who appears to be petitioner's
authorized filer.
A review of the records reveal that the original of the aforecited application
was lost during the time petitioner transferred its office (TSN, p. 6, Hearing of
December 9, 1994). Attempt was made to prove that petitioner exerted
efforts to recover the original copy, but to no avail. Despite this, however, We
observe that petitioner completely failed to establish the missing dates and
signatures abovementioned. On this score, said application has no probative
value in demonstrating the fact of its filing within two years after the [filing of
the VAT return for the quarter] when petitioner's sales of goods were made as
prescribed under Section 106(b) of the Tax Code. We believe thus that
petitioner failed to file an application for refund in due form and within the
legal period set by law at the administrative level. Hence, the case at bar has
failed to satisfy the requirement on the prior filing of an application for refund
with the respondent before the commencement of a judicial claim for refund,
as prescribed under Section 230 of the Tax Code. This fact constitutes
another one of the many reasons for not granting petitioner's judicial claim.
As pointed out by the CTA, in serious doubt is not only the fact of whether
petitioner corporation timely filed its administrative claim for refund of its input
VAT for the first quarter of 1992, but also whether petitioner corporation
actually filed such administrative claim in the first place. For failing to prove
that it had earlier filed with the BIR an application for refund/credit of its input
VAT for the first quarter of 1992, within the period prescribed by law, then the
case instituted by petitioner corporation with the CTA for the refund/credit of
the very same tax cannot prosper.
Revenue Regulations No. 2-88 and the 70% export requirement
Under Section 100(a) of the Tax Code of 1977, as amended, a 10% VAT was
imposed on the gross selling price or gross value in money of goods sold,
bartered or exchanged. Yet, the same provision subjected the following sales
made by VAT-registered persons to 0% VAT –
(1) Export sales; and
(2) Sales to persons or entities whose exemption under special laws or
international agreements to which the Philippines is a signatory effectively
subjects such sales to zero-rate.
"Export Sales" means the sale and shipment or exportation of goods from the
Philippines to a foreign country, irrespective of any shipping arrangement that
may be agreed upon which may influence or determine the transfer of
ownership of the goods so exported, or foreign currency denominated sales.
"Foreign currency denominated sales", means sales to nonresidents of
goods assembled or manufactured in the Philippines, for delivery to residents
in the Philippines and paid for in convertible foreign currency remitted
through the banking system in the Philippines.
These are termed zero-rated sales. A zero-rated sale is still considered a
taxable transaction for VAT purposes, although the VAT rate applied is 0%. A
sale by a VAT-registered taxpayer of goods and/or services taxed at 0% shall
not result in any output VAT, while the input VAT on its purchases of goods or
services related to such zero-rated sale shall be available as tax credit or
refund.20
Petitioner corporation questions the validity of Revenue Regulations No. 2-88
averring that the said regulations imposed additional requirements, not found
in the law itself, for the zero-rating of its sales to Philippine Smelting and
Refining Corporation (PASAR) and Philippine Phosphate, Inc. (PHILPHOS),
both of which are registered not only with the BOI, but also with the then
Export Processing Zone Authority (EPZA).21
The contentious provisions of Revenue Regulations No. 2-88 read –
SEC. 2. Zero-rating. – (a) Sales of raw materials to BOI-registered exporters.
– Sales of raw materials to export-oriented BOI-registered enterprises whose
export sales, under rules and regulations of the Board of Investments,
exceed seventy percent (70%) of total annual production, shall be subject to
zero-rate under the following conditions:
"(1) The seller shall file an application with the BIR, ATTN.: Division, applying
for zero-rating for each and every separate buyer, in accordance with Section
8(d) of Revenue Regulations No. 5-87. The application should be
accompanied with a favorable recommendation from the Board of
Investments."
"(2) The raw materials sold are to be used exclusively by the buyer in the
manufacture, processing or repacking of his own registered export product;
"(3) The words "Zero-Rated Sales" shall be prominently indicated in the sales
invoice. The exporter (buyer) can no longer claim from the Bureau of Internal
Revenue or any other government office tax credits on their zero-rated
purchases;
(b) Sales of raw materials to foreign buyer. – Sales of raw materials to a
nonresident foreign buyer for delivery to a resident local export-oriented BOI-
registered enterprise to be used in manufacturing, processing or repacking of
the said buyer's goods and paid for in foreign currency, inwardly remitted in
accordance with Central Bank rules and regulations shall be subject to zero-
rate.
It is the position of the respondent Commissioner, affirmed by the CTA and
the Court of Appeals, that Section 2 of Revenue Regulations No. 2-88 should
be applied in the cases at bar; and to be entitled to the zero-rating of its sales
to PASAR and PHILPHOS, petitioner corporation, as a VAT-registered seller,
must be able to prove not only that PASAR and PHILPHOS are BOI-
registered corporations, but also that more than 70% of the total annual
production of these corporations are actually exported. Revenue Regulations
No. 2-88 merely echoed the requirement imposed by the BOI on export-
oriented corporations registered with it.
While this Court is not prepared to strike down the validity of Revenue
Regulations No. 2-88, it finds that its application must be limited and placed
in the proper context. Note that Section 2 of Revenue Regulations No. 2-88
referred only to the zero-rated sales of raw materials to export-oriented BOI-
registered enterprises whose export sales, under BOI rules and regulations,
should exceed seventy percent (70%) of their total annual production.
Section 2 of Revenue Regulations No. 2-88, should not have been applied to
the zero-rating of the sales made by petitioner corporation to PASAR and
PHILPHOS. At the onset, it must be emphasized that PASAR and
PHILPHOS, in addition to being registered with the BOI, were also registered
with the EPZA and located within an export-processing zone. Petitioner
corporation does not claim that its sales to PASAR and PHILPHOS are zero-
rated on the basis that said sales were made to export-oriented BOI-
registered corporations, but rather, on the basis that the sales were made to
EPZA-registered enterprises operating within export processing zones.
Although sales to export-oriented BOI-registered enterprises and sales to
EPZA-registered enterprises located within export processing zones were
both deemed export sales, which, under Section 100(a) of the Tax Code of
1977, as amended, shall be subject to 0% VAT distinction must be made
between these two types of sales because each may have different
substantiation requirements.
The Tax Code of 1977, as amended, gave a limited definition of export sales,
to wit: "The sale and shipment or exportation of goods from the Philippines to
a foreign country, irrespective of any shipping arrangement that may be
agreed upon which may influence or determine the transfer of ownership of
the goods so exported, or foreign currency denominated sales." Executive
Order No. 226, otherwise known as the Omnibus Investments Code of 1987 -
which, in the years concerned (i.e., 1990 and 1992), governed enterprises
registered with both the BOI and EPZA, provided a more comprehensive
definition of export sales, as quoted below:
"ART. 23. "Export sales" shall mean the Philippine port F.O.B. value,
determined from invoices, bills of lading, inward letters of credit, landing
certificates, and other commercial documents, of export products exported
directly by a registered export producer or the net selling price of export
product sold by a registered export producer or to an export trader that
subsequently exports the same: Provided, That sales of export products to
another producer or to an export trader shall only be deemed export sales
when actually exported by the latter, as evidenced by landing certificates of
similar commercial documents: Provided, further, That without actual
exportation the following shall be considered constructively exported for
purposes of this provision: (1) sales to bonded manufacturing warehouses of
export-oriented manufacturers; (2) sales to export processing zones; (3)
sales to registered export traders operating bonded trading warehouses
supplying raw materials used in the manufacture of export products under
guidelines to be set by the Board in consultation with the Bureau of Internal
Revenue and the Bureau of Customs; (4) sales to foreign military bases,
diplomatic missions and other agencies and/or instrumentalities granted tax
immunities, of locally manufactured, assembled or repacked products
whether paid for in foreign currency or not: Provided, further, That export
sales of registered export trader may include commission income; and
Provided, finally, That exportation of goods on consignment shall not be
deemed export sales until the export products consigned are in fact sold by
the consignee.
Sales of locally manufactured or assembled goods for household and
personal use to Filipinos abroad and other non-residents of the Philippines
as well as returning Overseas Filipinos under the Internal Export Program of
the government and paid for in convertible foreign currency inwardly remitted
through the Philippine banking systems shall also be considered export
sales. (Underscoring ours.)
The afore-cited provision of the Omnibus Investments Code of 1987
recognizes as export sales the sales of export products to another producer
or to an export trader, provided that the export products are actually
exported. For purposes of VAT zero-rating, such producer or export trader
must be registered with the BOI and is required to actually export more than
70% of its annual production.
Without actual exportation, Article 23 of the Omnibus Investments Code of
1987 also considers constructive exportation as export sales. Among other
types of constructive exportation specifically identified by the said provision
are sales to export processing zones. Sales to export processing zones are
subjected to special tax treatment. Article 77 of the same Code establishes
the tax treatment of goods or merchandise brought into the export processing
zones. Of particular relevance herein is paragraph 2, which provides that
"Merchandise purchased by a registered zone enterprise from the customs
territory and subsequently brought into the zone, shall be considered as
export sales and the exporter thereof shall be entitled to the benefits allowed
by law for such transaction."
Such tax treatment of goods brought into the export processing zones are
only consistent with the Destination Principle and Cross Border Doctrine to
which the Philippine VAT system adheres. According to the Destination
Principle,22 goods and services are taxed only in the country where these are
consumed. In connection with the said principle, the Cross Border
Doctrine23 mandates that no VAT shall be imposed to form part of the cost of
the goods destined for consumption outside the territorial border of the taxing
authority. Hence, actual export of goods and services from the Philippines to
a foreign country must be free of VAT, while those destined for use or
consumption within the Philippines shall be imposed with 10% VAT. 24 Export
processing zones25 are to be managed as a separate customs territory from
the rest of the Philippines and, thus, for tax purposes, are effectively
considered as foreign territory. For this reason, sales by persons from the
Philippine customs territory to those inside the export processing zones are
already taxed as exports.
Plainly, sales to enterprises operating within the export processing zones are
export sales, which, under the Tax Code of 1977, as amended, were subject
to 0% VAT. It is on this ground that petitioner corporation is claiming
refund/credit of the input VAT on its zero-rated sales to PASAR and
PHILPHOS.
The distinction made by this Court in the preceding paragraphs between the
zero-rated sales to export-oriented BOI-registered enterprises and zero-rated
sales to EPZA-registered enterprises operating within export processing
zones is actually supported by subsequent development in tax laws and
regulations. In Revenue Regulations No. 7-95, the Consolidated VAT
Regulations, as amended,26 the BIR defined with more precision what are
zero-rated export sales –
(1) The sale and actual shipment of goods from the Philippines to a foreign
country, irrespective of any shipping arrangement that may be agreed upon
which may influence or determine the transfer of ownership of the goods so
exported paid for in acceptable foreign currency or its equivalent in goods or
services, and accounted for in accordance with the rules and regulations of
the Bangko Sentral ng Pilipinas (BSP);
(2) The sale of raw materials or packaging materials to a non-resident buyer
for delivery to a resident local export-oriented enterprise to be used in
manufacturing, processing, packing or repacking in the Philippines of the
said buyer's goods and paid for in acceptable foreign currency and
accounted for in accordance with the rules and regulations of the Bangko
Sentral ng Pilipinas (BSP);
(3) The sale of raw materials or packaging materials to an export-oriented
enterprise whose export sales exceed seventy percent (70%) of total annual
production;
Any enterprise whose export sales exceed 70% of the total annual
production of the preceding taxable year shall be considered an export-
oriented enterprise upon accreditation as such under the provisions of the
Export Development Act (R.A. 7844) and its implementing rules and
regulations;
(4) Sale of gold to the Bangko Sentral ng Pilipinas (BSP); and
(5) Those considered export sales under Articles 23 and 77 of Executive
Order No. 226, otherwise known as the Omnibus Investments Code of 1987,
and other special laws, e.g. Republic Act No. 7227, otherwise known as the
Bases Conversion and Development Act of 1992.
The Tax Code of 1997, as amended,27 later adopted the foregoing definition
of export sales, which are subject to 0% VAT.
This Court then reiterates its conclusion that Section 2 of Revenue
Regulations No. 2-88, which applied to zero-rated export sales to export-
oriented BOI-registered enterprises, should not be applied to the applications
for refund/credit of input VAT filed by petitioner corporation since it based its
applications on the zero-rating of export sales to enterprises registered with
the EPZA and located within export processing zones.
Sufficiency of evidence
There can be no dispute that the taxpayer-claimant has the burden of proving
the legal and factual bases of its claim for tax credit or refund, but once it has
submitted all the required documents, it is the function of the BIR to assess
these documents with purposeful dispatch. 28 It therefore falls upon herein
petitioner corporation to first establish that its sales qualify for VAT zero-rating
under the existing laws (legal basis), and then to present sufficient evidence
that said sales were actually made and resulted in refundable or creditable
input VAT in the amount being claimed (factual basis).
It would initially appear that the applications for refund/credit filed by
petitioner corporation cover only input VAT on its purportedly zero-rated sales
to PASAR and PHILPHOS; however, a more thorough perusal of its
applications, VAT returns, pleadings, and other records of these cases would
reveal that it is also claiming refund/credit of its input VAT on purchases of
capital goods and sales of gold to the Central Bank of the Philippines (CBP).
This Court finds that the claims for refund/credit of input VAT of petitioner
corporation have sufficient legal bases.
As has been extensively discussed herein, Section 106(b)(2), in relation to
Section 100(a)(2) of the Tax Code of 1977, as amended, allowed the
refund/credit of input VAT on export sales to enterprises operating within
export processing zones and registered with the EPZA, since such export
sales were deemed to be effectively zero-rated sales. 29 The fact that PASAR
and PHILPHOS, to whom petitioner corporation sold its products, were
operating inside an export processing zone and duly registered with EPZA,
was never raised as an issue herein. Moreover, the same fact was already
judicially recognized in the case Atlas Consolidated Mining & Development
Corporation v. Commissioner of Internal Revenue. 30 Section 106(c) of the
same Code likewise permitted a VAT-registered taxpayer to apply for
refund/credit of the input VAT paid on capital goods imported or locally
purchased to the extent that such input VAT has not been applied against its
output VAT. Meanwhile, the effective zero-rating of sales of gold to the CBP
from 1989 to 199131 was already affirmed by this Court in Commissioner of
Internal Revenue v. Benguet Corporation,32 wherein it ruled that –
At the time when the subject transactions were consummated, the prevailing
BIR regulations relied upon by respondent ordained that gold sales to the
Central Bank were zero-rated. The BIR interpreted Sec. 100 of the NIRC in
relation to Sec. 2 of E.O. No. 581 s. 1980 which prescribed that gold sold to
the Central Bank shall be considered export and therefore shall be subject to
the export and premium duties. In coming out with this interpretation, the BIR
also considered Sec. 169 of Central Bank Circular No. 960 which states that
all sales of gold to the Central Bank are considered constructive exports. x x
x.
This Court now comes to the question of whether petitioner corporation has
sufficiently established the factual bases for its applications for refund/credit
of input VAT. It is in this regard that petitioner corporation has failed, both in
the administrative and judicial level.
Applications for refund/credit of input VAT with the BIR must comply with the
appropriate revenue regulations. As this Court has already ruled, Revenue
Regulations No. 2-88 is not relevant to the applications for refund/credit of
input VAT filed by petitioner corporation; nonetheless, the said applications
must have been in accordance with Revenue Regulations No. 3-88,
amending Section 16 of Revenue Regulations No. 5-87, which provided as
follows –
SECTION 16. Refunds or tax credits of input tax. –
xxxx
(c) Claims for tax credits/refunds. – Application for Tax Credit/Refund of
Value-Added Tax Paid (BIR Form No. 2552) shall be filed with the Revenue
District Office of the city or municipality where the principal place of business
of the applicant is located or directly with the Commissioner, Attention: VAT
Division.
A photocopy of the purchase invoice or receipt evidencing the value added
tax paid shall be submitted together with the application. The original copy of
the said invoice/receipt, however, shall be presented for cancellation prior to
the issuance of the Tax Credit Certificate or refund. In addition, the following
documents shall be attached whenever applicable:
xxxx
"3. Effectively zero-rated sale of goods and services.
"i) photo copy of approved application for zero-rate if filing for the first time.
"ii) sales invoice or receipt showing name of the person or entity to whom the
sale of goods or services were delivered, date of delivery, amount of
consideration, and description of goods or services delivered.
"iii) evidence of actual receipt of goods or services.
"4. Purchase of capital goods.
"i) original copy of invoice or receipt showing the date of purchase, purchase
price, amount of value-added tax paid and description of the capital
equipment locally purchased.
"ii) with respect to capital equipment imported, the photo copy of import entry
document for internal revenue tax purposes and the confirmation receipt
issued by the Bureau of Customs for the payment of the value-added tax.
"5. In applicable cases,
where the applicant's zero-rated transactions are regulated by certain
government agencies, a statement therefrom showing the amount and
description of sale of goods and services, name of persons or entities
(except in case of exports) to whom the goods or services were sold, and
date of transaction shall also be submitted.
In all cases, the amount of refund or tax credit that may be granted shall be
limited to the amount of the value-added tax (VAT) paid directly and entirely
attributable to the zero-rated transaction during the period covered by the
application for credit or refund.
Where the applicant is engaged in zero-rated and other taxable and exempt
sales of goods and services, and the VAT paid (inputs) on purchases of
goods and services cannot be directly attributed to any of the aforementioned
transactions, the following formula shall be used to determine the creditable
or refundable input tax for zero-rated sale:
Amount of Zero-rated Sale
Total Sales
X
Total Amount of Input Taxes
=
Amount Creditable/Refundable
In case the application for refund/credit of input VAT was denied or remained
unacted upon by the BIR, and before the lapse of the two-year prescriptive
period, the taxpayer-applicant may already file a Petition for Review before
the CTA. If the taxpayer's claim is supported by voluminous documents, such
as receipts, invoices, vouchers or long accounts, their presentation before
the CTA shall be governed by CTA Circular No. 1-95, as amended,
reproduced in full below –
In the interest of speedy administration of justice, the Court hereby
promulgates the following rules governing the presentation of voluminous
documents and/or long accounts, such as receipts, invoices and vouchers,
as evidence to establish certain facts pursuant to Section 3(c), Rule 130 of
the Rules of Court and the doctrine enunciated in Compania Maritima vs.
Allied Free Workers Union (77 SCRA 24), as well as Section 8 of Republic
Act No. 1125:
1. The party who desires to introduce as evidence such voluminous
documents must, after motion and approval by the Court, present:
(a) a Summary containing, among others, a chronological listing of the
numbers, dates and amounts covered by the invoices or receipts and the
amount/s of tax paid; and (b) a Certification of an independent Certified
Public Accountant attesting to the correctness of the contents of the
summary after making an examination, evaluation and audit of the
voluminous receipts and invoices. The name of the accountant or partner of
the firm in charge must be stated in the motion so that he/she can be
commissioned by the Court to conduct the audit and, thereafter, testify in
Court relative to such summary and certification pursuant to Rule 32 of the
Rules of Court.
2. The method of individual presentation of each and every receipt, invoice or
account for marking, identification and comparison with the originals thereof
need not be done before the Court or Clerk of Court anymore after the
introduction of the summary and CPA certification. It is enough that the
receipts, invoices, vouchers or other documents covering the said accounts
or payments to be introduced in evidence must be pre-marked by the party
concerned and submitted to the Court in order to be made accessible to the
adverse party who desires to check and verify the correctness of the
summary and CPA certification. Likewise, the originals of the voluminous
receipts, invoices or accounts must be ready for verification and comparison
in case doubt on the authenticity thereof is raised during the hearing or
resolution of the formal offer of evidence.
Since CTA Cases No. 4831, 4859, 4944,33 and 5102,34 were still pending
before the CTA when the said Circular was issued, then petitioner
corporation must have complied therewith during the course of the trial of the
said cases.
In Commissioner of Internal Revenue v. Manila Mining Corporation,35 this
Court denied the claim of therein respondent, Manila Mining Corporation, for
refund of the input VAT on its supposed zero-rated sales of gold to the CBP
because it was unable to substantiate its claim. In the same case, this Court
emphasized the importance of complying with the substantiation
requirements for claiming refund/credit of input VAT on zero-rated sales, to
wit –
For a judicial claim for refund to prosper, however, respondent must not only
prove that it is a VAT registered entity and that it filed its claims within the
prescriptive period. It must substantiate the input VAT paid by
purchase invoices or official receipts.
This respondent failed to do.
Revenue Regulations No. 3-88 amending Revenue Regulations No. 5-87
provides the requirements in claiming tax credits/refunds.
xxxx
Under Section 8 of RA1125, the CTA is described as a court of record. As
cases filed before it are litigated de novo, party litigants should prove every
minute aspect of their cases. No evidentiary value can be given the purchase
invoices or receipts submitted to the BIR as the rules on documentary
evidence require that these documents must be formally offered before the
CTA.
This Court thus notes with approval the following findings of the CTA:
x x x [S]ale of gold to the Central Bank should not be subject to the 10% VAT-
output tax but this does not ipso fact mean that [the seller] is entitled to the
amount of refund sought as it is required by law to present evidence showing
the input taxes it paid during the year in question. What is being claimed in
the instant petition is the refund of the input taxes paid by the herein
petitioner on its purchase of goods and services. Hence, it is necessary for
the Petitioner to show proof that it had indeed paid the input taxes during the
year 1991. In the case at bar, Petitioner failed to discharge this duty. It did
not adduce in evidence the sales invoice, receipts or other documents
showing the input value added tax on the purchase of goods and services.
xxx
Section 8 of Republic Act 1125 (An Act Creating the Court of Tax Appeals)
provides categorically that the Court of Tax Appeals shall be a court of
record and as such it is required to conduct a formal trial (trial de novo)
where the parties must present their evidence accordingly if they desire
the Court to take such evidence into consideration. (Emphasis and italics
supplied)
A "sales or commercial invoice" is a written account of goods sold or services
rendered indicating the prices charged therefor or a list by whatever name it
is known which is used in the ordinary course of business evidencing sale
and transfer or agreement to sell or transfer goods and services.
A "receipt" on the other hand is a written acknowledgment of the fact of
payment in money or other settlement between seller and buyer of goods,
debtor or creditor, or person rendering services and client or customer.
These sales invoices or receipts issued by the supplier are necessary to
substantiate the actual amount or quantity of goods sold and their selling
price, and taken collectively are the best means to prove the input VAT
payments.36
Although the foregoing decision focused only on the proof required for the
applicant for refund/credit to establish the input VAT payments it had made
on its purchases from suppliers, Revenue Regulations No. 3-88 also required
it to present evidence proving actual zero-rated VAT sales to qualified buyers,
such as (1) photocopy of the approved application for zero-rate if filing for the
first time; (2) sales invoice or receipt showing the name of the person or
entity to whom the goods or services were delivered, date of delivery, amount
of consideration, and description of goods or services delivered; and (3) the
evidence of actual receipt of goods or services.
Also worth noting in the same decision is the weight given by this Court to
the certification by the independent certified public accountant (CPA), thus –
Respondent contends, however, that the certification of the independent CPA
attesting to the correctness of the contents of the summary of suppliers'
invoices or receipts which were examined, evaluated and audited by said
CPA in accordance with CTA Circular No. 1-95 as amended by CTA Circular
No. 10-97 should substantiate its claims.
There is nothing, however, in CTA Circular No. 1-95, as amended by CTA
Circular No. 10-97, which either expressly or impliedly suggests that
summaries and schedules of input VAT payments, even if certified by an
independent CPA, suffice as evidence of input VAT payments.
xxxx
The circular, in the interest of speedy administration of justice, was
promulgated to avoid the time-consuming procedure of presenting,
identifying and marking of documents before the Court. It does not relieve
respondent of its imperative task of pre-marking photocopies of sales
receipts and invoices and submitting the same to the court after the
independent CPA shall have examined and compared them with the
originals. Without presenting these pre-marked documents as evidence –
from which the summary and schedules were based, the court cannot verify
the authenticity and veracity of the independent auditor's conclusions.
There is, moreover, a need to subject these invoices or receipts to
examination by the CTA in order to confirm whether they are VAT invoices.
Under Section 21 of Revenue Regulation, No. 5-87, all purchases covered by
invoices other than a VAT invoice shall not be entitled to a refund of input
VAT.
xxxx
While the CTA is not governed strictly by technical rules of evidence, as rules
of procedure are not ends in themselves but are primarily intended as tools in
the administration of justice, the presentation of the purchase receipts and/or
invoices is not mere procedural technicality which may be disregarded
considering that it is the only means by which the CTA may ascertain and
verify the truth of the respondent's claims.
The records further show that respondent miserably failed to substantiate its
claims for input VAT refund for the first semester of 1991. Except for the
summary and schedules of input VAT payments prepared by respondent
itself, no other evidence was adduced in support of its claim.
As for respondent's claim for input VAT refund for the second semester of
1991, it employed the services of Joaquin Cunanan & Co. on account of
which it (Joaquin Cunanan & Co.) executed a certification that:
We have examined the information shown below concerning the input tax
payments made by the Makati Office of Manila Mining Corporation for the
period from July 1 to December 31, 1991. Our examination included
inspection of the pertinent suppliers' invoices and official receipts and such
other auditing procedures as we considered necessary in the circumstances.
xxx
As the certification merely stated that it used "auditing procedures considered
necessary" and not auditing procedures which are in accordance with
generally accepted auditing principles and standards, and that the
examination was made on "input tax payments by the Manila Mining
Corporation," without specifying that the said input tax payments are
attributable to the sales of gold to the Central Bank, this Court cannot rely
thereon and regard it as sufficient proof of the respondent's input VAT
payments for the second semester.37
As for the Petition in G.R. No. 141104, involving the input VAT of petitioner
corporation on its zero-rated sales in the first quarter of 1992, this Court
already found that the petitioner corporation failed to comply with Section
106(b) of the Tax Code of 1977, as amended, imposing the two-year
prescriptive period for the filing of the application for refund/credit thereof.
This bars the grant of the application for refund/credit, whether
administratively or judicially, by express mandate of Section 106(e) of the
same Code.
Granting arguendo that the application of petitioner corporation for the
refund/credit of the input VAT on its zero-rated sales in the first quarter of
1992 was actually and timely filed, petitioner corporation still failed to present
together with its application the required supporting documents, whether
before the BIR or the CTA. As the Court of Appeals ruled –
In actions involving claims for refund of taxes assessed and collected, the
burden of proof rests on the taxpayer. As clearly discussed in the CTA's
decision, petitioner failed to substantiate its claim for tax refunds. Thus:
"We note, however, that in the cases at bar, petitioner has relied totally on
Revenue Regulations No. 2-88 in determining compliance with the
documentary requirements for a successful refund or issuance of tax credit.
Unmentioned is the applicable and specific amendment later introduced by
Revenue Regulations No. 3-88 dated April 7, 1988 (issued barely after two
months from the promulgation of Revenue Regulations No. 2-88 on February
15, 1988), which amended Section 16 of Revenue Regulations No. 5-87 on
refunds or tax credits of input tax. x x x.
xxxx
"A thorough examination of the evidence submitted by the petitioner before
this court reveals outright the failure to satisfy documentary requirements laid
down under the above-cited regulations. Specifically, petitioner was not able
to present the following documents, to wit:
"a) sales invoices or receipts;
"b) purchase invoices or receipts;
"c) evidence of actual receipt of goods;
"d) BOI statement showing the amount and description of sale of goods, etc.
"e) original or attested copies of invoice or receipt on capital equipment
locally purchased; and
"f) photocopy of import entry document and confirmation receipt on imported
capital equipment.
"There is the need to examine the sales invoices or receipts in order to
ascertain the actual amount or quantity of goods sold and their selling price.
Without them, this Court cannot verify the correctness of petitioner's claim
inasmuch as the regulations require that the input taxes being sought for
refund should be limited to the portion that is directly and entirely attributable
to the particular zero-rated transaction. In this instance, the best evidence of
such transaction are the said sales invoices or receipts.
"Also, even if sales invoices are produced, there is the further need to submit
evidence that such goods were actually received by the buyer, in this case,
by CBP, Philp[h]os and PASAR.
xxxx
"Lastly, this Court cannot determine whether there were actual local and
imported purchase of capital goods as well as domestic purchase of non-
capital goods without the required purchase invoice or receipt, as the case
may be, and confirmation receipts.
"There is, thus, the imperative need to submit before this Court the original or
attested photocopies of petitioner's invoices or receipts, confirmation receipts
and import entry documents in order that a full ascertainment of the claimed
amount may be achieved.
"Petitioner should have taken the foresight to introduce in evidence all of the
missing documentsabovementioned. Cases filed before this Court are
litigated de novo. This means that party litigants should endeavor to prove at
the first instance every minute aspect of their cases strictly in accordance
with the Rules of Court, most especially on documentary evidence." (pp. 37-
42, Rollo)
Tax refunds are in the nature of tax exemptions. It is regarded as in
derogation of the sovereign authority, and should be construed in strictissimi
juris against the person or entity claiming the exemption. The taxpayer who
claims for exemption must justify his claim by the clearest grant of organic or
statute law and should not be permitted to stand on vague implications
(Asiatic Petroleum Co. v. Llanes, 49 Phil. 466; Northern Phil. Tobacco Corp.
v. Mun. of Agoo, La Union, 31 SCRA 304; Reagan v. Commissioner, 30
SCRA 968; Asturias Sugar Central, Inc. v. Commissioner of Customs, 29
SCRA 617; Davao Light and Power Co., Inc. v. Commissioner of Customs,
44 SCRA 122).
There is no cogent reason to fault the CTA's conclusion that the SGV's
certificate is "self-destructive", as it finds comfort in the very SGV's stand, as
follows:
"It is our understanding that the above procedure are sufficient for the
purpose of the Company. We make no presentation regarding the sufficiency
of these procedures for such purpose. We did not compare the total of the
input tax claimed each quarter against the pertinent VAT returns and books of
accounts. The above procedures do not constitute an audit made in
accordance with generally accepted auditing standards. Accordingly, we do
not express an opinion on the company's claim for input VAT refund or credit.
Had we performed additional procedures, or had we made an audit in
accordance with generally accepted auditing standards, other matters might
have come to our attention that we would have accordingly reported on."
The SGV's "disclaimer of opinion" carries much weight as it is petitioner's
independent auditor. Indeed, SGV expressed that it "did not compare the
total of the input tax claimed each quarter against the VAT returns and books
of accounts."38
Moving on to the Petition in G.R. No. 148763, concerning the input VAT of
petitioner corporation on its zero-rated sales in the second, third, and fourth
quarters of 1990, the appellate court likewise found that petitioner
corporation failed to sufficiently establish its claims. Already disregarding the
declarations made by the Court of Appeals on its erroneous application of
Revenue Regulations No. 2-88, quoted hereunder is the rest of the findings
of the appellate court after evaluating the evidence submitted in accordance
with the requirements under Revenue Regulations No. 3-88 –
The Secretary of Finance validly adopted Revenue Regulations [No.] x x x 3-
98 pursuant to Sec. 245 of the National Internal Revenue Code, which
recognized his power to "promulgate all needful rules and regulations for the
effective enforcement of the provisions of this Code." Thus, it is incumbent
upon a taxpayer intending to file a claim for refund of input VATs or the
issuance of a tax credit certificate with the BIR x x x to prove sales to such
buyers as required by Revenue Regulations No. 3-98. Logically, the same
evidence should be presented in support of an action to recover taxes which
have been paid.
x x x Neither has [herein petitioner corporation] presented sales invoices or
receipts showing sales of gold, copper concentrates, and pyrite to the CBP,
[PASAR], and [PHILPHOS], respectively, and the dates and amounts of the
same, nor any evidence of actual receipt by the said buyers of the mineral
products. It merely presented receipts of purchases from suppliers on which
input VATs were allegedly paid. Thus, the Court of Tax Appeals correctly
denied the claims for refund of input VATs or the issuance of tax credit
certificates of petitioner [corporation]. Significantly, in the resolution, dated 7
June 2000, this Court directed the parties to file memoranda discussing,
among others, the submission of proof for "its [petitioner's] sales of gold,
copper concentrates, and pyrite to buyers." Nevertheless, the parties,
including the petitioner, failed to address this issue, thereby necessitating the
affirmance of the ruling of the Court of Tax Appeals on this point. 39
This Court is, therefore, bound by the foregoing facts, as found by the
appellate court, for well-settled is the general rule that the jurisdiction of this
Court in cases brought before it from the Court of Appeals, by way of a
Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Court, is limited to reviewing or revising errors of law; findings of fact of the
latter are conclusive.40 This Court is not a trier of facts. It is not its function to
review, examine and evaluate or weigh the probative value of the evidence
presented.41
The distinction between a question of law and a question of fact is clear-cut.
It has been held that "[t]here is a question of law in a given case when the
doubt or difference arises as to what the law is on a certain state of facts;
there is a question of fact when the doubt or difference arises as to the truth
or falsehood of alleged facts."42
Whether petitioner corporation actually made zero-rated sales; whether it
paid input VAT on these sales in the amount it had declared in its returns;
whether all the input VAT subject of its applications for refund/credit can be
attributed to its zero-rated sales; and whether it had not previously applied
the input VAT against its output VAT liabilities, are all questions of fact which
could only be answered after reviewing, examining, evaluating, or weighing
the probative value of the evidence it presented, and which this Court does
not have the jurisdiction to do in the present Petitions for Review
on Certiorari under Rule 45 of the revised Rules of Court.
Granting that there are exceptions to the general rule, when this Court looked
into questions of fact under particular circumstances, 43 none of these exist in
the instant cases. The Court of Appeals, in both cases, found a dearth of
evidence to support the claims for refund/credit of the input VAT of petitioner
corporation, and the records bear out this finding. Petitioner corporation itself
cannot dispute its non-compliance with the requirements set forth in Revenue
Regulations No. 3-88 and CTA Circular No. 1-95, as amended. It
concentrated its arguments on its assertion that the substantiation
requirements under Revenue Regulations No. 2-88 should not have applied
to it, while being conspicuously silent on the evidentiary requirements
mandated by other relevant regulations.
Re-opening of cases/holding of new trial before the CTA
This Court now faces the final issue of whether the prayer of petitioner
corporation for the re-opening of its cases or holding of new trial before the
CTA for the reception of additional evidence, may be granted. Petitioner
corporation prays that the Court exercise its discretion on the matter in its
favor, consistent with the policy that rules of procedure be liberally construed
in pursuance of substantive justice.
This Court, however, cannot grant the prayer of petitioner corporation.
An aggrieved party may file a motion for new trial or reconsideration of a
judgment already rendered in accordance with Section 1, Rule 37 of the
revised Rules of Court, which provides –
SECTION 1. Grounds of and period for filing motion for new trial or
reconsideration. – Within the period for taking an appeal, the aggrieved party
may move the trial court to set aside the judgment or final order and grant a
new trial for one or more of the following causes materially affecting the
substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented
would probably alter the result.
Within the same period, the aggrieved party may also move fore
reconsideration upon the grounds that the damages awarded are excessive,
that the evidence is insufficient to justify the decision or final order, or that the
decision or final order is contrary to law.
In G.R. No. 148763, petitioner corporation attempts to justify its motion for
the re-opening of its cases and/or holding of new trial before the CTA by
contending that the "[f]ailure of its counsel to adduce the necessary evidence
should be construed as excusable negligence or mistake which should
constitute basis for such re-opening of trial as for a new trial, as counsel was
of the belief that such evidence was rendered unnecessary by the
presentation of unrebutted evidence indicating that respondent
[Commissioner] has acknowledged the sale of [sic] PASAR and [PHILPHOS]
to be zero-rated." 44 The CTA denied such motion on the ground that it was
not accompanied by an affidavit of merit as required by Section 2, Rule 37 of
the revised Rules of Court. The Court of Appeals affirmed the denial of the
motion, but apart from this technical defect, it also found that there was no
justification to grant the same.
On the matter of the denial of the motion of the petitioner corporation for the
re-opening of its cases and/or holding of new trial based on the technicality
that said motion was unaccompanied by an affidavit of merit, this Court rules
in favor of the petitioner corporation. The facts which should otherwise be set
forth in a separate affidavit of merit may, with equal effect, be alleged and
incorporated in the motion itself; and this will be deemed a substantial
compliance with the formal requirements of the law, provided, of course, that
the movant, or other individual with personal knowledge of the facts, take
oath as to the truth thereof, in effect converting the entire motion for new trial
into an affidavit.45 The motion of petitioner corporation was prepared and
verified by its counsel, and since the ground for the motion was premised on
said counsel's excusable negligence or mistake, then the obvious conclusion
is that he had personal knowledge of the facts relating to such negligence or
mistake. Hence, it can be said that the motion of petitioner corporation for the
re-opening of its cases and/or holding of new trial was in substantial
compliance with the formal requirements of the revised Rules of Court.
Even so, this Court finds no sufficient ground for granting the motion of
petitioner corporation for the re-opening of its cases and/or holding of new
trial.
In G.R. No. 141104, petitioner corporation invokes the Resolution, 46 dated 20
July 1998, by the CTA in another case, CTA Case No. 5296, involving the
claim of petitioner corporation for refund/credit of input VAT for the third
quarter of 1993. The said Resolution allowed the re-opening of CTA Case
No. 5296, earlier dismissed by the CTA, to give the petitioner corporation the
opportunity to present the missing export documents.
The rule that the grant or denial of motions for new trial rests on the
discretion of the trial court,47 may likewise be extended to the CTA. When the
denial of the motion rests upon the discretion of a lower court, this Court will
not interfere with its exercise, unless there is proof of grave abuse thereof. 48
That the CTA granted the motion for re-opening of one case for the
presentation of additional evidence and, yet, deny a similar motion in another
case filed by the same party, does not necessarily demonstrate grave abuse
of discretion or arbitrariness on the part of the CTA. Although the cases
involve identical parties, the causes of action and the evidence to support the
same can very well be different. As can be gleaned from the Resolution,
dated 20 July 1998, in CTA Case No. 5296, petitioner corporation was
claiming refund/credit of the input VAT on its zero-rated sales, consisting
of actual export sales, to Mitsubishi Metal Corporation in Tokyo, Japan. The
CTA took into account the presentation by petitioner corporation of inward
remittances of its export sales for the quarter involved, its Supply Contract
with Mitsubishi Metal Corporation, its 1993 Annual Report showing its sales
to the said foreign corporation, and its application for refund. In contrast, the
present Petitions involve the claims of petitioner corporation for refund/credit
of the input VAT on its purchases of capital goods and on its effectively zero-
rated sales to CBP and EPZA-registered enterprises PASAR and PHILPHOS
for the second, third, and fourth quarters of 1990 and first quarter of 1992.
There being a difference as to the bases of the claims of petitioner
corporation for refund/credit of input VAT in CTA Case No. 5926 and in the
Petitions at bar, then, there are resulting variances as to the evidence
required to support them.
Moreover, the very same Resolution, dated 20 July 1998, in CTA Case No.
5296, invoked by petitioner corporation, emphasizes that the decision of the
CTA to allow petitioner corporation to present evidence "is applicable pro hac
vice or in this occasion only as it is the finding of [the CTA] that petitioner
[corporation] has established a few of the aforementioned material
points regarding the possible existence of the export documents together
with the prior and succeeding returns for the quarters involved, x x x"
[Emphasis supplied.] Therefore, the CTA, in the present cases, cannot be
bound by its ruling in CTA Case No. 5296, when these cases do not involve
the exact same circumstances that compelled it to grant the motion of
petitioner corporation for re-opening of CTA Case No. 5296.
Finally, assuming for the sake of argument that the non-presentation of the
required documents was due to the fault of the counsel of petitioner
corporation, this Court finds that it does not constitute excusable negligence
or mistake which would warrant the re-opening of the cases and/or holding of
new trial.
Under Section 1, Rule 37 of the Revised Rules of Court, the "negligence"
must be excusable and generally imputable to the party because if it is
imputable to the counsel, it is binding on the client. To follow a contrary rule
and allow a party to disown his counsel's conduct would render proceedings
indefinite, tentative, and subject to re-opening by the mere subterfuge of
replacing the counsel. What the aggrieved litigant should do is seek
administrative sanctions against the erring counsel and not ask for the
reversal of the court's ruling.49
As elucidated by this Court in another case, 50 the general rule is that the
client is bound by the action of his counsel in the conduct of his case and he
cannot therefore complain that the result of the litigation might have been
otherwise had his counsel proceeded differently. It has been held time and
again that blunders and mistakes made in the conduct of the proceedings in
the trial court as a result of the ignorance, inexperience or incompetence of
counsel do not qualify as a ground for new trial. If such were to be admitted
as valid reasons for re-opening cases, there would never be an end to
litigation so long as a new counsel could be employed to allege and show
that the prior counsel had not been sufficiently diligent, experienced or
learned.
Moreover, negligence, to be "excusable," must be one which ordinary
diligence and prudence could not have guarded against. 51 Revenue
Regulations No. 3-88, which was issued on 15 February 1988, had been in
effect more than two years prior to the filing by petitioner corporation of its
earliest application for refund/credit of input VAT involved herein on 21
August 1990. CTA Circular No. 1-95 was issued only on 25 January 1995,
after petitioner corporation had filed its Petitions before the CTA, but still
during the pendency of the cases of petitioner corporation before the tax
court. The counsel of petitioner corporation does not allege ignorance of the
foregoing administrative regulation and tax court circular, only that he no
longer deemed it necessary to present the documents required therein
because of the presentation of alleged unrebutted evidence of the zero-rated
sales of petitioner corporation. It was a judgment call made by the counsel as
to which evidence to present in support of his client's cause, later proved to
be unwise, but not necessarily negligent.
Neither is there any merit in the contention of petitioner corporation that the
non-presentation of the required documentary evidence was due to the
excusable mistake of its counsel, a ground under Section 1, Rule 37 of the
revised Rules of Court for the grant of a new trial. "Mistake," as it is referred
to in the said rule, must be a mistake of fact, not of law, which relates to the
case.52 In the present case, the supposed mistake made by the counsel of
petitioner corporation is one of law, for it was grounded on his interpretation
and evaluation that Revenue Regulations No. 3-88 and CTA Circular No. 1-
95, as amended, did not apply to his client's cases and that there was no
need to comply with the documentary requirements set forth therein. And
although the counsel of petitioner corporation advocated an erroneous legal
position, the effects thereof, which did not amount to a deprivation of his
client's right to be heard, must bind petitioner corporation. The question is not
whether petitioner corporation succeeded in establishing its interests, but
whether it had the opportunity to present its side. 53
Besides, litigation is a not a "trial and error" proceeding. A party who moves
for a new trial on the ground of mistake must show that ordinary prudence
could not have guarded against it. A new trial is not a refuge for the
obstinate.54Ordinary prudence in these cases would have dictated the
presentation of all available evidence that would have supported the claims
for refund/credit of input VAT of petitioner corporation. Without sound legal
basis, counsel for petitioner corporation concluded that Revenue Regulations
No. 3-88, and later on, CTA Circular No. 1-95, as amended, did not apply to
its client's claims. The obstinacy of petitioner corporation and its counsel is
demonstrated in their failure, nay, refusal, to comply with the appropriate
administrative regulations and tax court circular in pursuing the claims for
refund/credit, now subject of G.R. Nos. 141104 and 148763, even though
these were separately instituted in a span of more than two years. It is also
evident in the failure of petitioner corporation to address the issue and to
present additional evidence despite being given the opportunity to do so by
the Court of Appeals. As pointed out by the appellate court, in its Decision,
dated 15 September 2000, in CA-G.R. SP No. 46718 –
x x x Significantly, in the resolution, dated 7 June 2000, this Court directed
the parties to file memoranda discussing, among others, the submission of
proof for "its [petitioner's] sales of gold, copper concentrates, and pyrite to
buyers." Nevertheless, the parties, including the petitioner, failed to address
this issue, thereby necessitating the affirmance of the ruling of the Court of
Tax Appeals on this point.55
Summary
Hence, although this Court agreed with the petitioner corporation that the
two-year prescriptive period for the filing of claims for refund/credit of input
VAT must be counted from the date of filing of the quarterly VAT return, and
that sales to EPZA-registered enterprises operating within economic
processing zones were effectively zero-rated and were not covered by
Revenue Regulations No. 2-88, it still denies the claims of petitioner
corporation for refund of its input VAT on its purchases of capital goods and
effectively zero-rated sales during the second, third, and fourth quarters of
1990 and the first quarter of 1992, for not being established and
substantiated by appropriate and sufficient evidence. Petitioner corporation is
also not entitled to the re-opening of its cases and/or holding of new trial
since the non-presentation of the required documentary evidence before the
BIR and the CTA by its counsel does not constitute excusable negligence or
mistake as contemplated in Section 1, Rule 37 of the revised Rules of Court.
