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The commission was empanelled under the authority of The National War Crimes Office shall maintain
Executive Order No. 68 of the President of the direct liaison with the Legal Section General
Philippines the validity of which is challenged by Headquarters, Supreme Commander for the
petitioner on constitutional grounds. Petitioner has also Allied power and shall exchange with the said
challenged the personality of Attorneys Hussey and Port Office information and evidence of war crimes.
to appear as prosecutors before the commission.
The following rules and regulation shall
The charges against petitioner has been filed since June govern the trial off person accused as war
26, 1948 in the name of the people of the Philippines as criminals:
accusers.
ESTABLISHMENT OF MILITARY
We will consideration briefly the challenge against the COMMISSIONS
appearance of Attorneys Hussey and Port. It appearing
that they are aliens and have not been authorized by the
Supreme Court to practice law there could not be any (a) General. — person accused as war criminal
question that said person cannot appear as prosecutors shall be tried by military commission to be
in petitioner case as with such appearance they would convened by or under the authority of the
be practicing law against the law. Philippines.
EXECUTIVE ORDER NO. 68. (b) Over Offenses. — The military commission
established hereunder shall have jurisdiction
ESTABLISHING A NATIONAL WAR over all offenses including but not limited to
CRIMES OFFICE AND PRESCRIBING the following:
RULES AND REGULATION
GOVERNING THE TRIAL OF (1) The planning preparation initiation or
ACCUSED WAR CRIMINAL. waging of a war of aggression or a war in
violation of international treaties agreement
or assurance or participation in a common
plan or conspiracy for the accomplishment of (d) Voting. — Except as to the admissibility of
any of the foregoing. evidence all rulings and finding of the
Commission shall be by majority vote except
(2) Violation of the laws or customs of war. that conviction and sentence shall be by the
Such violation shall include but not be limited affirmative vote of not less than conviction and
to murder ill-treatment or deportation to slave sentence shall be by the affirmative vote of not
labor or for other purpose of civilian less than two-thirds (2\3) of the member
population of or in occupied territory; murder present.
or ill-treatment of prisoners of war or
internees or person on the seas or elsewhere; (e) Presiding Member. — In the event that the
improper treatment of hostage; plunder of convening authority does not name one of the
public or private property wanton destruction member as the presiding member, the senior
of cities towns or village; or devastation not officer among the member of the Commission
justified by military necessity. present shall preside.
(4) To have the substance of the charges and (d) Any diary, letter to other document,
specifications, the proceedings and any including sworn statements, appearing to the
documentary evidence translated, when he is commission to contain information relating to
unable otherwise to understand them. the charge.
(c) Witnesses. — The Commission shall have (e) A copy of any document or other secondary
power: evidence of the contents, if the original is not
immediately available.
(1) To summon witnesses and require their
attendance and testimony; to administer oaths (2) The commission shall take judicial notice
or affirmations to witnesses and other persons of facts of common knowledge, official
and to question witnesses. government documents of any nation, and the
proceedings, records and findings of military
(2) To require the production of documents or other agencies of any of the United Nation.
and other evidentiary material.
(3) A commission may require the prosecution
(3) To delegate the Prosecutors appointed by and the defense to make a preliminary offer of
the convening authority the powers and duties proof whereupon the commission may rule in
set forth in (1) and (2) above. advance on the admissibility of such evidence.
(4) To have evidence taken by a special (4) The official position of the accused shall
commissioner appointed by the commission. not absolve him from responsibility nor be
considered in mitigation of punishment.
Further action pursuant to an order of the
(d) Evidence. accused's superior, or of his Government, shall
not constitute a defense, but may be
(1) The commission shall admit such evidence considered in mitigation of punishment if the
as in its opinion shall be of assistance in commission determines that justice so
proving or disproving the charge, or such as in requires.
the commission's opinion would have
probative value in the mind of a reasonable (5) All purposed confessions or statements of
man. The commission shall apply the rules of the accused shall bee admissible in evidence
evidence and pleading set forth herein with without any showing that they were
the greatest liberality to achieve expeditious voluntarily made. If it is shown that such
procedure. In particular, and without limiting confession or statement was procured by
in any way the scope of the foregoing general mean which the commission believe to have
rules, the following evidence may be admitted: been of such a character that may have caused
the accused to make a false statement the
(a) Any document, irrespective of its commission may strike out or disregard any
classification, which appears to the such portion thereof as was so procured.
commission to have been signed or issued by
any officer, department, agency or member of
(e) Trial Procedure. — The proceedings of each record shall be prepared by the prosecutor
trial shall be conducted substantially as under the direction of the commission and
follows unless modified by the commission to submitted to the defense counsel. The
suit the particular circumstances: commission shall be responsible for its
accuracy. Such record, certified by the
(1) Each charge and specification shall be read presiding member of the commission or his
or its substance stated in open court. successor, shall be delivered to the convening
authority as soon as possible after the trial.