WHEREFORE, premises considered, the instant Petitions for Review are
hereby DENIED, and the Decisions, dated 6 July 1999 and 15 September
2000, of the Court of Appeals in CA-G.R. SP Nos. 47607 and 46718,
respectively, are hereby AFFIRMED. Costs against petitioner.
G.R. No. 169442
REPUBLIC OF THE PHILIPPINES, represented by the PRIVATIZATION
AND MANAGEMENT OFFICE (PMO),Petitioner
vs.
ANTONIO V. BANEZ, LUISITA BANEZ VALERA, NENA BANEZ HOJILLA,
and EDGARDO B. HOJILLA, JR., Respondents
DECISION
PEREZ, J.:
Assailed and sought to be annulled in this Petition for Review
on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure is the
Decision1 of the Court of Appeals dated 23 August 2005 in CA-G.R. CV No.
70137, entitled "Cellophil Resources Corporation v. Antonio V. Banez, Luisita
Banez Valera, Nena Banez Hojilla and Edgardo B. Hojilla, Jr.," which affirmed
the Order2 of the Regional Trial Court (RTC), Branch 1, Bangued, Abra,
dated 16 August 2000, that dismissed the complaint of petitioner Republic of
the Philippines, represented by Privatization and Management Office (PMO),
for specific performance, recovery of possession, and damages against
respondents Antonio V. Banez, Luisita Bañez Valera, Nena Bañez Hojilla and
Edgardo B. Hojilla, Jr., docketed as Civil Case No. 1853.
The facts as culled from the records are as follows:
In 1976, Antonio V. Bañez, Luisita Bañez Valera, and Nena Bañez Hojilla
(collectively, respondents) offered for sale a parcel of land (subject property),
with an area of 20,000 sq m in Barangay Calaba, Bangued, Abra to Cellophil
Resources Corporation (CRC). Pursuant to the offer to sell on 7 December
1981, respondents executed a Letter Agreement irrevocably giving CRC the
option to purchase the subject property, which CRC accepted. The pertinent
portion of the Letter Agreement (hereinafter referred to as Contract), to wit:
1. The purchase price shall be Twenty Pesos xxx per square meter or a total
amount of Four Hundred Thousand Pesos (₱400,000.00).
2. The co-owners shall take all necessary steps to cause the CRC
Portion to be brought under the operation of Republic Act No. 496, as
amended, and to cause the issuance in their name of the corresponding
original certificate of title, all of the foregoing to be accomplished
within a reasonable time from date hereof. xxx
xxxx
7. The co-owners hereby confirm their agreement and permission to CRC’s
entry into, construction of building[s] and improvements, and occupancy of,
any portion of the Property, and xxx waive any right of action they may have
against CRC respecting such entry, construction, or occupancy by the latter
of any Portion of the Property.
8. An absolute deed of sale containing the above provisions and
standard warranties on conveyances of real property shall be executed
by the co-owners in favor of CRC or its assignee/s and the same
delivered to the latter together with the original certificate of title upon
payment of the purchase price less the advances made by CRC in
accordance with Paragraphs 2 and 3 above; provided, that payment shall
be made by CRC only upon presentation by the co-owners to CRC of
certificate/s and/or clearances, with corresponding receipts, issued by
the appropriate government office/s or agency/ies to the effect that
capital gains tax, real estate taxes on the Property and local transfer tax
and other taxes, fees or charges due on the transaction and/or on the
Property have been paid.
9. This option shall be effective from [the] date of your acceptance as
indicated by your conformity below and for a period of one (1) month from
and after CRC shall have been notified in writing by the co-owners that an
original certificate of title has been issued in their names and that they are
ready to execute the xxx deed of sale.3 (Emphasis and underscoring ours)
Respondents asked for several cash advances which reached the total
amount of, more or less, Two Hundred Seventeen Thousand Pesos
(P217,000.00), to be deducted from the purchase price of Four Hundred
Thousand Pesos (₱400,000.00). After paying cash advances to respondents,
CRC constructed staff houses and introduced improvements on the subject
property. As respondents would be staying abroad for a time, they executed
a Special Power of Attorney (SPA) in favor of Edgardo B. Hojilla (Hojilla). The
SPA authorized Hojilla to perform the following:
1. To take all steps necessary to cause a portion of the lot covered by Tax
Declaration No. 40185 in the name of Urbano Bañez which is the subject of
our "Offer to Sell" to Cellophil Resources Corporation containing an area xxx
to be brought under the operation of Republic Act No. 496, as amended, and
to cause the issuance in our name of the corresponding original certificate of
title.
2. To do all acts and things and to execute all papers and documents of
whatever nature or kind required for the accomplishments of the aforesaid
purpose.
HEREBY GRANTING AND GIVING unto our said attorney full power and
authority whatsoever requisite or necessary or proper to be done in or about
the premises as fully to all intents and purposes as we might or could lawfully
do if personally present (with power of substitution and revocation), and
hereby ratifying and confirming all that our said attorney shall do or cause to
be done under and by virtue of these presents. 4
However, CRC stopped its operation. The Development Bank of the
Philippines and National Development Company took over CRC’s operation
and turned over CRC’s equity to Asset Privatization Trust (APT), which is a
government agency created by virtue of Proclamation No. 50, as amended.
The APT’s function is to take title to and possession of, provisionally manage
and dispose of nonperforming assets of government financial institutions.
Upon the expiration of APT’s term on 31 December 2000, the government
issued Executive Order (E.O.) No. 323, which created the Privatization and
Management Office (PMO). By virtue of E.O. No. 323, the powers, functions,
and duties of APT were transferred to the PMO. Thus, the original party,
CRC, is now represented by the Republic of the Philippines through the PMO
(hereinafter referred to as petitioner), the successor of the defunct APT.
As alleged by petitioner, respondents declared afterwards the subject
property as Urbano Bañez property, rented out to third parties the staff
houses petitioner constructed, and ordered its guards to prohibit the
petitioner from entering the compound, which impelled petitioner to file a
complaint for specific performance, recovery of possession, and damages
against respondents, including Hojilla, on 10 April 2000. Among others, the
complaint prayed for respondents to surrender and deliver the title of the
subject property, and execute a deed of absolute sale in favor of petitioner
upon full payment. It mentioned three letters sent to respondents on 29 May
1991, 24 October 1991, and 6 July 1999.
In the Complaint, it was alleged that:
"[t]here is no justification, legal or otherwise for the [respondents] to
dispossess (sic) the [petitioner] from the subject property. [Petitioner] is more
than willing and able to pay the [respondents] the balance of the purchase
price of the subject parcel of land but its inability to do so was due to the
[respondents’] failure to produce the original certificate of title of the subject
parcel of land and to execute the pertinent deed of sale, as well as the
unjustified occupation by the [respondents] of the property and [of] the staff
houses built by [petitioner and that] such actions of the [respondents] are
contrary to their undertaking under condition no. 7 of the subject letter
agreement, that is, for [respondents] to permit [petitioner’s] entry into and
occupancy of any portion of the subject property and their waiver of any right
of action they may have against [petitioner] respecting such entry and
occupancy of any portion of the property. And despite repeated demands
made by [petitioner] upon the [respondents] for them to vacate and turnover
the subject parcel of land and the staff houses to [petitioner], the last of which
was in a letter dated July 6, 1999, the said [respondents] have failed and
neglected and still fail and neglect to do so up to the present time." 5
Ruling of the RTC
On 23 June 2000, Hojilla filed a Motion to Dismiss on the grounds that he
was not a real party-in-interest and that the action was barred by the Statute
of Limitations, which Motion the RTC granted in an Order dated 16 August
2000 based on Article 1144(1) of the Civil Code, which bars actions filed
beyond ten (10) years upon the execution of the written contract. According
to the RTC, the letters petitioner sent to respondents were not demands for
respondents to comply with their obligation to deliver the title as to interrupt
the running of the prescriptive period. The pertinent portion of the RTC Order
reads:
In the instant case, the defendants were given [enough] time from December
7, 1981 to comply with their obligation, hence, after a reasonable period of
time, the plaintiff should have demanded compliance of defendants’
undertakings or initiated any other action to protect its interest without waiting
for the statute of limitations to bar their claim.6
The RTC resolved that because the written contract was executed on 7
December 1981, then the complaint that was filed more than eighteen (18)
years since the contract was executed was beyond the 10-year prescriptive
period. Within that 18-year period, there was no act on the part of petitioner,
whether judicial or extrajudicial, to interrupt prescription.
While petitioner paid cash advances to respondents for the processing of the
registration of the title, "which totaled to more or less ₱217,000.00 as of
September 7, 1984 xxx to the filing of this suit, [petitioner] has not demanded
compliance by [respondents] of their obligation, that is, the execution of the
absolute deed of sale and the delivery of the Original Certificate of Title to the
property to [petitioner] upon payment of the purchase price stipulated. There
were letters addressed to [respondents] but these were not demands for
compliance of [respondents’] obligation and which is not sufficient under the
law to interrupt the prescriptive period."7
The RTC further stated that:
"[t]he parties could not have contemplated that the delivery of the property
and the payment thereof could be made indefinitely and render uncertain the
status of the land. The failure of either [of the] parties to demand
performance of the obligation of the other for an unreasonable length of time
renders the contract ineffective."8
The motion for reconsideration was likewise denied in an Order dated 5
January 2001.
On appeal, petitioner argued that the RTC erred when it dismissed the
complaint. Petitioner averred that: (1) its claim was not yet barred by
prescription; (2) the period of prescription had been interrupted by
extrajudicial demand; (3) the Statute of Limitation did not run against the
State; (4) petitioner’s claim not having prescribed, laches could not have set
in; (5) the laches of one nullified the laches of the other; and (6) laches
cannot be used to defeat justice or to perpetuate fraud and injustice.
Ruling of the Court of Appeals
The Court of Appeals affirmed the ruling of the RTC in a Decision dated 23
August 2005 on the ground that the complaint was barred by the Statute of
Limitations. Contrary to petitioner’s arguments, the Court of Appeals found
that the extrajudicial demand to respondents did not serve to toll the running
of the prescriptive period. The Court of Appeals ruled that the record is bereft
of evidence that would attest that written extrajudicial demands were sent to
respondents. While petitioner sent demand letters dated 29 May 1991 and 24
October 1991, these demand letters were not considered as demand letters
because the letters simply called the attention of Hojilla to return the
properties and unlock the gates. As regards the letter dated 6 July 1999, the
Court of Appeals ruled that because the letter was addressed to Hojilla, who
was only an attorney-in-fact authorized to register the property, it was not
binding upon the respondents. The Court of Appeals also gave no probative
value to the 6 July 1999 letter for having no proof of service.
With regard to the issue of running of prescriptive period against the State,
the Court of Appeals opined that because the subject property is a
patrimonial property of the State when APT became the controlling
stockholder of CRC, prescription may run against the State. Thus, the
reasonable period within which to register the property is three (3) years.
According to the Court of Appeals, the cause of action of petitioner accrued
three (3) years from the time the Contract was executed on 7 December
1981 or, to say the least, on 15 August 1984 when Hojilla sent the
acknowledgment letter dated 15 August 1984, at which time it became clear
that respondents could no longer fulfill their obligation.
Hence, petitioner is before us raising the following arguments:
A. The Court of Appeals erred in ruling that the running of the prescriptive
period was not interrupted when respondents acknowledged their still
unfulfilled obligation to initiate proceedings for the registration of title of the
subject property and at the same time committed that they will only claim the
full payment of the property upon presentation of a clean title and execution
of a Deed of Sale signed by the heirs as stated in the letter dated August 15,
1984.
B. The Court of Appeals erred in affirming the outright dismissal of
petitioner’s suit for specific performance, recovery of possession and
damages on the basis of prescription even as it is evident that there is a
need to fix a period considering that the performance of the condition or
obligation is dependent upon the will of respondents.
C. The Court of Appeals erred in ignoring certain manifest equitable
considerations which militate against a resort to a purely mathematical
computation of the prescriptive period and in disregarding the provision of the
irrevocable offer that the option remains effective for a period of one month
from and after notice that a certificate of title has been issued. 9
The main issue is whether or not the complaint for specific performance was
filed beyond the prescriptive period.
Petitioner’s Arguments
The petitioner argues that although there is a 10-year limitation within which
to file a case based on a written contract, the period was interrupted due to a
written acknowledgment of respondents’ obligation and demand by petitioner.
The argument is based on Article 1155 of the Civil Code, which provides that
the running of the prescriptive period is interrupted when there is a written
extrajudicial demand by the creditors, and when there is any written
acknowledgment of the debt by the debtor.
The petitioner referred to the letter sent by Hojilla to the former dated 15
August 1984, and letters given by petitioner to Hojilla dated 29 May 1991, 24
October 1991, and 6 July 1999. In the letter dated 15 August 1984,
respondents affirmed their undertaking that they will claim full payment of the
property upon presentation of a clean title and the execution of the Absolute
Deed of Sale, which reads, "[t]he Bañez heirs will only claim for the full
payment of the property upon presentation of a clean title and execution of a
Deed of Sale signed by the heirs."10
Based on Hojilla’s representation as stated in the letter dated 15 August
1984, petitioner argues that Hojilla is estopped by his own acts and for
misleading petitioner because "respondents not only failed to comply with
their commitment to deliver a certificate of title but where [sic] they also
[misled] petitioner into believing that they were working on the title of the
subject property even as they had[,] at the back of their mind[s], the running
of the statute of limitations as an arsenal once petitioner demands the
fulfillment of their obligation."11
The petitioner further added that because there was no period fixed for the
fulfillment or performance of the obligation to deliver the title, the least the
court should have done was to fix the period pursuant to Article 1197 of the
Civil Code.
Finally, the petitioner posits that pursuant to paragraph 9 of the Contract, its
obligation is conditioned upon respondents’ obligation, which is to deliver the
title. Thus, because the respondents failed to deliver such, the obligation of
petitioner never ripened.
Respondents’ Arguments
The arguments of respondents, which are aligned with the reasons of the
lower courts, rely on Article 1144 of the Civil Code, which provides that
actions upon a written contract must be brought within ten (10) years from
execution. Because the complaint was filed beyond the 10-year prescriptive
period, the action was already barred by the Statute of Limitations. Further,
during such period, petitioner failed to act either judicially or extrajudicially to
effectively interrupt the running of the prescriptive period. Thus, the complaint
must be dismissed for having been extinguished by the Statute of
Limitations.
Our Ruling
We rule in favor of the petitioner.
We deem material, for the resolution of the issues in this case, the letters that
were exchanged by the parties.
We shall discuss each letter in seriatim.
Hojilla’s letter dated 15 August 1984
In Hojilla’s letter to petitioner dated 15 August 1984, Hojilla updated petitioner
of the status of the subject property’s title, in this wise:
The preparation of the advance survey plan, technical description and
Engineer’s Certificate pursuant to Land Administrative Order No. 10- 4 has
been submitted to the Regional Land Office, and approved by the Regional
Director.
Atty. Valera is now in the process of preparing the petition papers of the
Calaba property for submission to the local court.12
There is no other logical conclusion but that the 15 August 1984 letter is an
acknowledgment of respondents’ commitment under the Contract. The letter
served to update petitioner of the status of the subject property’s title, an
obligation agreed upon by the parties in the Contract. It would be specious to
argue that respondents did not acknowledge the existence of the Contract
and yet, send correspondence to petitioner updating it of the status of the
application for title on the subject property. Therefore, the letter dated 15
August 1984 served as a written acknowledgment of debt or obligation of
respondents.
In Philippine National Railways v. NLRC,13 it was stated that a written
acknowledgment of debt or obligation effectively interrupts the running of the
prescriptive period and sets the same running anew. 14 Hence, because
Hojilla’s letter dated 15 August 1984 served as a written acknowledgement of
the respondents’ debt or obligation, it interrupted the running of the
prescriptive period and set the same running anew with a new expiry period
of 15 August 1994.
Petitioner’s letters dated 29 May
1991 and 24 October 1991
With regard to the letters petitioner sent to Hojilla dated 29 May 1991 and 24
October 1991, the RTC ruled that these letters were insufficient under the law
to interrupt the prescriptive period because these were not demand letters.
We lift the pertinent portion from the letter dated 29 May 1991, which
demanded respondents to return the properties and to unlock the gates:
Under the agreement to purchase the lot, APT-CRC shall pay the whole of
the purchase price thereof when the certificate of title and other documents
enumerated therein are presented to it. Clearly, the consummation of the
sale is within your control. x x x
In view of the foregoing, demand is hereby made upon you and your
principals, the heirs of Urbano Bañez, to return the properties
withdrawn and to unlock the gates leading to the staffhouses (sic),
within fifteen (15) days from receipt thereof, otherwise we will be
constrained to institute the necessary action to protect the interest of
APT-CRC.15 (Emphasis and underscoring ours)
In the same vein, the letter dated 24 October 1991 demanded respondents to
discontinue the construction, repair, demolition, and occupancy of several
staff houses. A pertinent portion of the 24 October 1991 letter reads:
Considering that these action (sic) are unauthorized, they constitute
violations of the irrevocable option to purchase dated December 7, 1981,
which remains valid, binding and effective to this day. Demand is hereby
made upon you to discontinue such unauthorized acts and vacate the
premises within fifteen (15) days from receipt hereof.16 x x x (Emphasis
and underscoring ours)
We do not agree with the lower courts. Clearly, the 29 May 1991 and 24
October 1991 letters demanded respondents to return the properties,
discontinue the construction, repair, demolition and occupancy of several
staff houses, and unlock the gates, which is to enforce respondents’
obligations pursuant to paragraph 7 of the Contract which reads:
7. The co-owners hereby confirm their agreement and permission to CRC’s
entry into, construction of building and improvements, and occupancy of, any
portion of the Property, and hereby accordingly waive any right of action they
may have against CRC respecting such entry, construction, or occupancy by
the latter of any Portion of the Property.17
The letters dated 29 May 1991 and 24 October 1991 are deemed demand
letters as contemplated under Article 1155. They are demand letters to
enforce respondents’ obligation under the Contract, which is to cede
possession to petitioner. The letters interrupted the running of the
prescriptive period which commenced to run anew.
Petitioner’s letter dated 6 July 1999
Compared to the letters dated 29 May and 24 October 1991, which
demanded Hojilla to surrender possession of the subject property, this time,
in petitioner’s letter to Hojilla dated 6 July 1999, petitioner demanded Hojilla
to produce the title of the subject property. However, despite the fact that the
letter was a clear demand of the nature contemplated by law that would
interrupt the prescriptive period, the Court of Appeals found that (1) the letter
did not effectively interrupt the prescriptive period because the complaint had
long prescribed; (2) the letter was addressed to the wrong party; and, finally,
(3) the letter did not bear any proof of service or receipt.
We do not agree.
Hojilla’s SPA
We refer to the SPA, which granted the authority of Hojilla.
When respondents went abroad pending the performance of their obligations
in the Contract, they authorized Hojilla to register the subject property— a
single obligation in the whole range of obligations in the Contract. The SPA
appeared to have left no representative to fulfill respondents’ obligations in
the Contract on their behalf except for Hojilla’s authority to register the
subject property. The pertinent portion of the SPA reads:
1. To take all steps necessary to cause a portion of the lot covered by
Tax Declaration No. 40185 in the name of Urbano Bañez which is the
subject of our "Offer to Sell" to Cellophil Resources Corporation
containing an area xxx to be brought under the operation of Republic
Act No. 496, as amended, and to cause the issuance in our name of the
corresponding original certificate of title.
2. To do all acts and things and to execute all papers and documents of
whatever nature or kind required for the accomplishments of the aforesaid
purpose.
HEREBY GRANTING AND GIVING unto our said attorney full power and
authority whatsoever requisite or necessary or proper to be done in or about
the premises as fully to all intents and purposes as we might or could lawfully
do if personally present (with power of substitution and revocation), and
hereby ratifying and confirming all that our said attorney shall do or cause to
be done under and by virtue of these presents. 18 (Emphasis and
underscoring ours)
This was read simply by the lower courts as limiting Hojilla’s authority to the
registration of the subject property under the name of his principal, and all
the necessary acts for such purpose. It observed that nowhere in the SPA
was Hojilla authorized as administrator or agent of respondents with respect
to the execution of the Contract.
In the case at bar, the reliefs prayed for by petitioner include the execution of
the Contract such as delivery of the subject title, recovery of possession of
the subject property, execution of the deed of sale or transfer of absolute
ownership upon full payment of the balance, and damages for alleged
violation of respondents of the Contract for non-delivery of the title and
refusal to vacate the subject property. Indeed, following the reading of the
lower courts of the scope of Hojilla’s authority, Hojilla is neither the proper
party to execute the Contract nor the proper party to receive the demand
letters on behalf of respondents.
This strict construction of the tenor of the SPA will render the obligatory force
of the Contract ineffective. Construction is not a tool to prejudice or commit
fraud or to obstruct, but to attain justice. Ea Est Accipienda Interpretatio
Quae Vitio Caret. To favor the lower court’s interpretation of the scope of
Hojilla’s power is to defeat the juridical tie of the Contract—the vinculum
juris of the parties. As no one was authorized to represent respondents in the
Contract, then petitioner cannot enforce the Contract, as it were. This is an
absurd interpretation of the SPA. It renders the Contract ineffective for lack of
a party to execute the Contract.
Contrary to the findings of the lower court, the present case is a case of an
express agency, where, Hojilla, the agent, binds himself to represent another,
the principal, who are herein respondents, with the latter’s express consent
or authority.19 In a contract of agency, the agent acts for and in behalf of the
principal on matters within the scope of the authority conferred upon him,
such that, the acts of the agent have the same legal effect as if they were
personally done by the principal.20 Because there is an express authority
granted upon Hojilla to represent the respondents as evidenced by the SPA,
Hojilla’s actions bind the respondents.
As agent, the representations and guarantees of Hojilla are considered
representations and guarantees of the principal. This is the principle of
agency by promissory estoppel. We refer to the evidence on record. It was
Hojilla who administered and/or managed the subject property. 21 Based on
Hojilla’s letter dated 15 August 1984 to petitioner, Hojilla made the
representation that besides being the attorney-in-fact of the respondents with
limited authority to register the property, he was also their agent with regard
to respondents’ other obligations related to the Contract. The pertinent
portion of the 15 August 1984 letter of Hojilla to petitioner reads:
Regarding our loan with the National Electrification Administration (NEA),
Hon. Mel Mathay who is helping the Bañez heirs has initiated negotiations
with NEA for Abreco to purchase our lot in front of the Provincial Jail to offset
our loan with NEA.22
Also, one glaring fact that cannot escape us is Hojilla’s representation and
guarantee that petitioner’s obligation will only arise upon presentation of a
clean title and execution of a Deed of Sale signed by the respondents’ heirs,
which reads, "[t]he Bañez heirs will only claim for the full payment of the
property upon presentation of a clean title and execution of a Deed of
Sale signed by the heirs."23
If Hojilla knew that he had no authority to execute the Contract and receive
the letters on behalf of respondents, he should have opposed petitioner’s
demand letters. However, having received the several demand letters from
petitioner, Hojilla continuously represented himself as the duly authorized
agent of respondents, authorized not only to administer and/or manage the
subject property, but also authorized to register the subject property and
represent the respondents with regard to the latter’s obligations in the
Contract. Hojilla also assured petitioner that petitioner’s obligation to pay will
arise only upon presentation of the title.
Clearly, the respondents are estopped by the acts and representations of
their agent. Falling squarely in the case at bar is our pronouncement
in Philippine National Bank v. IAC (First Civil Cases Div.),24 "[h]aving given
that assurance, [Hojilla] may not turn around and do the exact opposite of
what [he] said [he] would do. One may not take inconsistent positions. A
party may not go back on his own acts and representations to the prejudice
of the other party who relied upon them."25
Assuming further that Hojilla exceeded his authority, the respondents are still
solidarily liable because they allowed Hojilla to act as though he had full
powers by impliedly ratifying Hojilla’s actions—through action by
omission.26 This is the import of the principle of agency by estoppel or the
doctrine of apparent authority.
In an agency by estoppel or apparent authority, "[t]he principal is bound by
the acts of his agent with the apparent authority which he knowingly permits
the agent to assume, or which he holds the agent out to the public as
possessing."27
The respondents’ acquiescence of Hojilla’s acts was made when they failed
to repudiate the latter’s acts. They knowingly permitted Hojilla to represent
them and petitioners were clearly misled into believing Hojilla’s authority.
Thus, the respondents are now estopped from repudiating Hojilla’s authority,
and Hojilla’s actions are binding upon the respondents.
Receipt of the Letters
Time and time again, this Court has reiterated it is not a trier of facts and
parties may raise only questions of law.1âwphi1The jurisdiction of the Court
is limited to reviewing errors of law and findings of fact of the Court of
Appeals are conclusive because it is not the Court’s function to review,
examine, and evaluate or weigh the evidence all over again. 28 The rule,
however, is not without exceptions, viz.:
(1) [W]hen the [conclusion is a finding] grounded entirely on speculations,
surmises [and] conjectures;
(2) [W]hen the inference made is manifestly mistaken, absurd or impossible;
(3) [W]hen there is grave abuse of discretion;
(4) [W]hen the judgment is based on a misapprehension of facts;
(5) [W]hen the findings of fact are conflicting;
(6) [W]hen xxx the Court of Appeals[, in making its findings,] went beyond the
issues of the case [and the same is] contrary to the admissions of both the
appellant and the appellee;
(7) [W]hen the findings are contrary to [those] of the trial court;
(8) [W]hen the findings [of fact] are conclusions without citation of specific
evidence on which they are based;
(9) [W]hen the facts set forth in the petition as well as in the petitioner’s main
and reply briefs are not disputed by the respondents;
(10) [W]hen the findings of fact [of the Court of Appeals] are premised on the
supposed absence of evidence and contradicted by the evidence on record
and
(11) [When] the Court of Appeals manifestly overlooked certain irrelevant
facts not disputed by the parties, which, if properly considered, would justify a
different conclusion.29
In the case at bar, the findings of the RTC and the Court of Appeals are
contradictory: the RTC did not make any finding on the receipt of the demand
letters by Hojilla, while the Court of Appeals resolved that assuming
arguendo that the letters were demand letters contemplated under Article
1155 of the Civil Code, the same are unavailing because the letters do not
bear any proof of service of receipt by respondents.
A perusal of the records reveals that only the 24 October 1991 letter has no
proof of receipt.30 The demand letters dated 29 May 199131 and 6 July
199932 contain proofs of receipt.
Thus, the core issue of whether or not the action has prescribed.
An action based on a written contract must be brought within ten (10) years
from the time the right of action accrued. Accordingly, a cause of action on a
written contract accrues only when an actual breach or violation thereof
occurs.33 A cause of action has three elements, to wit: (1) a right in favor of
the plaintiff by whatever means and under whatever law it arises or is
created; (2) an obligation on the part of the named defendant to respect or
not to violate such right; and (3) an act or omission on the part of such
defendant violative of the right of the plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff.34
By the contract between the herein parties, the cause of action accrued at
the point when the reasonable time within which to present the title lapsed.
The parties did not determine the date when the respondents must present
the title and other documents to the petitioner. The parties only agreed that
the respondents must present the same within a "reasonable time."
Reasonable time means "so much time as is necessary under the
circumstances for a reasonably prudent and diligent man to do, conveniently,
what the contract or duty requires that should be done, having a regard for
the rights and possibility of loss, if any, to the other party." 35 Such reasonable
time was determined by the respondents through the letter dated 15 August
1984. The respondents acknowledged their obligation to deliver the title and
asked for a new period to do so. It states:
The preparation of the advance survey plan, technical description and
Engineer’s Certificate pursuant to Land Administrative Order No. 10-4 has
been submitted to the Regional Land Office, and approved by the Regional
Director.
Atty. Valera is now in the process of preparing the petition papers of the
Calaba property for submission to the local court.
xxxx
The Bañez heirs will only claim for the full payment of the property upon
presentation of a clean title and execution of a Deed of Sale signed by the
heirs.36
The accrual of the cause of action to demand the titling of the land cannot be
earlier than 15 August 1984. So that, the petitioner can sue on the contract
until 15 August 1994. Prior to the expiration of the aforesaid period, the
petitioner sent a demand letter to Hojilla dated 29 May 1991. A few months
thereafter, petitioner sent another demand letter to Hojilla dated 24 October
1991.37 The prescriptive period was interrupted on 29 May 1991.The
consequence is stated in Article 1155 of the Civil Code. It states, "[t]he
prescription of actions is interrupted when they are filed before the court,
when there is a written extrajudicial demand by the creditors, and when there
is any written acknowledgment of the debt by the debtor." Following the law,
the new ten-year period for the filing of a case by the petitioner should be
counted from 29 May 1991, ending on 29 May 2001. The complaint at bar
was filed on 10 April 2000, well within the required period.
Notably, before the expiration of the new prescriptive period, the petitioner
again sent a new demand letter on 6 July 1999, which again caused the
same to run anew, which will expire on 6 July 2009. The complaint filed on 10
April 2000 was timely.
The Contract and True Intent of the Parties
Based on the stipulation in the Contract, the parties agreed that payment
shall be made only upon presentation of the title and other documents of the
subject property to petitioner. Paragraph 8 of the Contract reads:
8. An absolute deed of sale containing the above provisions and standard
warranties on conveyances of real property shall be executed by the co-
owners in favor of CRC or its assignee/s and the same delivered to the latter
together with the original certificate of title upon payment of the purchase
price less the advances made by CRC in accordance with Paragraphs 2 and
3 above; provided, that payment shall be made by CRC only upon
presentation by the co-owners to CRC of certificate/s and/or
clearances, with corresponding receipts, issued by the appropriate
government office/s or agency/ies to the effect that capital gains tax,
real estate taxes on the Property and local transfer tax and other taxes,
fees or charges due on the transaction and/or on the Property have
been paid.38 (Emphasis and underscoring ours)
The true intent of the parties is further enunciated in Hojilla's letter to
petitioner dated 15 August 1984, which stated, "[t]he Baiiez heirs will only
claim for the full payment of the property upon presentation of a clean title
and execution of a Deed of Sale signed by the heirs." 39
To rule in favor of respondents despite their failure to perform their
obligations is the height of injustice. Respondents cannot benefit from their
own inaction and failure to comply with their obligations in the Contract and
let the petitioner suffer from respondents' own default.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals dated 23 August 2005 in CA-G.R. CV No. 70137, affirming the Order
of the Regional Trial Court, which ruled that the action has prescribed, is
reversed and set aside. Let the records of this case be REMANDED to the
court of origin, which is DIRECTED to admit the Answer with Counterclaim of
the petitioner for further trial on the merits. The respondents are further
ordered to return possession of the subject property to petitioner. No
pronouncement as to costs.
MANILA, BRANCH XVIII, and JUANITO DE LA CRUZ Y NUNEZ, SABINO
BUENO Y CACAL, TIRSO ISAGAN Y FRANCISCO and BEN CASTILLO Y
UBALDO, respondents.
G.R. No. L-46997 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE WENCESLAO M. POLO, Judge of the Court of First
Instance of Samar, and PANCHITO REFUNCION, respondents.
Jose L. Gamboa, Fermin Martin, Jr. & Jose D. Cajucom, Office of the City of
Fiscal of Manila and the Office of Provincial Fiscal of Samar for petitioners.
Norberto Parto for respondents Candelosas, Baes and Garcia.
Amado C. de la Marced for respondents Simeon Bundalian Jr., et al.

SO ORDERED. Manuel F. de Jesus for all the respondents in L-46229-32 and L-46313-16.

G.R. No. L-42050-66 November 20, 1978 Norberto L. Apostol for respondent Panchito Refuncion.

THE PEOPLE OF THE PHILIPPINES, petitioner, Hon. Amante P. Purisima for and in his own behalf.
vs.
HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST
INSTANCE OF MANILA, BRANCH VII, and PORFIRIO CANDELOSAS, MUÑOZ PALMA, J.:
NESTOR BAES, ELIAS L. GARCIA, SIMEON BUNDALIAN, JR., JOSEPH
C. MAISO, EDUARDO A. LIBORDO, ROMEO L. SUGAY, FEDERICO T. These twenty-six (26) Petitions for Review filed by the People of the
DIZON, GEORGE M. ALBINO, MARIANO COTIA, JR., ARMANDO L. Philippines represented, respectively, by the Office of the City Fiscal of
DIZON, ROGELIO B. PARENO, RODRIGO V. ESTRADA, ALFREDO A. Manila, the Office of the Provincial Fiscal of Samar, and joined by the
REYES, JOSE A. BACARRA, REYNALDO BOGTONG, and EDGARDO M. Solicitor General, are consolidated in this one Decision as they involve one
MENDOZA, respondents. basic question of law.

G.R. No. L-46229-32 November 20, 1978 These Petitions or appeals involve three Courts of First Instance, namely: the
Court of First Instance of Manila, Branch VII, presided by Hon. Amante P.
THE PEOPLE OF THE PHILIPPINES, petitioner, Purisima (17 Petitions), the Court of First Instance of Manila, Branch XVIII,
vs. presided by Hon. Maximo A. Maceren (8 Petitions) and, the Court of First
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF Instance of Samar, with Hon. Wenceslao M. Polo, presiding, (1 Petition).
MANILA, BRANCH XVIII, and REYNALDO LAQUI Y AQUINO, ELPIDIO
ARPON, VICTOR EUGENIO Y ROQUE and ALFREDO Before those courts, Informations were filed charging the respective accused
VERSOZA, respondents. with "illegal possession of deadly weapon" in violation of Presidential Decree
No. 9. On a motion to quash filed by the accused, the three Judges
G.R. No. L-46313-16 November 20, 1978 mentioned above issued in the respective cases filed before them — the
details of which will be recounted below — an Order quashing or dismissing
THE PEOPLE OF THE PHILIPPINES, petitioner,
the Informations, on a common ground, viz, that the Information did not
vs.
allege facts which constitute the offense penalized by Presidential Decree
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF
No. 9 because it failed to state one essential element of the crime.
Thus, are the Informations filed by the People sufficient in form and PD 9 IN REL. TO LOI
substance to constitute the offense of "illegal possession of deadly weapon"
penalized under Presidential Decree (PD for short) No. 9? This is the central No. 266 of the Chief
issue which we shall resolve and dispose of, all other corollary matters not Executive dated April 1, 1975
being indispensable for the moment.
INFORMATION
A — The Information filed by the People —
The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION
1. In L-42050-66, one typical Information filed with the Court presided by OF PARAGRAPH 3, PRESIDENTIAL DECREE NO. 9 in relation to Letter of
Judge Purisima follows: Instruction No. 266 of the Chief Executive dated April 1, 1975, committed as
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO follows:
CANDELOSAS Y DURAN, accused. That on or about the 28 th day of January, 1977, in the City of Manila,
Crim. Case No. 19639 Philippines, the said accused did then and there wilfully, unlawfully and
knowingly carry outside of his residence a bladed and pointed weapon, to
VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081 wit: an ice pick with an overall length of about 8½ inches, the same not being
used as a necessary tool or implement to earn his livelihood nor being used
INFORMATION in connection therewith.
The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a Contrary to law. (p. 14, rollo of L-46229-32)
violation of paragraph 3, Presidential Decree No. 9 of Proclamation 1081,
committed as follows: The other Informations are likewise similarly worded except for the name of
the accused, the date and place of the commission of the crime, and the kind
That on or about the 14 th day of December, 1974, in the City of Manila, of weapon involved.
Philippines, the said accused did then and there wilfully, unlawfully,
feloniously and knowingly have in his possession and under his custody and 3. In L-46997, the Information before the Court of First Instance of Samar is
control one (1) carving knife with a blade of 6-½ inches and a wooden handle quoted hereunder:
of 5-1/4 inches, or an overall length of 11-¾ inches, which the said accused
carried outside of his residence, the said weapon not being used as a tool or PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO
implement necessary to earn his livelihood nor being used in connection REFUNCION, accused.
therewith. CRIM. CASE NO. 933
Contrary to law. (p. 32, rollo of L-42050-66) For:
The other Informations are similarly worded except for the name of the ILLEGAL POSSESSION OF
accused, the date and place of the commission of the crime, and the kind of
weapon involved. DEADLY WEAPON

2. In L-46229-32 and L-46313-16, the Information filed with the Court (VIOLATION OF PD NO. 9)
presided by Judge Maceren follows:
INFORMATION
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y
The undersigned First Assistant Provincial Fiscal of Samar, accuses
AQUINO, accused.
PANCHITO REFUNCION of the crime of ILLEGAL POSSESSION OF
CRIM. CASE NO. 29677 DEADLY WEAPON or VIOLATION OF PD NO. 9 issued by the President of
the Philippines on Oct. 2, 1972, pursuant to Proclamation No. 1081 dated
VIOL. OF PAR. 3, Sept. 21 and 23, 1972, committed as follows:
That on or about the 6th day of October, 1976, in the evening at Barangay
Barruz, Municipality of Matuginao, Province of Samar Philippines, and within
the jurisdiction of this Honorabe Court, the abovenamed accused, knowingly,
wilfully, unlawfully and feloniously carried with him outside of his residence a
deadly weapon called socyatan, an instrument which from its very nature is
no such as could be used as a necessary tool or instrument to earn a
livelihood, which act committed by the accused is a Violation of Presidential
Decree No. 9.
CONTRARY TO LAW. (p. 8, rollo of L-46997)
B. — The Orders of dismissal —
In dismissing or quashing the Informations the trial courts concurred with the
submittal of the defense that one essential element of the offense charged is
missing from the Information, viz: that the carrying outside of the accused's
residence of a bladed, pointed or blunt weapon is in furtherance or on the
occasion of, connected with or related to subversion, insurrection, or
rebellion, organized lawlessness or public disorder.
1. Judge Purisima reasoned out, inter alia, in this manner:
... the Court is of the opinion that in order that possession of bladed weapon
or the like outside residence may be prosecuted and tried under P.D. No. 9,
the information must specifically allege that the possession of bladed
weapon charged was for the purpose of abetting, or in furtherance of the
conditions of rampant criminality, organized lawlessness, public disorder, etc.
as are contemplated and recited in Proclamation No. 1081, as justification
therefor. Devoid of this specific allegation, not necessarily in the same words,
the information is not complete, as it does not allege sufficient facts to
constitute the offense contemplated in P.D. No. 9. The information in these
cases under consideration suffer from this defect.
xxx xxx xxx
And while there is no proof of it before the Court, it is not difficult to believe
the murmurings of detained persons brought to Court upon a charge of
possession of bladed weapons under P.D. No. 9, that more than ever before,
policemen - of course not all can be so heartless — now have in their hands
P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk
of being sentenced to imprisonment of five to ten years for a rusted kitchen
knife or a pair of scissors, which only God knows where it came from.
Whereas before martial law an extortion-minded peace officer had to have a
stock of the cheapest paltik, and even that could only convey the coercive
message of one year in jail, now anything that has the semblance of a sharp
edge or pointed object, available even in trash cans, may already serve the
same purpose, and yet five to ten times more incriminating than the
infamous paltik.
For sure, P.D. No. 9 was conceived with the best of intentions and wisely
applied, its necessity can never be assailed. But it seems it is back-firing,
because it is too hot in the hands of policemen who are inclined to
backsliding.
The checkvalves against abuse of P.D. No. 9 are to be found in the heart of
the Fiscal and the conscience of the Court, and hence this resolution, let
alone technical legal basis, is prompted by the desire of this Court to apply
said checkvalves. (pp. 55-57, rollo of L-42050-66)
2. Judge Maceren in turn gave his grounds for dismissing the charges as
follows:
xxx xxx xxx
As earlier noted the "desired result" sought to be attained by Proclamation
No. 1081 is the maintenance of law and order throughout the Philippines and
the prevention and suppression of all forms of lawless violence as well as
any act of insurrection or rebellion. It is therefore reasonable to conclude
from the foregoing premises that the carrying of bladed, pointed or blunt
weapons outside of one's residence which is made unlawful and punishable
by said par. 3 of P.D. No. 9 is one that abetssubversion, insurrection or
rebellion, lawless violence, criminality, chaos and public disorder or is
intended to bring about these conditions. This conclusion is further
strengthened by the fact that all previously existing laws that also made the
carrying of similar weapons punishable have not been repealed, whether
expressly or impliedly. It is noteworthy that Presidential Decree No. 9 does
not contain any repealing clause or provisions.
xxx xxx xxx
The mere carrying outside of one's residence of these deadly weapons if not
concealed in one's person and if not carried in any of the aforesaid specified
places, would appear to be not unlawful and punishable by law.
With the promulgation of Presidential Decree No. 9, however, the
prosecution, through Assistant Fiscal Hilario H. Laqui, contends in his
opposition to the motion to quash, that this act is now made unlawful and
punishable, particularly by paragraph 3 thereof, regardless of the intention of
the person carrying such weapon because the law makes it "mala prohibita".
If the contention of the prosecution is correct, then if a person happens to be
caught while on his way home by law enforcement officers carrying a kitchen
knife that said person had just bought from a store in order that the same
may be used by one's cook for preparing the meals in one's home, such
person will be liable for punishment with such a severe penalty as
imprisonment from five to ten years under the decree. Such person cannot
claim that said knife is going to be used by him to earn a livelihood because
he intended it merely for use by his cook in preparing his meals.
This possibility cannot be discounted if Presidential Decree No. 9 were to be
interpreted and applied in the manner that that the prosecution wants it to be
done. The good intentions of the President in promulgating this decree may
thus be perverted by some unscrupulous law enforcement officers. It may be
used as a tool of oppression and tyranny or of extortion.
xxx xxx xxx
It is therefore the considered and humble view of this Court that the act
which the President intended to make unlawful and punishable by
Presidential Decree No. 9, particularly by paragraph 3 thereof, is one
that abets or is intended to abet subversion, rebellion, insurrection, lawless
violence, criminality, chaos and public disorder. (pp. 28-30, rollo of L-46229-
32)
3. Judge Polo of the Court of First Instance of Samar expounded his order
dismissing the Information filed before him, thus:
... We believe that to constitute an offense under the aforcited Presidential
decree, the same should be or there should be an allegation that a felony
was committed in connection or in furtherance of subversion, rebellion,
insurrection, lawless violence and public disorder. Precisely Proclamation
No. 1081 declaring a state of martial law throughout the country was issued
because of wanton destruction to lives and properties widespread
lawlessness and anarchy. And in order to restore the tranquility and stability
of the country and to secure the people from violence anti loss of lives in the
quickest possible manner and time, carrying firearms, explosives and deadly
weapons without a permit unless the same would fall under the exception is
prohibited. This conclusion becomes more compelling when we consider the
penalty imposable, which is from five years to ten years. A strict enforcement
of the provision of the said law would mean the imposition of the Draconian
penalty upon the accused.
xxx xxx xxx
It is public knowledge that in rural areas, even before and during martial law,
as a matter of status symbol, carrying deadly weapons is very common, not
necessarily for committing a crime nor as their farm implement but for self-
preservation or self-defense if necessity would arise specially in going to and
from their farm. (pp. 18-19, rollo of L-46997)
In most if not all of the cases, the orders of dismissal were given before
arraignment of the accused. In the criminal case before the Court of (First
Instance of Samar the accused was arraigned but at the same time moved to
quash the Information. In all the cases where the accused were under arrest,
the three Judges ordered their immediate release unless held on other
charges.
C. — The law under which the Informations in question were filed by the
People.
As seen from the Informations quoted above, the accused are charged with
illegal possession of deadly weapon in violation of Presidential Decree No. 9,
Paragraph 3.
We quote in full Presidential Decree No. 9, to wit:
PRESIDENTIAL DECREE NO. 9
DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7
DATED SEPTEMBER 22, 1972, AND SEPTEMBER 23, 1972,
RESPECTIVELY, TO BE UNLAWFUL AND PROVIDING PENALTIES
THEREFORE.
WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972,
the Philippines has been placed under a state of martial law;
WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6
dated September 22, 1972 and General Order No. 7 dated September 23,
1972, have been promulgated by me;
WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality,
chaos and public disorder mentioned in the aforesaid Proclamation No. 1081
are committed and abetted by the use of firearms, explosives and other
deadly weapons;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of
all the Armed Forces of the Philippines, in older to attain the desired result of
the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do
hereby order and decree that:
1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and
the violator shall, upon conviction suffer:
(a) The mandatory penalty of death by a firing squad or electrocution as a
Military, Court/Tribunal/Commission may direct, it the firearm involved in the
violation is unlicensed and is attended by assault upon, or resistance to
persons in authority or their agents in the performance of their official
functions resulting in death to said persons in authority or their agent; or if
such unlicensed firearm is used in the commission of crimes against
persons, property or chastity causing the death of the victim used in violation
of any other General Orders and/or Letters of Instructions promulgated under
said Proclamation No. 1081:
(b) The penalty of imprisonment ranging from twenty years to life
imprisonment as a Military Court/Tribunal/commission may direct, when the
violation is not attended by any of the circumstances enumerated under the
preceding paragraph;
(c) The penalty provided for in the preceding paragraphs shall be imposed
upon the owner, president, manager, members of the board of directors or
other responsible officers of any public or private firms, companies,
corporations or entities who shall willfully or knowingly allow any of the
firearms owned by such firm, company, corporation or entity concerned to be
used in violation of said General Orders Nos. 6 and 7.
2. It is unlawful to posses deadly weapons, including hand grenades, rifle
grenades and other explosives, including, but not limited to, "pill box bombs,"
"molotov cocktail bombs," "fire bombs," or other incendiary device consisting
of any chemical, chemical compound, or detonating agents containing
combustible units or other ingredients in such proportion, quantity, packing,
or bottling that ignites by fire, by friction, by concussion, by percussion, or by
detonation of all or part of the compound or mixture which may cause such a
sudden generation of highly heated gases that the resultant gaseous
pressures are capable of producing destructive effects on continguous
objects or of causing injury or death of a person; and any person convicted
thereof shall be punished by imprisonment ranging from ten to fifteen years
as a Military Court/Tribunal/Commission may direct.
3. It is unlawful to carry outside of residence any bladed, pointed or blunt
weapon such as "fan knife," "spear," "dagger," "bolo," "balisong," "barong,"
"kris," or club, except where such articles are being used as necessary tools
or implements to earn a livelihood and while being used in connection
therewith; and any person found guilty thereof shall suffer the penalty of
imprisonment ranging from five to ten years as a Military
Court/Tribunal/Commission may direct.
4. When the violation penalized in the preceding paragraphs 2 and 3 is
committed during the commission of or for the purpose of committing, any
other crime, the penalty shall be imposed upon the offender in its maximum
extent, in addition to the penalty provided for the particular offenses
committed or intended to be committed.
Done in the City of Manila, this 2nd day of October in the year of Our Lord,
nineteen hundred and seventy-two.
(SGD) FERDINAND E. MARCOS
President
Republic of the Philippines
D. — The arguments of the People —
In the Comment filed in these cases by the Solicitor General who as stated
earlier joins the City Fiscal of Manila and the Provincial Fiscal of Samar in
seeking the setting aside of the questioned orders of dismissal, the main
argument advanced on the issue now under consideration is that a perusal
of paragraph 3 of P.D. 9 'shows that the prohibited acts need not be related
to subversive activities; that the act proscribed is essentially a malum
prohibitum penalized for reasons of public policy.1
The City Fiscal of Manila in his brief adds further that in statutory offenses
the intention of the accused who commits the act is immaterial; that it is
enough if the prohibited act is voluntarily perpetuated; that P.D. 9 provides
and condemns not only the carrying of said weapon in connection with the
commission of the crime of subversion or the like, but also that of criminality
in general, that is, to eradicate lawless violence which characterized pre-
martial law days. It is also argued that the real nature of the criminal charge
is determined not from the caption or preamble of the information nor from
the specification of the provision of law alleged to have been violated but by
the actual recital of facts in the complaint or information. 2
E. — Our Ruling on the matter —
1. It is a constitutional right of any person who stands charged in a criminal
prosecution to be informed of the nature and cause of the accusation against
him.3
Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly
requires that for a complaint or information to be sufficient it must, inter alia
state the designation of the offense by the statute, and the acts or omissions
complained of as constituting the offense. This is essential to avoid surprise
on the accused and to afford him the opportunity to prepare his defense
accordingly. 4
To comply with these fundamental requirements of the Constitution and the
Rules on Criminal Procedure, it is imperative for the specific statute violated
to be designated or mentioned 4 in the charge. In fact, another compelling
reason exists why a specification of the statute violated is essential in these
cases. As stated in the order of respondent Judge Maceren the carrying of
so-called "deadly weapons" is the subject of another penal statute and a
Manila city ordinance. Thus, Section 26 of Act No. 1780 provides:
Section 26. It should be unlawful for any person to carry concealed about his
person any bowie knife, dirk dagger, kris, or other deadly weapon: ... Any
person violating the provisions of this section shall, upon conviction in a court
of competent jurisdiction, be punished by a fine not exceeding five hundred
pesos, or by imprisonment for a period not exceeding six months, or both
such fine and imprisonment, in the discretion of the court.
Ordinance No. 3820 of the City of Manila as amended by Ordinance No.
3928 which took effect on December 4, 1957, in turn penalizes with a fine of
not more than P200.00 or imprisonment for not more than one months, or
both, at the discretion of the court, anyone who shall carry concealed in his
person in any manner that would disguise its deadly character any kind of
firearm, bowie knife, or other deadly weapon ... in any public
place. Consequently, it is necessary that the particular law violated be
specified as there exists a substantial difference between the statute and city
ordinance on the one hand and P.D. 9 (3) on the other regarding the
circumstances of the commission of the crime and the penalty imposed for
the offense.
We do not agree with petitioner that the above-mentioned statute and the city
ordinance are deemed repealed by P.D. 9 (3). 5 P. D. 9(3) does not contain
any repealing clause or provision, and repeal by implication is not
favored. 6This principle holds true with greater force with regards to penal
statutes which as a rule are to be construed strictly against the state and
liberally in favor of the accused. 7 In fact, Article 7 of the New Civil Code
provides that laws are repealed only by subsequent ones and their violation
or non- observance shall not be excused by disuse, or custom or practice to
the contrary.
Thus we are faced with the situation where a particular act may be made to
fall, at the discretion of a police officer or a prosecuting fiscal, under the
statute, or the city ordinance, or the presidential decree. That being the case,
the right becomes more compelling for an accused to be confronted with the
facts constituting the essential elements of the offense charged against him,
if he is not to become an easy pawn of oppression and harassment, or of
negligent or misguided official action — a fear understandably shared by
respondent Judges who by the nature of their judicial functions are daily
exposed to such dangers.
2. In all the Informations filed by petitioner the accused are charged in the
caption as well as in the body of the Information with a violation of paragraph
3, P.D. 9. What then are the elements of the offense treated in the
presidential decree in question?
We hold that the offense carries two elements: first, the carrying outside
one's residence of any bladed, blunt, or pointed weapon, etc. not used as a
necessary tool or implement for a livelihood; and second, that the act of
carrying the weapon was either in furtherance of, or to abet, or in connection
with subversion, rebellion, insurrection, lawless violence, criminality, chaos,
or public disorder.
It is the second element which removes the act of carrying a deadly weapon,
if concealed, outside of the scope of the statute or the city ordinance
mentioned above. In other words, a simple act of carrying any of the
weapons described in the presidential decree is not a criminal offense in
itself. What makes the act criminal or punishable under the decree is the
motivation behind it. Without that motivation, the act falls within the purview
of the city ordinance or some statute when the circumstances so warrant.
Respondent Judges correctly ruled that this can be the only reasonably,
logical, and valid construction given to P.D. 9(3).
3. The position taken by petitioner that P.D. 9(3) covers one and all situations
where a person carries outside his residence any of the weapons mentioned
or described in the decree irrespective of motivation, intent, or purpose,
converts these cases into one of "statutory construction." That there is
ambiguity in the presidential decree is manifest from the conflicting views
which arise from its implementation. When ambiguity exists, it becomes a
judicial task to construe and interpret the true meaning and scope of the
measure, guided by the basic principle that penal statutes are to be
construed and applied liberally in favor of the accused and strictly against the
state.
4. In the construction or interpretation of a legislative measure — a
presidential decree in these cases — the primary rule is to search for and
determine the intent and spirit of the law. Legislative intent is the controlling
factor, for in the words of this Court in Hidalgo v. Hidalgo, per Mr. Justice
Claudio Teehankee, whatever is within the spirit of a statute is within the
statute, and this has to be so if strict adherence to the letter would result in
absurdity, injustice and contradictions. 8
There are certain aids available to Us to ascertain the intent or reason for
P.D. 9(3).
First, the presence of events which led to or precipitated the enactment of
P.D. 9. These events are clearly spelled out in the "Whereas" clauses of the
presidential decree, thus: (1) the state of martial law in the country pursuant
to Proclamation 1081 dated September 21, 1972; (2) the desired result of
Proclamation 1081 as well as General Orders Nos. 6 and 7 which are
particularly mentioned in P.D. 9; and (3) the alleged fact that subversion,
rebellion, insurrection, lawless violence, criminality, chaos, aid public disorder
mentioned in Proclamation 1081 are committed and abetted by the use of
firearms and explosives and other deadly weapons.
The Solicitor General however contends that a preamble of a statute usually
introduced by the word "whereas", is not an essential part of an act and
cannot enlarge or confer powers, or cure inherent defects in the statute (p.
120, rollo of L-42050-66); that the explanatory note or enacting clause of the
decree, if it indeed limits the violation of the decree, cannot prevail over the
text itself inasmuch as such explanatory note merely states or explains the
reason which prompted the issuance of the decree. (pp. 114-115, rollo of
46997)
We disagree with these contentions. Because of the problem of determining
what acts fall within the purview of P.D. 9, it becomes necessary to inquire
into the intent and spirit of the decree and this can be found among others in
the preamble or, whereas" clauses which enumerate the facts or events
which justify the promulgation of the decree and the stiff sanctions stated
therein.
A "preamble" is the key of the statute, to open the minds of the makers as to
the mischiefs which are to be remedied, and objects which are to be
accomplished, by the provisions of the statute." (West Norman Timber v.
State, 224 P. 2d 635, 639, cited in Words and Phrases, "Preamble";
emphasis supplied)
While the preamble of a statute is not strictly a part thereof, it may, when the
statute is in itself ambiguous and difficult of interpretation, be resorted to, but
not to create a doubt or uncertainty which otherwise does not exist." (James
v. Du Bois, 16 N.J.L. (1 Har.) 285, 294, cited in Words and Phrases,
"Preamble")
In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court
had occasion to state that '(L)egislative intent must be ascertained from a
consideration of the statute as a whole, and not of an isolated part or a
particular provision alone. This is a cardinal rule of statutory construction. For
taken in the abstract, a word or phrase might easily convey a meaning quite
different from the one actually intended and evident when the word or phrase
is considered with those with which it is associated. Thus, an apparently
general provision may have a limited application if read together with other
provisions. 9
Second, the result or effects of the presidential decree must be within its
reason or intent.
In the paragraph immediately following the last "Whereas" clause, the
presidential decree states:
NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of
an the Armed Forces of the Philippines, in order to attain the desired result of
the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do
hereby order and decree that:
xxx xxx xxx
From the above it is clear that the acts penalized in P.D. 9 are those related
to the desired result of Proclamation 1081 and General Orders Nos. 6 and 7.
General Orders Nos. 6 and 7 refer to firearms and therefore have no
relevance to P.D. 9(3) which refers to blunt or bladed weapons. With respect
to Proclamation 1081 some of the underlying reasons for its issuance are
quoted hereunder:
WHEREAS, these lawless elements having taken up arms against our duly
constituted government and against our people, and having committed and
are still committing acts of armed insurrection and rebellion consisting of
armed raids, forays, sorties, ambushes, wanton acts of murders, spoilage,
plunder, looting, arsons, destruction of public and private buildings, and
attacks against innocent and defenseless civilian lives and property, all of
which activities have seriously endangered and continue to endanger public
order and safety and the security of the nation, ...
xxx xxx xxx
WHEREAS, it is evident that there is throughout the land a state of anarchy
and lawlessness, chaos and disorder, turmoil and destruction of a magnitude
equivalent to an actual war between the forces of our duly constituted
government and the New People's Army and their satellite organizations
because of the unmitigated forays, raids, ambuscades, assaults, violence,
murders, assassinations, acts of terror, deceits, coercions, threats,
intimidations, treachery, machinations, arsons, plunders and depredations
committed and being committed by the aforesaid lawless elements who have
pledged to the whole nation that they will not stop their dastardly effort and
scheme until and unless they have fully attained their primary and ultimate
purpose of forcibly seizing political and state power in this country by
overthrowing our present duly constituted government, ... (See Book I, Vital
Documents on the Declaration of Martial Law in the Philippines by the
Supreme Court of the Philippines, pp. 13-39)
It follows that it is only that act of carrying a blunt or bladed weapon with a
motivation connected with or related to the afore-quoted desired result of
Proclamation 1081 that is within the intent of P.D. 9(3), and nothing else.
Statutes are to be construed in the light of purposes to be achieved and the
evils sought to be remedied. (U.S. v. American Tracking Association, 310
U.S. 534, cited in LVN Pictures v. Philippine Musicians Guild, 110 Phil. 725,
731; emphasis supplied)
When construing a statute, the reason for its enactment should be kept in
mind, and the statute should be construed with reference to its intended
scope and purpose. (Statutory Construction by E.T. Crawford, pp. 604-605,
cited in Commissioner of Internal Revenue v. Filipinas Compania de
Seguros, 107 Phil. 1055, 1060; emphasis supplied)
5. In the construction of P.D. 9(3) it becomes relevant to inquire into the
consequences of the measure if a strict adherence to the letter of the
paragraph is followed.
It is a salutary principle in statutory construction that there exists a valid
presumption that undesirable consequences were never intended by a
legislative measure, and that a construction of which the statute is fairly
susceptible is favored, which will avoid all objectionable, mischievous,
indefensible, wrongful, evil, and injurious consequences.9-a
It is to be presumed that when P.D. 9 was promulgated by the President of
the Republic there was no intent to work a hardship or an oppressive result,
a possible abuse of authority or act of oppression, arming one person with a
weapon to impose hardship on another, and so on.10
At this instance We quote from the order of Judge Purisima the following:
And while there is no proof of it before the Court, it is not difficult to believe
the murmurings of detained persons brought to Court upon a charge of
possession of bladed weapons under P.D. No. 9, that more than ever before,
policemen - of course not all can be so heartless — now have in their hands
P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk
of being sentenced to imprisonment of five to ten years for a rusted kitchen
knife or a pair of scissors, which only God knows where it came from.
Whereas before martial law an extortion-minded peace officer had to have a
stock of the cheapest paltik, and even that could only convey the coercive
message of one year in jail, now anything that has the semblance of a sharp
edge or pointed object, available even in trash cans, may already serve the
same purpose, and yet five to ten times more incriminating than the
infamous paltik. (pp. 72-73, rollo L-42050-66)
And as respondent Judge Maceren points out, the people's interpretation of
P.D. 9(3) results in absurdity at times. To his example We may add a
situation where a law-abiding citizen, a lawyer by profession, after gardening
in his house remembers to return the bolo used by him to his neighbor who
lives about 30 meters or so away and while crossing the street meets a
policeman. The latter upon seeing the bolo being carried by that citizen
places him under arrest and books him for a violation of P.D. 9(3). Could the
presidential decree have been conceived to produce such absurd,
unreasonable, and insensible results?
6. Penal statutes are to be construed strictly against the state and liberally in
favor of an accused.
American jurisprudence sets down the reason for this rule to be "the
tenderness of the law of the rights of individuals; the object is to establish a
certain rule by conformity to which mankind would be safe, and the discretion
of the court limited." 11 The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of
forbidden acts.12
Our own decisions have set down the same guidelines in this manner, viz:
Criminal statutes are to be construed strictly. No person should be brought
within their terms who is not clearly within them, nor should any act be
pronounced criminal which is not made clearly so by the statute. (U.S. v.
Abad Santos, 36 Phil. 243, 246)
The rule that penal statutes are given a strict construction is not the only
factor controlling the interpretation of such laws, instead, the rule merely
serves as an additional, single factor to be considered as an aid in
determining the meaning of penal laws. (People v. Manantan, 5 SCRA 684,
692)
F. The Informations filed by petitioner are fatally defective.
The two elements of the offense covered by P.D. 9(3) must be alleged in the
Information in order that the latter may constitute a sufficiently valid charged.
The sufficiency of an Information is determined solely by the facts alleged
therein.13 Where the facts are incomplete and do not convey the elements of
the crime, the quashing of the accusation is in order.
Section 2(a), Rule 117 of the Rules of Court provides that the defendant may
move to quash the complaint or information when the facts charged do not
constitute an offense.
In U.S.U. Gacutan, 1914, it was held that where an accused is charged with
knowingly rendering an unjust judgment under Article 204 of the Revised
Penal Code, failure to allege in the Information that the judgment was
rendered knowing it to be unjust, is fatal. 14
In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon
who later became Chief Justice of the Court affirmed an order of the trial
court which quashed an Information wherein the facts recited did not
constitute a public offense as defined in Section 1, Republic Act 145. 15
G. The filing of these Petitions was unnecessary because the People could
have availed itself of other available remedies below.
Pertinent provisions of the Rules of Court follow:
Rule 117, Section 7. Effect of sustaining the motion to quash. — If the motion
to quash is sustained the court may order that another information be filed. If
such order is made the defendant, if in custody, shall remain so unless he
shall be admitted to bail. If such order is not made or if having been made
another information is not filed withuntime to be specified in the order, or
within such further time as the court may allow for good cause shown, the
defendant, if in custody, shall be discharged therefrom, unless he is in
custody on some other charge.
Rule 110, Section 13. Amendment. — The information or complaint may be
amended, in substance or form, without leave of court, at any time before the
defendant pleads; and thereafter and during the trial as to all matters of form,
by leave and at the discretion of the court, when the same can be done
without prejudice to the rights of the defendant.
xxx xxx xxx
Two courses of action were open to Petitioner upon the quashing of the
Informations in these cases, viz:
First, if the evidence on hand so warranted, the People could have filed an
amended Information to include the second element of the offense as
defined in the disputed orders of respondent Judges. We have ruled that if
the facts alleged in the Information do not constitute a punishable offense,
the case should not be dismissed but the prosecution should be given an
opportunity to amend the Information.16
Second, if the facts so justified, the People could have filed a complaint
either under Section 26 of Act No. 1780, quoted earlier, or Manila City
Ordinance No. 3820, as amended by Ordinance No. 3928, especially since
in most if not all of the cases, the dismissal was made prior to arraignment of
the accused and on a motion to quash.
Section 8. Rule 117 states that:
An order sustaining the motion to quash is not a bar to another prosecution
for the same offense unless the motion was based on the grounds specified
in section 2, subsections (f) and (h) of this rule.
Under the foregoing, the filing of another complaint or Information is
barred only when the criminal action or liability had been extinguished
(Section 2[f]) or when the motion to quash was granted for reasons of double
jeopardy. (ibid., [h])
As to whether or not a plea of double jeopardy may be successfully invoked
by the accused in all these cases should new complaints be filed against
them, is a matter We need not resolve for the present.
H. — We conclude with high expectations that police authorities and the
prosecuting arm of the government true to the oath of office they have taken
will exercise utmost circumspection and good faith in evaluating the
particular circumstances of a case so as to reach a fair and just conclusion if
a situation falls within the purview of P.D. 9(3) and the prosecution under said
decree is warranted and justified. This obligation becomes a sacred duty in
the face of the severe penalty imposed for the offense.
On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon on
his letter to the City Fiscal of Manila on October 15, 1975, written for the
Secretary, now Minister of Justice, where he stated the following:
In any case, please study well each and every case of this nature so that
persons accused of carrying bladed weapons, specially those whose
purpose is not to subvert the duly constituted authorities, may not be unduly
indicted for the serious offenses falling under P.D. No. 9. 17
Yes, while it is not within the power of courts of justice to inquire into the
wisdom of a law, it is however a judicial task and prerogative to determine if
official action is within the spirit and letter of the law and if basic fundamental
rights of an individual guaranteed by the Constitution are not violated in the
process of its implementation. We have to face the fact that it is an unwise
and unjust application of a law, necessary and justified under prevailing
circumstances, which renders the measure an instrument of oppression and
evil and leads the citizenry to lose their faith in their government.
WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM
the Orders of respondent Judges dismissing or quashing the Information
concerned, subject however to Our observations made in the preceding
pages 23 to 25 of this Decision regarding the right of the State or Petitioner
herein to file either an amended Information under Presidential Decree No.
9, paragraph 3, or a new one under other existing statute or city ordinance
as the facts may warrant.
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."

Without costs. A civil government or central administration organization under the name of
"Philippine Executive Commission was organized by Order No. 1 issued on
SO ORDERED. January 23, 1942, by the Commander in Chief of the Japanese Forces in the
G.R. No. L-5 September 17, 1945 Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was
instructed to proceed to the immediate coordination of the existing central
CO KIM CHAM (alias CO KIM CHAM), petitioner, administrative organs and judicial courts, based upon what had existed
vs. therefore, with approval of the said Commander in Chief, who was to
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First exercise jurisdiction over judicial courts.
Instance of Manila, respondents.1
The Chairman of the Executive Commission, as head of the central
Marcelino Lontok for petitioner. administrative organization, issued Executive Orders Nos. 1 and 4, dated
P. A. Revilla for respondent Valdez Tan Keh. January 30 and February 5, 1942, respectively, in which the Supreme Court,
Respondent Judge Dizon in his own behalf. Court of Appeals, Courts of First Instance, and the justices of the peace and
municipal courts under the Commonwealth were continued with the same
FERIA, J.:
jurisdiction, in conformity with the instructions given to the said Chairman of
This petition for mandamus in which petitioner prays that the respondent the Executive Commission by the Commander in Chief of Japanese Forces
judge of the lower court be ordered to continue the proceedings in civil case in the Philippines in the latter's Order No. 3 of February 20, 1942, concerning
No. 3012 of said court, which were initiated under the regime of the so-called basic principles to be observed by the Philippine Executive Commission in
Republic of the Philippines established during the Japanese military exercising legislative, executive and judicial powers. Section 1 of said Order
occupation of these Islands. provided that "activities of the administration organs and judicial courts in the
Philippines shall be based upon the existing statutes, orders, ordinances and
The respondent judge refused to take cognizance of and continue the customs. . . ."
proceedings in said case on the ground that the proclamation issued on
October 23, 1944, by General Douglas MacArthur had the effect of On October 14, 1943, the so-called Republic of the Philippines was
invalidating and nullifying all judicial proceedings and judgements of the court inaugurated, but no substantial change was effected thereby in the
of the Philippines under the Philippine Executive Commission and the organization and jurisdiction of the different courts that functioned during the
Republic of the Philippines established during the Japanese military Philippine Executive Commission, and in the laws they administered and
occupation, and that, furthermore, the lower courts have no jurisdiction to enforced.
take cognizance of and continue judicial proceedings pending in the courts of
On October 23, 1944, a few days after the historic landing in Leyte, General
the defunct Republic of the Philippines in the absence of an enabling law
Douglas MacArthur issued a proclamation to the People of the Philippines
granting such authority. And the same respondent, in his answer and
which declared:
memorandum filed in this Court, contends that the government established in
the Philippines during the Japanese occupation were no de 1. That the Government of the Commonwealth of the Philippines is, subject
facto governments. 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
On January 2, 1942, the Imperial Japanese Forces occupied the City of
areas of the Philippines free of enemy occupation and control;
Manila, and on the next day their Commander in Chief proclaimed "the
Military Administration under law over the districts occupied by the Army." In
2. That the laws now existing on the statute books of the Commonwealth of
the Philippines and the regulations promulgated pursuant thereto are in full
force and effect and legally binding upon the people in areas of the
Philippines free of enemy occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free of enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on
February 27, 1945, General MacArthur, on behalf of the Government of the
United States, solemnly declared "the full powers and responsibilities under
the Constitution restored to the Commonwealth whose seat is here
established as provided by law."
In the light of these facts and events of contemporary history, the principal
questions to be resolved in the present case may be reduced to the
following:(1) Whether the judicial acts and proceedings of the court existing
in the Philippines under the Philippine Executive Commission and the
Republic of the Philippines were good and valid and remained so even after
the liberation or reoccupation of the Philippines by the United States and
Filipino forces; (2)Whether the proclamation issued on October 23, 1944, by
General Douglas MacArthur, Commander in Chief of the United States Army,
in which he declared "that all laws, regulations and processes of any of the
government in the Philippines than that of the said Commonwealth are null
and void and without legal effect in areas of the Philippines free of enemy
occupation and control," has invalidated all judgements and judicial acts and
proceedings of the said courts; and (3) If the said judicial acts and
proceedings have not been invalidated by said proclamation, whether the
present courts of the Commonwealth, which were the same court existing
prior to, and continued during, the Japanese military occupation of the
Philippines, may continue those proceedings pending in said courts at the
time the Philippines were reoccupied and liberated by the United States and
Filipino forces, and the Commonwealth of the Philippines were reestablished
in the Islands.
We shall now proceed to consider the first question, that is, whether or not
under the rules of international law the judicial acts and proceedings of the
courts established in the Philippines under the Philippine Executive
Commission and the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a de
facto government are good and valid. The question to be determined is
whether or not the governments established in these Islands under the
names of the Philippine Executive Commission and Republic of the
Philippines during the Japanese military occupation or regime were de
facto governments. If they were, the judicial acts and proceedings of those
governments remain good and valid even after the liberation or reoccupation
of the Philippines by the American and Filipino forces.
There are several kinds of de facto governments. The first, or government de
facto in a proper legal sense, is that government that gets possession and
control of, or usurps, by force or by the voice of the majority, the rightful legal
governments and maintains itself against the will of the latter, such as the
government of England under the Commonwealth, first by Parliament and
later by Cromwell as Protector. The second is that which is established and
maintained by military forces who invade and occupy a territory of the enemy
in the course of war, and which is denominated a government of paramount
force, as the cases of Castine, in Maine, which was reduced to British
possession in the war of 1812, and Tampico, Mexico, occupied during the
war with Mexico, by the troops of the United States. And the third is that
established as an independent government by the inhabitants of a country
who rise in insurrection against the parent state of such as the government of
the Southern Confederacy in revolt not concerned in the present case with
the first kind, but only with the second and third kinds of de
facto governments.
Speaking of government "de facto" of the second kind, the Supreme Court of
the United States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But
there is another description of government, called also by publicists a
government de facto, but which might, perhaps, be more aptly denominated
a government of paramount force. Its distinguishing characteristics are (1),
that its existence is maintained by active military power with the territories,
and against the rightful authority of an established and lawful government;
and (2), that while it exists it necessarily be obeyed in civil matters by private
citizens who, by acts of obedience rendered in submission to such force, do
not become responsible, or wrongdoers, for those acts, though not warranted
by the laws of the rightful government. Actual governments of this sort are
established over districts differing greatly in extent and conditions. They are
usually administered directly by military authority, but they may be
administered, also, civil authority, supported more or less directly by military
force. . . . One example of this sort of government is found in the case of
Castine, in Mine, reduced to British possession in the war of 1812 . . . U.
S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico,
occupied during the war with Mexico, by the troops of the United States . . .
Fleming vs. Page (9 Howard, 614). These were cases of temporary
possessions of territory by lawfull and regular governments at war with the
country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are
regulated in Section III of the Hague Conventions of 1907, which is a revision
of the provisions of the Hague Conventions of 1899 on the same subject of
said Section III provides "the authority of the legislative power having actually
passed into the hands of the occupant, the latter shall take steps in his power
to reestablish and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent
occupant has the right and is burdened with the duty to insure public order
and safety during his military occupation, he possesses all the powers of
a de factogovernment, and he can suspended the old laws and promulgate
new ones and make such changes in the old as he may see fit, but he is
enjoined to respect, unless absolutely prevented by the circumstances
prevailing in the occupied territory, the municipal laws in force in the country,
that is, those laws which enforce public order and regulate social and
commercial life of the country. On the other hand, laws of a political nature or
affecting political relations, such as, among others, the right of assembly, the
right to bear arms, the freedom of the press, and the right to travel freely in
the territory occupied, are considered as suspended or in abeyance during
the military occupation. Although the local and civil administration of justice is
suspended as a matter of course as soon as a country is militarily occupied,
it is not usual for the invader to take the whole administration into his own
hands. In practice, the local ordinary tribunals are authorized to continue
administering justice; and judges and other judicial officers are kept in their
posts if they accept the authority of the belligerent occupant or are required
to continue in their positions under the supervision of the military or civil
authorities appointed, by the Commander in Chief of the occupant. These
principles and practice have the sanction of all publicists who have
considered the subject, and have been asserted by the Supreme Court and
applied by the President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on
International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and
govern the territory of the enemy while in its military possession, is one of the
incidents of war, and flows directly from the right to conquer. We, therefore,
do not look to the Constitution or political institutions of the conqueror, for
authority to establish a government for the territory of the enemy in his
possession, during its military occupation, nor for the rules by which the
powers of such government are regulated and limited. Such authority and
such rules are derived directly from the laws war, as established by the
usage of the of the world, and confirmed by the writings of publicists and
decisions of courts — in fine, from the law of nations. . . . The municipal laws
of a conquered territory, or the laws which regulate private rights, continue in
force during military occupation, excepts so far as they are suspended or
changed by the acts of conqueror. . . . He, nevertheless, has all the powers
of a de facto government, and can at his pleasure either change the existing
laws or make new ones."
And applying the principles for the exercise of military authority in an
occupied territory, which were later embodied in the said Hague
Conventions, President McKinley, in his executive order to the Secretary of
War of May 19,1898, relating to the occupation of the Philippines by United
States forces, said in part: "Though the powers of the military occupant are
absolute and supreme, and immediately operate upon the political condition
of the inhabitants, the municipal laws of the conquered territory, such as
affect private rights of person and property and provide for the punishment of
crime, are considered as continuing in force, so far as they are compatible
with the new order of things, until they are suspended or superseded by the
occupying belligerent; and in practice they are not usually abrogated, but are
allowed to remain in force and to be administered by the ordinary tribunals,
substantially as they were before the occupation. This enlightened practice
is, so far as possible, to be adhered to on the present occasion. The judges
and the other officials connected with the administration of justice may, if they
accept the authority of the United States, continue to administer the ordinary
law of the land as between man and man under the supervision of the
American Commander in Chief." (Richardson's Messages and Papers of
President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the
United States, in the same case of Thorington vs. Smith, supra, recognized
the government set up by the Confederate States as a de factogovernment.
In that case, it was held that "the central government established for the
insurgent States differed from the temporary governments at Castine and
Tampico in the circumstance that its authority did no originate in lawful acts of
regular war; but it was not, on the account, less actual or less supreme. And
we think that it must be classed among the governments of which these are
examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of
the United States, discussing the validity of the acts of the Confederate
States, said: "The same general form of government, the same general laws
for the administration of justice and protection of private rights, which had
existed in the States prior to the rebellion, remained during its continuance
and afterwards. As far as the Acts of the States do not impair or tend to
impair the supremacy of the national authority, or the just rights of citizens
under the Constitution, they are, in general, to be treated as valid and
binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657):
"The existence of a state of insurrection and war did not loosen the bonds of
society, or do away with civil government or the regular administration of the
laws. Order was to be preserved, police regulations maintained, crime
prosecuted, property protected, contracts enforced, marriages celebrated,
estates settled, and the transfer and descent of property regulated, precisely
as in the time of peace. No one, that we are aware of, seriously questions
the validity of judicial or legislative Acts in the insurrectionary States touching
these and kindered subjects, where they were not hostile in their purpose or
mode of enforcement to the authority of the National Government, and did
not impair the rights of citizens under the Constitution'. The same doctrine
has been asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400),
held: "That what occured or was done in respect of such matters under the
authority of the laws of these local de facto governments should not be
disregarded or held to be invalid merely because those governments were
organized in hostility to the Union established by the national Constitution;
this, because the existence of war between the United States and the
Confederate States did not relieve those who are within the insurrectionary
lines from the necessity of civil obedience, nor destroy the bonds of society
nor do away with civil government or the regular administration of the laws,
and because transactions in the ordinary course of civil society as organized
within the enemy's territory although they may have indirectly or remotely
promoted the ends of the de facto or unlawful government organized to effect
a dissolution of the Union, were without blame 'except when proved to have
been entered into with actual intent to further invasion or insurrection:'" and
"That judicial and legislative acts in the respective states composing the so-
called Confederate States should be respected by the courts if they were not
hostile in their purpose or mode of enforcement to the authority of the
National Government, and did not impair the rights of citizens under the
Constitution."
In view of the foregoing, it is evident that the Philippine Executive
Commission, which was organized by Order No. 1, issued on January 23,
1942, by the Commander of the Japanese forces, was a civil government
established by the military forces of occupation and therefore a de
facto government of the second kind. It was not different from the
government established by the British in Castine, Maine, or by the United
States in Tampico, Mexico. As Halleck says, "The government established
over an enemy's territory during the military occupation may exercise all the
powers given by the laws of war to the conqueror over the conquered, and is
subject to all restrictions which that code imposes. It is of little consequence
whether such government be called a military or civil government. Its
character is the same and the source of its authority the same. In either case
it is a government imposed by the laws of war, and so far it concerns the
inhabitants of such territory or the rest of the world, those laws alone
determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the
Philippine Executive Commission was a civil and not a military government
and was run by Filipinos and not by Japanese nationals, is of no
consequence. In 1806, when Napoleon occupied the greater part of Prussia,
he retained the existing administration under the general direction of a french
official (Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the
Duke of Willington, on invading France, authorized the local authorities to
continue the exercise of their functions, apparently without appointing an
English superior. (Wellington Despatches, XI, 307.). The Germans, on the
other hand, when they invaded France in 1870, appointed their own officials,
at least in Alsace and Lorraine, in every department of administration and of
every rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed., p. 505,
note 2.)
The so-called Republic of the Philippines, apparently established and
organized as a sovereign state independent from any other government by
the Filipino people, was, in truth and reality, a government established by the
belligerent occupant or the Japanese forces of occupation. It was of the
same character as the Philippine Executive Commission, and the ultimate
source of its authority was the same — the Japanese military authority and
government. As General MacArthur stated in his proclamation of October 23,
1944, a portion of which has been already quoted, "under enemy duress, a
so-called government styled as the 'Republic of the Philippines' was
established on October 14, 1943, based upon neither the free expression of
the people's will nor the sanction of the Government of the United States."
Japan had no legal power to grant independence to the Philippines or
transfer the sovereignty of the United States to, or recognize the latent
sovereignty of, the Filipino people, before its military occupation and
possession of the Islands had matured into an absolute and permanent
dominion or sovereignty by a treaty of peace or other means recognized in
the law of nations. For it is a well-established doctrine in International Law,
recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits
compulsion of the population of the occupied territory to swear allegiance to
the hostile power), the belligerent occupation, being essentially provisional,
does not serve to transfer sovereignty over the territory controlled although
the de jure government is during the period of occupancy deprived of the
power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9
Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9
Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the
Republic of the Philippines was a scheme contrived by Japan to delude the
Filipino people into believing in the apparent magnanimity of the Japanese
gesture of transferring or turning over the rights of government into the hands
of Filipinos. It was established under the mistaken belief that by doing so,
Japan would secure the cooperation or at least the neutrality of the Filipino
people in her war against the United States and other allied nations.
Indeed, even if the Republic of the Philippines had been established by the
free will of the Filipino who, taking advantage of the withdrawal of the
American forces from the Islands, and the occupation thereof by the
Japanese forces of invasion, had organized an independent government
under the name with the support and backing of Japan, such government
would have been considered as one established by the Filipinos in
insurrection or rebellion against the parent state or the Unite States. And as
such, it would have been a de facto government similar to that organized by
the confederate states during the war of secession and recognized as such
by the by the Supreme Court of the United States in numerous cases,
notably those of Thorington vs. Smith, Williams vs. Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived government
established by the Filipino insurgents in the Island of Cebu during the
Spanish-American war, recognized as a de facto government by the
Supreme Court of the United States in the case of McCleod vs. United States
(299 U. S., 416). According to the facts in the last-named case, the Spanish
forces evacuated the Island of Cebu on December 25, 1898, having first
appointed a provisional government, and shortly afterwards, the Filipinos,
formerly in insurrection against Spain, took possession of the Islands and
established a republic, governing the Islands until possession thereof was
surrendered to the United States on February 22, 1898. And the said
Supreme Court held in that case that "such government was of the class of
de facto governments described in I Moore's International Law Digest, S 20, .
. . 'called also by publicists a government de facto, but which might, perhaps,
be more aptly denominated a government of paramount force . . '." That is to
say, that the government of a country in possession of belligerent forces in
insurrection or rebellion against the parent state, rests upon the same
principles as that of a territory occupied by the hostile army of an enemy at
regular war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic
of the Philippines during the Japanese military occupation being de
facto governments, it necessarily follows that the judicial acts and
proceedings of the courts of justice of those governments, which are not of a
political complexion, were good and valid, and, by virtue of the well-known
principle of postliminy (postliminium) in international law, remained good and
valid after the liberation or reoccupation of the Philippines by the American
and Filipino forces under the leadership of General Douglas MacArthur.
According to that well-known principle in international law, the fact that a
territory which has been occupied by an enemy comes again into the power
of its legitimate government of sovereignty, "does not, except in a very few
cases, wipe out the effects of acts done by an invader, which for one reason
or another it is within his competence to do. Thus judicial acts done under his
control, when they are not of a political complexion, administrative acts so
done, to the extent that they take effect during the continuance of his control,
and the various acts done during the same time by private persons under the
sanction of municipal law, remain good. Were it otherwise, the whole social
life of a community would be paralyzed by an invasion; and as between the
state and the individuals the evil would be scarcely less, — it would be hard
for example that payment of taxes made under duress should be ignored,
and it would be contrary to the general interest that the sentences passed
upon criminals should be annulled by the disappearance of the intrusive
government ." (Hall, International Law, 7th ed., p. 518.) And when the
occupation and the abandonment have been each an incident of the same
war as in the present case, postliminy applies, even though the occupant has
acted as conqueror and for the time substituted his own sovereignty as the
Japanese intended to do apparently in granting independence to the
Philippines and establishing the so-called Republic of the Philippines. (Taylor,
International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which
are not of a political complexion, are and remain valid after reoccupation of a
territory occupied by a belligerent occupant, is confirmed by the Proclamation
issued by General Douglas MacArthur on October 23, 1944, which declares
null and void all laws, regulations and processes of the governments
established in the Philippines during the Japanese occupation, for it would
not have been necessary for said proclamation to abrogate them if they were
invalid ab initio.
2. The second question hinges upon the interpretation of the phrase
"processes of any other government" as used in the above-quoted
proclamation of General Douglas MacArthur of October 23, 1944 — that is,
whether it was the intention of the Commander in Chief of the American
Forces to annul and void thereby all judgments and judicial proceedings of
the courts established in the Philippines during the Japanese military
occupation.
The phrase "processes of any other government" is broad and may refer not
only to the judicial processes, but also to administrative or legislative, as well
as constitutional, processes of the Republic of the Philippines or other
governmental agencies established in the Islands during the Japanese
occupation. Taking into consideration the fact that, as above indicated,
according to the well-known principles of international law all judgements and
judicial proceedings, which are not of a political complexion, of the de
facto governments during the Japanese military occupation were good and
valid before and remained so after the occupied territory had come again into
the power of the titular sovereign, it should be presumed that it was not, and
could not have been, the intention of General Douglas MacArthur, in using
the phrase "processes of any other government" in said proclamation, to
refer to judicial processes, in violation of said principles of international law.
The only reasonable construction of the said phrase is that it refers to
governmental processes other than judicial processes of court proceedings,
for according to a well-known rule of statutory construction, set forth in 25 R.
C. L., p. 1028, "a statute ought never to be construed to violate the law of
nations if any other possible construction remains."
It is true that the commanding general of a belligerent army of occupation, as
an agent of his government, may not unlawfully suspend existing laws and
promulgate new ones in the occupied territory, if and when the exigencies of
the military occupation demand such action. But even assuming that, under
the law of nations, the legislative power of a commander in chief of military
forces who liberates or reoccupies his own territory which has been occupied
by an enemy, during the military and before the restoration of the civil regime,
is as broad as that of the commander in chief of the military forces of
invasion and occupation (although the exigencies of military reoccupation are
evidently less than those of occupation), it is to be presumed that General
Douglas MacArthur, who was acting as an agent or a representative of the
Government and the President of the United States, constitutional
commander in chief of the United States Army, did not intend to act against
the principles of the law of nations asserted by the Supreme Court of the
United States from the early period of its existence, applied by the Presidents
of the United States, and later embodied in the Hague Conventions of 1907,
as above indicated. It is not to be presumed that General Douglas MacArthur,
who enjoined in the same proclamation of October 23, 1944, "upon the loyal
citizens of the Philippines full respect and obedience to the Constitution of
the Commonwealth of the Philippines," should not only reverse the
international policy and practice of his own government, but also disregard in
the same breath the provisions of section 3, Article II, of our Constitution,
which provides that "The Philippines renounces war as an instrument of
national policy, and adopts the generally accepted principles of international
law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public
hardship would result, and great public interests would be endangered and
sacrificed, for disputes or suits already adjudged would have to be again
settled accrued or vested rights nullified, sentences passed on criminals set
aside, and criminals might easily become immune for evidence against them
may have already disappeared or be no longer available, especially now that
almost all court records in the Philippines have been destroyed by fire as a
consequence of the war. And it is another well-established rule of statutory
construction that where great inconvenience will result from a particular
construction, or great public interests would be endangered or sacrificed, or
great mischief done, such construction is to be avoided, or the court ought to
presume that such construction was not intended by the makers of the law,
unless required by clear and unequivocal words. (25 R. C. L., pp. 1025,
1027.)
The mere conception or thought of possibility that the titular sovereign or his
representatives who reoccupies a territory occupied by an enemy, may set
aside or annul all the judicial acts or proceedings of the tribunals which the
belligerent occupant had the right and duty to establish in order to insure
public order and safety during military occupation, would be sufficient to
paralyze the social life of the country or occupied territory, for it would have to
be expected that litigants would not willingly submit their litigation to courts
whose judgements or decisions may afterwards be annulled, and criminals
would not be deterred from committing crimes or offenses in the expectancy
that they may escaped the penalty if judgments rendered against them may
be afterwards set aside.
That the proclamation has not invalidated all the judgements and
proceedings of the courts of justice during the Japanese regime, is impliedly
confirmed by Executive Order No. 37, which has the force of law, issued by
the President of the Philippines on March 10, 1945, by virtue of the
emergency legislative power vested in him by the Constitution and the laws
of the Commonwealth of the Philippines. Said Executive order abolished the
Court of Appeals, and provided "that all case which have heretofore been
duly appealed to the Court of Appeals shall be transmitted to the Supreme
Court final decision." This provision impliedly recognizes that the judgments
and proceedings of the courts during the Japanese military occupation have
not been invalidated by the proclamation of General MacArthur of October
23, because the said Order does not say or refer to cases which have been
duly appealed to said court prior to the Japanese occupation, but to cases
which had therefore, that is, up to March 10, 1945, been duly appealed to the
Court of Appeals; and it is to be presumed that almost all, if not all, appealed
cases pending in the Court of Appeals prior to the Japanese military
occupation of Manila on January 2, 1942, had been disposed of by the latter
before the restoration of the Commonwealth Government in 1945; while
almost all, if not all, appealed cases pending on March 10, 1945, in the Court
of Appeals were from judgments rendered by the Court of First Instance
during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which
say: "Moreover when it is said that an occupier's acts are valid and under
international law should not be abrogated by the subsequent conqueror, it
must be remembered that no crucial instances exist to show that if his acts
should be reversed, any international wrong would be committed. What does
happen is that most matters are allowed to stand by the restored
government, but the matter can hardly be put further than this." (Wheaton,
International Law, War, 7th English edition of 1944, p. 245.) And from this
quotion the respondent judge "draws the conclusion that whether the acts of
the occupant should be considered valid or not, is a question that is up to the
restored government to decide; that there is no rule of international law that
denies to the restored government to decide; that there is no rule of
international law that denies to the restored government the right of exercise
its discretion on the matter, imposing upon it in its stead the obligation of
recognizing and enforcing the acts of the overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate most
of the acts of the occupier, such as the laws, regulations and processes other
than judicial of the government established by the belligerent occupant. But
in view of the fact that the proclamation uses the words "processes of any
other government" and not "judicial processes" prisely, it is not necessary to
determine whether or not General Douglas MacArthur had power to annul
and set aside all judgments and proceedings of the courts during the
Japanese occupation. The question to be determined is whether or not it was
his intention, as representative of the President of the United States, to avoid
or nullify them. If the proclamation had, expressly or by necessary
implication, declared null and void the judicial processes of any other
government, it would be necessary for this court to decide in the present
case whether or not General Douglas MacArthur had authority to declare
them null and void. But the proclamation did not so provide, undoubtedly
because the author thereof was fully aware of the limitations of his powers as
Commander in Chief of Military Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law,
as they result from the usages established between civilized nations, the
laws of humanity and the requirements of the public of conscience, constitute
or from the law of nations. (Preamble of the Hague Conventions; Westlake,
International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague
Regulations or Conventions which we have already quoted in discussing the
first question, imposes upon the occupant the obligation to establish courts;
and Article 23 (h), section II, of the same Conventions, which prohibits the
belligerent occupant "to declare . . . suspended . . . in a Court of Law the
rights and action of the nationals of the hostile party," forbids him to make
any declaration preventing the inhabitants from using their courts to assert or
enforce their civil rights. (Decision of the Court of Appeals of England in the
case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent
occupant is required to establish courts of justice in the territory occupied,
and forbidden to prevent the nationals thereof from asserting or enforcing
therein their civil rights, by necessary implication, the military commander of
the forces of liberation or the restored government is restrained from
nullifying or setting aside the judgments rendered by said courts in their
litigation during the period of occupation. Otherwise, the purpose of these
precepts of the Hague Conventions would be thwarted, for to declare them
null and void would be tantamount to suspending in said courts the right and
action of the nationals of the territory during the military occupation thereof by
the enemy. It goes without saying that a law that enjoins a person to do
something will not at the same time empower another to undo the same.
Although the question whether the President or commanding officer of the
United States Army has violated restraints imposed by the constitution and
laws of his country is obviously of a domestic nature, yet, in construing and
applying limitations imposed on the executive authority, the Supreme Court
of the United States, in the case of Ochoa, vs. Hernandez (230 U.S., 139),
has declared that they "arise from general rules of international law and from
fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by
the officer in command of the forces of the United States in South Carolina
after the end of the Civil War, wholly annulling a decree rendered by a court
of chancery in that state in a case within its jurisdiction, was declared void,
and not warranted by the acts approved respectively March 2, 1867 (14 Stat.,
428), and July 19 of the same year (15 id., 14), which defined the powers
and duties of military officers in command of the several states then lately in
rebellion. In the course of its decision the court said; "We have looked
carefully through the acts of March 2, 1867 and July 19, 1867. They give very
large governmental powers to the military commanders designated, within
the States committed respectively to their jurisdiction; but we have found
nothing to warrant the order here in question. . . . The clearest language
would be necessary to satisfy us that Congress intended that the power
given by these acts should be so exercised. . . . It was an arbitrary stretch of
authority, needful to no good end that can be imagined. Whether Congress
could have conferred the power to do such an act is a question we are not
called upon to consider. It is an unbending rule of law that the exercise of
military power, where the rights of the citizen are concerned, shall never be
pushed beyond what the exigency requires. (Mithell vs. Harmony, 13 How.,
115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161;
s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the
standpoint indicated, we hold that the order was void."
It is, therefore, evident that the proclamation of General MacArthur of
October 23, 1944, which declared that "all laws, regulations and processes of
any other government in the Philippines than that of the said Commonwealth
are null and void without legal effect in areas of the Philippines free of enemy
occupation and control," has not invalidated the judicial acts and
proceedings, which are not a political complexion, of the courts of justice in
the Philippines that were continued by the Philippine Executive Commission
and the Republic of the Philippines during the Japanese military occupation,
and that said judicial acts and proceedings were good and valid before and
now good and valid after the reoccupation of liberation of the Philippines by
the American and Filipino forces.
3. The third and last question is whether or not the courts of the
Commonwealth, which are the same as those existing prior to, and continued
during, the Japanese military occupation by the Philippine Executive
Commission and by the so-called Republic of the Philippines, have
jurisdiction to continue now the proceedings in actions pending in said courts
at the time the Philippine Islands were reoccupied or liberated by the
American and Filipino forces, and the Commonwealth Government was
restored.
Although in theory the authority the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military
occupation takes place, in practice the invader does not usually take the
administration of justice into his own hands, but continues the ordinary courts
or tribunals to administer the laws of the country which he is enjoined, unless
absolutely prevented, to respect. As stated in the above-quoted Executive
Order of President McKinley to the Secretary of War on May 19, 1898, "in
practice, they (the municipal laws) are not usually abrogated but are allowed
to remain in force and to be administered by the ordinary tribunals
substantially as they were before the occupation. This enlightened practice
is, so far as possible, to be adhered to on the present occasion." And Taylor
in this connection says: "From a theoretical point of view it may be said that
the conqueror is armed with the right to substitute his arbitrary will for all
preexisting forms of government, legislative, executive and judicial. From the
stand-point of actual practice such arbitrary will is restrained by the provision
of the law of nations which compels the conqueror to continue local laws and
institution so far as military necessity will permit." (Taylor, International Public
Law, p.596.) Undoubtedly, this practice has been adopted in order that the
ordinary pursuits and business of society may not be unnecessarily
deranged, inasmuch as belligerent occupation is essentially provisional, and
the government established by the occupant of transient character.
Following these practice and precepts of the law of nations, Commander in
Chief of the Japanese Forces proclaimed on January 3, 1942, when Manila
was occupied, the military administration under martial law over the territory
occupied by the army, and ordered that "all the laws now in force in the
Commonwealth, as well as executive and judicial institutions, shall continue
to be affective for the time being as in the past," and "all public officials shall
remain in their present post and carry on faithfully their duties as before."
When the Philippine Executive Commission was organized by Order No. 1 of
the Japanese Commander in Chief, on January 23, 1942, the Chairman of
the Executive Commission, by Executive Orders Nos. 1 and 4 of January 30
and February 5, respectively, continued the Supreme Court, Court of
Appeals, Court of First Instance, and justices of the peace of courts, with the
same jurisdiction in conformity with the instructions given by the Commander
in Chief of the Imperial Japanese Army in Order No. 3 of February 20, 1942.
And on October 14, 1943 when the so-called Republic of the Philippines was
inaugurated, the same courts were continued with no substantial change in
organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the
Japanese military occupation had been continued during the Japanese
military administration, the Philippine Executive Commission, and the so-
called Republic of the Philippines, it stands to reason that the same courts,
which had become reestablished and conceived of as having in continued
existence upon the reoccupation and liberation of the Philippines by virtue of
the principle of postliminy (Hall, International Law, 7th ed., p. 516), may
continue the proceedings in cases then pending in said courts, without
necessity of enacting a law conferring jurisdiction upon them to continue said
proceedings. As Taylor graphically points out in speaking of said principles "a
state or other governmental entity, upon the removal of a foreign military
force, resumes its old place with its right and duties substantially
unimpaired. . . . Such political resurrection is the result of a law analogous to
that which enables elastic bodies to regain their original shape upon removal
of the external force, — and subject to the same exception in case of
absolute crushing of the whole fibre and content." (Taylor, International Public
Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support
in his conclusion that the Court of First Instance of Manila presided over by
him "has no authority to take cognizance of, and continue said proceedings
(of this case) to final judgment until and unless the Government of the
Commonwealth of the Philippines . . . shall have provided for the transfer of
the jurisdiction of the courts of the now defunct Republic of the Philippines,
and the cases commenced and the left pending therein," is "that said courts
were a government alien to the Commonwealth Government. The laws they
enforced were, true enough, laws of the Commonwealth prior to Japanese
occupation, but they had become the laws — and the courts had become the
institutions — of Japan by adoption (U.S. vs.Reiter. 27 F. Cases, No. 16146),
as they became later on the laws and institutions of the Philippine Executive
Commission and the Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that
the laws and institutions of the country occupied if continued by the
conqueror or occupant, become the laws and the courts, by adoption, of the
sovereign nation that is militarily occupying the territory. Because, as already
shown, belligerent or military occupation is essentially provisional and does
not serve to transfer the sovereignty over the occupied territory to the
occupant. What the court said was that, if such laws and institutions are
continued in use by the occupant, they become his and derive their force
from him, in the sense that he may continue or set them aside. The laws and
institution or courts so continued remain the laws and institutions or courts of
the occupied territory. The laws and the courts of the Philippines, therefore,
did not become, by being continued as required by the law of nations, laws
and courts of Japan. The provision of Article 45, section III, of the Hague
Conventions of 1907 which prohibits any compulsion of the population of
occupied territory to swear allegiance to the hostile power, "extends to
prohibit everything which would assert or imply a change made by the
invader in the legitimate sovereignty. This duty is neither to innovate in the
political life of the occupied districts, nor needlessly to break the continuity of
their legal life. Hence, so far as the courts of justice are allowed to continue
administering the territorial laws, they must be allowed to give their
sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part
II, second ed., p. 102). According to Wheaton, however, the victor need not
allow the use of that of the legitimate government. When in 1870, the
Germans in France attempted to violate that rule by ordering, after the fall of
the Emperor Napoleon, the courts of Nancy to administer justice in the name
of the "High German Powers occupying Alsace and Lorraine," upon the
ground that the exercise of their powers in the name of French people and
government was at least an implied recognition of the Republic, the courts
refused to obey and suspended their sitting. Germany originally ordered the
use of the name of "High German Powers occupying Alsace and Lorraine,"
but later offered to allow use of the name of the Emperor or a compromise.
(Wheaton, International Law, War, 7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law
once established continues until changed by the some competent legislative
power. It is not change merely by change of sovereignty." (Joseph H. Beale,
Cases on Conflict of Laws, III, Summary Section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his
Treatise on the Conflict on Laws (Cambridge, 1916, Section 131): "There can
no break or interregnum in law. From the time the law comes into existence
with the first-felt corporateness of a primitive people it must last until the final
disappearance of human society. Once created, it persists until a change
take place, and when changed it continues in such changed condition until
the next change, and so forever. Conquest or colonization is impotent to
bring law to an end; in spite of change of constitution, the law continues
unchanged until the new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of
the laws which create and confer upon them their jurisdiction, it is evident
that such laws, not being a political nature, are not abrogated by a change of
sovereignty, and continue in force "ex proprio vigore" unless and until
repealed by legislative acts. A proclamation that said laws and courts are
expressly continued is not necessary in order that they may continue in force.
Such proclamation, if made, is but a declaration of the intention of respecting
and not repealing those laws. Therefore, even assuming that Japan had
legally acquired sovereignty over these Islands, which she had afterwards
transferred to the so-called Republic of the Philippines, and that the laws and
the courts of these Islands had become the courts of Japan, as the said
courts of the laws creating and conferring jurisdiction upon them have
continued in force until now, it necessarily follows that the same courts may
continue exercising the same jurisdiction over cases pending therein before
the restoration of the Commonwealth Government, unless and until they are
abolished or the laws creating and conferring jurisdiction upon them are
repealed by the said government. As a consequence, enabling laws or acts
providing that proceedings pending in one court be continued by or
transferred to another court, are not required by the mere change of
government or sovereignty. They are necessary only in case the former
courts are abolished or their jurisdiction so change that they can no longer
continue taking cognizance of the cases and proceedings commenced
therein, in order that the new courts or the courts having jurisdiction over said
cases may continue the proceedings. When the Spanish sovereignty in the
Philippine Islands ceased and the Islands came into the possession of the
United States, the "Audiencia" or Supreme Court was continued and did not
cease to exist, and proceeded to take cognizance of the actions pending
therein upon the cessation of the Spanish sovereignty until the said
"Audiencia" or Supreme Court was abolished, and the Supreme Court
created in Chapter II of Act No. 136 was substituted in lieu thereof. And the
Courts of First Instance of the Islands during the Spanish regime continued
taking cognizance of cases pending therein upon the change of sovereignty,
until section 65 of the same Act No. 136 abolished them and created in its
Chapter IV the present Courts of First Instance in substitution of the former.
Similarly, no enabling acts were enacted during the Japanese occupation,
but a mere proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No.
136 was enacted abolishing the civil jurisdiction of the provost courts created
by the military government of occupation in the Philippines during the
Spanish-American War of 1898, the same section 78 provided for the
transfer of all civil actions then pending in the provost courts to the proper
tribunals, that is, to the justices of the peace courts, Court of First Instance,
or Supreme Court having jurisdiction over them according to law. And later
on, when the criminal jurisdiction of provost courts in the City of Manila was
abolished by section 3 of Act No. 186, the same section provided that
criminal cases pending therein within the jurisdiction of the municipal court
created by Act No. 183 were transferred to the latter.
That the present courts as the same courts which had been functioning
during the Japanese regime and, therefore, can continue the proceedings in
cases pending therein prior to the restoration of the Commonwealth of the
Philippines, is confirmed by Executive Order No. 37 which we have already
quoted in support of our conclusion in connection with the second question.
Said Executive Order provides"(1) that the Court of Appeals created and
established under Commonwealth Act No. 3 as amended, be abolished, as it
is hereby abolished," and "(2) that all cases which have heretofore been duly
appealed to the Court of Appeals shall be transmitted to the Supreme Court
for final decision. . . ." In so providing, the said Order considers that the Court
of Appeals abolished was the same that existed prior to, and continued after,
the restoration of the Commonwealth Government; for, as we have stated in
discussing the previous question, almost all, if not all, of the cases pending
therein, or which had theretofore (that is, up to March 10, 1945) been duly
appealed to said court, must have been cases coming from the Courts of
First Instance during the so-called Republic of the Philippines. If the Court of
Appeals abolished by the said Executive Order was not the same one which
had been functioning during the Republic, but that which had existed up to
the time of the Japanese occupation, it would have provided that all the
cases which had, prior to and up to that occupation on January 2, 1942, been
dully appealed to the said Court of Appeals shall be transmitted to the
Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue,
to final judgment, the proceedings in cases, not of political complexion,
pending therein at the time of the restoration of the Commonwealth
Government.
Having arrived at the above conclusions, it follows that the Court of First
Instance of Manila has jurisdiction to continue to final judgment the
proceedings in civil case No. 3012, which involves civil rights of the parties
under the laws of the Commonwealth Government, pending in said court at
the time of the restoration of the said Government; and that the respondent
judge of the court, having refused to act and continue him does a duty
resulting from his office as presiding judge of that court, mandamus is the
speedy and adequate remedy in the ordinary course of law, especially taking
into consideration the fact that the question of jurisdiction herein involved
does affect not only this particular case, but many other cases now pending
in all the courts of these Islands.
In view of all the foregoing it is adjudged and decreed that a writ
of mandamus issue, directed to the respondent judge of the Court of First
Instance of Manila, ordering him to take cognizance of and continue to final
judgment the proceedings in civil case No. 3012 of said court. No
pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.
Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this case is the validity of the proceedings
held in civil case No. 3012, in the Court of First Instance of the City of Manila,
under the now defunct Philippine Republic, during Japanese occupation; and
the effect on said proceedings of the proclamation of General Douglas
MacArthur, dated October 23, 1944. The decision of this question requires
the application of principles of International Law, in connection with the
municipal law in force in this country, before and during Japanese
occupation.
Questions of International Law must be decided as matters of general law
(Juntington vs. Attril, 146 U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and
International Law is no alien in this Tribunal, as, under the Constitution of the
Commonwealth of the Philippines, it is a part of the fundamental law of the
land (Article II, section 3).
As International Law is an integral part of our laws, it must be ascertained
and administered by this Court, whenever questions of right depending upon
it are presented for our determination, sitting as an international as well as a
domestic Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46
Law. Ed., 838).
Since International Law is a body of rules actually accepted by nations as
regulating their mutual relations, the proof of the existence of a given rule is
to be found in the consent of nations to abide by that rule; and this consent is
evidenced chiefly by the usages and customs of nations, and to ascertain
what these usages and customs are, the universal practice is to turn to the
writings of publicists and to the decisions of the highest courts of the different
countries of the world (The Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44
Law. ed., 320).
But while usage is the older and original source of International Law, great
international treaties are a later source of increasing importance, such as
The Hague Conventions of 1899 and 1907.
The Hague Conventions of 1899, respecting laws and customs of war on
land, expressly declares that:
ARTICLE XLII. Territory is considered occupied when it is actually placed
under the authority of the hostile army.
The occupation applies only to be territory where such authority is
established, and in a position to assert itself.
ARTICLE XLIII. The authority of the legitimate power having actually passed
into the hands of the occupant, the later shall take all steps in his power to
reestablish and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country. (32
Stat. II, 1821.)
The above provisions of the Hague Convention have been adopted by the
nations giving adherence to them, among which is United States of America
(32 Stat. II, 1821).
The commander in chief of the invading forces or military occupant may
exercise governmental authority, but only when in actual possession of the
enemy's territory, and this authority will be exercised upon principles of
international Law (New Orleans vs. Steamship Co, [1874], 20 Wall., 387;
Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33
Sup. Ct., 955; 57 Law Ed., 1260; II Oppenheim of International Law, section
167).
There can be no question that the Philippines was under Japanese military
occupation, from January, 1942, up to the time of the reconquest by the
armed forces of the United States of the Island of Luzon, in February, 1945.
It will thus be readily seen that the civil laws of the invaded State continue in
force, in so far as they do not affect the hostile occupant unfavorably. The
regular judicial Tribunals of the occupied territory continue usual for the
invader to take the whole administration into his own hands, partly because it
is easier to preserve order through the agency of the native officials, and
partly because it is easier to preserve order through the agency of the native
officials, and partly because the latter are more competent to administer the
laws in force within the territory and the military occupant generally keeps in
their posts such of the judicial and administrative officers as are willing to
serve under him, subjecting them only to supervision by the military
authorities, or by superior civil authorities appointed by him.(Young vs. U.S.,
39; 24 Law, ed., 992; Coleman vs. Tennessee, 97 U.S., 509; 24 Law ed.,
1118; MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260;
Taylor on International Law, sections 576. 578; Wilson on International Law;
pp. 331-37; Hall on International Law, 6th Edition [1909], pp. 464, 465, 475,
476; Lawrence on International Law, 7th ed., pp. 412, 413; Davis, Elements
of International Law, 3rd ed., pp. 330-332 335; Holland on International Law
pp. 356, 357, 359; Westlake on International Law, 2d ed., pp. 121-23.)
It is, therefore, evident that the establishment of the government under the
so-called Philippine Republic, during Japanese occupation, respecting the
laws in force in the country, and permitting the local courts to function and
administer such laws, as proclaimed in the City of Manila, by the Commander
in Chief of the Japanese Imperial Forces, on January 3, 1942, was in
accordance with the rules and principles of International Law.
If the military occupant is thus in duly bound to establish in the territory under
military occupation governmental agencies for the preservation of peace and
order and for the proper administration of justice, in accordance with the laws
in force within territory it must necessarily follow that the judicial proceedings
conducted before the courts established by the military occupant must be
considered legal and valid, even after said government establish by the
military occupant has been displaced by the legitimate government of the
territory.
Thus the judgments rendered by the Confederate Courts, during the
American Civil War, merely settling the rights of private parties actually within
their jurisdiction, not tending to defeat the legal rights of citizens of the United
States, nor in furtherance of laws passed in aid of the rebellion had been
declared valid and binding (Cock vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3,
164; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118;
Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570;
Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700;
Ketchum vs. Buckley [1878], 99 U.S., 188); and the judgment of a court of
Georgia rendered in November, 1861, for the purchase money of slaves was
held valid judgment when entered, and enforceable in
1871(French vs. Tumlin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No.
5104).
Said judgments rendered by the courts of the states constituting the
Confederate States of America were considered legal and valid and
enforceable, even after the termination of the American Civil War, because
they had been rendered by the courts of a de facto government. The
Confederate States were a de facto government in the sense that its citizens
were bound to render the government obedience in civil matters, and did not
become responsible, as wrong-doers, for such acts of obedience
(Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law. ed., 361).
In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held —
"It is now settled law in this court that during the late civil war the same
general form of government, the same general law for the administration of
justice and the protection of private rights, which had existed in the States
prior to the rebellion, remained during its continuance and afterwards. As far
as the acts of the States did not impair or tend to impair the supremacy of the
national authority, or the just and legal rights of the citizens, under the
Constitution, they are in general to be treated as valid and binding."
(William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart, 17 Wall., 570;
Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700.)
The government established in the Philippines, during Japanese occupation,
would seem to fall under the following definition of de facto government given
by the Supreme Court of the United States:
But there is another description of government, called also by publicists, a
government de facto, but which might, perhaps, be more aptly denominateda
government of paramount force. Its distinguishing characteristics are (1) that
its existence is maintained by active military power within the territories, and
against the rightful authority of an established and lawful government; and (2)
that while it exists it must necessarily be obeyed in civil matters by private
citizens who, by acts of obedience rendered in submission to such force, do
not become responsible, as wrong doers, for those acts, though not
warranted by the laws of the rightful government. Actual government of this
sort are established over districts differing greatly in extent and conditions.
They are usually administered directly by military authority, but they may be
administered, also, by civil authority, supported more or less directly by
military force. (Macleod vs. United States [1913] 229 U.S., 416.)
The government established in the Philippines, under the so-called Philippine
Republic, during Japanese occupation, was and should be considered as
a de facto government; and that the judicial proceedings conducted before
the courts which had been established in this country, during said Japanese
occupation, are to be considered legal and valid and enforceable, even after
the liberation of this country by the American forces, as long as the said
judicial proceedings had been conducted, under the laws of the
Commonwealth of the Philippines.
The judicial proceedings involved in the case under consideration merely
refer to the settlement of property rights, under the provisions of the Civil
Code, in force in this country under the Commonwealth government, before
and during Japanese occupation.
Now, petitioner contends that the judicial proceedings in question are null
and void, under the provisions of the proclamation issued by General
Douglas MacArthur, dated October 23, 1944; as said proclamation "nullifies
all the laws, regulations and processes of any other government of the
Philippines than that of the Commonwealth of the Philippines."
In other words, petitioner demands a literal interpretation of said
proclamation issued by General Douglas MacArthur, a contention which, in
our opinion, is untenable, as it would inevitably produce judicial chaos and
uncertainties.
When an act is susceptible of two or more constructions, one of which will
maintain and the others destroy it, the courts will always adopt the former (U.
S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of
Granada County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5 Sup.
Ct. Rep., 125; In re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of
Prisons [1924], 46 Phil., 385). The judiciary, always alive to the dictates of
national welfare, can properly incline the scales of its decisions in favor of
that solution which will most effectively promote the public policy (Smith, Bell
& Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a
sensible construction. General terms should be so limited in their application
as not lead to injustice, oppression or an absurd consequence. It will always,
therefore, be presumed that the legislature intended exceptions to its
language, which would avoid results of this character. The reason of the law
in such cases should prevail over its letter (U. S. vs.Kirby, 7 Wall. [U.S.], 482;
19 Law. ed., 278; Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct.,
511; 36 Law. ed., 226; Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup.
Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765; In re Allen, 2 Phil., 630). The
duty of the court in construing a statute, which is reasonably susceptible of
two constructions to adopt that which saves is constitutionality, includes the
duty of avoiding a construction which raises grave and doubtful constitutional
questions, if it can be avoided (U. S. vs. Delaware & Hudson Co., U.S., 366;
29 Sup. Ct., 527; 53 Law. ed., 836).
According to the rules and principles of International Law, and the legal
doctrines cited above, the judicial proceedings conducted before the courts
of justice, established here during Japanese military occupation, merely
applying the municipal law of the territory, such as the provisions of our Civil
Code, which have no political or military significance, should be considered
legal, valid and binding.
It is to be presumed that General Douglas MacArthur is familiar with said
rules and principles, as International Law is an integral part of the
fundamental law of the land, in accordance with the provisions of the
Constitution of the United States. And it is also to be presumed that General
MacArthur his acted, in accordance with said rules and principles of
International Law, which have been sanctioned by the Supreme Court of the
United States, as the nullification of all judicial proceedings conducted before
our courts, during Japanese occupation would lead to injustice and absurd
results, and would be highly detrimental to the public interests.
For the foregoing reasons, I concur in the majority opinion.
PERFECTO, J., dissenting:
Law must be obeyed. To keep the bonds of society, it must not be evaded.
On its supremacy depends the stability of states and nations. No government
can prevail without it. The preservation of the human race itself hinges in law.
Since time immemorial, man has relied on law as an essential means of
attaining his purposes, his objectives, his mission in life. More than twenty-
two centuries before the Christian Era, on orders of the Assyrian King
Hammurabi, the first code was engrave in black diorite with cunie form
characters. Nine centuries later Emperor Hung Wu, in the cradle of the most
ancient civilization, compiled the Code of the Great Ming. The laws of Manu
were written in the verdic India. Moses received at Sinai the ten
commandments. Draco, Lycurgus, Solon made laws in Greece. Even
ruthless Genghis Khan used laws to keep discipline among the nomad
hordes with which he conquered the greater part of the European and
Asiastic continents.
Animal and plants species must follow the mendelian heredity rules and
other biological laws to survive. Thanks to them, the chalk cliffs of the
infusoria show the marvel of an animal so tiny as to be imperceptible to the
naked eye creating a whole mountain. Even the inorganic world has to
conform the law. Planets and stars follow the laws discovered by Kepler,
known as the law-maker of heavens. If, endowed with rebellious spirit, they
should happen to challenge the law of universal gravity, the immediate result
would be cosmic chaos. The tiny and twinkling points of light set above us on
the velvet darkness of the night will cease to inspire us with dreams of more
beautiful and happier worlds.
Again we are called upon to do our duty. Here is a law that we must apply.
Shall we shrink? Shall we circumvent it ? Can we ignore it?
The laws enacted by the legislators shall be useless if courts are not ready to
apply them. It is actual application to real issues which gives laws the breath
of life.
In the varied and confused market of human endeavor there are so many
things that might induce us to forget the elementals. There are so many
events, so many problem, so many preoccupations that are pushing among
themselves to attract our attention, and we might miss the nearest and most
familiar things, like the man who went around his house to look for a pencil
perched on one of his ears.
THE OCTOBER PROCLAMATION
In October, 1944, the American Armed Forces of Liberation landed
successfully in Leyte.
When victory in islands was accomplished, after the most amazing and
spectacular war operations, General of the Army Douglas MacArthur as a
commander in Chief of the American Army, decided to reestablish, in behalf
of the United States, the Commonwealth Government.
Then he was confronted with the question as to what policy to adopt in
regards to the official acts of the governments established in the Philippines
by the Japanese regime. He might have thought of recognizing the validity of
some of said acts, but, certainly, there were acts which he should declare null
and void, whether against the policies of the American Government, whether
inconsistent with military strategy and operations, whether detrimental to the
interests of the American or Filipino peoples, whether for any other strong or
valid reasons.
But, which to recognize, and which not? He was not in a position to gather
enough information for a safe basis to distinguished and classify which acts
must be nullified, and which must validated. At the same time he had to take
immediate action. More pressing military matters were requiring his
immediate attention. He followed the safe course: to nullify all the legislative,
executive, and judicial acts and processes under the Japanese regime. After
all, when the Commonwealth Government is already functioning, with proper
information, he will be in a position to declare by law, through its Congress,
which acts and processes must be revived and validated in the public
interest.
So on October 23, 1944, the Commander in Chief issued the following
proclamation:
GENERAL HEADQUARTERS
SOUTHWEST PACIFIC AREA
OFFICE OF THE COMMANDER IN CHIEF
PROCLAMATION
To the People of the Philippines:
WHEREAS, the military forces under my command have landed in the
Philippines soil as a prelude to the liberation of the entire territory of the
Philippines; and
WHEREAS, the seat of the Government of the Commonwealth of the
Philippines has been re-established in the Philippines under President Sergio
Osmeña and the members of his cabinet; and
WHEREAS, under enemy duress, a so-called government styled as the
"Republic of the Philippines" was established on October 14, 1943, based
upon neither the free expression of the people's will nor the sanction of the
Government of the United States, and is purporting to exercise Executive,
Judicial and Legislative powers of government over the people;
Now, therefore, I, Douglas MacArthur, General, United States Army, as
Commander in Chief of the military forces committed to the liberation of the
Philippines, do hereby proclaim and declare:
1. That the Government of the Commonwealth of the Philippines is, subject
to the supreme authority of the Government of the United States, the sole
and the only government having legal and valid jurisdiction over the people in
areas of the Philippines free of enemy occupation and control;
2. The laws now existing on the statute books of the Commonwealth of the
Philippines and the regulation promulgated pursuant thereto are in full force
and effect and legally binding upon the people in areas of the Philippines free
of enemy occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free enemy occupation and control;
and
I do hereby announce my purpose progressively to restore and extend to the
people of the Philippines the sacred right of government by constitutional
process under the regularly constituted Commonwealth Government as
rapidly as the several occupied areas are liberated to the military situation
will otherwise permit;
I do enjoin upon all loyal citizens of the Philippines full respect for and
obedience to the Constitution of the Commonwealth of the Philippines and
the laws, regulations and other acts of their duly constituted government
whose seat is now firmly re-established on Philippine soil.
October 23, 1944.
DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief
IS THE OCTOBER PROCLAMATION LAW?
In times of war the Commander in Chief of an army is vested with
extraordinary inherent powers, as a natural result of the nature of the military
operations aimed to achieve the purposes of his country in the war, victory
being paramount among them.
Said Commander in Chief may establish in the occupied or reoccupied
territory, under his control, a complete system of government; he may
appoint officers and employees to manage the affairs of said government; he
may issue proclamations, instructions, orders, all with the full force of laws
enacted by a duly constituted legislature; he may set policies that should be
followed by the public administration organized by him; he may abolish the
said agencies. In fact, he is the supreme ruler and law-maker of the territory
under his control, with powers limited only by the receipts of the fundamental
laws of his country.
California, or the port of San Francisco, had been conquered by the arms of
the United States as early as 1846. Shortly afterward the United States had
military possession of all upper California. Early in 1847 the President, as
constitutional commander in chief of the army and navy, authorized the
military and naval commander of our forces in California to exercise the
belligerent rights of a conqueror, and form a civil government for the
conquered country, and to impose duties on imports and tonnage as military
contributions for the support of the government, and of the army which has
the conquest in possession. . . Cross of Harrison, 16 Howard, 164, 189.)
In May, 1862, after the capture of New Orleans by the United States Army,
General Butler, then in command of the army at that place, issued a general
order appointing Major J. M. Bell, volunteer aide-de-camp, of the division
staff, provost judge of the city, and directed that he should be obeyed and
respected accordingly. The same order appointed Capt. J. H. French provost
marshal of the city, the Capt. Stafford deputy provost marshal. A few days
after this order the Union Bank lent to the plaintiffs the sum of $130,000, and
subsequently, the loan not having been repaid, brought suit before the
provost judge to recover the debt. The defense was taken that the judge had
no jurisdiction over the civil cases, but judgement was given against the
borrowers, and they paid the money under protest. To recover it back is the
object of the present suit, and the contention of the plaintiffs is that the
judgement was illegal and void, because the Provost Court had no
jurisdiction of the case. The judgement of the District Court was against the
plaintiffs, and this judgement was affirmed by the Supreme Court of the
State. To this affirmance error is now assigned.
The argument of the plaintiffs in error is that the establishment of the Provost
Court, the appointment of the judge, and his action as such in the case
brought by the Union Bank against them were invalid, because in violation of
the Constitution of the United States, which vests the judicial power of the
General government in one Supreme Court and in such inferior courts as
Congress may from time to time ordain and establish, and under this
constitutional provision they were entitled to immunity from liability imposed
by the judgment of the Provost Court. Thus, it is claimed, a Federal question
is presented, and the highest court of the State having decided against the
immunity claimed, our jurisdiction is invoked.
Assuming that the case is thus brought within our right to review it, the
controlling question is whether the commanding general of the army which
captured New Orleans and held it in May 1862, had authority after the
capture of the city to establish a court and appoint a judge with power to try
and adjudicate civil causes. Did the Constitution of the United States prevent
the creation of the civil courts in captured districts during the war of the
rebellion, and their creation by military authority?
This cannot be said to be an open question. The subject came under the
consideration by this court in The Grapeshot, where it was decided that
when, during the late civil war, portions of the insurgent territory were
occupied by the National forces, it was within the constitutional authority of
the President, as commander in chief, to establish therein provisional courts
for the hearing and determination of all causes arising under the laws of the
States or of the United States, and it was ruled that a court instituted by
President Lincoln for the State of Louisiana, with authority to hear, try, and
determine civil causes, was lawfully authorized to exercise such jurisdiction.
Its establishment by the military authority was held to be no violation of the
constitutional provision that "the judicial power of the United States shall be
vested in one Supreme Court and in such inferior courts as the Congress
may form time to time ordain and establish." That clause of the Constitution
has no application to the abnormal condition of conquered territory in the
occupancy of the conquering, army. It refers only to courts of United States,
which military courts are not. As was said in the opinion of the court,
delivered by Chief Justice Chase, in The Grapeshot, "It became the duty of
the National government, wherever the insurgent power was overthrown, and
the territory which had been dominated by it was occupied by the National
forces, to provide, as far as possible, so long as the war continued, for the
security of the persons and property and for the administration of justice. The
duty of the National government in this respect was no other than that which
devolves upon a regular belligerent, occupying during war the territory of
another belligerent. It was a military duty, to be performed by the President,
as Commander in Chief, and instructed as such with the direction of the
military force by which the occupation was held."
Thus it has been determined that the power to establish by military authority
courts for the administration of civil as well as criminal justice in portions of
the insurgent States occupied by the National forces, is precisely the same
as that which exists when foreign territory has been conquered and is
occupied by the conquerors. What that power is has several times been
considered. In Leitensdorfer & Houghton vs. Webb, may be found a notable
illustration. Upon the conquest of New Mexico, in 1846, the commanding
officer of the conquering army, in virtue of the power of conquest and
occupancy, and with the sanction and authority of the President, ordained a
provisional government for the country. The ordinance created courts, with
both civil and criminal jurisdiction. It did not undertake to change the
municipal laws of the territory, but it established a judicial system with a
superior or appellate court, and with circuit courts, the jurisdiction of which
declared to embrace, first, all criminal causes that should not otherwise
provided for by law; and secondly, original and exclusive cognizance of all
civil cases not cognizable before the prefects and alcades. But though these
courts and this judicial system were established by the military authority of
the United States, without any legislation of Congress, this court ruled that
they were lawfully established. And there was no express order for their
establishment emanating from the President or the Commander in Chief. The
ordinance was the act of the General Kearney the commanding officer of the
army occupying the conquered territory.
In view of these decisions it is not to be questioned that the Constitution did
not prohibit the creation by the military authority of court for the trial of civil
causes during the civil war in conquered portions of the insurgent States. The
establishment of such courts is but the exercise of the ordinary rights of
conquest. The plaintiffs in error, therefore, had no constitutional immunity
against subjection to the judgements of such courts. They argue, however,
that if this be conceded, still General Butler had no authority to establish such
a court; that the President alone, as a Commander in Chief, had such
authority. We do not concur in this view. General Butler was in command of
the conquering and the occupying army. He was commissioned to carry on
the war in Louisina. He was, therefore, invested with all the powers of making
war, so far as they were denied to him by the Commander in Chief, and
among these powers, as we have seen, was of establishing courts in
conquered territory. It must be presumed that he acted under the orders of
his superior officer, the President, and that his acts, in the prosecution of the
war, were the acts of his commander in chief. (Mechanics' etc.
Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)
There is no question, therefore, that when General of the Army Douglas
MacArthur issued on October Proclamation, he did it in the legitimate
exercise of his powers. He did it as the official representative of the supreme
authority of the United States of America. Consequently, said proclamation is
legal, valid, and binding.
Said proclamation has the full force of a law. In fact, of a paramount law.
Having been issued in the exercise of the American sovereignty, in case of
conflict, it can even supersede, not only the ordinary laws of the
Commonwealth of the Philippines, but also our Constitution itself while we
remain under the American flag.
"PROCESS" IN THE OCTOBER PROCLAMATION
In the third section of the dispositive part of the October Proclamation, it is
declared that all laws, regulations and processes of any other government in
the Philippines than that of the Commonwealth, are null and void.
Does the word "processes" used in the proclamation include judicial
processes?
In its broadest sense, process is synonymous with proceedings or
procedures and embraces all the steps and proceedings in a judicial cause
from it commencement to its conclusion.
PROCESS. In Practice. — The means of compelling a defendant to appear
in court after suing out the original writ, in civil, and after indictment, in
criminal cases.
The method taken by law to compel a compliance with the original writ or
command as of the court.
A writ, warrant, subpoena, or other formal writing issued by authority law;
also the means of accomplishing an end, including judicial proceedings;
Gollobitch vs. Rainbow, 84 la., 567; 51 N. W., 48; the means or method
pointed out by a statute, or used to acquire jurisdiction of the defendants,
whether by writ or notice. Wilson vs.R. Co. (108 Mo., 588; 18 S. W., 286; 32
Am. St. Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.)
A. Process generally. 1. Definition. — As a legal term process is a generic
word of every comprehensive signification and many meanings. It is broadest
sense it is equivalent to, or synonymous with, "proceedings" or "procedure,"
and embraces all the steps and proceedings in a cause from its
commencement to its conclusion. Sometimes the term is also broadly
defined as the means whereby a court compels a compliance with it
demands. "Process" and "writ" or "writs" are synonymous in the sense that
every writ is a process, and in a narrow sense of the term "process" is limited
to judicial writs in an action, or at least to writs or writings issued from or out
of court, under the seal thereof, and returnable thereto; but it is not always
necessary to construe the term so strictly as to limit it to a writ issued by a
court in the exercise of its ordinary jurisdiction; the term is sometimes defined
as a writ or other formal writing issued by authority of law or by some court,
body, or official having authority to issue it; and it is frequently used to
designate a means, by writ or otherwise , of acquiring jurisdiction of
defendant or his property, or of bringing defendant into, or compelling him to
appear in, court to answer.
As employed in the statutes the legal meaning of the word "process" varies
according to the context, subject matter, and spirit of the statute in which it
occurs. In some jurisdictions codes or statutes variously define "process" as
signifying or including: A writ or summons issued in the course of judicial
proceedings; all writs, warrants, summonses, and orders of courts of justice
or judicial officers; or any writ, declaration, summons, order, or subpoena
whereby any action, suit or proceeding shall be commenced, or which shall
be issued in or upon any action, suit or proceeding. (50 C. J., PP. 441, 442.)
The definition of "process" given by Lord Coke comprehends any lawful
warrant, authority, or proceeding by which a man may be arrested. He says:
"Process of law is two fold, namely, by the King's writ, or by proceeding and
warrant, either in deed or in law, without writ." (People vs. Nevins [N. Y.] Hill,
154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.)
Baron Comyn says that process, in a large acceptance, comprehends the
whole proceedings after the original and before judgement; but generally it
imports the writs which issue out of any court to bring the party to answer, or
for doing execution, and all process out of the King's court ought to be in the
name of the King. It is called "process" because it proceeds or goes upon
former matter, either original or judicial. Gilmer, vs.Bird 15 Fla., 410, 421. (34
Words and Phrases, permanent edition, 1940 edition, p. 147.)
In a broad sense the word "process" includes the means whereby a court
compels the appearance of the defendant before it, or a compliance with it
demands, and any every writ, rule order, notice, or decree, including any
process of execution that may issue in or upon any action, suit, or legal
proceedings, and it is not restricted to mesne process. In a narrow or
restricted sense it is means those mandates of the court intending to bring
parties into court or to require them to answer proceedings there pending.
(Colquitt Nat. Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329. (34
Words and Phrases, permanent edition, 1940 edition, p. 148.)
A "process" is an instrument in an epistolary from running in the name of the
sovereign of a state and issued out of a court of justice, or by a judge thereof,
at the commencement of an action or at any time during its progress or
incident thereto, usually under seal of the court, duly attested and directed to
some municipal officer or to the party to be bound by it, commanding the
commission of some act at or within a specified time, or prohibiting the doing
of some act. The cardinal requisites are that the instrument issue from a
court of justice, or a judge thereof; that it run in the name of the sovereign of
the state; that it be duly attested, but not necessarily by the judge, though
usually, but not always, under seal; and that it be directed to some one
commanding or prohibiting the commission of an act. Watson vs. Keystone
Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and Phrases,
permanent edition, 1940 edition, p. 148.)
Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is
largely taken for all proceedings in any action or prosecution, real or
personal, civil or criminal, from the beginning to the end; secondly, that is
termed the "process" by which a man is called into any temporal court,
because the beginning or principal part thereof, by which the rest is directed
or taken. Strictly, it is a proceeding after the original, before the judgement. A
policy of fire insurance contained the condition that if the property shall be
sold or transferred, or any change takes place in title or possession, whether
by legal process or judicial decree or voluntary transfer or convenience, then
and in every such case the policy shall be void. The term "legal process," as
used in the policy, means what is known as a writ; and, as attachment or
execution on the writs are usually employed to effect a change of title to
property, they are or are amongst the processes contemplated by the policy.
The words "legal process" mean all the proceedings in an action or
proceeding. They would necessarily embrace the decree, which ordinarily
includes the proceedings. Perry vs. Lorillard Fire Ins. Co., N. Y., 6 Lans., 201,
204. See, also, Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words and
Phrases, permanent edition, 1940 edition, p. 148.)
"Process" in a large acceptation, is nearly synonymous with "proceedings,"
and means the entire proceedings in an action, from the beginning to the
end. In a stricter sense, it is applied to the several judicial writs issued in an
action. Hanna vs. Russell, 12 Minn., 80, 86 (Gil., 43, 45). (34 Words and
Phrases, permanent edition, 1940, edition 149.)
The term "process" as commonly applied, intends that proceeding by which a
party is called into court, but it has more enlarged signification, and covers all
the proceedings in a court, from the beginning to the end of the suit; and, in
this view, all proceedings which may be had to bring testimony into court,
whether viva voceor in writing, may be considered the process of the court.
Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id.
"Process" in its broadest sense comprehends all proceedings to the
accomplishment of an end, including judicial proceedings. Frequently its
signification is limited to the means of bringing a party in court. In the
Constitution process which at the common law would have run in the name
of the king is intended. In the Code process issued from a court is meant.
McKenna vs. Cooper, 101 P., 662, 663; 79 Kan., 847, quoting
Hanna vs. Russel, 12 Minn., 80. (Gil., 43 ); Black Com. 279; Bou vs. Law.
Dict. (34 Words and Phrases, permanent edition 1940 edition, p. 149.)
"Judicial process" includes the mandate of a court to its officers, and a
means whereby courts compel the appearance of parties, or compliance with
its commands, and includes a summons. Ex parte Hill, 51 So., 786, 787; 165
Ala., 365.
"Judicial process" comprehends all the acts of then court from the beginning
of the proceeding to its end, and in a narrower sense is the means of
compelling a defendant to appear in court after suing out the original writ in
civil case and after the indictment in criminal cases, and in every sense is the
act of the court and includes any means of acquiring jurisdiction and includes
attachment, garnishment, or execution, and also a writ. Blair vs. Maxbass
Security Bank of Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and
Phrases, permanent edition 1940 edition, p. 328.)
There is no question that the word process, as used in the October
Proclamation, includes all judicial processes or proceedings.
The intention of the author of the proclamation of including judicial processes
appears clearly in the preamble of the document.
The second "Whereas," states that so-called government styled as the
"Republic of the Philippines," based upon neither the free expression of the
people's will nor the sanction of the Government of the United States, and is
purporting to the exercise Executive, Judicial, and Legislative powers of
government over the people."
It is evident from the above-mentioned words that it was the purpose of
General MacArthur to declare null and void all acts of government under the
Japanese regime, and he used, in section 3 of he dispositive part, the word
laws, as pertaining to the legislative branch, the word regulations, as
pertaining to the executive branch, and lastly, the word processes, as
pertaining to the judicial branch of the government which functioned under
the Japanese regime.
It is reasonable to assume that he might include in the word "process."
besides those judicial character, those of executive or administrative
character. At any rate, judicial processes cannot be excluded.
THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY
THE INTENTION OF THE AUTHOR
The October Proclamation is written in such a way that it is impossible to
make a mistake as to the intention of its author.
Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the
Supreme Court of the United States, the following:
When the words in their literal sense have a plain meaning, courts must be
very cautious in allowing their imagination to give them a different one.
Guild vs. Walter, 182 Mass., 225, 226 (1902)
Upon questions of construction when arbitrary rule is involved, it is always
more important to consider the words and the circumstances than even
strong analogies decisions. The successive neglect of a series of small
distinctions, in the effort to follow precedent, is very liable to end in perverting
instruments from their plain meaning. In no other branch of the law (trusts) is
so much discretion required in dealing with authority. . . . There is a strong
presumption in favor of giving them words their natural meaning, and against
reading them as if they said something else, which they are not fitted to
express. (Merrill vs. Preston, 135 Mass., 451, 455 (1883).
When the words of an instrument are free from ambiguity and doubt, and
express plainly, clearly and distinctly the sense of the framer, there is no
occasion to resort to other means of interpretation. It is not allowable to
interpret what needs no interpretation.
Very strong expression have been used by the courts to emphasize the
principle that they are to derive their knowledge of the legislative intention
from the words or language of the statute itself which the legislature has
used to express it. The language of a statute is its most natural guide. We
are not liberty to imagine an intent and bind the letter to the intent.
The Supreme Court of the United States said: "The primary and general rule
of statutory construction is that the intent of the law-maker is to be found in
the language that he has used. He is presumed to know the meaning of the
words and the rules of grammar. The courts have no function of legislation,
and simply seek to ascertain the will of the legislator. It is true that there are
cases in which the letter of the statute is not deemed controlling, but the
cases are few and exceptional and only arise where there are cogent
reasons for believing that the letter does not fully and accurately disclose the
intent. No mere ommission, no mere failure to provide for contingencies,
which it may seem wise should have specifically provided for will justify any
judicial addition to the language of the statute." (United
States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law.
ed., 394.)
That the Government of the Commonwealth of the Philippines shall be the
sole and only government in our country; that our laws are in full force and
effect and legally binding; that "all laws, regulations and processes of any
other government are null and void and without legal effect", are provisions
clearly, distinctly, unmistakably expressed in the October Proclamation, as to
which there is no possibility of error, and there is absolutely no reason in
trying to find different meanings of the plain words employed in the
document.
As we have already seen, the annulled processes are precisely judicial
processes, procedures and proceedings, including the one which is under
our consideration.
THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY
Although, as we have already stated, there is no possible mistakes as to the
meaning of the words employed in the October Proclamation, and the text of
the document expresses, in clear-cut sentences, the true purposes of its
author, it might not be amiss to state here what was the policy intended to be
established by said proclamation.
It is a matter of judicial knowledge that in the global war just ended on
September 2, 1945, by the signatures on the document of unconditional
surrender affixed by representatives of the Japanese government, the
belligerents on both sides resorted to what may call war weapons of
psychological character.
So Japan, since its military forces occupied Manila, had waged an intensive
campaign propaganda, intended to destroy the faith of the Filipino people in
America, to wipe out all manifestations of American or occidental civilization,
to create interest in all things Japanese, which the imperial officers tried to
present as the acme of oriental culture, and to arouse racial prejudice among
orientals and occidentals, to induce the Filipinos to rally to the cause of
Japan, which she tried to make us believe is the cause of the inhabitants of
all East Asia.
It is, then, natural that General MacArthur should take counter-measures to
neutralize or annul completely all vestiges of Japanese influence, specially
those which might jeopardize in any way his military operations and his
means of achieving the main objective of the campaign of the liberation, that
is, to restore in our country constitutional processes and the high ideals
constitute the very essence of democracy.
It was necessary to free, not only our territory, but also our spiritual
patrimony. It was necessary, not only to restore to us the opportunity of
enjoying the physical treasures which a beneficent Providence accumulated
on this bountiful land, the true paradise in the western Pacific, but to restore
the full play of our ideology, that wonderful admixture of sensible principles of
human conduct, bequeathed to us by our Malayan ancestors, the moral
principles of the Christianity assimilated by our people from teachers of
Spain, and the common-sense rules of the American democratic way of life.
It was necessary to free that ideology from any Japanese impurity.
Undoubtedly, the author of the proclamation thought that the laws,
regulations, and processes of all the branches of the governments
established under the Japanese regime, if allowed to continue and to have
effect, might be a means of keeping and spreading in our country the
Japanese influence, with the same deadly effects as the mines planted by
the retreating enemy.
The government offices and agencies which functioned during the Japanese
occupation represented a sovereignty and ideology antagonistic to the
sovereignty and ideology which MacArthur's forces sought to restore in our
country.
Under chapter I of the Japanese Constitution, it is declared that Japan shall
reigned and governed by a line Emperors unbroken for ages eternal (Article
1); that the Emperor is sacred and inviolable (Article 3); that he is the head of
the Empire, combining in himself the rights of the sovereignty (Article 4); that
he exercises the legislative power (Article 5); that he gives sanction to laws,
and orders to be promulgated and executed (Article 6);that he has the
supreme command of the Army and Navy (Article 11); that he declares war,
makes peace, and concludes treaties (Article 13).
There is no reason for allowing to remain any vestige of Japanese ideology,
the ideology of a people which as confessed in a book we have at our desk,
written by a Japanese, insists in doing many things precisely in a way
opposite to that followed by the rest of the world.
It is the ideology of a people which insists in adopting the policy of self-
delusion; that believes that their Emperor is a direct descendant of gods and
he himself is a god, and that the typhoon which occured on August 14, 1281,
which destroyed the fleet with which Kublai Khan tried to invade Japan was
the divine wind of Ise; that defies the heinous crime of the ronin, the 47
assassins who, in order to avenge the death of their master Asano Naganori,
on February 3, 1703, entered stealthily into the house of Yoshinaka Kiro and
killed him treacherously.
It is an ideology which dignifies harakiri or sepukku, the most bloody and
repugnant from suicide, and on September 13, 1912, on the occasion of the
funeral of Emperor Meiji, induced General Maresuke Nogi and his wife to
practice the abhorrent "junshi", and example of which is offered to us in the
following words of a historian:
When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that,
following the occasion, his attendants were assembled to from the hito-
bashira (pillar-men) to gird the grave. They were buried alive in circle up to
the neck around the thomb and "for several days they died not, but wept and
wailed day night. At last they died not, but wept and wailed day night. At last
they did not rotted. Dogs and cows gathered and ate them." (Gowen, an
Outline of History of Japan, p. 50.)
The practice shows that the Japanese are the spiritual descendants of the
Sumerians, the ferocious inhabitants of Babylonia who, 3500 years B. C.,
appeared in history as the first human beings to honor their patesis by killing
and entombing with him his window, his ministers, and notable men and
women of his kingdom, selected by the priests to partake of such abominable
honor. (Broduer, The Pageant of Civilization, pp. 62-66.)
General MacArthur sought to annul completely the officials acts of the
governments under the Japanese occupation, because they were done at
the shadow of the Japanese dictatorship, the same which destroyed the
independence of Korea, the "Empire of Morning Frehsness"; they violated
the territorial integrity of China, invaded Manchuria, and initiated therein the
deceitful system of puppet governments, by designating irresponsible Pu Yi
as Emperor of Manchukuo; they violated the trusteeship granted by the
Treaty of Versailles by usurping tha mandated islands in the Pacific; they
initiated that they call China Incident, without war declaration, and, therefore,
in complete disregard of an elemental international duty; they attacked Pearl
Harbor treacherously, and committed a long series of the flagrant violations
of international law that have logically bestowed on Japan the title of the
bandit nation in the social world.
The conduct of the Japanese during the occupation shows a shocking an
anchronism of a modern world power which seems to be re-incarnation of
one whose primitive social types of pre-history, whose proper place must be
found in an archeological collection. It represents a backward jump in the
evolution of ethical and juridical concepts, a reversion that, more than a
simple pathological state, represents a characteristics and well defined case
of sociological teratology.
Since they entered the threshold of our capital, the Japanese had announced
that for every one of them killed they would kill ten prominent Filipinos. They
promised to respect our rights by submitting us to the wholesale and
indiscriminate slapping, tortures, and atrocious massacres. Driving nails in
the cranium, extraction of teeth and eyes, burnings of organs, hangings,
diabolical zonings, looting of properties, establishments of redlight districts,
machine gunning of women and children, interment of alive persons, they are
just mere preludes of the promised paradised that they called "Greater East
Asia Co-Prosperity Sphere".
They promised religious liberty by compelling all protestant sects to unite,
against the religious scruples and convictions of their members, in one
group, and by profaning convents, seminaries, churches, and other cult
centers of the Catholics, utilizing them as military barracks, munitions dumps,
artillery base, deposits of bombs and gasoline, torture chambers and zone,
and by compelling the government officials and employees to face and to
bow in adoration before that caricature of divinity in the imperial palace of
Tokyo.
The Japanese offered themselves to be our cultural mentors by depriving us
of the use of our schools and colleges, by destroying our books and other
means of culture, by falsifying the contents of school texts, by eliminating
free press, the radio, all elemental principles of civilized conduct, by
establishing classes of rudimentary Japanese so as to reduce the Filipinos to
the mental level of the rude Japanese guards, and by disseminating all kinds
of historical, political, and cultural falsehoods.
Invoking our geographical propinquity and race affinity, they had the
insolence of calling us their brothers, without the prejuce of placing of us in
the category of slaves, treating the most prominent Filipinos in a much lower
social and political category than that of the most ignorant and brutal subject
of the Emperor.
The civil liberties of the citizens were annulled. Witnesses and litigants were
slapped and tortured during investigations. In the prosecuting attorney's
offices, no one was safe. When the Japanese arrested a person, the lawyer
who dared to intercede was also placed under arrest. Even courts were not
free from their dispotic members. There were judges who had to trample
laws and shock their conscience in order not to disgust a Nipponese.
The most noble of all professions, so much so that the universities of the
world could not conceive of higher honor that may be conferred than that of
Doctor of Laws, became the most despised. It was dangerous to practice the
profession by which faith in the effectiveness of law is maintained; citizens
feel confident in the protection of their liberties, honor, and dignity; the weak
may face the powerful; the lowest citizen is not afraid of the highest official;
civil equality becomes reality; justice is admnistered with more efficiency; and
democracy becomes the best system of government and the best guaranty
for the welfare and happiness of the individual human being. In fact, the
profession of law was annulled, and the best lawyers for the unfortunate
prisoners in Fort Santiago and other centers of torture were the military
police, concubines, procurers, and spies, the providers of war materials and
shameful pleasures, and the accomplices in fraudulent transactions, which
were the specialty of many naval and military Japanese officers.
The courts and Filipino government officials were completely helpless in the
question of protecting the constitutional liberties and fundamental rights of
the citizens who happen to be unfortunate enough to fall under the dragnet of
the hated kempei. Even the highest government officials were not safe from
arrest and imprisonment in the dreaded military dungeons, where torture or
horrible death were always awaiting the defenseless victim of the Japanese
brutality.
May any one be surprised if General MacArthur decided to annul all the
judicial processes?
The evident policy of the author of the October Proclamation can be seen if
we take into consideration the following provisions of the Japanese
Constitution:
ART. 57. The Judicature shall be exercised by the Courts of Law according to
law, in the name of the Emperor.
ART. 61. No suit at law, which relates to rights alleged to have been infringed
by the illegal measures of the executive authority .. shall be taken
cognizance of by a Court of Law.
INTERNATIONAL LAW
Nobody dared challenge the validity of the October Proclamation.
Nobody dared challenge the authority of the military Commander in Chief
who issued it.
Certainly not because of the awe aroused by the looming figure of General of
the Army Douglas MacArthur, the Allied Supreme Commander, the military
hero, the greatest American general, the Liberator of the Philippines, the
conqueror of Japan, the gallant soldier under whose authority the Emperor of
the Japan, who is supposed to rule supreme for ages as a descendant of
gods, is receiving orders with the humility of a prisoner of war.
No challenge has been hurled against the proclamation or the authority of the
author to issue it, because everybody acknowledges the full legality of its
issuance.
But because the proclamation will affect the interest and the rights of a group
of individuals, and to protect the same, a way is being sought to neutralize
the effect of the proclamation.
The way found is to invoke international law. The big and resounding word is
considered as a shibboleth powerful enough to shield the affected persons
from the annulling impact.
Even then, international law is not invoked to challenge the legality or
authority of the proclamation, but only to construe it in a convenient way so
that judicial processes during the Japanese occupation, through an
exceptional effort of the imagination, might to segregated from the processes
mentioned in the proclamation.
An author said that the law of nations, the "jus gentiun", is not a fixed nor
immutable science. On the country, it is developing incessantly, it is
perpetually changing in forms. In each turn it advances or recedes, according
to the vicissitudes of history, and following the monotonous rythm of the ebb
and rise of the tide of the sea.
Le driot des gens, en effet, n'est point une science fixe est immuable: bein au
contraire, il se developpe sans cesse, il change eternellement de formes;
tour il avance et il recule, selon less vicissitudes de histoire et suivan un
rhythm monotone qui est comme le flux et le reflux d'un mer. (M. Revon, De
l'existence du driot international sous la republique romain.)
Another author has this to say:
International law, if it is or can be a science at all, or can be, at most a
regulative science, dealing with the conduct of States, that is, human beings
in a certain capacity; and its principles and prescriptions are not, like those of
science proper, final and unchanging. The substance of science proper is
already made for man; the substance of international is actually made by
man, — and different ages make differently." (Coleman Philippson, The
International Law and Custom of Ancient Greece of Rome, Vol. I, p. 50.)
"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of
Legal History., p. 1. ) Justice Cardozo adds: "Here is the great antimony
confronting us at every turn. Rest and motion, unrelieved and unchecked, are
equally destructive. The law, like human kind, if life is to continue, must find
some path compromise." (The Growth of Law p. 2.) Law is just one of the
manifestations of human life, and "Life has relations not capable of division
into inflexible compartments. The moulds expand and shrink,"
(Glanzer vs. Shepard, 233 N.Y., 236, 241.)
The characteristic plasticity of law is very noticeable, much more than in any
other department, in international law.
In a certain matters it is clear we have made substantial progress, but in
other points, he (M. Revon) maintains, we have retrograded; for example, in
the middle ages the oath was not always respected as faithfully as in ancient
Rome; and nearer our own times, in the seventeenth century, Grotius
proclaims the unquestioned right of the belligerents to massacre the women
and the children of the enemy; and in our more modern age the due
declaration of war which Roman always conformed to has not been
invariably observed. (Coleman Philippson, The International Law and
Custom of Ancient Greece and Rome, Vol. I, p. 209.)
Now let us see if any principle of international law may effect the
enforcement of the October Proclamation.
In this study we should be cautioned not to allow ourselves to be deluded by
generalities and vagueness which are likely to lead us easily to error, in view
of the absence of codification and statutory provisions.
Our Constitution provides:
The Philippines renounces war as an instrument of national policy, and
adopts the generally accepted principles of international law as part of the
law of the Nation. (Sec. 3, Art. II.)
There being no codified principles of international law, or enactments of its
rules, we cannot rely on merely legal precepts.
With the exception of international conventions and treaties and, just
recently, the Charter of the United Nations, adopted in San Francisco
Conference on June 26, 1945, we have to rely on unsystemized judicial
pronouncements and reasonings and on theories, theses, and propositions
that we may find in the works of authors and publicists.
Due to that characteristic pliability and imprecision of international law, the
drafters of our Constitution had to content themselves with "generally
accepted principles."
We must insists, therefore, that the principles should be specific and
unmistakably defined and that there is definite and conclusive evidence to
the effect that they generally accepted among the civilized nations of the
world and that they belong to the current era and no other epochs of history.
The temptation of assuming the role of a legislator is greater in international
law than in any other department of law, since there are no parliaments,
congresses, legislative assemblies which can enact laws and specific
statutes on the subject. It must be our concern to avoid falling in so a great
temptation, as its, dangers are incalculable. It would be like building castles
in the thin air, or trying to find an exit in the thick dark forest where we are
irretrievably lost. We must also be very careful in our logic. In so vast a field
as international law, the fanciful wandering of the imagination often impair the
course of dialistics.
THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW
Is there any principle of international law that may effect the October
Proclamation?
We tried in vain to find out in the majority opinion anything as to the
existence of any principle of international law under which the authority of
General MacArthur to issue the proclamation can effectively be challenged.
No principle of international law has been, or could be invoked as a basis for
denying the author of the document legal authority to issue the same or any
part thereof.
We awaited in vain for any one to dare deny General MacArthur the authority,
under international law, to declare null and void and without effect, not only
the laws and regulations of the governments under the Japanese regime, but
all the processes of said governments, including judicial processes.
If General MacArthur, as commander in Chief of the American Armed Forces
of Liberation, had authority, full and legal, to issue the proclamation, the
inescapable result will be the complete viodance and nullity of all judicial
processes, procedures, and proceedings of all courts under the Japanese
regime.
But those who are sponsoring the cause of said judicial processes try to
achieve their aim, not by direct means, but by following a tortuous side-road.
They accept and recognize the full authority of the author of the proclamation
to issue it and all its parts, but they maintain that General MacArthur did not
and could not have in mind the idea of nullifying the judicial processes during
the Japanese occupation, because that will be in violation of the principles of
international law.
If we follow the reasoning of the majority opinion we will have to reach the
conlusion that the world "processes" does not appear at all in the October
Proclamation.
It is stated more than once, and reiterated with dogmatic emphasis, that
under the principles of international law the judicial processes under an army
occupation cannot be invalidated.
But we waited in vain for the specific principle of international law, only one of
those alluded to, to be pointed out to us.
If the law exist, it can be pointed out. If the principle exists, it can stated
specifically. The word is being used very often in plural, principles, but we
need only one to be convinced.
The imagined principles are so shrouded in a thick maze of strained
analogies and reasoning, that we confess our inability even to have a fleeting
glimpse at them through their thick and invulnerable wrappers.
At every turn international law, the blatant words, are haunting us with the
deafening bray of a trumpet, but after the transient sound has fled away,
absorbed by the resiliency of the vast atmosphere, the announced principles,
which are the very soul of international law, would disappear too with the
lighting speed of a vanishing dream.
WEAKNESS OF THE MAJORITY POSITION
In the majority opinion three questions are propounded: first, whether judicial
acts and proceedings during the Japanese occupation are valid even after
liberation; second whether the October Proclamation had invalidated all
judgement and judicial proceedings under the Japanese regime; and third,
whether the present courts of the Commonwealth may continue the judicial
proceedings pending at the time of liberation.
As regards the first question, it is stated that it is a legal tourism in political
and international law that all acts of a de facto government are good and
valid, that the governments established during the Japanese occupation. that
is, the Philippine Executive Commission and the Republic of the Philippines,
were de facto governments, and that it necessarily follows that the judicial
acts and proceedings of the courts of those governments, "which are not of a
political complexion," were good and valid, and by virtue of the principle
of postliminium, remain good and valid after the liberation.
In the above reasoning we will see right away how the alleged legal truism in
political and international law, stated as a premise in a sweeping way, as an
absolute rule, is immediately qualified by the exception as to judicial acts and
proceedings which are of a "political complexion."
So it is the majority itself which destroys the validity of what it maintains as a
legal truism in political and international law, by stating from the beginning of
the absolute proposition that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto governments are good and
valid.
It is be noted that no authority, absolutely no authority, has been cited to
support the absolute and sweeping character of the majority proposition as
stated in their opinion.
No authority could be cited, because the majority itself loses faith in the
validity of such absolute and sweeping proposition, by establishing an
unexplained exception as regards the judicial acts and proceedings of a
"political complexion."
Besides, it is useless to try to find in the arguments of the majority anything
that may challenge the power, the authority of a de jure government to annul
the official acts of a de facto government, or the legal and indisputable
authority of the restored legitimate government to refuse to recognize the
official acts, legislative, executive and judicial, of the usurping government,
once the same is ousted.
As to the second question, the majority argues that the judicial proceedings
and judgments of the de factogovernments under the Japanese regime being
good and valid, "it should be presumed that it was not, and could not have
been, the intention of General Douglas MacArthur to refer to judicial
processes, when he used the last word in the October Proclamation, and that
it only refers to government processes other than judicial processes or court
proceedings."
The weakness and absolute ineffectiveness of the argument are self-evident.
It is maintained that when General MacArthur declared the processes of the
governments under the Japanese regime null and void, he could not refer to
judicial processes, because the same are valid and remained so under the
legal truism announced by the majority to the effect that, under political and
international law, all official acts of a de facto government, legislative,
executive or judicial, are valid.
But we have seen already how the majority excepted from said legal truism
the judicial processes of "political complexion."
And now it is stated that in annulling the processes of the governments under
Japanese occupation, General MacArthur referred to "processes other than
judicial processes."
That is, the legislative and executive processes.
But, did not the majority maintain that all acts and proceedings of legislative
and executive departments of a de factogovernments are good and valid?
Did it not maintain that they are so as a "legal truism in political and
international law?"
Now if the reasoning of the majority to the effect that General MacArthur
could not refer to judicial processes because they are good and valid in
accordance with international law, why should the same reasoning not apply
to legislative and executive processes?
Why does the majority maintain that, notwithstanding the fact that, according
that said legal truism, legislative and executive official acts of de
facto governments are good and valid, General MacArthur referred to the
latter in his annulling proclamation, but not to judicial processes?
If the argument is good so as to exclude judicial processes from the effect of
the October Proclamation, we can see no logic in considering it bad with
respect to legislative and executive processes.
If the argument is bad with respect to legislative and executive processes,
there is no logic in holding that it is not good with respect to judicial
processes.
Therefore, if the argument of the majority opinion is good, the inevitable
conclusion is that General MacArthur did not declare null and void any
processes, at all, whether legislative processes, executive processes, or
judicial processes, and that the word "processes" used by him in the October
Proclamation is a mere surplusage or an ornamental literary appendix.
The absurdity of the conclusion unmasks the utter futility of the position of the
majority, which is but a mere legal pretense that cannot stand the least
analysis or the test of logic.
A great legal luminary admonished that we must have courage to unmasks
pretense if we are to reach a peace that will abide beyond the fleeting hour.
It is admitted that the commanding general of a belligerent army of
occupation as an agent of his government, "may not unlawfully suspend
existing laws and promulgate new ones in the occupied territory if and when
exigencies of the military occupation demand such action," but it is doubted
whether the commanding general of the army of the restored legitimate
government can exercise the same broad legislative powers.
We beg to disagree with a theory so unreasonable and subversive.
We cannot accept that the commanding general of an army of occupation, of
a rebellious army, of an invading army, or of a usurping army, should enjoy
greater legal authority during the illegal, and in the case of the Japanese,
iniquitous and bestial occupation, than the official representative of the
legitimate government, once restored in the territory wrested from the brutal
invaders and aggressors. We cannot agree with such legal travesty.
Broad and unlimited powers are granted and recognized in the commanding
general of an army of invasion, but the shadow of the vanishing alleged
principle of international law is being brandished to gag, manacle, and make
completely powerless the commander of an army of liberation to wipe out the
official acts of the government for usurpation, although said acts might impair
the military operation or neutralize the public policies of the restored
legitimate government.
We are not unmindful of the interest of the persons who might be adversely
affected by the annulment of the judicial processes of the governments under
the Japanese regime, but we cannot help smiling when we hear that chaos
will reign or that the world will sink.
It is possible that some criminals will be let loose unpunished, but nobody
has ever been alarmed that the President, in the exercise of his constitutional
powers of pardon and amnesty, had in the past released many criminals from
imprisonment. And let us not forget that due to human limitations, in all
countries, under all governments, in peace or in war, there were, there are,
and there will always be unpunished criminals, and that situation never
caused despair to any one.
We can conceive of inconveniences and hardships, but they are necessary
contributions to great and noble purposes. Untold sacrifices were always
offered to attain high ideals and in behalf of worthy causes.
We cannot refrain from feeling a paternal emotion for those who are
trembling with all sincerity because of the belief that the avoidance of judicial
proceedings of the governments under the Japanese regime "would paralyze
the social life of the country." To allay such fear we must remind them that the
country that produced many great hereos and martyrs; that contributed some
of highest morals figures that humanity has ever produced in all history;
which inhabited by a race which was able to traverse in immemorial times the
vast expanses of the Indian Ocean and the Pacific with inadequate means of
navigation, and to inhabit in many islands so distantly located, from
Madagascar to the eastern Pacific; which made possible the wonderful
resistance of Bataan and Corregidor, can not have a social life so frail as to
be easily paralyzed by the annulment of some judicial proceedings. The
Japanese vandalisms during the last three years of nightmares and bestial
oppression, during the long period of our national slavery, and the wholesale
massacres and destructions in Manila and many other cities and
municipalities and populated areas, were not able to paralyze the social life
of our people. Let us not loss faith so easily in the inherent vitality of the
social life of the people and country of Rizal and Mabini.
It is insinuated that because of the thought that the representative of the
restored sovereign power may set aside all judicial processes of the army of
occupation, in the case to courts of a future invasions, litigants will not
summit their cases to courts whose judgement may afterwards be annulled,
and criminals would not be deterred from committing offenses in the
expectancy that they may escape penalty upon liberation of the country. We
hope that Providence will never allow the Philippines to fall again under the
arms of an invading army, but if such misfortune will happen, let the October
Proclamation serve as a notice to the ruthless invaders that the official acts
of the government of occupation will not merit any recognition from the
legitimate government, especially if they should not conduct themselves, as
exemplified by the Japanese, in accordance with the rules of action of a
civilized state.
One conclusive evidence of the untenableness of the majority position is the
fact that it had to resort to Executive Order No. 37, issued on March 10,
1945, providing "that all cases that have heretofore been appealed to the
Court of Appeals shall be transmitted to the Supreme Court for final
decision." The far-fetched theory is advanced that this provision impliedly
recognizes the court processes during the Japanese military occupation, on
the false assumption that it refers to the Court of Appeals existing during the
Japanese regime. It is self-evident that the Executive Order could have
referred only to the Commonwealth Court of Appeals, which is the one
declared abolished in said order. Certainly no one will entertain the absurd
idea that the President of the Philippines could have thought of abolishing the
Court of Appeals under the government during the Japanese occupation.
Said Court of Appeals disappeared with the ouster of the Japanese military
administration from which it derived its existence and powers. The Court of
Appeals existing on March 10, 1945, at the time of the issuance of Executive
Order No. 37, was the Commonwealth Court of Appeals and it was the only
one that could be abolished.
Without discussing the correctness of principle stated the majority opinion
quotes from Wheaton the following: "Moreover when it is said that occupier's
acts are valid and under international law should not be abrogated by the
subsequent conqueror, it must be remembered that on crucial instances exist
to show that if his acts should be reversed, any international wrong would be
committed. What does happen is that most matters are allowed to stand by
the stored government, but the matter can hardly be put further than this."
(Wheaton, International Law, War, 7th English edition of 1944, p. 245)
Then it says that there is no doubt that the subsequent conqueror has the
right to abrogate most of the acts of the occupier, such as the laws,
regulations and processes other than the judicial of the government
established by the belligerent occupant.
It is evident that the statement just quoted is a complete diversion from the
principle stated in the in an unmistakable way by Wheaton, who says in
definite terms that "it must be remembered that no crucial instances exist to
show that if his acts (the occupant's) should be reversed, any international
wrong would be committed."
It can be clearly seen that Wheaton does not make any distinction or point
out any exception.
But in the majority opinion the principle is qualified, without stating any
reason therefore, by limiting the right of the restored government to annul
"most of the acts of the occupier" and "processes other than judicial."
The statement made by the respondent judge after quoting the above-
mentioned principle, as stated by Wheaton, to the effect that whether the
acts of military occupant should be considered valid or not, is a question that
is up to the restored government to decide, and that there is no rule of
international law that denies to the restored government the right to exercise
its discretion on the matter, is quoted without discussion in the majority
opinion.
As the statement is not disputed, wee are entitled to presume that it is
concurred in and, therefore, the qualifications made in the statement in the
majority opinion seem to completely groundless.
THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO
THE RIGHTS OF THE LEGITIMATE GOVERNMENT
The majority opinion is accumulating authorities to show the many duties
imposed by international law on the military occupant of an invaded country.
And from said duties it is deduced that the legitimate government, once
restored in his own territory, is bound to respect all the official acts of the
government established by the usurping army, except judicial processes
political complexion.
The reasoning calls for immediate opposition. It is absolutely contrary to all
principles of logic.
Between the duties imposed in the military occupant and the legal
prerogatives of the legitimate government there are no logical relationship or
connection that might bind the ones with the others.
The military occupants is duty bound to protect the civil rights of the
inhabitants, but why should the legitimate government necessarily validate
the measures adopted by the said occupant in the performance of this duty, if
the legitimate government believes his duty to annul them for weighty
reasons?
The military occupant is duty bound to establish courts of justice. Why should
the legitimate government validate the acts of said courts, if it is convinced
that said courts were absolutely powerless, as was the case during the
Japanese occupation, to stop the horrible abuses of the military police, to
give relief to the victims of zoning and Fort Santiago tortures, to protect the
fundamental human rights of the Filipinos — life, property, and personal
freedom?
The majority opinion recognizes in the military occupant the power to annul
the official acts of the ousted and supplanted legitimate government, a
privilege which is inversely denied to the last. This preference and
predilection in favor of the military occupant, that is in favor of the invader
and usurper, and against the legitimate government, is simply disconcerting,
if we have to say the least.
PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS
The invading military occupant is duty bound to establish and maintain courts
of justice in the invaded territory, for the protection of the inhabitants thereof.
It is presumed that the restored legitimate government will respect the acts of
said courts of the army of occupation. Therefore, it is a principle of
international law that said acts are valid and should be respected by the
legitimate government. It is presumed that General MacArthur is acquainted
with such principle, discovered or revealed through presumptive operations,
and it is presumed that he had not the intention of declaring null and void the
judicial processes of the government during the Japanese regime. Therefore,
his October Proclamation, declaring null and void and without effect "all
processes" of said governments, in fact, did not annul the Japanese regime
judicial processes.
So run the logic of the majority.
They don't mind the that General MacArthur speaks in the October
Proclamation as follows:
NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as
Commander-in-Chief of the military forces committed to the liberation of the
Philippines, do hereby proclaim and declare:
xxx xxx xxx
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and
without legal effect in areas of the Philippines free of enemy occupation and
control. (emphasis supplied.)
General MacArthur says categorically "all processes", but the majority insists
on reading differently, that, is: "NOT ALL processes." The majority presume,
suppose, against the unequivocal meaning of simple and well known words,
that when General MacArthur said "all processes", in fact, he said "not all
processes", because it is necessary, by presumption, by supposition, to
exclude judicial processes.
If where General MacArthur says "all", the majority shall insist on reading
"not all", it is impossible to foresee the consequences of such so stubborn
attitude, but it is possible to understand how they reached the unacceptable
possible conclusion which we cannot be avoid opposing and exposing.
Are we to adopt and follow the policy of deciding cases submitted to our
consideration, by presumption and suppositions putting aside truths and
facts? Are we to place in the documents presented to us, such as the
October Proclamation, different words than what are written therein? Are we
to read "not all", where it is written "all"?
We are afraid to such procedure is not precisely the most appropriate to keep
public confidence in the effectiveness of the administration of justice.
That is why we must insists that in the October Proclamation should be read
what General MacArthur has written in it, that is, that, besides laws and
regulations, he declared and proclaimed null and void "ALL PROCESSES",
including naturally judicial processes, of the governments under the
Japanese regime.
THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO
CONTINUE JAPANESE REGIME JUDICIAL PROCESSES
Now we come to the third and last question propounded in the majority
opinion.
The jurisdiction of the Commonwealth tribunals is defined, prescribed, and
apportioned by legislative act.
It is provided so in our Constitution. (Section 2, Article VIII.)
The Commonwealth courts of justice are continuations of the courts
established before the inauguration of the Commonwealth and before the
Constitution took effect on November 15, 1935. And their jurisdiction is the
same as provided by existing laws at the time of inauguration of the
Commonwealth Government.
Act No. 136 of the Philippine Commission, known as the Organic Act of the
courts of justice of the Philippines, is the one that defines the jurisdiction of
justice of the peace and municipal courts, Courts of First Instance, and the
Supreme Court. It is not necessary to mention here the jurisdiction of the
Court of Appeals, because the same has been abolished by Executive Order
No. 37.
No provision may be found in Act. No. 136, nor in any other law of the
Philippines, conferring on the Commonwealth tribunals jurisdiction to
continue the judicial processes or proceedings of tribunals belonging to other
governments, such as the governments established during the Japanese
occupation.
The jurisdiction of our justice of the peace and municipal courts is provided in
section 68, chapter V, of Act No. 136. The original and appellate jurisdiction
of the Courts of First Instance is provided in the sections 56, 57, Chapter IV,
of Act No. 136. The original and appellate jurisdiction of the Supreme Court is
provided in 17 and 18, Chapter II, of the same Act. The provisions of the
above-cited do not authorize, even implicitly, any of the decisions and
judgements of tribunals of the governments, nor to continue the processes or
proceedings of said tribunals.
NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE
PREVAILING IN THE PHILIPPINES AND IN THE UNITED STATES
Taking aside the question as to whether the judicial processes of the
government established during the Japanese occupation should be
considered valid or not, in order that said processes could be continued and
the Commonwealth tribunals could exercise proper jurisdiction to continue
them, under the well- established legal doctrine, prevailing not only in the
Philippines, but also in the proper enabling law.
Almost a half a century ago, in the instructions given by President McKinley
on April 7, 1900, for the guidance of the Philippine Commission, it was stated
that, in all the forms of the govenment and administrative provisions which
they were authorized to prescribed, the Commission should bear in mind that
the government which they were establishing was designed not for the
satisfaction of the Americans or for the expression of their of their theoretical
views, but for the happiness, peace and prosperity of the people of the
Philippines, and the measures adopted should be made to conform to their
customs, their habits, and even their prejudices, to the fullest extent
consistent with the accomplishment of the indispensable requisites of just
and effective government.
Notwithstanding the policy so outlined, it was not enough for the Philippine
Commission to create and establish the courts of justice provided in Act No.
136, in order that said tribunals could take cognizance and continue the
judicial proceedings of the tribunals existing in the Philippines at the time the
American occupation.
It needed specific enabling provisions in order that the new tribunals might
continue the processes pending in the tribunals established by the
Spaniards, and which continued to function until they were substituted by the
courts created by the Philippine Commission.
So it was done in regards to the transfer of the cases pending before the
Spanish Audiencia to the newly created Supreme Court, in sections 38 and
39 of Act No. 136 quoted as follows:
SEC. 38. Disposition of causes, actions, proceedings, appeals, records,
papers, and so forth, pending in the existing Supreme Court and in
the "Contencioso Administravo." — All records, books, papers, causes,
actions, proceedings, and appeals logged, deposited, or pending in the
existing Audiencia or Supreme Court, or pending by appeal before the
Spanish tribunal called "Contencioso Administravo," are transferred to the
Supreme Court above provided for which, has the same power and
jurisdiction over them as if they had been in the first instance lodged, filed, or
pending therein, or, in case of appeal, appealed thereto.
SEC. 39. Abolition of existing Supreme Court. — The existing Audiencia or
Supreme Court is hereby abolished, and the Supreme Court provided by this
Act is substituted in place thereof.
Sections 64 and 65 of the same Act allowed the same procedure as regards
the transfer of cases and processes pending in the abolished Spanish Courts
of First Instance to the tribunals of the same name established by the
Philippine Commission.
SEC. 64. Disposition of records, papers, causes, and appeals, now pending
in the existing Courts of First Instance. — All records, books, papers, actions,
proceedings, and appeals lodged, deposited, or pending in the Court of First
Instance as now constituted of or any province are transferred to the Court of
First Instance of such province hereby established, which shall have the
same power and jurisdiction over them as if they had been primarily lodged,
deposited, filed, or commenced therein, or in case of appeal, appealed
thereto.
SEC. 65. Abolition of existing Courts of First Instance. — The existing Courts
First Instance are hereby abolished, and the Courts of First Instance
provided by this Act are substituted in place thereof.
The same procedure has been followed by the Philippine Commission
eventhough the courts of origin of the judicial processes to be transferred
and continued belonged to the same government and sovereignty of the
courts which are empowered to continue said processes.
So section 78 of Act No. 136, after the repeal of all acts conferring upon
American provost courts in the Philippines jurisdiction over civil actions,
expressly provided that said civil actions shall be transferred to the newly
created tribunals.
And it provided specifically that "the Supreme Court, Courts of the First
Instance and courts of the justice of the peace established by this Act (No.
136) are authorized to try and determine the actions so transferred to them
respectively from the provost courts, in the same manner and with the same
legal effect as though such actions had originally been commenced in the
courts created" by virtue of said Act.
MUNICIPAL COURTS UNDER ACT NO. 183
On July 30, 1901, the Philippine Commission enacted the Organic Act of the
City of Manila, No. 183.
Two municipal courts for the city were created by section 40 of said Act, one
for the northern side of Pasig River and the other for the southern side.
They were courts with criminal jurisdiction or identical cases under the
jurisdiction of the justices of the peace then existing in Manila. Although both
courts were of the same jurisdiction, in order that the criminal cases
belonging to the justice of the peace courts may be transferred to the
municipal courts just created, and the proceedings may be continued by the
same, the Philippine Commission considered it necessary to pas the proper
enabling act.
So on August 5, 1901, it enacted Act No. 186, section 2 of which provides
that all criminal cases and proceedings pending in the justices of the peace
of Manila are transferred to the municipal courts, which are conferred the
jurisdiction to continue said cases and proceedings.
THE CABANTAG CASE
On August 1, 1901, Narciso Cabantag was convicted of murder by a military
commission. (Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed
on December 10, 1901, and his execution by hanging was set for January
12,1902. .
On December 26, 1901, he fled, but surrendered to the authorities on July
18, 1902. The Civil Governor on December 2, 1903, commuted the death
penalty to 20 years imprisonment. The commutation was approved by the
Secretary of War, following instructions of the President.
Cabantag filed later a writ of habeas corpus on the theory that, with the
abolition of the military commission which convicted him, there was no
existing tribunal which could order the execution of the penalty of
imprisonment.
The Supreme Court denied the writ, but stated that, if the petitioner had filed
the writ before the enactment of Act No. 865, the question presented to the
Supreme Court would have been different.
Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is
provided that decisions rendered by the provost courts and military
commission shall be ordered executed by the Courts of First Instance in
accordance with the procedure outlined in said Act.
It is evident from the foregoing that this Supreme Court has accepted and
confirmed the doctrine of the necessity of an enabling act in order that our
Courts of First Instance could exercise jurisdiction to execute the decision of
the abolished provost courts and military commission.
It is evident that the doctrine is applicable, with more force, to the judicial
processes coming from governments deriving their authority from a foreign
enemy state.
THE DOCTRINE IN THE UNITED STATES
It is also evident that the Congress of the United States, by enacting the Bill
of the Philippines on July 1, 1902, confirmed also the same doctrine.
In effect, in section 9 of said Act, the Congress approved what the Philippine
Commission did as to the jurisdiction of the courts established and transfer of
cases and judicial processes, as provided in Acts Nos. 136, 186, and 865.
The same doctrine was adopted by the United States government as part of
its international policy, as could be seen in Article XII of the Treaty concluded
with Spain on December 10, 1898, in Paris.
Even in 1866 the Congress of the United States followed the same doctrine.
The suit, shown by the record, was originally instituted in the District Court of
the United States for the District of Louisiana, where a decree was rendered
for the libellant. From the decree an appeal was taken to the Circuit Court,
where the case was pending, when in 1861, the proceedings of the court
were interrupted by the civil war. Louisiana had become involved in the
rebellion, and the courts and officers of the United States were excluded from
its limits. In 1862, however, the National authority had been partially
reestablished in the State, though still liable to the overthrown by the
vicissitudes of war. The troops of the Union occupied New Orleans, and held
military possession of the city and such other portions of the State as had
submitted to the General Government. The nature of this occupation and
possession was fully explained in the case of The Vinice.
Whilst it continued, on the 20th of October, 1862, President Lincoln, by
proclamation, instituted a Provisional Court of the State of Louisiana, with
authority, among other powers, to hear, try, and determine all causes in
admiralty. Subsequently, by consent of parties, this cause was transferred
into the Provisional Court thus, constituted, and was heard, and a decree
was again rendered in favor of the libellants. Upon the restoration of civil
authority in the State, the Provincial Court, limited in duration, according to
the terms of the proclamation, by the event, ceased to exist.
On the 28th of July, 1866, Congress enacted that all suits, causes and
proceedings in the Provisional Court, proper for the jurisdiction of the Circuit
Court of the United States for the Eastern District of Louisiana, should be
transferred to that court, and heard, and determined therein; and that all
judgements, orders, and decrees of the Provisional Court in causes
transferred to the Circuit Court should at once become the orders,
judgements, and decrees of that court, and might be enforced, pleaded, and
proved accordingly.
It is questioned upon these facts whether the establishment by the President
of a Provisional Court was warranted by the Constitution.
xxx xxx xxx
We have no doubt that the Provisional Court of Louisiana was properly
established by the President in the exercise of this constitutional authority
during war; or that Congress had power, upon the close of the war, and the
dissolution of the Provisional Court, to provide for the transfer of cases
pending in that court, and of its judgement and decrees, to the proper courts
of the United States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-
133.)
JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE
VALIDATED BY CONSTITUTIONAL PROVISION
During the civil war in 1861, the prevailing rebel forces established their own
government in Louisiana.
When the rebel forces were overpowered by the Union Forces and the de
facto government was replaced by the de jure government, to give effect to
the judgments and other judicial acts of the rebel government, from January
26, 1861, up to the date of the adoption of the State Constitution, a provision
to said effect was inserted in said document.
Section 149 of the Louisiana Constitution reads as follows:
All the rights, actions, prosecutions, claims, contracts, and all laws in force at
the time of the adoption of this Constitution, and not inconsistent therewith,
shall continue as if it had not been adopted; all judgments and judicial sales,
marriages, and executed contracts made in good faith and in accordance
with existing laws in this State rendered, made, or entered into, between the
26th day of January, 1861, and the date when this constitution shall be
adopted, are hereby declared to be valid, etc. (U. S. Report, Wallace, Vol. 22,
Mechanics' etc. Bank vs. Union Bank, 281.)
EVEN AMONG SISTERS STATES OF THE UNITED STATES
JUDGEMENTS ARE NOT EXECUTORY
The member states of the United States of America belong to the same
nation, to the country, and are under the same sovereignty.
But judgements rendered in one state are not executory in other states.
To give them effect in other states it is necessary to initiate an original judicial
proceedings, and therein the defendants in the domestic suit may plead bar
the sister state judgement puis darrien continuance. (Wharton, on the
Conflict of Laws, Vol. II, p. 1411.)
Under the Constitution of the United States, when a judgement of one state
in the Union is offered in a court of a sister state as the basis of a suit nil
debet cannot be pleaded. The only proper plea is nul tiel record. (Id., p.
1413.).
It is competent for the defendant, however, to an action on a judgement of a
sister state, as to an action on a foreign judgement, to set up as a defense,
want of jurisdiction of the court rendering the judgement; and, as indicating
such want of jurisdiction, to aver by plea that the defendant was not an
inhabitant of the state rendering the judgement, and had not been served
with process, and did not enter his appearance; or that the attorney was
without authority to appear. (Id., pp. 1414-1415.)
The inevitable consequence is that the courts of the Commonwealth of the
Philippines, in the absence of an enabling act or of an express legislative
grant, have no jurisdiction to take cognizance and continue the judicial
processes, procedures, and proceedings of the tribunals which were created
by the Japanese Military Administration and functioned under the Vargas
Philippine Executive Commission of the Laurel Republic of the Philippines,
deriving their authority from the Emperor, the absolute ruler of Japan, the
invading enemy, and not from the Filipino people in whom, according to the
Constitution, sovereignty resides, and from whom all powers of government
emanate.
The position of Honorable Asenio P. Dizon, the respondent judge of the Court
of the First Instance of Manila in declaring himself without jurisdiction nor
authority to continue the proceedings which provoked the present
controversy, being a judicial process of a Japanese sponsored government,
is absolutely correct, under the legal doctrines established by the United
States and the Philippine Government, and consistently, invariably, and
without exception, followed by the same.
If we accept, for the sake of argument, the false hypothesis that the
Commonwealth tribunals have jurisdiction to continue the judicial processes
left pending by the courts of the governments established under the
Japanese regime, the courts which disappeared and, automatically, ceased
to function with the ouster of the enemy, the position of the Judge Dizon, in
declining to continue the case, is still unassailable, because, for all legal
purposes, it is the same as if the judicial processes in said case were not
taken at all, as inevitable result of the sweeping and absolute annulment
declared by the General MacArthur in the October Proclamation.
In said proclamation it is declared in unmistakable and definite terms that
"ALL PROCESSES" of the Japanese sponsored governments "ARE NULL
AND VOID AND WITHOUT LEGAL EFFECT", and they shall remain so until
the Commonwealth, through its legislative power, decides otherwise in a
proper validating act.
The fact that the Japanese invaders, under international law, were in duty
bound to establish courts of justice during the occupation, although they
made them completely powerless to safeguard the constitutional rights of the
citizens, and mere figureheads as regards the fundamental liberties of the
helpless men, women and children of our people, so much so that said
courts could not offer even the semblance of protection when the life, the
liberty, the honor and dignity of our individual citizens were wantonly
trampled by any Japanese, military or civilian, does not change the situation.
"ALL PROCESSES" of said court are declared "NULL AND VOID AND
WITHOUT LEGAL EFFECT" in the October proclamation, and we do not
have any other alternative but to accept the law, as said proclamation has the
full force of a law.
The fact that in the past, the legitimate governments, once restored in their
own territory, condescended in many cases to recognize and to give effect to
judgments rendered by courts under the governments set up by an invading
military occupant or by a rebel army, does not elevate such condescension to
the category of a principle, when Wheaton declares that no international
wrong is done if the acts of the invader are reversed.
Many irrelevant authorities were cited to us as to the duties imposed by the
international law on military occupants, but no authority has been cited to the
effect that the representative of the restored legitimate government is a
bound to recognize and accept as valid the acts and processes of said
occupants. On the contrary, Wheaton says that if the occupant's acts are
reversed "no international wrong would be committed."
Following the authority of Wheaton, undisputed by the majority, General
MacArthur thought, as the wisest course, of declaring "NULL AND VOID AND
WITHOUT EFFECT," by official proclamation, "ALL PROCESSES" under the
Japanese regime, that is legislative, executive and judicial processes, which
fall under the absolute adjective "ALL".
That declaration is a law. It is a law that everybody bound to accept and
respect, as all laws must be accepted and respected. It is a law that the
tribunals are duty bound to give effect and apply.
We are not unmindful of the adverse consequences to some individuals of
the annullment of all the judicial processes under the Japanese regime, as
provided in the October Proclamation, but the tribunals are not guardians of
the legislative authorities, either an army commander in chief, during war, or
a normal legislature, in peace time. The tribunals are not called upon to guide
the legislative authorities to the wisdom of the laws to be enacted. That is the
legislative responsibility. Our duty and our responsibility is to see to it that the
law, once enacted, be applied and complied with.
No matter the consequences, no matter who might be adversely affected, a
judge must have the firm resolve and the courage to do his duty, as, in the
present case, Judge Dizon did, without fear nor favor. We cannot see any
reason why we should not uphold him in his stand in upholding the law.
It is our official duty, national and international duty. Yes. Because this
Supreme Court is sitting, not only as a national court, but as an international
court, as is correctly stated in the concurring opinion of Justice De Joya, and
we should feel the full weight of the corresponding responsibility, as the
American courts with admiralty jurisdiction and the Prize Courts of England
did feel. In fact, it is in the judiciary where, more than in any point of view is
more pressing, more imperative, more unavoidable. Justice has no country. It
is of all countries. The horizon of justice cannot be limited by the scene
where our tribunals are functioning and moving. That horizon is boundless.
That is why in our constitution the bill of rights has been written not for
Filipinos, but for all persons. They are rights that belong to men, not as
Filipinos, Americans, Russians, Chinese or Malayan, but as a members of
humanity. The international character of our duty to administer justice has
become more specific by the membership of our country in the United
Nations. And let us not forget, as an elemental thing, that our primary duty is
to uphold and apply the law, as it is; that we must not replace the words of
the law with what we might be inclined to surmise; that what is clearly and
definitely provided should not be substituted with conjectures and
suppositions; that we should not try to deduce a contrary intention to that
which is unequivocally stated in the law; that we should not hold valid what is
conclusively declared null and void.
The October Proclamation declared "ALL PROCESSES" under the Japanese
regime "AND VOID WITHOUT EFFECT", so they must stand. There is no
possible way of evasion. "ALL PROCESSES", in view of the meaning of the
absolute adjective "ALL", include "JUDICIAL PROCESSES". Allegatio contra
factum non est admittenda.

CONCLUSION
For all the foregoing reasons we conclude:
1. That General MacArthur had full legal authority to issue the October
Proclamation, and that no principle of the international law is violated by said
proclamation, no international wrong being committed by the reversal by the
legitimate government of the acts of the military invader.
2. That said proclamation was issued in full conformity with the official
policies to which the United States and Philippine Governments were
committed, and the annulment of all the facts of the governments under the
Japanese regime, legislative, executive, and judicial, is legal, and justified by
the wrongs committed by the Japanese.
3. That when General MacArthur proclaimed and declared in the October
Proclamation "That all laws, regulations and processes" of the Japanese
sponsored governments, during enemy occupation, "are null and void and
without effect", he meant exactly what he said.
4. That where General MacArthur said "all processes" we must read and
understand precisely and exactly "all processes", and not "some processes".
"All" and "some" have incompatible meanings and are not interchangeable.
5. That the word "processes" includes judicial procedures, proceedings,
processes, and cases. Therefore, "all processes" must include "all judicial
processes.".
6. That we have no right to attribute General MacArthur an intention different
from what he has plainly, clearly, unmistakably expressed in unambiguous
words with familiar meaning generally understood by the common man.
7. That the judicial proceedings here in question are included among those
adversely affected by the October Proclamation.
8. That the Commonwealth tribunals have no jurisdiction to take cognizance
of nor to continue the judicial proceedings under the Japanese regime.
9. That to exercise said jurisdiction an enabling act of the Congress is
necessary.
10. That respondent Judge Dizon did not commit the error complained of in
the petition, and that the petition has no merits at all.
We refuse to follow the course of action taken by the majority in the present
case. It is a course based on a mistaken conception of the principles of
international law and their interpretation and application, and on a pinchbeck.
It is a course based on misconstruction or misunderstanding of the October
Proclamation, in utter disregard of the most elemental principles of legal here
meneutics. It is a course that leads to nowhere, except to the brink of
disaster, because it is following the dangerous path of ignoring or disobeying
the law.
Let us not allow ourselves to be deceived. The issue confronting us is not of
passing importance. It is an issue of awesome magnitude and
transcendency. It goes to and reaches the very bottom. It is simple. Lacking
in complexities. But it may shake the very foundation of society, the
cornerstone of the state, the primary pillar of the nation. It may dry the very
foundation of social life, the source of vitalizing sap that nurtures the body
politic. The issue is between the validity of one or more Japanese regime
processes and the sanctity of the law.
That is the question, reduced to its ultimate terms. it is a simple dilemma that
is facing us. It is the alpha and the omega of the whole issue. Either the
processes, or the law. We have to select between two, which to uphold. It is
a dilemma that does not admit of middle terms, or of middle ways where we
can loiter with happy unconcern . We are in the cross road: which way shall
we follow? The processes and the law are placed in the opposite ends of the
balance. Shall we inclined the balance of justice to uphold the processes and
defeat law, or vice versa?
We feel jittery because some judicial processes might be rescinded or
annulled, but we do not tremble with sincere alarm at the thought of putting
the law under the axe, of sentencing law to be executed by the guillotine. We
feel uneasy, fancying chaos and paralyzation of social life, because some
litigants in cases during the Japanese regime will be affected in their private
interests, with the annulment of some judicial processes, but we adopt an
attitude of complete nonchalance in throwing law overboard. This baffling
attitude is a judicial puzzle that nobody will understand. So it is better that we
should shift to a more understandable way, that which is conformable to the
standard that the world expects in judicial action.
No amount of arguments and lucubration's, no amount of speculative
gymnastics, no amount of juggling of immaterial principles of international
law, no amount of presumptions and suppositions, surmises and conjectures,
no amount of dexterity in juridical exegesis can divert our attention from the
real, simple, looming, hypostasis of the issue before us: Law. It is Law with all
its majestic grandeur which we are defying and intending to overthrow from
the sacred pedestal where the ages had placed her as a goddess, to be
enshrined, obeyed, and venerated by men, forever. Let us not dare to lay our
profaning hands on her vestal virginity, lest the oracle should fling at us the
thunder of his prophetic anathema.
We cannot therefore vote except for the denial of the petition.
HILADO, J., dissenting:
I dissent from the opinion of the majority and, pursuant to the Constitution,
proceed to state the reason for my dissent.
The proceeding involved in the case at bar were commenced by a complaint
filed by the instant petitioner, as plaintiff, on November 18, 1944, in civil case
No. 3012 of the so-called Court of First Instance of Manila, the complaint
bearing this heading and title: "The Republic of the Philippines — In the
Court of First Instance of Manila" (Annex X of Exhibit A of petition
for mandamus). The farthest that said proceedings had gone before the
record was burned or destroyed during the battle for Manila, was the filing by
counsel for plaintiff therein of their opposition to a motion for dismissal filed
by opposing counsel.
It is, therefore, plain that the case had not been heard on the merits when the
record was burned or destroyed.
The respondent judge, in his order dated June 6, 1945, disposing of the
petition dated May 25, 1945 filed by petitioner, as a plaintiff in said case, and
of the petition filed by respondent Eusebio Valdez Tan Keh, as defendant
therein, on May 31, 19045, held: " first, that by virtue of the proclamation of
General MacArthur quoted above, all laws, regulations and processes of any
other government in the Philippines than that of the Commonwealth became
null and void and without legal effect in Manila on February 3, 1945 or, at the
lates, on February 27 of the same year; second that the proceedings and
processes had in the present case having been before a court of the
Republic of the Philippines and in accordance with the laws and regulations
of said Republic, the same are now void and without legal effect; third, that
this Court as one of the different courts of general jurisdiction of the
Commonwealth of the Philippines, has no authority to take cognizance of and
continue said proceedings to final judgement, until and unless the
Government of the Commonwealth of the Philippines, in the manner and
form provided by law, shall have provided for the transfer of the jurisdiction of
the courts of the now defunct Republic of the Philippines, and the causes
commenced and left pending therein, to the courts created and organized by
virtue of the provisions of Act No. 4007, as revived by Executive Order No.
36, or for the validation of all proceedings had in said courts."
Petitioner prays that this Court declare that the respondent judge should not
have ordered the suspension of the proceedings in civil case No. 3012 and
should continue and dispose of all the incidents in said case till its complete
termination. In my opinion, the petition should denied.
In stating the reasons for this dissent, we may divide the arguments under
the following propositions:
1. The proceedings in said civil case No. 3012 are null and void under
General of the Army MacArthur's proclamation of October 23, 1944 (41 Off.
Gaz., 147, 148);
2. (a) The government styled as, first, the "Philippine Executive Commission
"and later as the Republic of the Philippines", established here by the
Commander in Chief of the Imperial Japanese Forces or by his order was not
a de-facto government — the so-called Court of First Instance of Manila was
not a de facto court, and the judge who presided it was not a de facto judge;
(b) the rules of International Law regarding the establishment of a de
factoGovernment in territory belonging to a belligerent but occupied or
controlled by an opposing belligerent are inapplicable to the governments
thus established here by Japan;
3. The courts of those governments were entirely different from our
Commonwealth courts before and after the Japanese occupation;
4. The question boils down to whether the Commonwealth Government, as
now restored, is to be bound by the acts of either or both of those Japanese-
sponsored governments;
5. Even consideration of policy of practical convenience militate against
petitioner's contention.
I
The proceedings in said civil case No. 3012 are null and void under General
of the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz.,
147, 148).
In this proclamation, after reciting certain now historic facts, among which
was that the so-called government styled as the "Republic of the Philippines"
was established on October 14, 1943 "under enemy duress, . . . based upon
neither the free expression of the people's will nor the sanction of the
Government of the United States," the great Commander-in-Chief proclaimed
and declared:
xxx xxx xxx
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free of enemy occupation and control;
and
xxx xxx xxx
I do enjoin upon all loyal citizens of the Philippines full respect for and
obedience to the Constitution of the Commonwealth of the Philippines and
the laws, regulations and other acts of their duly constituted government
whose seat is now firmly re-established on Philippine soil.
The evident meaning and effect of the 3rd paragraph above quoted is, I think,
that as the different areas of the Philippines were progressively liberated, the
declaration of nullity therein contained shall attach to the laws, regulations
and processes thus condemned in so far as said areas were concerned.
Mark that the proclamation did not provide that such laws, regulations and
processes shall be or are annulled, but that they are null and void. Annulment
implies some degree of the effectiveness in the act annulled previous to the
annulment, but a declaration of nullity denotes that the act is null and void ab
initio — the nullity precedes the declaration. The proclamation speaks in the
present tense, not in the future. If so, the fact that the declaration of nullity as
to the condemned laws, regulations, and processes in areas not yet free from
enemy occupation and control upon the date of the proclamation, would
attach thereto at a later date, is no argument for giving them validity or
effectiveness in the interregnum. By the very terms of the proclamation itself,
that nullity had to date back from the inception of such laws, regulations and
processes; and to dispel any shadow of doubt which may still remain, we
need only consider the concluding paragraph of the proclamation wherein the
Commander in Chief of the army liberation solemnly enjoined upon all loyal
citizens of the Philippines full respect for and obedience to the Constitution of
the Commonwealth of the Philippines and the laws, regulations and other
acts of their duly constituted government. This is all-inclusive — it comprises
not only the loyal citizens in the liberated areas but also those in areas still
under enemy occupation and control. It will be noticed that the complaint in
said civil case No. 3012 was filed twenty-six days after the above-quoted
proclamations of General of the Army MacArthur. If the parties to said case
were to consider the proceedings therein up to the date of the liberation of
Manila valid and binding, they would hardly be complying with the severe
injunction to render full respect for and obedience to our Constitution and the
laws, regulations and other acts of our duly constituted government
from October 23, 1944, onwards. Indeed, to my mind, in choosing between
these two courses of action, they would be dangerously standing on the
dividing line between loyalty and disloyalty to this country and its
government.
The proceeding in question, having been had before the liberation of Manila,
were unquestionably "processes" of the Japanese-sponsored government in
the Philippines within the meaning of the aforesaid proclamation of General
of the Army MacArthur and, consequently, fall within the condemnation of the
proclamation. Being processes of a branch of a government which had been
established in the hostility to the Commonwealth Government, as well as the
United States Government, they could not very well be considered by the
parties to be valid and binding, at least after October 23, 1944, without said
parties incurring in disobedience and contempt of the proclamation which
enjoins them to render full respect for the obedience to our Constitution and
the laws, regulations and other acts of our duly constituted government. Nine
days after the inauguration of the so-called "Republic of the Philippines,"
President Franklin Delano Roosevelt of the United States declared in one of
his most memorable pronouncements about the activities of the enemy in the
Philippines, as follows:
One of the fourtheenth of this month, a puppet government was set up in the
Philippine Island with Jose P. Laurel, formerly a justice of the Philippine
Supreme Court, as "president." Jorge Vargas, formerly as a member of the
Commonwealth Cabinet, and Benigno Aquino, also formerly a member of
that cabinet, were closely associated with Laurel in this movement. The first
act of the new puppet regime was to sign a military alliance with Japan. The
second act was a hyphocritical appeal for American sympathy which was
made in fraud and deceit, and was designed to confuse and mislead the
Filipino people.
I wish to make it clear that neither the former collaborationist "Philippine
Executive Commission" nor the present "Philippine Republic " has the
recognition or sympathy of the Government of the United States. . . .
Our symphaty goes out to those who remain loyal to the United States and
the Commonwealth — that great majority of the Filipino people who have not
been deceived by the promises of the enemy.
October 23, 1943.
FRANKLIN DELANO ROOSEVELT
President of the United States
(Form U.S. Naval War College International Law Documents, 1943, pp. 93,
94.).
It is a fact of contemporary history that while President Manuel L. Quezon of
the Philippines was in Washington, D.C., with his exiled government, he also
repeatedly condemned both the "Philippine Executive Commission" and the
"Philippine Republic," as they had been established by or under orders of the
Commander in Chief of the Imperial Japanese Forces. With these two heads
of the Governments of the United States and the Commonwealth of the
Philippines condemning the "puppet regime" from its very inception, it is
beyond my comprehension to see how the proceedings in question could be
considered valid and binding without adopting an attitude incompatible with
theirs. As President Roosevelt said in his above quoted message, "Our
symphaty goes out to those remain loyal to the United States and the
Commonwealth — that great majority of the Filipino people who have not
been deceived by the promises of the enemy.
The most that I can concede is that while the Japanese Army of occupation
was in control in the Islands and their paramount military strength gave those
of our people who were within their reach no other alternative, these had to
obey their orders and decrees, but the only reason for such obedience would
be that paramount military strength and not any intrinsic legal validity in the
enemy's orders and decrees. And once that paramount military strength
disappeared, the reason for the obedience vanished, and obedience should
likewise cease.
As was stated by the Supreme Court of the United States in the case of
Williams vs. Bruffy (96 U.S., 176; 24 Law. ed., 719), "In the face of
an overwhelming force, obedience in such matters may often be a necessity
and, in the interest of order, a duty. No concession is thus made to the
rightfulness of the authority exercised." (Emphasis ours.) The court there
refers to its own former decision in Thorington vs. Smith, and makes it clear
that the doctrine in the Thorington case, so far as the effects of the acts of
the provisional government maintained by the British in Casetine, from
September, 1814 to the Treaty of Peace in 1815, and the consideration of
Tampico as United States territory, were concerned, was limited to the period
during which the British, in the first case, retained possession of Castine, and
the United States, in the second, retained possession of Tampico. In referring
to the Confederate Government during the Civil War, as mentioned in the
Thorington case, the court again says in effect that the actual supremacy of
the Confederate Government over a portion of the territory of the Union was
the only reason for holding that its inhabitants could not but obey its authority.
But the court was careful to limit this to the time when that actual supremacy
existed, when it said: . . . individual resistance to its authority then would
have been futile and, therefore, unjustifiable." (Emphasis ours.)
Because of its pertinence, we beg leave to quote the following paragraph
from that leading decision:
There is nothing in the language used in Thorington vs. Smith (supra), which
conflicts with these views. In that case, the Confederate Government is
characterized as one of paramount force, and classed among the
governments of which the one maintained by great Britain in Castine, from
September 1814, to the Treaty of Peace in 1815, and the one maintained by
the United States in Tampico, during our War with Mexico, are examples.
Whilst the British retained possession of Castine, the inhabitants were held to
be subject to such laws as the British Government chose to recognize and
impose. Whilst the United States retained possession of Tampico, it was held
that it must regarded and respected as their territory. The Confederate
Government, the court observed, differed from these temporary governments
in the circumstance that its authority did not justifying acts of hostility to the
United States, "Made obedience to its authority in civil and local matters not
only a necessity, but a duty." All that was meant by this language was, that as
the actual supremancy of the Confederate Government existed over certain
territory, individual resistance to its authority then would have been futile and,
therefore, unjustifiable. In the face of an overwhelming force, obedience in
such matters may often be a necessity and, in the interest of order, a
duty. No concession is thus made to the rightfulness of the authority
exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.)
The majority opinion, in considering valid the proceedings in question,
invokes the rule that when a belligerent army occupies a territory belonging
to the enemy, the former through its Commander in Chief, has the power to
establish thereon what the decisions and treaties have variously
denominated provisional or military government, and the majority holds that
the Japanese-sponsored government in the Philippines was such a
government. Without prejudice to later discussing the effects which the
renunciation of war as an instrument of national policy contained in our
Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have
produced in this rule in so far as the Philippines is concerned, let us set forth
some considerations apropos of this conclusion of the majority. If the power
to establish here such a provisional government is recognized in the
Commander in Chief of the invasion army, why should we not recognize at
least an equal power in the Commander in Chief of the liberation army to
overthrow that government will all of its acts, at least of those of an executory
nature upon the time of liberation? Considering the theory maintained by the
majority, it would seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the Commonwealth
Government, and all of its acts and institutions if he had choosen to. Why
should at least an equal power be denied the Commander in Chief of the
United States Army to overthrow the substitute government thus erected by
the enemy with all of its acts and institutions which are still not beyond
retrieve? Hereafter we shall have occasion to discuss the aspects of this
question from the point of view of policy or the practical convenience of the
inhabitants. If the Japanese Commander in Chief represented sovereignty of
Japan, the American Commander in Chief represented the sovereignty of the
United States, as well as the Government of the Commonwealth. If Japan
had won this war, her paramount military supremacy would have continued to
be exerted upon the Filipino people, and out of sheer physical compulsion
this country would have had to bow to the continuance of the puppet regime
that she had set up here for an indefinite time. In such a case, we admit that,
not because the acts of that government would then have intrinsically been
legal and valid, but simply because of the paramount military force to which
our people would then have continued to be subjected, they would have had
to recognize as binding and obligatory the acts of the different departments
of that government. But fortunately for the Filipinos and for the entire civilized
world, Japan was defeated. And I now ask: Now that Japan has been
defeated, why should the Filipinos be still bound to respect or recognize
validity in the acts of the Japanese-sponsored government which has been
so severely condemned by both the heads of the United States and our
Commonwealth Government throughout the duration of the war? If we were
to draw a parallel between that government and that which was established
by the Confederate States during the American Civil War, we will find that
both met with ultimate failure. And, in my opinion, the conclusion to be drawn
should be the same in both cases.
As held by the United States Supreme Court in Williams vs. Bruffy (supra),
referring to the Confederate Government, its failure carried with it the
dissipation of its pretentions and the breaking down in pieces of the whole
fabric of its government. The Court said among other things:
The immense power exercised by the government of the Confederate States
for nearly four years, the territory over which it extended, the vast resources
it wielded, and the millions who acknowledged its authority, present an
imposing spectacle well fitted to mislead the mind in considering the legal
character of that organization. It claimed to represent an independent nation
and to posses sovereign powers; as such to displace to jurisdiction and
authority of the United States from nearly half of their territory and, instead of
their laws, to substitute and enforce those of its own enactment. Its
pretentions being resisted, they were submitted to the arbitrament of war. In
that contest the Confederacy failed; and in its failure its pretentions were
dissipated, its armies scattered, and the whole fabric of its government
broken in pieces. (24 Law, ed., 719; emphasis ours.)
By analogy, if the Japanese invasion and occupation of the Philippines had
been lawful — which, however, is not the case — and if Japan had
succeeded in permanently maintaining the government that she established
in the Philippines, which would have been the case had victory been hers,
there would be more reason for holding the acts of that government valid, but
because Japan has lost the war and, therefore, failed in giving permanence
to that government, the contrary conclusion should legitimately follow.
The validity of legislation exercised by either contestant "depends not upon
the existence of hostilities but upon the ultimate success of the party which it
is adopted" (emphasis ours). And, referring to the overthrow of the of the
Confederacy, the Court, said, "when its military forces were overthrown, it
utterly perished, and with it all its enactments" (emphasis ours)
The majority cite on page 9-10 of their opinion a passage from the same
case of Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority
opinion says that in this passage the Court was "discussing the validity of the
acts of the Confederate States." In the first place, an examination of the
decision will reveal that the controversy dealt with an act of the Confederate
Government, not of the Confederate States individually; and in the second
place, the quoted passage refers to something which was not in issue in the
case, namely, the acts of the individual States composing the Confederacy.
But even this passage clearly places the case at bar apart from the Court's
pronouncement therein. The quoted passage commences by stating that
"The same general form of government the same general laws for the
administration of justice and the protection of private rights, which has
existed in the States prior to the rebellion, remanded during (its) continuance
and afterwards. "In the case at bar, the same general form of the
Commonwealth Government did not continue under the Japanese, for the
simple reason that one of the first acts of the invaders was to overthrow the
Commonwealth Constitution and, therefore, the constitutional government
which existed thereunder, as an effect of the following acts and decrees of
the Commander in Chief of the Imperial Japanese Forces:
1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the
Imperial Japanese Forces to the Chairman of the Philippine Executive
Commission directed that, in the exercise of legislative, executive and judicial
powers in the Philippines, the "activities" of the "administrative organs and
judicial courts in the Philippines shall be based upon the existing status,
order, ordinances and the Commonwealth Constitution (1 Official Journal of
the Japanese Military Administration, page 34). Under the frame of
government existing in this Commonwealth upon the date of the Japanese
invasion, the Constitution was the very fountain-head of the validity and
effects of all the "status, orders, and ordinances" mentioned by the Japanese
Commander in Chief, and in overthrowing the Constitution he, in effect,
overthrew all of them.
2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages
36 et seq., Official Gazette, edited at the Office of the Executive Commission)
gave the "Detailed Instruction Based on Guiding Principle of the
Administration," and among other things required "The entire personnel shall
be required to pledge their loyalty to the Imperial Japanese Forces. . . ."
(This, of course, was repugnant to the frame of government existing here
under the Commonwealth Constitution upon the date of invasion.)
3. Proclamation dated January 3, 19452 of the Japanese Commander in
Chief provided in paragraph 3 that "The Authorities and the People of the
Commonwealth should sever their relations with the U.S. o . . ." (This is,
likewise, repugnant to the Commonwealth Constitution and the to the
Government of that Commonwealth Constitution and to the Government of
that Commonwealth which was expressly made subject to the supreme
sovereignty of the United States until complete independence is granted, not
by the mere will of the United States, but by virtue of an agreement between
that Government and ours, under the Tydings-McDuffie Act.)
The individual States of the Confederate and their governments existed prior
to the Civil War and had received the sanction and recognition of the Union
Government, for which the Federal Supreme Court was speaking in the
Williams-Bruffy case; while the Japanese-sponsored governments of the
"Philippine Executive Commission" and the Republic of the Philippines"
neither existed here before the war nor had received the recognition or
sanction of either the United States or the Commonwealth Government —
nay, they had received the most vigorous condemnation of both.
The Court further says in Williams vs. Bruffy (supra):
No case has been cited in argument, and we think unsuccesfully attempting
to establish a separate revolutionary government have been sustained as a
matter of legal right. As justly observed by the late Chief Justice in the case
of Shortridge vs. Macon, I Abb. U.S., 58, decided at the circuit, and, in all
material respects like the one at bar, "Those who engage in rebellion must
consider the consequences. If they succeed, rebellion becomes revolution,
and the new government will justify is founders. If they fail, all their acts
hostile to the rightful government are violations of law, and originate no rights
which can be recognized by the courts of the nation whose authority and
existence have been alike assailed. S.C., Chase, Dec., 136.
(Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.)
I am of opinion that the principles thus enunciated for the case of an
unsuccessful rebellion should be applied with greater force to the case of a
belligerent who loss the war. And since the founding of the Japanese-
sponsored government in the Philippines was designed to supplant and did
actually supplant the rightful government and since all its acts could not but a
hostile to the latter (however blameless the officials who acted under enemy
duress might be), and since Japan failed, all said acts, particularly those of
the Japanese-sponsored court in said civil case No. 3012, "are violations of
law, and originate no rights which can be recognized by the courts of the
nation whose authority and existence have been alike assailed", quoting the
language of the court in Shortridge vs. Macon, cited by Mr. Justice Field in
Williams vs. Bruffy, supra (24 Law. ed., 718).
II
(a) The government styled as, first, the "Philippine Executive Commission"
and later as the Republic of the Philippines", established here by the
Commander in Chief of the Imperial Japanese Forces or by the his order was
not a de facto government--the so-called Court of First Instance of Manila
was not a de facto court and the who presided it was not a de facto judge;
(b) The rules of International Law regarding the establishment of a de
facto government in territory belonging to a belligerent but occupied or
controlled by an opposing belligerent are inapplicable to the governments
thus established here by Japan.
Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases
therein cited, the short-lived provisional government thus established by the
Japanese in the Philippines should be classified, at best, as a government of
paramount force. But this is not all. The Constitution of this Commonwealth
which has been expressly approved by the United States Government, in
Article II, section 3, under the heading "Declaration of Principles", renounces
war as an instrument of national policy. This renunciation of war as an
instruments of national policy follows an equal renunciation in the Briand-
Kellog Pact. The rules of International Law , cited in support of the power or
right of a belligerent army of occupation to set up a provisional government
on occupied enemy territory, were evolved prior to the first World War, but the
horrors and devastations of that war convinced, at least the governments of
the United States and France, that they should thereafter renounce war as
an instrument of national policy, and they consequently subscribed the
Briand-Kellog Pact. Those horrors and devastations were increased a
hundred fold, if not more, in this second World War, but even before this war
occurred, our own people, through our Constitutional delegates, who framed
the Commonwealth Constitution also adopted the same doctrine, and
embodied an express renunciation of war as an instrument of national policy
in the instrument that they drafted. It is true that in section 3, Article II, above-
cited, our Constitution adopts the generally accepted principles of
International Law as a part of the law of the Nation. But, of course, this
adoption is exclusive of those principles of International Law which might
involve recognition of war as an instrument of national policy. It is plain that
on the side of the Allies, the present war is purely defensive. When Japan
started said war, treacherously and without previous declaration, and
attacked Pearl Harbor and the Philippines on those two fateful days of
December 7 and 8, 1941, she employed war as an instrument of the national
policy. Under the Briand-Kellog Pact and our Commonwealth Constitution,
the United States and the Commonwealth Government could not possibly
have recognized in Japan any right, as against them, to employ that war as
an instrument of her national policy, and, consequently, they could not have
recognized in Japan power to set up in the Philippines the puppet
government that she later set up, because such power would be a mere
incident or consequence of the war itself. The authorities agree that such a
power, under the cited rules, is said to a right derived from war. (67 C.J., p.
421, sec. 171.) There can be no question that the United States and the
Commonwealth Governments were free to refuse to be bound by those rules
when they made their respective renunciations above referred to. Indeed, all
the United Nations have exercised this free right in their Charter recently
signed at San Francisco.
As necessary consequence of this, those rules of International Law were no
longer applicable to the Philippines and to the United States at the time of the
Japanese invasion as a corollary, it follows that we have no legal foundation
on which to base the proposition that the acts of that Japanese-sponsored
government in the Philippines were valid and binding. Moreover, I am of
opinion, that although at the time of the Japanese invasion and up to the
present, the United States retains over the Philippines, a certain measure of
sovereignty, it is only for certain specified purposes enumerated in the
Tydings-McDufie Act of the Commonwealth Constitution. (Ordinance
appended to the Constitution.) And our territory was at the time of the
Japanese invasion not a territory of the United States, within the meaning of
the laws of war governing war-like operations on enemy territory. Our territory
is significantly called "The National Territory" in Article I of our Constitution
and this bears the stamps of express approval of the United States
Government. The Philippines has been recognized and admitted as a
member of the United Nations. We, therefore, had our own national and
territorial identity previous to that invasion. Our nation was not at war with the
Filipinos. And line with this, the Japanese army, in time, released Filipino war
prisoners captured in Bataan. Lt. Gen. Maeda, Chief of Staff, Imperial
Japanese Forces, in his speech of January 2, 1942, said:
. . . we had not the slighest intensions to make your people our enemy; rather
we considered them as our friends who will join us has hand-in-hand in the
establishment of an orderly Greater East Asia. . . ., (Official Gazette, edited at
the Office of the Executive Commission, Vol. I, p. 55.)
If the Philippines was a neutral territory when invaded by the Japanese, the
following principles from Lawrence, International Law (7th ed.), p. 603, are
pertinent:
The Duties of Belligerent States Towards Neutral States. — . . . To refrain
from carrying on hostilities within neutral territory. — We have already seen
that, though this obligation was recognized in theory during the infancy of
International law, it was often very imperfectly observed in practice. But in
modern times it has been strickly enforced, and any State which knowingly
ordered warlike operations to be carried on in neutral territory . . . would bring
down upon itself the reprobation of civilized mankind. Hostilities may be
carried on in the territory of either belligerent, on the high seas, and in
territory belonging to no one. Neutral land and neutral territorial waters are
sacred. No acts of warfare may lawfully take place within them. . . .
(Emphasis ours.)
In all the cases and authorities supporting the power or right to set up a
provisional government, the belligerent had the right to invade or occupy the
territory in the first instance. Such was not the case with the Philippines.
President Roosevelt, in his message to the Filipino people, soon after the
landing of American Forces in Leyte, on October 20, 1944, characterized
Japan's invasion and occupation of the Philippines as "the barbarous,
unprovoked and treacherous attack upon the Philippines," and he announced
the American people's "firm determination to punish the guilty." (41 Off. Gaz.,
149.) (Emphasis ours.) The illustrious leader of the United Nations could not
have in more unmistakable terms the utter illegality of that invasion and
occupation. If the establishment of a provinsional government in occupied
territory by a belligerent is "a mere application or extension of the force by
which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the
illegality of the invasion, would necessarily permeate the government, which
was its mere application or extention.
The fact that shortly before December 8, 1941, the date of the "barbarous,
unprovoked and treacherous attack," the meager and almost untrained
forces of the Philippine Army had been inducted into the American Army, did
not change the neutral status of the Philippines. That military measure had
been adopted for purely defensive purposes. Nothing could be farther from
the minds of the government and military leaders of the United States and
the Philippines in adopting it than to embark upon any aggressive or warlike
enterprise against any other nation. It is an old and honored rule dating as far
back as the 18th century that even solemn promises of assistance made
before the war by a neutral to a nation which later becomes a belligerent,
would not change the status of the neutral even if such promises were
carried out, so long as they were made for purely defensive purposes. In the
words of Vattel "when a sovereign furnishes the succor due in virtue of a
former defensive alliance, he does not associate himself in the war.
Therefore he may fulfill his engagements and yet preserve an exact
neutrality." (Lawrence, Principles of International Law [7th ed.], pp. 585, 586.)
If the Filipinos had, from contemptible cowardice and fear, allowed their
shores to be invaded, and their territory occupied by the Japanese without
resistance, such invasion occupation would undoubtedly have been
considered in violation of International Law. Should the Filipinos be punished
for having had the patriotism, bravery, and heroism to fight in defense of the
sacredness of their land, the sanctity of their homes, and the honor and
dignity of their government by giving validity, in whatever limited measure, to
the lawless acts of the ruthless enemy who thus overran their country, and
robbed them of the tranquility and happiness of their daily lives? And yet, to
my mind, to give any measure of validity or binding effect to the proceedings
of the Japanese-sponsored Court of First Instance of Manila, involved herein,
would be to give that much validity or effect to the acts of those same
invaders. To equalize the consequences of a lawful and a wrongful invasion
of occupation, would be to equalize right and wrong, uphold the creed that
might makes right, and adopt "the law of the jungle."
If said Japanese-sponsored government was not a de facto government, it
would seem clearly to follow that its "Court of First Instance of Manila" was
not a de facto court. But it should additionally be stated that for it be a de
facto court, its judge had to be a de facto judge, which he could not be, as
presently demonstrated.
As said by President Osmeña, in replying to the speech of General of the
Army MacArthur when the latter turned over to him the full powers and
responsibilities of the Commonwealth Government, on February 27, 1945:
xxx xxx xxx
The time has come when the world should know that when our forces
surrendered in Bataan and Corregidor, resistance to the enemy was taken up
by the people itself — resistance which was inarticulate and disorganized in
its inception but which grew from the day to day and from island until it broke
out into an open warfare against the enemy.
The fight against the enemy was truly a people's war because it counted with
the wholehearted support of the masses. From the humble peasant to the
barrio school teacher, from the volunteer guard to the women's auxilliary
service units, from the loyal local official to the barrio folk — each and every
one of those contributed his share in the great crusade for liberation.
The guerrillas knew that without the support of the civilian population, they
could not survive. Whole town and villages dared enemy reprisal to oppose
the hated invader openly or give assistance to the underground
movement. . . . (41 Off. Gaz., 88, 89.)
Under these facts, taken together with the General of the Army MacArthur's
accurate statement that the "Republic of the Philippines" had been
established under enemy duress, it must be presumed — to say the least —
that the judge who presided over the proceedings in question during the
Japanese occupation, firstly, accepted his appointment under duress; and
secondly, acted by virtue of that appointment under the same duress. In such
circumstances he could not have acted in the bona fide belief that the new
"courts" created by or under the orders of the Japanese Military Commander
in chief had been legally created--among them the "Court of first Instance of
Manila," — that the Chairman of the "Philippine Executive Commission" or
the President of the "Republic of the Philippines", whoever appointed him,
and conferred upon him a valid title to his office and a legitimate jurisdiction
to act as such judge. Good faith is essential for the existence of a de
facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of
enemy duress would necessarily imply that but for the duress exerted upon
him by the enemy he would have refused to accept the appointment and to
act thereunder. And why? Because he must be presumed to know that the
office to which he was thus appointed had been created by the enemy in
open defiance of the Commonwealth Constitution and the laws and
regulation promulgated by our Commonwealth Government, and that his
acceptance of said office and his acting therein, if willfully done, would have
been no less than an open hostility to the very sovereignty of the United
Sates and to the Commonwealth Government, and a renunciation of his
allegiance to both. There is no middle ground here. Either the judge acted
purely under duress, in which case his acts would be null and void; or
maliciously in defiance of said governments, in which case his acts would be
null and void for more serious reasons.
The courts created here by the Japanese government had to look for the
source of their supposed authority to the orders of the Japanese Military
Commander in chief and the so-called Constitution of the "Republic of the
Philippines," which had been adopted in a manner which would shock the
conscience of democratic peoples, and which was designed to supplant the
Constitution which had been duly adopted by the Filipino people in a
Constitutional Convention of their duly elected Constitutional Delegates. And
it was decreed that the Commander in chief of the Imperial Japanese Forces
"shall exercise jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of
the Japanese Military Administration, cited on pp. 2, 3, of the order of the
respondent judge complained of and marked Exhibit H of the petition
for mandamus.) How can our present courts legitimately recognize any
efficacy in the proceedings of such an exotic judicial system, wherein the
Commander in Chief of the Imperial Japanese Forces possessed the highest
judicial jurisdiction?
III
The courts of those governments were entirely different from our
Commonwealth courts before and after the Japanese occupation.
Executive Order No. 36 of the President of the Philippines, dated March 10,
1945, in its very first paragraph, states the prime concern of the government
"to re-establish the courts as fast as provinces are liberated from the
Japanese occupation." If the courts under the Japanese-sponsored
government of the "Republic of the Philippines" were the same
Commonwealth courts that existed here under the Constitution at the time of
the Japanese invasion, President Osmeña would not be speaking of re-
establishing those courts in his aforesaid Executive Order. For soothe, how
could those courts under the "Republic of the Philippines" be the courts of
the Commonwealth of the Philippines when they were not functioning under
the Constitution of the Commonwealth and the laws enacted in pursuance of
said Constitution? The jurisdiction of the Commonwealth courts was defined
and conferred under the Commonwealth Constitution and the pertinent
legislation enacted thereunder, that of the Japanese-sponsored courts was
defined and conferred by the orders and decrees of the Japanese
Commander in Chief, and, perhaps, the decrees of the "Philippine Executive
Commission" and the laws of the so-called Legislature under the Republic,
which was not composed of the elected representatives of the people. The
Justices and Judges of the Commonwealth courts had to be appointed by the
President of the Commonwealth with confirmation by the Commission on
Appointments, pursuant to the Commonwealth Constitution. The Chief
Justice of the Supreme Court, under the "Philippine Executive Commission"
was appointed by the Commander in Chief of the Imperial Japanese Forces,
and the Associate Justices of the Supreme Court, the Presiding Justice and
Associate Justices of the Court of Appeals, the Judges of first Instance and
of all inferior courts were appointed by the Chairman of the Executive
Commission, at first, and later, by the President of the Republic, of course,
without confirmation by the Commission on Appointments under the
Commonwealth Constitution. The Chief Justice and Associate Justices of the
Supreme Court, the President and Associate Justices of the Court of
Appeals, and the Judges of First Instance and of all inferior courts in the
Commonwealth judicial system, had to swear to support and defend the
Commonwealth Constitution, while this was impossible under the Japanese-
sponsored government. In the Commonwealth judicial system, if a Justice or
Judge should die or incapacitated to continue in the discharge of his official
duties, his successor was appointed by the Commonwealth President with
confirmation by the Commission on Appointments, and said successor had to
swear to support and defend the Commonwealth Constitution; in the exotic
judicial system implanted here by the Japanese, if a Justice or Judge should
die or incapacitated, his successor would be appointed by the Japanese
Commander in Chief, if the dead or incapacitated incumbent should be the
Chief Justice of the Supreme Court, or otherwise, by the Chairman of the
"Executive Commission" or the President of the "Republic", of course without
confirmation by the Commission on Appointments of the Commonwealth
Congress, and, of course, without the successor swearing to support and
defend the Commonwealth Constitution.
If, as we believe having conclusively shown, the Japanese-sponsored courts
were not the same Commonwealth courts, the conclusion is unavoidable that
any jurisdiction possessed by the former and any cases left pending therein,
were not and could not be automatically transfered to the Commonwealth
courts which we re-established under Executive Order No. 36. For the
purpose, a special legislation was necessary.
Executive Order No. 37, in my humble opinion, does not, as held by the
majority, imply that the President recognized as valid the proceedings in all
cases appealed to the Court of Appeals. Section 2 of that order simply
provides that all cases which have been duly appealed to the Court of
Appeals shall be transmitted to the Supreme Court for final decision. The
adverb "duly" would indicate that the President foresaw the possibility of
appeals not having been duly taken. All cases appealed to the Court of
Appeals before the war and the otherwise duly appealed, would come under
the phrase "duly appealed" in this section of the Executive Order. But
considering the determined and firm attitude of the Commonwealth
Government towards those Japanese-sponsored governments since the
beginning, it would seem inconceivable that the President Osmeña, in
section 2 of Executive Order No. 37, intended to include therein appeals
taken to the Japanese-sponsored Court of Appeals, or from the Japanese-
sponsored inferior courts. It should be remembered that in the Executive
Order immediately preceeding and issued on the same date, the President
speaks of re-establishing the courts as fast as provinces were liberated from
the Japanese occupation.
IV
The question boils down to whether the Commonwealth Government, as now
restored, is to be bound by the acts of either or both of those Japanese-
sponsored governments.
In the last analysis, in deciding the question of validity or nullity of the
proceedings involved herein, we are confronted with the necessity to decide
whether the Court of first Instance of Manila and this Supreme Court, as re-
established under the Commonwealth Constitution, and the entire
Commonwealth Government, are to be bound by the acts of the said
Japanese-sponsored court and government. To propound this question is, to
my mind, to answer it most decidedly in the negative, not only upon the
ground of the legal principles but also for the reasons of national dignity and
international decency. To answer the question in the affirmative would be
nothing short for legalizing the Japanese invasion and occupation of the
Philippines. Indeed, it would be virtual submission to the dictation of an
invader our people's just hatred of whom gave rise to the epic Philippine
resistance movement, which has won the admiration of the entire civilized
world.
V assume the consequences of his voluntary act. On the other hand, his
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
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.
G.R. No. L-14078 March 7, 1919
RUBI, ET AL. (manguianes), plaintiffs,
vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.
D. R. Williams & Filemon Sotto for plaintiff.
Office of the Solicitor-General Paredes for defendant.
MALCOLM, J.:
In one of the cases which denote a landmark in American Constitutional
History (Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall,
the first luminary of American jurisprudence, began his opinion (relating to
the status of an Indian) with words which, with a slight change in
phraseology, can be made to introduce the present opinion — This cause, in
every point of view in which it can be placed, is of the deepest interest. The
legislative power of state, the controlling power of the constitution and laws,
the rights if they have any, the political existence of a people, the personal
liberty of a citizen, are all involved in the subject now to be considered.
To imitate still further the opinion of the Chief Justice, we adopt his outline
and proceed first, to introduce the facts and the issues, next to give a history
of the so called "non-Christians," next to compare the status of the "non-
Christians" with that of the American Indians, and, lastly, to resolve the
constitutional questions presented.
I. INTRODUCTION.
This is an application for habeas corpus in favor of Rubi and other
Manguianes of the Province of Mindoro. It is alleged that the Maguianes are
being illegally deprived of their liberty by the provincial officials of that
province. Rubi and his companions are said to be held on the reservation
established at Tigbao, Mindoro, against their will, and one Dabalos is said to
be held under the custody of the provincial sheriff in the prison at Calapan for
having run away form the reservation.
The return of the Solicitor-General alleges:
1. That on February 1, 1917, the provincial board of Mindoro adopted
resolution No. 25 which is as follows:
The provincial governor, Hon. Juan Morente, Jr., presented the following
resolution:
"Whereas several attempts and schemes have been made for the
advancement of the non-Christian people of Mindoro, which were all a
failure,
"Whereas it has been found out and proved that unless some other measure
is taken for the Mangyan work of this province, no successful result will be
obtained toward educating these people.
"Whereas it is deemed necessary to obliged them to live in one place in order
to make a permanent settlement,
"Whereas the provincial governor of any province in which non-Christian
inhabitants are found is authorized, when such a course is deemed
necessary in the interest of law and order, to direct such inhabitants to take
up their habitation on sites on unoccupied public lands to be selected by him
and approved by the provincial board.
"Whereas the provincial governor is of the opinion that the sitio of Tigbao on
Lake Naujan is a place most convenient for the Mangyanes to live on, Now,
therefore be it
"Resolved, that under section 2077 of the Administrative Code, 800 hectares
of public land in the sitio of Tigbao on Naujan Lake be selected as a site for
the permanent settlement of Mangyanes in Mindoro subject to the approval
of the Honorable Secretary of the Interior, and
"Resolved further, That Mangyans may only solicit homesteads on this
reservation providing that said homestead applications are previously
recommended by the provincial governor."
2. That said resolution No. 25 (series 1917) of the provincial board of
Mindoro was approved by the Secretary of the Interior of February 21, 1917.
3. That on December 4, 1917, the provincial governor of Mindoro issued
executive order No. 2 which says:
"Whereas the provincial board, by Resolution No. 25, current series, has
selected a site in the sitio of Tigbao on Naujan Lake for the permanent
settlement of Mangyanes in Mindoro.
"Whereas said resolution has been duly approve by the Honorable, the
Secretary of the Interior, on February 21, 1917.
"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant
to the provisions of section 2145 of the revised Administrative Code, do
hereby direct that all the Mangyans in the townships of Naujan and Pola and
the Mangyans east of the Baco River including those in the districts of
Dulangan and Rubi's place in Calapan, to take up their habitation on the site
of Tigbao, Naujan Lake, not later than December 31, 1917.
"Any Mangyan who shall refuse to comply with this order shall upon
conviction be imprisoned not exceed in sixty days, in accordance with section
2759 of the revised Administrative Code."
4. That the resolution of the provincial board of Mindoro copied in paragraph
1 and the executive order of the governor of the same province copied in
paragraph 3, were necessary measures for the protection of the Mangyanes
of Mindoro as well as the protection of public forests in which they roam, and
to introduce civilized customs among them.
5. That Rubi and those living in his rancheria have not fixed their dwelling
within the reservation of Tigbao and are liable to be punished in accordance
with section 2759 of Act No. 2711.
6. That the undersigned has not information that Doroteo Dabalos is being
detained by the sheriff of Mindoro but if he is so detained it must be by virtue
of the provisions of articles Nos. 2145 and 2759 of Act No. 2711.
It thus appears that the provincial governor of Mindoro and the provincial
board thereof directed the Manguianes in question to take up their habitation
in Tigbao, a site on the shore of Lake Naujan, selected by the provincial
governor and approved by the provincial board. The action was taken in
accordance with section 2145 of the Administrative Code of 1917, and was
duly approved by the Secretary of the Interior as required by said action.
Petitioners, however, challenge the validity of this section of the
Administrative Code. This, therefore, becomes the paramount question which
the court is called upon the decide.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christina upon sites selected by provincial
governor. — With the prior approval of the Department Head, the provincial
governor of any province in which non-Christian inhabitants are found is
authorized, when such a course is deemed necessary in the interest of law
and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him an approved by the provincial
board.
In connection with the above-quoted provisions, there should be noted
section 2759 of the same Code, which read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. —
Any non-Christian who shall refuse to comply with the directions lawfully
given by a provincial governor, pursuant to section two thousand one
hundred and forty-five of this Code, to take up habitation upon a site
designated by said governor shall upon conviction be imprisonment for a
period not exceeding sixty days.
The substance of what is now found in said section 2145 is not new to
Philippine law. The genealogical tree of this section, if we may be permitted
to use such terminology, would read: Section 2077, Administrative Code of
1916; section 62, Act No. 1397; section 2 of various special provincial laws,
notably of Act No. 547, specifically relating to the Manguianes; section 69,
Act No. 387.
Section 2145 and its antecedent laws make use of the term "non-Christians."
This word, as will later be disclosed, is also found in varying forms in other
laws of the Philippine Islands. In order to put the phrase in its proper
category, and in order to understand the policy of the Government of the
Philippine Islands with reference to the uncivilized elements of the Islands, it
is well first of all to set down a skeleton history of the attitude assumed by the
authorities towards these "non-Christians," with particular regard for the
legislation on the subject.
II. HISTORY.
A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.
The most important of the laws of the Indies having reference to the subject
at hand are compiled in Book VI, Title III, in the following language.
LAW I.
The Emperor Charles and the Prince, the governor, at Cigales, on March 21,
1551. Philip II at Toledo, on February 19, 1560. In the forest of Segovia on
September 13, 1565. In the Escorial on November 10, 1568. Ordinance 149
of the poblaciones of 1573. In San Lorenzo, on May 20, 1578,
THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES"
COMMUNITIES).
In order that the indios may be instructed in the Sacred Catholic Faith and
the evangelical law, and in order that they may forget the blunders of their
ancient rites and ceremonies to the end that they may live in harmony and in
a civilized manner, it has always been endeavored, with great care and
special attention, to use all the means most convenient to the attainment of
these purposes. To carry out this work with success, our Council of the Indies
and other religious persons met at various times; the prelates of new Spain
assembled by order of Emperor Charles V of glorious memory in the year
one thousand five hundred and forty-six — all of which meetings were
actuated with a desire to serve God an our Kingdom. At these meetings it
was resolved that indios be made to live in communities, and not to live in
places divided and separated from one another by sierras and mountains,
wherein they are deprived of all spiritual and temporal benefits and wherein
they cannot profit from the aid of our ministers and from that which gives rise
to those human necessities which men are obliged to give one another.
Having realized that convenience of this resolution, our kings, our
predecessors, by different orders, have entrusted and ordered the viceroys,
presidents, and governors to execute with great care and moderation the
concentration of the indios into reducciones; and to deal with their doctrine
with such forbearance and gentleness, without causing inconveniences, so
that those who would not presently settle and who would see the good
treatment and the protection of those already in settlements would, of their
own accord, present themselves, and it is ordained that they be not required
to pay taxes more than what is ordered. Because the above has been
executed in the greater part of our Indies, we hereby order and decree that
the same be complied with in all the remaining parts of the Indies, and
the encomederos shall entreat compliance thereof in the manner and form
prescribed by the laws of this title.
xxx xxx xxx
LAW VIII.
Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10,
1618.
THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE
CONDITIONS OF THIS LAW.
The places wherein the pueblos and reducciones shall be formed should
have the facilities of waters. lands, and mountains, ingress and egress,
husbandry and passageway of one league long, wherein the indios can have
their live stock that they may not be mixed with those of the Spaniards.
LAW IX.
Philip II at Toledo, on February 19, 1956.
THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE
LANDS PREVIOUSLY HELD BY THEM.
With more good-will and promptness, the indios shall be concentrated
in reducciones. Provided they shall not be deprived of the lands and
granaries which they may have in the places left by them. We hereby order
that no change shall be made in this respect, and that they be allowed to
retain the lands held by them previously so that they may cultivate them and
profit therefrom.
xxx xxx xxx
LAW XIII.
THE SAME AS ABOVE.
THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF
THE KING, VICEROY, OR COURT.
No governor, or magistrate, or alcalde mayor, or any other court, has the
right to alter or to remove thepueblos or the reducciones once constituted
and founded, without our express order or that of the viceroy, president, or
the royal district court, provided, however, that the encomenderos, priests,
or indios request such a change or consent to it by offering or giving
information to that en. And, because these claims are often made for private
interests and not for those of the indios, we hereby order that this law be
always complied with, otherwise the change will be considered fraudulently
obtained. The penalty of one thousand pesos shall be imposed upon the
judge or encomendero who should violate this law.
LAW XV.
Philip III at Madrid, on October 10, 1618.
THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES,"
WHO SHALL BE "INDIOS."
We order that in each town and reduccion there be a mayor, who should be
an indio of the same reduccion; if there be more than eighty houses, there
should be two mayors and two aldermen, also indios; and, even if the town
be a big one, there should, nevertheless, be more than two mayors and four
aldermen, If there be less than eighty indios but not less than forty, there
should be not more than one mayor and one alderman, who should annually
elect nine others, in the presence of the priests , as is the practice in town
inhabited by Spaniards and indios.
LAW XXI.
Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar,
on May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on
July 12, 1600. Philip IV, at Madrid, on October 1 and December 17, 1646. For
this law and the one following, see Law I, Tit. 4, Book 7.
THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO
SPANIARDS, NEGROES, "MESTIZOS," AND MULATTOES.
We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to
live to live in the reduccionesand towns and towns of the indios, because it
has been found that some Spaniards who deal, trade, live, and associate
with the indios are men of troublesome nature, of dirty ways of living;
robbers, gamblers, and vicious and useless men; and, to avoid the wrongs
done them, the indios would leave their towns and provinces; and the
negroes, mestizos, and mulattoes, besides maltreating them and utilizing
their services, contaminate them with their bad customs, idleness, and also
some of their blunders and vices which may corrupt and pervert the goal
which we desire to reach with regard to their salvation, increase, and
tranquillity. We hereby order the imposition of grave penalties upon the
commission of the acts above-mentioned which should not be tolerated in the
towns, and that the viceroys, presidents, governors, and courts take great
care in executing the law within their powers and avail themselves of the
cooperation of the ministers who are truly honest. As regards
the mestizos and Indian and Chinese half-breeds (zambaigos), who are
children of indiasand born among them, and who are to inherit their houses
and haciendas, they all not be affected by this law, it appearing to be a harsh
thing to separate them from their parents. (Law of the Indies, vol. 2, pp. 228,
229, 230, 231.)
A clear exposition of the purposes of the Spanish government, in its efforts to
improve the condition of the less advanced inhabitants of the Islands by
concentrating them in "reducciones," is found in the Decree of the Governor-
General of the Philippine Islands of January 14, 1881, reading as follows:
It is a legal principle as well as a national right that every inhabitant of a
territory recognized as an integral part of a nation should respect and obey
the laws in force therein; while, on other hand, it is the duty to conscience
and to humanity for all governments to civilize those backward races that
might exist in the nation, and which living in the obscurity of ignorance, lack
of all the nations which enable them to grasp the moral and material
advantages that may be acquired in those towns under the protection and
vigilance afforded them by the same laws.
It is equally highly depressive to our national honor to tolerate any longer the
separation and isolation of the non-Christian races from the social life of the
civilized and Christian towns; to allow any longer the commission of
depredations, precisely in the Island of Luzon wherein is located the seat of
the representative of the Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied
themselves with this most important question, and that much has been
heretofore accomplished with the help and self-denial of the missionary
fathers who have even sacrificed their lives to the end that those degenerate
races might be brought to the principles of Christianity, but the means and
the preaching employed to allure them have been insufficient to complete the
work undertaken. Neither have the punishments imposed been sufficient in
certain cases and in those which have not been guarded against, thus giving
and customs of isolation.
As it is impossible to consent to the continuation of such a lamentable state
of things, taking into account the prestige which the country demands and
the inevitable duty which every government has in enforcing respect and
obedience to the national laws on the part of all who reside within the territory
under its control, I have proceeded in the premises by giving the most careful
study of this serious question which involves important interests for
civilization, from the moral and material as well as the political standpoints.
After hearing the illustrious opinions of all the local authorities, ecclesiastics,
and missionaries of the provinces of Northern Luzon, and also after finding
the unanimous conformity of the meeting held with the Archbishop of Manila,
the Bishops of Jaro and Cebu, and the provincial prelates of the orders of the
Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the
meeting of the Council of Authorities, held for the object so indicated, I have
arrived at an intimate conviction of the inevitable necessity of proceeding in a
practical manner for the submission of the said pagan and isolated races, as
well as of the manner and the only form of accomplishing such a task.
For the reasons above stated and for the purpose of carrying out these
objects, I hereby promulgate the following:
DECREE.
1. All the indian inhabitants (indios) of the Islands of Luzon are, from this
date, to be governed by the common law, save those exceptions prescribed
in this decree which are bases upon the differences of instructions, of the
customs, and of the necessities of the different pagan races which occupy a
part of its territory.
2. The diverse rules which should be promulgated for each of these races —
which may be divided into three classes; one, which comprises those which
live isolated and roaming about without forming a town nor a home; another,
made up of those subdued pagans who have not as yet entered completely
the social life; and the third, of those mountain and rebellious pagans — shall
be published in their respective dialects, and the officials, priests, and
missionaries of the provinces wherein they are found are hereby entrusted in
the work of having these races learn these rules. These rules shall have
executive character, beginning with the first day of next April, and, as to their
compliance, they must be observed in the manner prescribed below.
3. The provincial authorities in conjunction with the priests shall proceed,
from now on, with all the means which their zeal may suggest to them, to the
taking of the census of the inhabitants of the towns or settlement already
subdued, and shall adopt the necessary regulations for the appointment of
local authorities, if there be none as yet; for the construction of courts and
schools, and for the opening or fixing up of means of communication,
endeavoring, as regards the administrative organization of the said towns or
settlements, that this be finished before the first day of next July, so that at
the beginning of the fiscal year they shall have the same rights and
obligations which affect the remaining towns of the archipelago, with the only
exception that in the first two years they shall not be obliged to render
personal services other than those previously indicated.
4. So long as these subdued towns or settlements are located infertile lands
appropriate for cultivation, the inhabitants thereof shall not be obliged to
move their dwelling-houses; and only in case of absolute necessity shall a
new residence be fixed for them, choosing for this purpose the place most
convenient for them and which prejudices the least their interest; and, in
either of these cases, an effort must be made to establish their homes with
the reach of the sound of the bell.
5. For the protection and defense of these new towns, there shall be
established an armed force composed precisely of native Christian, the
organization and service of which shall be determined in a regulations based
upon that of the abolished Tercios de Policia (division of the Guardia Civil).
6. The authorities shall see to it that the inhabitants of the new towns
understand all the rights and duties affecting them and the liberty which they
have as to where and now they shall till their lands and sell the products
thereof, with the only exception of the tobacco which shall be bought by
the Hacienda at the same price and conditions allowed other producers, and
with the prohibition against these new towns as well as the others from
engaging in commerce of any other transaction with the rebellious indios, the
violation of which shall be punished with deportation.
7. In order to properly carry out this express prohibition, the limits of the
territory of the rebellious indios shall be fixed; and whoever should go beyond
the said limits shall be detained and assigned governmentally wherever
convenient.
8. For the purpose of assisting in the conversion of the pagans into the
fraternity of the Catholic Church, all by this fact along be exempt for eight
years from rendering personal labor.
9. The authorities shall offer in the name of the State to the races not
subdued (aetas and mountains igorrots the following advantages in returns
for their voluntary submission: to live in towns; unity among their families;
concession of good lands and the right to cultivate them in the manner they
wish and in the way them deem most productive; support during a year, and
clothes upon effecting submission; respect for their habits and customs in so
far as the same are not opposed to natural law; freedom to decide of their
own accord as to whether they want to be Christians or not; the
establishment of missions and families of recognized honesty who shall
teach, direct, protect, and give them security and trust them; the purchase or
facility of the sale of their harvests; the exemption from contributions and
tributes for ten years and from the quintas (a kind of tax) for twenty years;
and lastly, that those who are governed by the local authorities as the ones
who elect such officials under the direct charge of the authorities of the
province or district.
10. The races indicated in the preceding article, who voluntarily admit the
advantages offered, shall, in return, have the obligation of constituting their
new towns, of constructing their town hall, schools, and country roads which
place them in communication with one another and with the Christians;
provided, the location of these towns be distant from their actual residences,
when the latter do not have the good conditions of location and cultivations,
and provided further the putting of families in a place so selected by them be
authorized in the towns already constituted.
11. The armed force shall proceed to the prosecution and punishment of the
tribes, that, disregarding the peace, protection, and advantages offered them,
continue in their rebellious attitude on the first of next April, committing from
now on the crimes and vexations against the Christian towns; and for the this
purposes, the Captain General's Office shall proceed with the organization of
the divisions of the Army which, in conjunction with the rural guards
(cuadrilleros), shall have to enter the territory of such tribes. On the
expiration of the term, they shall destroy their dwelling-houses, labors, and
implements, and confiscate their products and cattle. Such a punishment
shall necessarily be repeated twice a year, and for this purpose the military
headquarters shall immediately order a detachment of the military staff to
study the zones where such operations shall take place and everything
conducive to the successful accomplishment of the same.
12. The chiefs of provinces, priests, and missioners, local authorities, and
other subordinates to my authorities, local authorities, and other subordinates
to may authority, civil as well as military authorities, shall give the most
effective aid and cooperation to the said forces in all that is within the
attributes and the scope of the authority of each.
13. With respect to the reduccion of the pagan races found in some of the
provinces in the southern part of the Archipelago, which I intend to visit, the
preceding provisions shall conveniently be applied to them.
14. There shall be created, under my presidency as Governor-General, Vice-
Royal Patron, a council or permanent commission which shall attend to and
decide all the questions relative to the application of the foregoing regulations
that may be brought to it for consultations by the chiefs of provinces and
priests and missionaries.
15. The secondary provisions which may be necessary, as a complement to
the foregoing, in brining about due compliance with this decree, shall be
promulgated by the respective official centers within their respective
jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion,
vol. 7, pp. 128-134.)
B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.
Ever since the acquisition of the Philippine Islands by the United States, the
question as to the best method for dealing with the primitive inhabitants has
been a perplexing one.
1. Organic law.
The first order of an organic character after the inauguration of the American
Government in the Philippines was President McKinley's Instructions to the
Commission of April 7, 1900, later expressly approved and ratified by section
1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these
instructions have remained undisturbed by subsequent congressional
legislation. One paragraph of particular interest should here be quoted,
namely:
In dealing with the uncivilized tribes of the Islands, the Commission should
adopt the same course followed by Congress in permitting the tribes of our
North American Indians to maintain their tribal organization and government
and under which many of these tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or unwilling
to conform. Such tribal governments should, however, be subjected to wise
and firm regulation; and, without undue or petty interference, constant and
active effort should be exercised to prevent barbarous practices and
introduce civilized customs.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the
nature of an Organic Act for the Philippines. The purpose of section 7 of the
Philippine Bill was to provide for a legislative body and, with this end in view,
to name the prerequisites for the organization of the Philippine Assembly.
The Philippine Legislature, composed of the Philippine Commission and the
Philippine Assembly, was to have jurisdiction over the Christian portion of the
Islands. The Philippine Commission was to retain exclusive jurisdiction of
that part of said Islands inhabited by Moros or other non-Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is
the Act of Congress of August 29, 1916, commonly known as the Jones Law.
This transferred the exclusive legislative jurisdiction and authority theretofore
exercised by the Philippine Commission, to the Philippine Legislature (sec.
12). It divided the Philippine Islands into twelve senatorial districts, the twelfth
district to be composed of the Mountain Province, Baguio, Nueva Vizcaya,
and the Department of Mindanao and Sulu. The Governor-General of the
Philippine Islands was authorized to appoint senators and representatives for
the territory which, at the time of the passage of the Jones Law, was not
represented in the Philippine Assembly, that is, for the twelfth district (sec.
16). The law establish a bureau to be known as the "Bureau of non-Christian
Tribes" which shall have general supervision over the public affairs of the
inhabitants which are represented in the Legislature by appointed senators
and representatives( sec. 22).
Philippine organic law may, therefore, be said to recognized a dividing line
between the territory not inhabited by Moros or other non-Christian tribes,
and the territory which Moros or other non-Christian tribes, and the territory
which is inhabited by Moros or other non-Christian tribes.
2. Statute law.
Local governments in the Philippines have been provided for by various acts
of the Philippine Commission and Legislature. The most notable are Acts
Nos. 48 and 49 concerning the Province of Benguet and the Igorots; Act NO.
82, the Municipal Code; ;Act no. 83, the Provincial Government Act; Act No.
183, the Character of the city of Manila; Act No. 7887, providing for the
organization and government of the Moro Province; Act No. 1396, the
Special Provincial Government Act; Act No. 1397, the Township Government
Act; Act No. 1667, relating to the organization of settlements; Act No. 1963,
the Baguio charger; and Act No. 2408, the Organic Act of the Department of
Mindanao and Sulu. The major portion of these laws have been carried
forward into the Administrative Codes of 1916 an d1917.
Of more particular interest are certain special laws concerning the
government of the primitive peoples. Beginning with Act No. 387, sections
68-71, enacted on April 9, 1902, by the United States Philippine Commission,
having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422,
445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were
enacted for the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur,
Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan,
Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these
laws, because referring to the Manguianes, we insert Act No. 547:
No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL
CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF
MINDORO.
By authority of the United States, be it enacted by the Philippine
Commission, that:
SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not
progressed sufficiently in civilization to make it practicable to bring them
under any form of municipal government, the provincial governor is
authorized, subject to the approval of the Secretary of the Interior, in dealing
with these Manguianes to appoint officers from among them, to fix their
designations and badges of office, and to prescribe their powers and duties:
Provided, That the powers and duties thus prescribed shall not be in excess
of those conferred upon township officers by Act Numbered Three hundred
and eighty-seven entitled "An Act providing for the establishment of local civil
Governments in the townships and settlements of Nueva Vizcaya."
SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial
governor is further authorized, when he deems such a course necessary in
the interest of law and order, to direct such Manguianes to take up their
habitation on sites on unoccupied public lands to be selected by him and
approved by the provincial board. Manguianes who refuse to comply with
such directions shall upon conviction be imprisonment for a period not
exceeding sixty days.
SEC. 3. The constant aim of the governor shall be to aid the Manguianes of
his province to acquire the knowledge and experience necessary for
successful local popular government, and his supervision and control over
them shall be exercised to this end, an to the end that law and order and
individual freedom shall be maintained.
SEC. 4. When in the opinion of the provincial board of Mindoro any
settlement of Manguianes has advanced sufficiently to make such a course
practicable, it may be organized under the provisions of sections one to sixty-
seven, inclusive, of Act Numbered three hundred and eighty-seven, as a
township, and the geographical limits of such township shall be fixed by the
provincial board.
SEC. 5. The public good requiring the speedy enactment of this bill, the
passage of the same is hereby expedited in accordance with section two of
'An Act prescribing the order of procedure by the Commission in the
enactment of laws,' passed September twenty-sixth, nineteen hundred.
SEC. 6. This Act shall take effect on its passage.
Enacted, December 4, 1902.
All of these special laws, with the exception of Act No. 1306, were repealed
by Act No. 1396 and 1397. The last named Act incorporated and embodied
the provisions in general language. In turn, Act No. 1397 was repealed by the
Administrative Code of 1916. The two Administrative Codes retained the
provisions in questions.
These different laws, if they of the non-Christian inhabitants of the Philippines
and a settled and consistent practice with reference to the methods to be
followed for their advancement.
C. TERMINOLOGY.
The terms made use of by these laws, organic and statutory, are found in
varying forms.
"Uncivilized tribes" is the denomination in President McKinley's instruction to
the Commission.
The most commonly accepted usage has sanctioned the term "non-Christian
tribes." These words are to be found in section 7 of the Philippine Bill and in
section 22 of the Jones Law. They are also to be found in Act No. 253 of the
Philippines Commission, establishing a Bureau of non-Christian Tribes and in
Act No. 2674 of the Philippine Legislature, carried forward into sections 701-
705 of the Administrative Code of 1917, reestablishing this Bureau. Among
other laws which contain the phrase, there can be mentioned Acts Nos. 127,
128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian
Filipinos" have been the favorite nomenclature, in lieu of the unpopular word
"tribes," since the coming into being of a Filipinized legislature. These terms
can be found in sections 2076, 2077, 2390, 2394, Administrative Code of
1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and
in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as
in Act No. 1667 of the Philippine Commission.
The Administrative Code specifically provides that the term "non-Christian"
shall include Mohammedans and pagans. (Sec. 2576, Administrative Code of
1917; sec. 2561, Administrative Code of 1916, taken from Act No. 2408, sec.
3.)
D. MEANING OF TERM "NON-CHRISTIAN."
If we were to follow the literal meaning of the word "non-Christian," it would of
course result in giving to it a religious signification. Obviously, Christian would
be those who profess the Christian religion, and non-Christians, would be
those who do not profess the Christian religion. In partial corroboration of this
view, there could also be cited section 2576 of the last Administrative Code
and certain well-known authorities, as Zuñiga, "Estadismo de las Islas
Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and
Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See
Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note;
Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.)
Not content with the apparent definition of the word, we shall investigate
further to ascertain what is its true meaning.
In one sense, the word can have a geographical signification. This is plainly
to be seen by the provisions of many laws. Thus, according to the Philippine
Bill, the authority of the Philippine Assembly was recognized in the "territory"
of the Islands not inhabited by Moros or other non-Christian tribes. Again, the
Jones Law confers similar recognition in the authorization of the twelfth
senatorial district for the "territory not now represented in the Philippine
Assembly." The Philippines Legislature has, time and again, adopted acts
making certain other acts applicable to that "part" of the Philippine Islands
inhabited by Moros or other non-Christian tribes.
Section 2145, is found in article XII of the Provincial Law of the Administrative
Code. The first section of this article, preceding section 2145, makes the
provisions of the article applicable only in specially organized provinces. The
specially organized provinces are the Mountain Province, Nueva Vizcaya,
Mindoro, Batanes, and Palawan. These are the provinces to which the
Philippine Legislature has never seen fit to give all the powers of local self-
government. They do not, however, exactly coincide with the portion of the
Philippines which is not granted popular representation. Nevertheless, it is
still a geographical description.
It is well-known that within the specially organized provinces, there live
persons some of who are Christians and some of whom are not Christians. In
fact, the law specifically recognizes this. ( Sec. 2422, Administrative Code of
1917, etc.)
If the religious conception is not satisfactory, so against the geographical
conception is likewise inadquate. The reason it that the motive of the law
relates not to a particular people, because of their religion, or to a particular
province because of its location, but the whole intent of the law is predicated
n the civilization or lack of civilization of the inhabitants.
At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic
words usually introduce the term. "The so-called non-Christian" is a favorite
expression. The Secretary of the Interior who for so many years had these
people under his jurisdiction, recognizing the difficulty of selecting an exact
designation, speaks of the "backward Philippine peoples, commonly known
as the 'non-Christian tribes."' (See Hearings before the Committee on the
Philippines, United States Senate, Sixty-third Congress, third session on
H.R. 18459, An Act to declare the purpose of the People of the United States
as to the future political status of the Philippine Islands and to provide a more
autonomous government for the Islands, pp. 346, 351; letter of the Secretary
of the Interior of June 30, 1906, circulated by the Executive Secretary.)
The idea that the term "non-Christian" is intended to relate to degree of
civilization, is substantiated by reference to legislative, judicial, and executive
authority.
The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674,
and sections 701 et seq, and sections 2422 et seq, of the Administrative
Code of 1917. For instance, Act No. 253 charged the Bureau of non-Christian
tribes to conduct "systematic investigations with reference to non-Christian
tribes . . . with special view to determining the most practicable means for
bringing about their advancement in civilization and material property
prosperity."
As authority of a judicial nature is the decision of the Supreme Court in the
case of United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The
question here arose as to the effect of a tribal marriage in connection with
article 423 of the Penal code concerning the husband who surprises his wife
in the act of adultery. In discussing the point, the court makes use of the
following language:
. . . we are not advised of any provision of law which recognizes as legal a
tribal marriage of so-called non-Christians or members of uncivilized tribes,
celebrated within that province without compliance with the requisites
prescribed by General Orders no. 68. . . . We hold also that the fact that the
accused is shown to be a member of an uncivilized tribe, of a low order of
intelligence, uncultured and uneducated, should be taken into consideration
as a second marked extenuating circumstance.
Of much more moment is the uniform construction of execution officials who
have been called upon to interpret and enforce the law. The official who, as a
member of the Philippine Commission, drafted much of the legislation
relating to the so-called Christians and who had these people under his
authority, was the former Secretary of the Interior. Under date of June 30,
1906, this official addressed a letter to all governor of provinces, organized
under the Special Provincial Government Act, a letter which later received
recognition by the Governor-General and was circulated by the Executive
Secretary, reading as follows:
Sir: Within the past few months, the question has arisen as to whether
people who were originally non-Christian but have recently been baptized or
who are children of persons who have been recently baptized are, for the
purposes of Act 1396 and 1397, to be considered Christian or non-Christians.
It has been extremely difficult, in framing legislation for the tribes in these
islands which are not advanced far in civilization, to hit upon any suitable
designation which will fit all cases. The number of individual tribes is so great
that it is almost out of the question to enumerate all of them in an Act. It was
finally decided to adopt the designation 'non-Christians' as the one most
satisfactory, but the real purpose of the Commission was not so much to
legislate for people having any particular religious belief as for those lacking
sufficient advancement so that they could, to their own advantage, be
brought under the Provincial Government Act and the Municipal Code.
The mere act of baptism does not, of course, in itself change the degree of
civilization to which the person baptized has attained at the time the act of
baptism is performed. For practical purposes, therefore, you will give the
member of so-called "wild tribes" of your province the benefit of the doubt
even though they may recently have embraced Christianity.
The determining factor in deciding whether they are to be allowed to remain
under the jurisdiction of regularly organized municipalities or what form of
government shall be afforded to them should be the degree of civilization to
which they have attained and you are requested to govern yourself
accordingly.
I have discussed this matter with the Honorable, the Governor-General, who
concurs in the opinion above expressed and who will have the necessary
instructions given to the governors of the provinces organized under the
Provincial Government Act. (Internal Revenue Manual, p. 214.)
The present Secretary of the Interior, in a memorandum furnished a member
of this court, has the following to say on the subject:
As far as names are concerned the classification is indeed unfortunate, but
while no other better classification has as yet been made the present
classification should be allowed to stand . . . I believe the term carries the
same meaning as the expressed in the letter of the Secretary of the Interior
(of June 30, 1906, herein quoted). It is indicative of the degree of civilization
rather than of religious denomination, for the hold that it is indicative of
religious denomination will make the law invalid as against that Constitutional
guaranty of religious freedom.
Another official who was concerned with the status of the non-Christians,
was the Collector of Internal Revenue. The question arose for ruling relatives
to the cedula taxation of the Manobos and the Aetas. Thereupon, the view of
the Secretary of the Interior was requested on the point, who, by return
indorsement, agreed with the interpretation of the Collector of Internal
Revenue. This Construction of the Collector of Internal Revenue can be
found in circular letter No. 188 of the Bureau of Internal Revenue, dated June
11, 1907, reading as follows (Internal Revenue Manual, p. 214):
The internal revenue law exempts "members of non-Christian tribes" from the
payment of cedula taxes. The Collector of Internal Revenue has interpreted
this provision of law to mean not that persons who profess some form of
Christian worship are alone subject to the cedula tax, and that all other
person are exempt; he has interpreted it to mean that all persons preserving
tribal relations with the so-called non-Christian tribes are exempt from the
cedula tax, and that all others, including Jews, Mohammedans, Confucians,
Buddists, etc., are subject to said tax so long as they live in cities or towns, or
in the country in a civilized condition. In other words, it is not so much a
matter of a man's form of religious worship or profession that decides
whether or not he is subject to the cedula tax; it is more dependent on
whether he is living in a civilized manner or is associated with the mountain
tribes, either as a member thereof or as a recruit. So far, this question has
not come up as to whether a Christian, maintaining his religious belief, but
throwing his lot and living with a non-Christian tribe, would or would not be
subject to the cedula tax. On one occasion a prominent Hebrew of Manila
claimed to this office that he was exempt from the cedula tax, inasmuch as
he was not a Christian. This Office, however, continued to collect cedula
taxes from all the Jews, East Indians, Arabs, Chinamen, etc., residing in
Manila. Quite a large proportion of the cedula taxes paid in this city are paid
by men belonging to the nationalities mentioned. Chinamen, Arabs and other
s are quite widely scattered throughout the Islands, and a condition similar to
that which exist in Manila also exists in most of the large provincial towns.
Cedula taxes are therefore being collected by this Office in all parts of these
Islands on the broad ground that civilized people are subject to such taxes,
and non-civilized people preserving their tribal relations are not subject
thereto.
(Sgd.) JNO. S. HORD,
Collector of Internal Revenue.
On September 17, 1910, the Collector of Internal Revenue addressed
circular letter No. 327, approved by the Secretary of Finance and Justice, to
all provincial treasurers. This letter in part reads:
In view of the many questions that have been raised by provincial treasurers
regarding cedula taxes due from members of non-Christian tribes when they
come in from the hills for the purposes of settling down and becoming
members of the body politic of the Philippine Islands, the following
clarification of the laws governing such questions and digest of rulings
thereunder is hereby published for the information of all concerned:
Non-Christian inhabitants of the Philippine Islands are so classed, not by
reason of the fact that they do not profess Christianity, but because of their
uncivilized mode of life and low state of development. All inhabitants of the
Philippine Islands classed as members of non-Christian tribes may be
divided into three classes in so far as the cedula tax law is concerned . . .
Whenever any member of an non-Christian tribe leaves his wild and
uncivilized mode of life, severs whatever tribal relations he may have had
and attaches himself civilized community, belonging a member of the body
politic, he thereby makes himself subject to precisely the same law that
governs the other members of that community and from and after the date
when he so attaches himself to the community the same cedula and other
taxes are due from him as from other members thereof. If he comes in after
the expiration of the delinquency period the same rule should apply to him as
to persons arriving from foreign countries or reaching the age of eighteen
subsequent to the expiration of such period, and a regular class A, D, F, or H
cedula, as the case may be, should be furnished him without penalty and
without requiring him to pay the tax for former years.
In conclusion, it should be borne in mind that the prime factors in determining
whether or not a man is subject to the regular cedula tax is not the
circumstance that he does or does not profess Christianity, nor even his
maintenance of or failure to maintain tribal relations with some of the well
known wild tribes, but his mode of life, degree of advancement in civilization
and connection or lack of connection with some civilized community. For this
reason so called "Remontados" and "Montescos" will be classed by this
office as members of non-Christian tribes in so far as the application of the
Internal Revenue Law is concerned, since, even though they belong to no
well recognized tribe, their mode of life, degree of advancement and so forth
are practically the same as those of the Igorrots and members of other
recognized non-Christina tribes.
Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,
Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.
The two circular above quoted have since been repealed by Bureau of
Internal Revenue Regulations No. 1, promulgated by Venancio Concepcion,
Acting Collector of Internal Revenue, and approved on April 16, 1915, by
Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of
the regulations is practically a transcript of Circular Letter No. 327.
The subject has come before the Attorney-General for consideration. The
Chief of Constabulary request the opinion of the Attorney-General as to the
status of a non-Christian who has been baptized by a minister of the Gospel.
The precise questions were these: "Does he remain non-Christian or is he
entitled to the privileges of a Christian? By purchasing intoxicating liquors,
does he commit an infraction of the law and does the person selling same lay
himself liable under the provision of Act No. 1639?" The opinion of Attorney-
General Avanceña, after quoting the same authorities hereinbefore set out,
concludes:
In conformity with the above quoted constructions, it is probable that is
probable that the person in question remains a non-Christian, so that, in
purchasing intoxicating liquors both he and the person selling the same make
themselves liable to prosecution under the provisions of Act No. 1639. At
least, I advise you that these should be the constructions place upon the law
until a court shall hold otherwise.
Solicitor-General Paredes in his brief in this case says:
With respect to the meaning which the phrase non-Christian inhabitants has
in the provisions of the Administrative code which we are studying, we submit
that said phrase does not have its natural meaning which would include all
non-Christian inhabitants of the Islands, whether Filipino or strangers,
civilized or uncivilized, but simply refers to those uncivilized members of the
non-Christian tribes of the Philippines who, living without home or fixed
residence, roam in the mountains, beyond the reach of law and order . . .
The Philippine Commission in denominating in its laws that portion of the
inhabitants of the Philippines which live in tribes as non-Christian tribes, as
distinguished from the common Filipinos which carry on a social and civilized
life, did not intended to establish a distinction based on the religious beliefs of
the individual, but, without dwelling on the difficulties which later would be
occasioned by the phrase, adopted the expression which the Spanish
legislation employed to designate the uncivilized portion of the inhabitants of
the Philippines.
The phrase 'non-Christian inhabitants' used in the provisions of articles 2077
and 2741 of Act No. 2657 (articles 2145 and 2759) should be understood as
equivalent to members of uncivilized tribes of the Philippines, not only
because this is the evident intention of the law, but because to give it its
lateral meaning would make the law null and unconstitutional as making
distinctions base the religion of the individual.
The Official Census of 1903, in the portion written by no less an authority
than De. David P. Barrows, then "Chief of the Bureau of non-Christian
Tribes," divides the population in the Christian or Civilized Tribes, and non-
Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp.
411 et seq). The present Director of the Census, Hon. Ignacio Villamor, writes
that the classification likely to be used in the Census now being taken is:
"Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and
Geographical Dictionary of the Philippine Islands, prepared in the Bureau of
Insular Affairs, War Department, a sub-division under the title non-Christian
tribes is, "Physical and Political Characteristics of the non-Christian Tribes,"
which sufficiently shows that the terms refers to culture and not to religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and
different executive officials, specifically, join in the proposition that the term
"non-Christian" refers, not to religious belief, but, in a way , to geographical
area, and, more directly, to natives of the Philippine Islands of a law grade of
civilization, usually living in tribal relationship apart from settled communities.
E. THE MANGUIANES.
The so-called non-Christians are in various state approaching civilization.
The Philippine Census of 1903 divided them into four classes. Of the third
class, are the Manguianes (or Mangyans) of Mindoro.
Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in
his Etimilogia de los nombres de Rozas de Filipinas, says:
In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer,"
"pagan," "negro." It may be that the use of this word is applicable to a great
number of Filipinos, but nevertheless it has been applied only to certain
inhabitants of Mindoro. Even in primitive times without doubt this name was
given to those of that island who bear it to-day, but its employed in three
Filipino languages shows that the radical ngian had in all these languages a
sense to-day forgotten. In Pampango this ending still exists and signifies
"ancient," from which we can deduce that the name was applied to men
considered to be the ancient inhabitants, and that these men were pushed
back into the interior by the modern invaders, in whose language they were
called the "ancients."
The Manguianes are very low in culture. They have considerable Negrito
blood and have not advanced beyond the Negritos in civilization. They are a
peaceful, timid, primitive, semi-nomadic people. They number approximately
15,000. The manguianes have shown no desire for community life, and, as
indicated in the preamble to Act No. 547, have not progressed sufficiently in
civilization to make it practicable to bring them under any form of municipal
government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23,
460.)
III. COMPARATIVE — THE AMERICAN INDIANS.
Reference was made in the Presidents' instructions to the Commission to the
policy adopted by the United States for the Indian Tribes. The methods
followed by the Government of the Philippines Islands in its dealings with the
so-called non-Christian people is said, on argument, to be practically
identical with that followed by the United States Government in its dealings
with the Indian tribes. Valuable lessons, it is insisted, can be derived by an
investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have
been treated as "in a state of pupilage." The recognized relation between the
Government of the United States and the Indians may be described as that
of guardian and ward. It is for the Congress to determine when and how the
guardianship shall be terminated. The Indians are always subject to the
plenary authority of the United States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore
mentioned, tells how the Congress passed an Act in 1819 "for promoting
those humane designs of civilizing the neighboring Indians." After quoting the
Act, the opinion goes on — "This act avowedly contemplates the
preservation of the Indian nations as an object sought by the United States,
and proposes to effect this object by civilizing and converting them from
hunters into agriculturists."
A leading case which discusses the status of the Indians is that of the United
States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the
clause of the United States Constitution which gives Congress "power to
regulate commerce with foreign nations, and among the several States, and
with the Indian tribes." The court then proceeds to indicate a brief history of
the position of the Indians in the United States (a more extended account of
which can be found in Marshall's opinion in Worcester vs. Georgia, supra), as
follows:
The relation of the Indian tribes living within the borders of the United States,
both before and since the Revolution, to the people of the United States, has
always been an anomalous one and of a complex character.
Following the policy of the European Governments in the discovery of
American towards the Indians who were found here, the colonies before the
Revolution and the States and the United States since, have recognized in
the Indians a possessory right to the soil over which they roamed and hunted
and established occasional villages. But they asserted an ultimate title in the
land itself, by which the Indian tribes were forbidden to sell or transfer it to
other nations or peoples without the consent of this paramount authority.
When a tribe wished to dispose of its lands, or any part of it, or the State or
the United States wished to purchase it, a treaty with the tribe was the only
mode in which this could be done. The United States recognized no right in
private persons, or in other nations, to make such a purchase by treaty or
otherwise. With the Indians themselves these relation are equally difficult to
define. They were, and always have been, regarded as having a semi-
independent position when they preserved their tribal relations; not as States,
not as nation not a possessed of the fall attributes of sovereignty, but as a
separate people, with the power of regulating their internal and social
relations, and thus far not brought under the laws of the Union or of the State
within whose limits they resided.
The opinion then continues:
It seems to us that this (effect of the law) is within the competency of
Congress. These Indian tribes are the wards of the nation. The are
communities dependent on the United States. dependent largely for their
daily food. Dependent for their political rights. They owe no allegiance to the
States, and receive from the no protection. Because of the local ill feeling,
the people of the States where they are found are often their deadliest
enemies. From their very weakness and helplessness, so largely due to the
course of dealing of the Federal Government with them and the treaties in
which it has been promised, there arise the duty of protection, and with it the
power. This has always been recognized by the Executive and by Congress,
and by this court, whenever the question has arisen . . . The power of the
General Government over these remnants of race once powerful, now weak
and diminished in numbers, is necessary to their protection, as well as to the
safety of those among whom they dwell. it must exist in that government,
because it never has existed anywhere else, because the theater of its
exercise is within the geographical limits of the United States, because it has
never been denied, and because it alone can enforce its laws on all the
tribes.
In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the
question to be considered was whether the status of the Pueblo Indians and
their lands was such that Congress could prohibit the introduction of
intoxicating liquor into those lands notwithstanding the admission of New
Mexico to statehood. The court looked to the reports of the different
superintendent charged with guarding their interests and founds that these
Indians are dependent upon the fostering care and protection of the
government "like reservation Indians in general." Continuing, the court said
"that during the Spanish dominion, the Indians of the pueblos were treated as
wards requiring special protection, where subjected to restraints and official
supervisions in the alienation of their property." And finally, we not the
following: "Not only does the Constitution expressly authorize Congress to
regulate commerce with the Indians tribes, but long-continued legislative and
executive usage and an unbroken current of judicial decisions have attributed
to the United States as a superior and civilized nation the power and the duty
of exercising a fostering care and protection over all dependent Indian
communities within its borders, whether within its original territory or territory
subsequently acquired, and whether within or without the limits of a state."
With reference to laws affecting the Indians, it has been held that it is not
within the power of the courts to overrule the judgment of Congress. For very
good reason, the subject has always been deemed political in nature, not
subject to the jurisdiction of the judicial department of the government.
(Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S.,
278; U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra;
U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall,
616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs.Gay [1898], 169
U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams
[1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84;
Tiger vs. Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913],
232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.)
Whenever, therefore, the United States sets apart any public land as an
Indian reservation, it has full authority to pass such laws and authorize such
measures as may be necessary to give to the Indians thereon full protection
in their persons and property. (U.S. vs.Thomas [1894], 151 U.S., 577.)
All this borne out by long-continued legislative and executive usage, and an
unbroken line of judicial decisions.
The only case which is even remotely in point and which, if followed literally,
might result in the issuance of habeas corpus, is that of United
States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing upon
return to a writ of habeas corpus issued against Brigadier General George
Crook at the relation of Standing Bear and other Indians, formerly belonging
to the Ponca Tribe of Indians. The petition alleged in substance that the
relators are Indians who have formerly belonged to the Ponca tribe of
Indians, now located in the Indian Territory; that they had some time
previously withdrawn from the tribe, and completely severed their tribal
relations therewith, and had adopted the general habits of the whites, and
were then endeavoring to maintain themselves by their own exertions, and
without aid or assistance from the general government; that whilst they were
thus engaged, and without being guilty of violating any of the laws of the
United States, they were arrested and restrained of their liberty by order of
the respondent, George Crook. The substance of the return to the writ was
that the relators are individual members of, and connected with, the Ponca
tribe of Indians; that they had fled or escaped form a reservation situated
some place within the limits of the Indian Territory — had departed therefrom
without permission from the Government; and, at the request of the
Secretary of the Interior, the General of the Army had issued an order which
required the respondent to arrest and return the relators to their tribe in the
Indian Territory, and that, pursuant to the said order, he had caused the
relators to be arrested on the Omaha Indian Territory.
The first question was whether an Indian can test the validity of an illegal
imprisonment by habeas corpus. The second question, of much greater
importance, related to the right of the Government to arrest and hold the
relators for a time, for the purpose of being returned to the Indian Territory
from which it was alleged the Indian escaped. In discussing this question, the
court reviewed the policy the Government had adopted in its dealing with the
friendly tribe of Poncase. Then, continuing, the court said: "Laws passed for
the government of the Indian country, and for the purpose of regulating trade
and intercourse with the Indian tribes, confer upon certain officers of the
Government almost unlimited power over the persons who go upon the
reservations without lawful authority . . . Whether such an extensive
discretionary power is wisely vested in the commissioner of Indian affairs or
not , need not be questioned. It is enough to know that the power rightfully
exists, and, where existing, the exercise of the power must be upheld." The
decision concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United
States, and has, therefore, the right to sue out a writ of habeas corpus in a
federal court, or before a federal judge, in all cases where he may be
confined or in custody under color of authority of the United States or where
he is restrained of liberty in violation of the constitution or laws of the United
States.
2. That General George Crook, the respondent, being commander of the
military department of the Platte, has the custody of the relators, under color
of authority of the United States, and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to
the Indian Territory, as the respondent has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the
more fortunate white race, and have the inalienable right to "life, liberty, and
the pursuit of happiness," so long as they obey the laws and do not trespass
on forbidden ground. And,
5. Being restrained of liberty under color of authority of the United States,
and in violation of the laws thereof, the relators must be discharged from
custody, and it is so ordered.
As far as the first point is concerned, the decision just quoted could be used
as authority to determine that Rubi, the Manguian petitioner, a Filipino, and a
citizen of the Philippine Islands, is a "person" within the meaning of
the Habeas Corpus Act, and as such, entitled to sue out a writ in the
Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so
decide.
As to the second point the facts in the Standing Bear case an the Rubi case
are not exactly identical. But even admitting similarity of facts, yet it is known
to all that Indian reservations do exist in the United States, that Indians have
been taken from different parts of the country and placed on these
reservation, without any previous consultation as to their own wishes, and
that, when once so located, they have been made to remain on the
reservation for their own good and for the general good of the country. If any
lesson can be drawn form the Indian policy of the United States, it is that the
determination of this policy is for the legislative and executive branches of
the government and that when once so decided upon, the courts should not
interfere to upset a carefully planned governmental system. Perhaps, just as
may forceful reasons exists for the segregation as existed for the segregation
of the different Indian tribes in the United States.
IV. CONSTITUTIONAL QUESTIONS.
A. DELEGATION OF LEGISLATIVE POWER.
The first constitutional objection which confronts us is that the Legislature
could not delegate this power to provincial authorities. In so attempting, it is
contended, the Philippine Legislature has abdicated its authority and avoided
its full responsibility.
That the maxim of Constitutional Law forbidding the delegation of legislative
power should be zealously protected, we agree. An understanding of the rule
will, however, disclose that it has not bee violated in his instance.
The rule has nowhere been better stated than in the early Ohio case decided
by Judge Ranney, and since followed in a multitude of case, namely: "The
true distinction therefore is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring
an authority or discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the later no valid objection
can be made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County
[1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in
Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the
Legislature to an executive department or official. The Legislature may make
decisions of executive departments of subordinate official thereof, to whom t
has committed the execution of certain acts, final on questions of fact.
(U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the
decision is to give prominence to the "necessity" of the case.
Is not all this exactly what the Legislature has attempted to accomplish by the
enactment of section 21454 of the Administrative Code? Has not the
Legislature merely conferred upon the provincial governor, with the approval
of the provincial board and the Department Head, discretionary authority as
to the execution of the law? Is not this "necessary"?
The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for
mandamus to require the Secretary of the Interior to approve the selection
and taking of one hundred and sixty acres by the relator out of the lands
ceded to the United States by the Wichita and affiliated bands of Indians.
Section 463 of the United States Revised Statutes provided: "The
Commissioner of Indian Affairs shall, under the direction of the Secretary of
the Interior, and agreeably to such regulations as the President may
prescribe, have the management of all Indian affairs, and of all matters
arising out to the Indian relations." Justice Holmes said: "We should hesitate
a good deal, especially in view of the long established practice of the
Department, before saying that this language was not broad enough to
warrant a regulation obviously made for the welfare of the rather helpless
people concerned. The power of Congress is not doubted. The Indians have
been treated as wards of the nation. Some such supervision was necessary,
and has been exercised. In the absence of special provisions naturally it
would be exercised by the Indian Department." (See also as corroborative
authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364,
reviewing the previous decisions of the United States Supreme Court:
U.S. vs. Lane [1914], 232 U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An
exception to the general rule. sanctioned by immemorial practice, permits the
central legislative body to delegate legislative powers to local authorities. The
Philippine Legislature has here conferred authority upon the Province of
Mindoro, to be exercised by the provincial governor and the provincial board.
Who but the provincial governor and the provincial board, as the official
representatives of the province, are better qualified to judge "when such as
course is deemed necessary in the interest of law and order?" As officials
charged with the administration of the province and the protection of its
inhabitants, who but they are better fitted to select sites which have the
conditions most favorable for improving the people who have the misfortune
of being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful
delegation of legislative power by the Philippine Legislature to provincial
official and a department head.
B. RELIGIOUS DISCRIMINATION
The attorney de officio, for petitioners, in a truly remarkable brief, submitted
on behalf of his unknown clients, says that — "The statute is perfectly clear
and unambiguous. In limpid English, and in words as plain and unequivocal
as language can express, it provides for the segregation of 'non-Christians'
and none other." The inevitable result, them, is that the law "constitutes an
attempt by the Legislature to discriminate between individuals because of
their religious beliefs, and is, consequently, unconstitutional."
Counsel's premise once being conceded, his arguments is answerable — the
Legislature must be understood to mean what it has plainly expressed;
judicial construction is then excluded; religious equality is demanded by the
Organic Law; the statute has violated this constitutional guaranty, and Q. E.
D. is invalid. But, as hereinbefore stated, we do not feel free to discard the
long continued meaning given to a common expression, especially as
classification of inhabitants according to religious belief leads the court to
what it should avoid, the nullification of legislative action. We hold that the
term "non-Christian" refers to natives of the Philippines Islands of a low
grade of civilization, and that section 2145 of the Administrative Code of
1917, does not discriminate between individuals an account of religious
differences.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE
LAWS.
The third constitutional argument is grounded on those portions of the
President's instructions of to the Commission, the Philippine Bill, and the
Jones Law, providing "That no law shall be enacted in said Islands which
shall deprive any person of life, liberty, or property without due process of
law, or deny to any person therein the equal protection of the laws." This
constitutional limitation is derived from the Fourteenth Amendment to the
United States Constitution — and these provisions, it has been said "are
universal in their application, to all persons within the territorial jurisdiction,
without regard to any differences of race, of color, or of nationality." (Yick
Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual
is then as much for the non-Christian as for the Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible
with the possession of like liberty by every other. (Spencer, Social Statistics,
p. 94.)
Liberty is the creature of law, essentially different from that authorized
licentiousness that trespasses on right. That authorized licentiousness that
trespasses on right. It is a legal and a refined idea, the offspring of high
civilization, which the savage never understood, and never can understand.
Liberty exists in proportion to wholesome restraint; the more restraint on
others to keep off from us, the more liberty we have . . . that man is free who
is protected from injury. (II Webster's Works, p. 393.)
Liberty consists in the ability to do what one caught to desire and in not being
forced to do what one ought not do desire. (Montesque, spirit of the Laws.)
Even liberty itself, the greatest of all rights, is no unrestricted license to ac
according to one's own will. It is only freedom from restraint under conditions
essential to the equal enjoyment of the same right by others. (Field, J., in
Crowley vs. Christensen [1890], 137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times
and in all circumstances, wholly freed from restraint. There are manifold
restraints to which every person is necessarily subject for the common good.
On any other basis, organized society could not exist with safety to its
members. Society based on the rule that each one is a law unto himself
would soon be confronted with disorder and anarchy. Real liberty for all could
not exist under the operation of a principle which recognizes the right of each
individual person to use his own, whether in respect of his person or his
property, regardless of the injury that may be done to others . . . There is, of
course, a sphere with which the individual may asserts the supremacy of his
own will, and rightfully dispute the authority of any human government —
especially of any free government existing under a written Constitution — to
interfere with the exercise of that will. But it is equally true that in very well-
ordered society charged with the duty of conserving the safety of its
members, the rights of the individual in respect of his liberty may at times,
under the pressure of great dangers, be subjected to such restraint to be
enforced by reasonable regulations, as the safety of the general public may
demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason
and the upright and honorable conscience of the individual. (Apolinario
Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be
enjoyed in a civilized community, consistently with the peaceful enjoyment of
like freedom in others. The right to Liberty guaranteed by the Constitution
includes the right to exist and the right to be free from arbitrary personal
restraint or servitude. The term cannot be dwarfed into mere freedom from
physical restraint of the person of the citizen, but is deemed to embrace the
right of man to enjoy the faculties with which he has been endowed by this
Creator, subject only to such restraints as are necessary for the common
welfare. As enunciated in a long array of authorities including epoch-making
decisions of the United States Supreme Court, Liberty includes the right of
the citizens to be free to use his faculties in all lawful ways; to live an work
where he will; to earn his livelihood by an lawful calling; to pursue any
avocations, an for that purpose. to enter into all contracts which may be
proper, necessary, and essential to his carrying out these purposes to a
successful conclusion. The chief elements of the guaranty are the right to
contract, the right to choose one's employment, the right to labor, and the
right of locomotion.
In general, it may be said that Liberty means the opportunity to do those
things which are ordinarily done by free men. (There can be noted
Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2
Pet., 627; Williams vs. Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana
[1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6
R.C.L., 258, 261.)
One thought which runs through all these different conceptions of Liberty is
plainly apparent. It is this: "Liberty" as understood in democracies, is not
license; it is "Liberty regulated by law." Implied in the term is restraint by law
for the good of the individual and for the greater good of the peace and order
of society and the general well-being. No man can do exactly as he pleases.
Every man must renounce unbridled license. The right of the individual is
necessarily subject to reasonable restraint by general law for the common
good. Whenever and wherever the natural rights of citizen would, if exercises
without restraint, deprive other citizens of rights which are also and equally
natural, such assumed rights must yield to the regulation of law. The Liberty
of the citizens may be restrained in the interest of the public health, or of the
public order and safety, or otherwise within the proper scope of the police
power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes
Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of
law. Daniel Webster, in the course of the argument in the Dartmouth College
Case before the United States Supreme Court, since a classic in forensic
literature, said that the meaning of "due process of law" is, that "every citizen
shall hold his life, liberty, property, an immunities under the protection of the
general rules which govern society." To constitute "due process of law," as
has been often held, a judicial proceeding is not always necessary. In some
instances, even a hearing and notice are not requisite a rule which is
especially true where much must be left to the discretion of the administrative
officers in applying a law to particular cases. (See McGehee, Due Process of
Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty.
"Any legal proceeding enforced by public authority, whether sanctioned by
age and customs, or newly devised in the discretion of the legislative power,
in furtherance of the public good, which regards and preserves these
principles of liberty and justice, must be held to be due process of law."
(Hurtado vs.California [1883], 110, U.S., 516.) "Due process of law" means
simply . . . "first, that there shall be a law prescribed in harmony with the
general powers of the legislative department of the Government; second, that
this law shall be reasonable in its operation; third, that it shall be enforced
according to the regular methods of procedure prescribed; and fourth, that it
shall be applicable alike to all the citizens of the state or to all of a class."
(U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United
States Supreme Court. 1) "What is due process of law depends on
circumstances. It varies with the subject-matter and necessities of the
situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is
not infringed by a statute which is applicable to all of a class. The
classification must have a reasonable basis and cannot be purely arbitrary in
nature.
We break off with the foregoing statement, leaving the logical deductions to
be made later on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen
Amendment to the United States Constitution particularly as found in those
portions of Philippine Organic Law providing "That slavery shall not exist in
said Islands; nor shall involuntary servitude exist except as a punishment for
crime whereof the party shall have been duly convicted." It is quite possible
that the Thirteenth Amendment, since reaching to "any place subject to" the
"jurisdiction" of the United States, has force in the Philippine. However this
may be, the Philippine Legislature has, by adoption, with necessary
modifications, of sections 268 to 271 inclusive of the United States Criminal
Code, prescribed the punishment for these crimes. Slavery and involuntary
servitude, together wit their corollary, peonage, all denote "a condition of
enforced, compulsory service of one to another." (Hodges vs. U.S. [1906],
203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It
has been applied to any servitude in fact involuntary, no matter under what
form such servitude may have been disguised. (Bailey vs. Alabama [1910],
219 U.S., 219.)
So much for an analysis of those constitutional provisions on which
petitioners rely for their freedom. Next must come a description of the police
power under which the State must act if section 2145 is to be held valid.
E. THE POLICE POWER.
Not attempting to phrase a definition of police power, all that it is necessary
to note at this moment is the farreaching scope of the power, that it has
become almost possible to limit its weep, and that among its purposes is the
power to prescribe regulations to promote the health, peace, morals,
education, and good order of the people, and to legislate so as to increase
the industries of the State, develop its resources and add to is wealth and
prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not
interested in is the right of the government to restrain liberty by the exercise
of the police power.
"The police power of the State," one court has said, . . . "is a power
coextensive with self-protection, and is not inaptly termed the 'law of
overruling necessity.' It may be said to be that inherent and plenary power in
the State which enables it to prohibit all things hurtful to the comfort, safety
and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill.,
191.) Carried onward by the current of legislation, the judiciary rarely attempt
to dam the on rushing power of legislative discretion, provided the purposes
of the law do not go beyond the great principles that mean security for the
public welfare or do not arbitrarily interfere with the right of the individual.
The Government of the Philippine Islands has both on reason and authority
the right to exercise the sovereign police power in the promotion of the
general welfare and the public interest. "There can be not doubt that the
exercise of the police power of the Philippine Government belongs to the
Legislature and that this power is limited only by the Acts of Congress and
those fundamental principles which lie at the foundation of all republican
forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580;
U.S. vs. Pompeya [1915], 31 Phil., 245.)
With the foregoing approximation of the applicable basic principles before us,
before finally deciding whether any constitutional provision has indeed been
violated by section 2145 of the Administrative Code, we should endeavor to
ascertain the intention of the Legislature in enacting this section. If legally
possible, such legislative intention should be effectuated.
F. LEGISLATIVE INTENT.
The preamble of the resolution of the provincial board of Mindoro which set
apart the Tigbao reservation, it will be remembered, assigned as reasons fort
the action, the following: (1) The failure of former attempts for the
advancement of the non-Christian people of the province; and (2) the only
successfully method for educating the Manguianes was to oblige them to live
in a permanent settlement. The Solicitor-General adds the following; (3) The
protection of the Manguianes; (4) the protection of the public forests in which
they roam; (5) the necessity of introducing civilized customs among the
Manguianes.
The present Secretary of the Interior says of the Tigbao reservation and of
the motives for its selection, the following:
To inform himself of the conditions of those Manguianes who were taken
together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918,
made a trip to the place. There he found that the site selected is a good one;
that creditable progress has been made in the clearing of forests,
construction of buildings, etc., that there appears to be encouraging reaction
by the boys to the work of the school the requirements of which they appear
to meet with enthusiastic interest after the first weeks which are necessarily a
somewhat trying period for children wholly unaccustomed to orderly
behaviour and habit of life. He also gathered the impression that the results
obtained during the period of less than one year since the beginning of the
institution definitely justify its continuance and development.
Of course, there were many who were protesting against that segregation.
Such was naturally to be expected. But the Secretary of the Interior, upon his
return to Manila, made the following statement to the press:
"It is not deemed wise to abandon the present policy over those who prefer to
live a nomadic life and evade the influence of civilization. The Government
will follow its policy to organize them into political communities and to
educate their children with the object of making them useful citizens of this
country. To permit them to live a wayfaring life will ultimately result in a
burden to the state and on account of their ignorance, they will commit
crimes and make depredation, or if not they will be subject to involuntary
servitude by those who may want to abuse them."
The Secretary of the Interior, who is the official charged with the supervision
of all the non-Christian people, has adopted as the polaris of his
administration — "the advancement of the non-Christian elements of our
population to equality and unification with the highly civilized Christian
inhabitants." This is carried on by the adoption of the following measures:
(a) Pursuance of the closer settlement policy whereby people of
seminomadic race are induced to leave their wild habitat and settle in
organized communities.
(b) The extension of the public school system and the system of public health
throughout the regions inhabited by the non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to
facilitate their development and the extention of government control.
(d) Construction of roads and trials between one place and another among
non-Christians, to promote social and commercial intercourse and maintain
amicable relations among them and with the Christian people.
(e) Pursuance of the development of natural economic resources, especially
agriculture.
( f ) The encouragement of immigration into, and of the investment of private
capital in, the fertile regions of Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued
among the non-Christian people. These people are being taught and guided
to improve their living conditions in order that they may fully appreciate the
benefits of civilization. Those of them who are still given to nomadic habits
are being persuaded to abandon their wild habitat and settle in organized
settlements. They are being made to understand that it is the purpose of the
Government to organize them politically into fixed and per manent
communities, thus bringing them under the control of the Government, to aid
them to live and work, protect them from involuntary servitude and abuse,
educate their children, and show them the advantages of leading a civilized
life with their civilized brothers. In short, they are being impressed with the
purposes and objectives of the Government of leading them to economic,
social, and political equality, and unification with the more highly civilized
inhabitants of the country. (See Report of the Department for 1917.)
The fundamental objective of governmental policy is to establish friendly
relations with the so-called non-Christians, and to promote their educational,
agricultural, industrial, and economic development and advancement in
civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in
reestablishing the Bureau of non-Christian Tribes, defines the aim of the
Government towards the non-Christian people in the following unequivocal
terms:
It shall be the duty of the Bureau of non-Christian Tribes to continue the work
for advancement and liberty in favor of the region inhabited by non-Christian
Filipinos and foster by all adequate means and in a systematical, rapid, and
complete manner the moral, material, economic, social, and political
development of those regions, always having in view the aim of rendering
permanent the mutual intelligence between, and complete fusion of, all the
Christian and non-Christian elements populating the provinces of the
Archipelago. (Sec. 3.)
May the Manguianes not be considered, as are the Indians in the United
States, proper wards of the Filipino people? By the fostering care of a wise
Government, may not these unfortunates advance in the "habits and arts of
civilization?" Would it be advisable for the courts to intrude upon a plan,
carefully formulated, and apparently working out for the ultimate good of
these people?
In so far as the Manguianes themselves are concerned, the purpose of the
Government is evident. Here, we have on the Island of Mindoro, the
Manguianes, leading a nomadic life, making depredations on their more
fortunate neighbors, uneducated in the ways of civilization, and doing nothing
for the advancement of the Philippine Islands. What the Government wished
to do by bringing than into a reservation was to gather together the children
for educational purposes, and to improve the health and morals — was in
fine, to begin the process of civilization. this method was termed in Spanish
times, "bringing under the bells." The same idea adapted to the existing
situation, has been followed with reference to the Manguianes and other
peoples of the same class, because it required, if they are to be improved,
that they be gathered together. On these few reservations there live under
restraint in some cases, and in other instances voluntarily, a few thousands
of the uncivilized people. Segregation really constitutes protection for the
manguianes.
Theoretically, one may assert that all men are created free and equal.
Practically, we know that the axiom is not precisely accurate. The
Manguianes, for instance, are not free, as civilized men are free, and they
are not the equals of their more fortunate brothers. True, indeed, they are
citizens, with many but not all the rights which citizenship implies. And true,
indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a
low degree of intelligence, and Filipinos who are a drag upon the progress of
the State.
In so far as the relation of the Manguianes to the State is concerned, the
purposes of the Legislature in enacting the law, and of the executive branch
in enforcing it, are again plain. Settlers in Mindoro must have their crops and
persons protected from predatory men, or they will leave the country. It is no
argument to say that such crimes are punished by the Penal Code, because
these penalties are imposed after commission of the offense and not before.
If immigrants are to be encouraged to develop the resources of the great
Islands of Mindoro, and its, as yet, unproductive regions, the Government
must be in a position to guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the
interest of the State. Illiteracy and thriftlessness are not conducive to
homogeneity. The State to protect itself from destruction must prod on the
laggard and the sluggard. The great law of overwhelming necessity is all
convincing.
To quote again from the instructive memorandum of the Secretary of the
Interior:
Living a nomadic and a wayfaring life and evading the influence of
civilization, they (the manguianes) are engaged in the works of destruction —
burning and destroying the forests and making illegal caiñgins thereon. Not
bringing any benefit to the State but instead injuring and damaging its
interests, what will ultimately become of these people with the sort of liberty
they wish to preserve and for which they are now fighting in court? They will
ultimately become a heavy burden to the State and on account of their
ignorance they will commit crimes and make depredations, or if not they will
be subjected to involuntary servitude by those who may want to abuse them.
There is no doubt in my mind that this people a right conception of liberty and
does not practice liberty in a rightful way. They understand liberty as the right
to do anything they will — going from one place to another in the mountains,
burning and destroying forests and making illegal caiñgins thereon.
Not knowing what true liberty is and not practising the same rightfully, how
can they allege that they are being deprived thereof without due process of
law?
xxx xxx xxx
But does the Constitutional guaranty that 'no person shall be deprived of his
liberty without due process of law' apply to a class of persons who do not
have a correct idea of what liberty is and do not practise liberty in a rightful
way?
To say that it does will mean to sanction and defend an erroneous idea of
such class of persons as to what liberty is. It will mean, in the case at bar,
that the Government should not adopt any measures looking to the welfare
and advancement of the class of persons in question. It will mean that this
people should be let along in the mountains and in a permanent state of
savagery without even the remotest hope of coming to understand liberty in
its true and noble sense.
In dealing with the backward population, like the Manguianes, the
Government has been placed in the alternative of either letting them alone or
guiding them in the path of civilization. The latter measure was adopted as
the one more in accord with humanity and with national conscience.
xxx xxx xxx
The national legislation on the subject of non-Christian people has tended
more and more towards the education and civilization of such people and
fitting them to be citizens. The progress of those people under the tutelage of
the Government is indeed encouraging and the signs of the times point to a
day which is not far distant when they will become useful citizens. In the light
of what has already been accomplished which has been winning the
gratitude of most of the backward people, shall we give up the noble work
simply because a certain element, believing that their personal interests
would be injured by such a measure has come forward and challenged the
authority of the Government to lead this people in the pat of civilization? Shall
we, after expending sweat, treasure, and even blood only to redeem this
people from the claws of ignorance and superstition, now willingly retire
because there has been erroneously invoked in their favor that Constitutional
guaranty that no person shall be deprived of his liberty without due process
of law? To allow them to successfully invoke that Constitutional guaranty at
this time will leave the Government without recourse to pursue the works of
civilizing them and making them useful citizens. They will thus left in a
permanent state of savagery and become a vulnerable point to attack by
those who doubt, nay challenge, the ability of the nation to deal with our
backward brothers.
The manguianes in question have been directed to live together at Tigbao.
There they are being taught and guided to improve their living conditions.
They are being made to understand that they object of the government is to
organize them politically into fixed and permanent communities. They are
being aided to live and work. Their children are being educated in a school
especially established for them. In short, everything is being done from them
in order that their advancement in civilization and material prosperity may be
assured. Certainly their living together in Tigbao does not make them slaves
or put them in a condition compelled to do services for another. They do not
work for anybody but for themselves. There is, therefore, no involuntary
servitude.
But they are compelled to live there and prohibited from emigrating to some
other places under penalty of imprisonment. Attention in this connection is
invited to the fact that this people, living a nomadic and wayfaring life, do not
have permanent individual property. They move from one place to another as
the conditions of living warrants, and the entire space where they are roving
about is the property of the nation, the greater part being lands of public
domain. Wandering from one place to another on the public lands, why can
not the government adopt a measure to concentrate them in a certain fixed
place on the public lands, instead of permitting them to roam all over the
entire territory? This measure is necessary both in the interest of the public
as owner of the lands about which they are roving and for the proper
accomplishment of the purposes and objectives of the government. For as
people accustomed to nomadic habit, they will always long to return to the
mountains and follow a wayfaring life, and unless a penalty is provinced for,
you can not make them live together and the noble intention of the
Government of organizing them politically will come to naught.
G. APPLICATION AND CONCLUSION.
Our exhaustive study should have left us in a position to answer specific
objections and to reach a general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking,
to go where he pleases. Could be not, however, be kept away from certain
localities ? To furnish an example from the Indian legislation. The early Act of
Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those
citizens certainly did not possess absolute freedom of locomotion. Again the
same law provided for the apprehension of marauding Indians. Without any
doubt, this law and other similar were accepted and followed time and again
without question.
It is said that, if we hold this section to be constitutional, we leave this weak
and defenseless people confined as in a prison at the mercy of unscrupulous
official. What, it is asked, would be the remedy of any oppressed Manguian?
The answer would naturally be that the official into whose hands are given
the enforcement of the law would have little or not motive to oppress these
people; on the contrary, the presumption would all be that they would
endeavor to carry out the purposes of the law intelligently and patriotically. If,
indeed, they did ill-treat any person thus confined, there always exists the
power of removal in the hands of superior officers, and the courts are always
open for a redress of grievances. When, however, only the validity of the law
is generally challenged and no particular case of oppression is called to the
attention of the courts, it would seems that the Judiciary should not
unnecessarily hamper the Government in the accomplishment of its laudable
purpose.
The question is above all one of sociology. How far, consistently with
freedom, may the right and liberties of the individual members of society be
subordinated to the will of the Government? It is a question which has
assailed the very existence of government from the beginning of time. Now
purely an ethical or philosophical subject, nor now to be decided by force, it
has been transferred to the peaceful forum of the Judiciary. In resolving such
an issue, the Judiciary must realize that the very existence of government
renders imperatives a power to restrain the individual to some extent,
dependent, of course, on the necessities of the class attempted to be
benefited. As to the particular degree to which the Legislature and the
Executive can go in interfering with the rights of the citizen, this is, and for a
along time to come will be, impossible for the courts to determine.
The doctrines of laissez faire and of unrestricted freedom of the individual, as
axioms of economics and political theory, are of the past. The modern period
has shown as widespread belief in the amplest possible demonstration of
governmental activity. The courts unfortunately have sometimes seemed to
trial after the other two branches of the government in this progressive
march.
Considered, therefore, purely as an exercise of the police power, the courts
cannot fairly say that the Legislature has exceeded its rightful authority. it is,
indeed, an unusual exercise of that power. But a great malady requires an
equally drastic remedy.
Further, one cannot hold that the liberty of the citizen is unduly interfered
without when the degree of civilization of the Manguianes is considered.
They are restrained for their own good and the general good of the
Philippines. Nor can one say that due process of law has not been followed.
To go back to our definition of due process of law and equal protection of the
law, there exists a law ; the law seems to be reasonable; it is enforced
according to the regular methods of procedure prescribed; and it applies
alike to all of a class.
As a point which has been left for the end of this decision and which, in case
of doubt, would lead to the determination that section 2145 is valid. it the
attitude which the courts should assume towards the settled policy of the
Government. In a late decision with which we are in full accord,
Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the
Chief Justice of the Supreme Court of Tennessee writes:
We can seen objection to the application of public policy as a ratio decidendi.
Every really new question that comes before the courts is, in the last
analysis, determined on that theory, when not determined by differentiation of
the principle of a prior case or line of cases, or by the aid of analogies
furnished by such prior case. In balancing conflicting solutions, that one is
perceived to tip the scales which the court believes will best promote the
public welfare in its probable operation as a general rule or principle. But
public policy is not a thing inflexible. No court is wise enough to forecast its
influence in all possible contingencies. Distinctions must be made from time
to time as sound reason and a true sense of justice may dictate."
Our attempt at giving a brief history of the Philippines with reference to the
so-called non-Christians has been in vain, if we fail to realize that a
consistent governmental policy has been effective in the Philippines from
early days to the present. The idea to unify the people of the Philippines so
that they may approach the highest conception of nationality. If all are to be
equal before the law, all must be approximately equal in intelligence. If the
Philippines is to be a rich and powerful country, Mindoro must be populated,
and its fertile regions must be developed. The public policy of the
Government of the Philippine Islands is shaped with a view to benefit the
Filipino people as a whole. The Manguianes, in order to fulfill this
governmental policy, must be confined for a time, as we have said, for their
own good and the good of the country.
Most cautiously should the power of this court to overrule the judgment of the
Philippine Legislature, a coordinate branch, be exercised. The whole
tendency of the best considered case is toward non-interference on the part
of the courts whenever political ideas are the moving consideration. Justice
Holmes, in one of the aphorisms for which he is justly famous, said that
"constitutional law, like other mortal contrivances, has to take some
chances." (Blinn vs.Nelson [1911], 222 U.S., 1.) If in the final decision of the
many grave questions which this case presents, the courts must take "a
chance," it should be with a view to upholding the law, with a view to the
effectuation of the general governmental policy, and with a view to the court's
performing its duty in no narrow and bigoted sense, but with that broad
conception which will make the courts as progressive and effective a force as
are the other departments of the Government.
We are of the opinion that action pursuant to section 2145 of the
Administrative Code does not deprive a person of his liberty without due
process of law and does not deny to him the equal protection of the laws,
and that confinement in reservations in accordance with said section does
not constitute slavery and involuntary servitude. We are further of the opinion
that section 2145 of the Administrative Code is a legitimate exertion of the
police power, somewhat analogous to the Indian policy of the United States.
Section 2145 of the Administrative Code of 1917 is constitutional.
Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas
corpus can, therefore, not issue. This is the true ruling of the court. Costs
shall be taxes against petitioners. So ordered.
[G.R. No. L-5387. April 29, 1954.]
In the matter of the Adoption of the minors MARIA LUALHATI
MAGPAYO and AMADA MAGPAYO. CLYDE E. MCGEE, Petitioner-
Appellee, v. REPUBLIC OF THE PHILIPPINES, Appellant.
Quijano, Alidio and Azores for Appellee.
Assistant Solicitor General Guillermo E. Torres and Solicitor Estrella
Abad Santos for Appellant.
SYLLABUS
1. ADOPTION; PURPOSE OF. — The purpose of adoption is to establish a
relationship of paternity and filiation where none existed before. Where
therefore the relationship of parent and child already exists whether by blood
or by affinity as in the case of illegitimates and step-children, it would be
unnecessary and superfluous to establish and superimpose another
relationship of parent and child through adoption.
2. ID.; STATUTORY CONSTRUCTION; NEGATIVE WORDS PREVAIL
OVER AFFIRMATIVE WORDS. — Under the rule of statutory construction,
negative words and phrases are to be regarded as mandatory while those in
the affirmative are merely directory.
3. ID.; PERSONS WHO CANNOT ADOPT. — Pursuant to the provisions of
article 335, paragraph 1 of the new Civil Code, a step-father who already has
a child may not adopt a step-child regardless of the provisions of article 338,
paragraph 3 of the same Code, the latter provisions being confined and
applicable to those step-fathers and step-mothers who have no children of
their own.
DECISION
MONTEMAYOR, J.:
Appellee Clyde E. McGee, an American citizen is married to Leonarda S.
Crisostomo by whom he has one child. The minors Maria and Amada, both
surnamed Magpayo are Leonarda’s children by her first husband Ernesto
Magpayo who was killed by the Japanese during the occupation. McGee filed
a petition in the Court of First Instance of Manila to adopt his two minor step-
children Maria and Amada.
At the hearing, the Government filed its opposition to the petition on the
ground that petitioner has a legitimate child and consequently, is disqualified
to adopt under article 335, paragraph 1, of the new Civil Code which
provides:jgc:chanrobles.com.ph
"ART. 335. The following cannot adopt:chanrob1es virtual 1aw library
(1) Those who have legitimate, legitimated, acknowledged natural children,
or natural children by legal fiction;"
The trial court overruled the opposition and granted the petition, applying the
provisions of article 338 of the same Civil Code, particularly paragraph 3
thereof, which reads:.
ART. 338. The following may be adopted:chanrob1es virtual 1aw library
x x x.
(3) A step-child, by the step-father or step-mother."cralaw virtua1aw library
The Government is appealing from that decision. Only recently (December
21, 1953), and during the pendency of the present appeal, we have had
occasion to decide a similar case wherein the same question was involved, 1
namely, whether a husband having a legitimate child may adopt a step-child.
Applying the provisions of article 335, we held that it cannot be done for the
reason that although article 338 of the new Civil Code permits the adoption of
a step-child by the step-father or the step-mother, nevertheless, because of
the negative provisions of article 335, said permission is confined to those
step- fathers and step-mothers who have no children of their own.
With the doctrine laid down in the Ball v. Republic case, we could stop right
here and sustain the appeal of the Government in the present case.
However, it may not be unprofitable to further elaborate on the relation
between the two articles — 335 and 338, new Civil Code. The strongest
argument of the trial court and of the appellee in support of the decision
granting the adoption is that to hold that a step-father having a legitimate
child may not adopt a step-child would be to render article 338, paragraph 3,
meaningless and a surplusage inasmuch as without said article 338, a
husband without a legitimate child may adopt a step-child anyway; or worse,
article 338 contradicts article 335. At first blush, that is a formidable argument
because the Legislature in enacting a law is supposed and presumed not to
insert any section or provision which is unnecessary and a mere surplusage;
that all provisions contained in a law should be given effect, and that
contradictions are to be avoided. Furthermore, it is contended by appellee
that article 335 prohibiting adoption by a parent who already has a child of
his own should not be considered exclusively but rather in relation with article
338 so as to regard the latter as an exception to an exception. To meet and
dispose of this argument we have to go into the philosophy of adoption.
The purpose of adoption is to establish a relationship of paternity and filiation
where none existed before. Where therefore the relationship of parent and
child already exists whether by blood or by affinity as in the case of
illegitimate and step-children, it would be unnecessary and superfluous to
establish and superimpose another relationship of parent and child through
adoption. Consequently, an express authorization of law like article 338 is
necessary, if not to render it proper and legal, at least, to remove any and all
doubt on the subject-matter. Under this view, article 338 may not be regarded
as a surplusage. That may have been the reason why in the old Code of Civil
Procedure, particularly its provisions regarding adoption. authority to adopt a
step-child by a step-father was provided in section 766 notwithstanding the
general authorization in section 765 extended to any inhabitant of the
Philippines to adopt a minor child. The same argument of surplusage could
plausibly have been advanced as regards section 766, that is to say, section
766 was unnecessary and superfluous because without it a step-father could
adopt a minor step-child anyway. However, the insertion of section 766 was
not entirely without reason. The Code of Civil Procedure was of common law
origin. It seems to be an established principle in American jurisprudence that
a person may not adopt his own relative, the reason being that it is
unnecessary to establish a relationship where such already exists (the same
philosophy underlying our codal provisions on adoption). So, some states
have special laws authorizing the adoption of relatives such as a grandfather
adopting a grandchild and a father adopting his illegitimate or natural child.
Another possible reason for the insertion of section 766 in the Code of Civil
Procedure and article 338, paragraph 3, in the new Civil Code, authorizing
the adoption of a step-child by the step-father or step-mother is that without
said express legal sanction, there might be some doubt as to the propriety
and advisability of said adoption due to the possibility, if not probability, of
pressure brought to bear upon the adopting step-father or mother by the
legitimate and natural parent.
One additional reason for holding that article 338 of the new Civil Code
should be subordinated and made subject to the provisions of article 335 so
as to limit the permission to adopt granted in article 338, to parents who have
no children of their own, is that the terms of article 335 are phrased in a
negative manner - the following cannot be adopted, while the phraseology of
article 338 is only affirmative - the following may be adopted. Under the rule
of statutory construction, negative words and phrases are to be regarded as
mandatory while those in the affirmative are merely directory.
". . . negative (prohibitory and exclusive words or terms are indicative of the
legislative intent that the statute is to be mandatory, . . ." (Crawford, Statutory
Construction, sec. 263, p. 523.)
"Ordinarily . . . the word ’may’ is directory, . . . (Crawford, op. cit., sec. 262, p.
519.)
"Prohibitive or negative words can rarely, if ever, be directory, or, as it has
been aptly stated, there is but one way to obey the command ’thou shalt not’,
and that is to completely refrain from doing the forbidden act. And this is so,
even though the statute provides no penalty for disobedience." (Crawford,
op. cit., sec. 263, p. 523.)
The principal reason behind article 335, paragraph 1 denying adoption to
those who already have children is that adoption would not only create
conflicts within the family but it would also materially affect or diminish the
successional rights of the child already had. This objection may not appear
as formidable and real when the child had by the adopting parent is by the
very spouse whose child is to be adopted, because in that case, the
legitimate chi]d and the adopted one would be half-brothers or half-sisters,
would not be total strangers to each other, and the blood relationship though
half may soften and absorb the loss of successional rights and the possible
diminution of the attention and affection previously enjoyed. But as not
infrequently happens, the step-father or step-mother adopting a child of his or
her second wife or husband already may have a child of his or her own by a
previous marriage, in which case, said child and the adopted one would be
complete strangers to each other, with no family ties whatsoever to bind
them, in which event, there would be nothing to soften and reconcile the
objection and resentment, natural to the legitimate child.
In conclusion, we hold that pursuant to the provisions of article 335,
paragraph 1, a step-father who already has a child may not adopt a step-
child regardless of the provisions of article 338, paragraph 3 of the same
Code, the latter provisions being confined and applicable to those step-
fathers and step-mothers who have no children of their own. The decision
appealed from is hereby reversed, and the petition for adoption is denied. No
pronouncement as to costs.
EN BANC
[G.R. No. L-8505. May 30, 1956.]
THE COLLECTOR OF INTERNAL REVENUE, Petitioner, vs. THE
PHILIPPINE EDUCATION CO., INC., Respondent.
DECISION
PARAS, J.:
There is no dispute as to the facts, since the same have been stipulated by
the parties. The Philippine Education Co., Inc., Respondent herein, lost all its
pre-war books of accounts and records, with the exception of a copy of the
trial balance sheet of November 30, 1941. The accounting firm of Dalupan,
Sanchez & Co. was employed to prepare and prove Respondent’s war
damage claim, as in fact it did so. On October 29, 1948, the War Damage
Commission made the first payment of P402,273.96 to
the Respondent which paid to Dalupan, Sanchez & Co. the sum of
P13,045.48 as the latter’s stipulated fee. In the income tax return filed by
the Respondent for the fiscal year ending on March 31, 1949,
the Respondent claimed the sum of P13,045.48 as a deduction under section
30 of the National Internal Revenue Code. Disallowing said deduction, the
Collector of Internal Revenue, Petitioner herein, assessed against
the Respondent the sum of P2,405.14 as deficiency income tax on the
amount of P13,045.48, including surcharge, penalty and interest, payment of
which was demanded from the Respondent. Refusing to acquiesce in said
ruling, the Respondent appealed to the Court of Tax Appeals which rendered
a decision reversing the view of the Petitioner and declaring
the Respondent exempt from the deficiency income tax in question.
The legal provision involved is section 30 of the National Internal Revenue
Code which allows as deductions “all the ordinary and necessary expenses
paid or incurred during the taxable year in carrying on any trade or business.”
As pointed out by the Court of Tax Appeals, three conditions are
imposed:chanroblesvirtuallawlibrary (1) The expense must be ordinary and
necessary; chan roblesvirtualawlibrary(2) it must be paid or incurred within
the taxable year; chan roblesvirtualawlibraryand (3) it must be paid or
incurred in carrying on a trade or business.
It is admitted that the sum of P13,045.13 was paid by the Respondent to
Dalupan, Sanchez & Co. within the fiscal year 1949. The questions to be
decided are whether or not the expense in question was ordinary and
necessary and whether or not it was paid or incurred in carrying
on Respondent’s business.
It is Petitioner’s theory that the Respondent is a corporation engaged in the
purchase and sale of textbooks, magazines, office and school supplies, and
a variety of other merchandise and commodities; chan
roblesvirtualawlibrarythat it was never normally and customarily engaged in
filing petitions for war damage compensation; chan roblesvirtualawlibraryand
that, therefore, the fee paid by it to the accounting firm of Dalupan, Sanchez
& Co. was not incurred in the kind of business transactions in which it is
normally and customarily engaged.
In our opinion, this view is too narrow and technical. To carry on its business,
even as specified by the Petitioner, the Respondent not only must have
sufficient assets but must preserve the same and recover any that should be
lost. The fee in question was paid by the Respondent to recover its lost
assets occasioned by the war and thereby to be so rehabilitated as to be
able to carry on its business. The law does not say that the expense must be
for or on account of transactions in one’s trade or business.
As stated in Merten’s Law of Federal Income Taxation, Vol. IV, “ordinarily, an
expense will be considered necessary where the expenditure is appropriate
and helpful in the development of the taxpayer’s business” (page 35); chan
roblesvirtualawlibrary“it is sufficient that the expense were incurred for
purposes proper to the conduct of the corporate affairs or for the purpose of
realizing a profit or of minimizing a loss” (pp. 382-383); chan
roblesvirtualawlibrary“the term ‘ordinary’ as used in these statutes does not
require that the payments be habitual or normal in the sense that the same
taxpayer will have to make them often; chan roblesvirtualawlibrarythe
payment may be unique or non-recurring to the particular taxpayer affected”
(p. 316); chan roblesvirtualawlibraryand “attorney’s fees for services
rendered in the prosecution of claim before the Mixed Claims Commission
are deductible” (p. 346). There is no essential difference between attorney’s
fees and that paid to an accountant, as regards the benefit derived by the
claimant. With particular reference to attorney’s fees, the following cases
were cited:chanroblesvirtuallawlibrary Commissioner of Internal Revenue vs.
Ullmann 77 F (2d) 827, 296, U.S. 631, 80 L fd. 449, 56 SCRA 155 (1935),
and Commissioner of Internal Revenue vs. Speyer 77 F (2d) 824, 296 U. S.
631, 80 L fd. 449, 56 SCRA 1955. The Petitionerobserves, however, that
these cases are not applicable because there is no law of the United States
Federal Government exempting the proceeds of war damage claims from
taxes. This observation is successfully answered by the Respondent which
has pointed out that the exemption provided in Republic Act No. 227 is a
surplusage, because even without said statutory exemption, a war damage
compensation would still not be subject to tax, not being an income. “The
word ‘income’, as used in the sixteenth amendment, cannot be construed to
include property other than income, even if such property is described as
income by an act of Congress.” (Brewester vs. Walch, D. C. Conn. 268 F207,
216.) “Compensation for injury to capital is never ‘income,’ no matter when
collected.” (H. Liebes & Co. vs. Commissioner of Internal Revenue, C. C. A.
9, 90 F 2nd 932.)
The Petitioner also resorts to the argument that Republic Act No. 227 gives
taxpayers double benefits, namely, that of deducting from the gross income
the loss sustained, and that of exempting the recovered amounts from
income tax; chan roblesvirtualawlibraryand if the fees incurred in the
recovery of war damage compensation can be allowed as a deduction, it
would work to the great prejudice and disadvantage of the Government. As
ruled by the Court of Tax Appeals, “the questioned item represent legitimate
business expense incurred in the recovery of losses and it has never been
deducted by Petitioner (Respondent herein) as part of his war losses.” And
the Respondent, moreover, add:chanroblesvirtuallawlibrary “Besides, there is
nothing in the stipulation of facts which suggest even vaguely that there was
in this case an infringement of the double-benefit theory. On the contrary,
the Respondent failed to deduct in any of its income tax returns its war
losses, and even the amount of its approved claim which the United States
Philippine War Damage Commission did not pay for lack of appropriation.”

Wherefore, the appealed decision of the Court of Tax Appeals is hereby

affirmed. So ordered, without costs.