(2) The presiding member shall ask each
accused whether he pleads "Guilty" or "Not (g) Sentence. — The commission may sentence
guilty." an accused, upon conviction to death by
hanging or shooting, imprisonment for life or
for any less term, fine or such other
(3) The prosecution shall make its opening punishment as the commission shall
statement."(4) The presiding member may at determine to be proper.
this or any other time require the prosecutor
to state what evidence he proposes to submit
to the commission and the commission (h) Approval of Sentence. — No. sentence of a
thereupon may rule upon the admissibility of military commission shall be carried into
such evidence. effect until approved by the chief off Staff:
Provided, That no sentence of death or life
imprisonment shall be carried into execution
(4) The witnesses and other evidence for the until confirmed by the President of the
prosecution shall be heard or presented. At Philippines. For the purpose of his review the
the close of the case for the prosecution, the Chief of Staff shall create a Board of Review to
commission may, on motion of the defense for be composed of not more than three officers
a finding of not guilty, consider and rule none of whom shall be on duty with or
whether he evidence before the commission assigned to the Judge Advocate General's
may defer action on any such motion and Office. The Chief of Staff shall have authority to
permit or require the prosecution to reopen approve, mitigate remit in whole or in part,
its case and produce any further available commute, suspend, reduce or otherwise alter
evidence. the sentence imposed, or (without prejudice to
the accused) remand the case for rehearing
(5) The defense may make an opening before a new military commission; but he shall
statement prior to presenting its case. The not have authority to increase the severity of
presiding member may, at this any other time the sentence. Except as herein otherwise
require the defense to state what evidence it provided the judgment and sentence of a
proposes to submit to the commission where commission shall final and not subject to
upon the commission may rule upon the review by any other tribunal.
admissibility of such evidence.
VI. RULE-MAKING POWER
(6) The witnesses and other evidence for the
defense shall be heard or presented. Supplementary Rule and Forms. — Each
Thereafter, the prosecution and defense may commission shall adopt rules and forms to
introduce such evidence in rebuttal as the govern its procedure, not inconsistent with the
commission may rule as being admissible. provision of this Order, or such rules and
forms as may be prescribed by the convening
(7) The defense and thereafter the prosecution authority]or by the President of the
shall address the commission. Philippines.
(8) The commission thereafter shall consider VII. The amount of amount of seven hundred
the case in closed session and unless thousand pesos is hereby set aside out of the
otherwise directed by the convening authority, appropriations for the Army of the Philippines
announce in open court its judgment and for use by the National War Crimes Office in
sentence if any. The commission may state the the accomplishment of its mission as
reason on which judgment is based. hereinabove set forth, and shall be expended
in accordance with the recommendation of the
( f ) Record of Proceedings. — Each commission Judge Advocate General as approved by the
shall make a separate record of its proceeding President. The buildings, fixtures, installations,
in the trial of each case brought before it. The messing, and billeting equipment and other
property herefore used by then Legal Section, power expressly vested by the Constitution in the
Manila Branch, of the General Headquarters, Supreme Court.
Supreme Commander for the Allied Power,
which will be turned over by the United States There cannot be any question that the member of the
Army to the Philippines Government through Constitutional Convention were believers in the
the Foreign Liquidation Commission and the tripartite system of government as originally
Surplus Property Commission are hereby enunciated by Aristotle, further elaborated by
specification reserved for use off the National Montequieu and accepted and practiced by modern
War Crimes Office. democracies, especially the United State of America,
whose Constitution, after which ours has been
Executive Order No. 64, dated August 16, patterned, has allocated the three power of government
1945, is hereby repealed. — legislative, executive, judicial — to distinct and
separate department of government.
Done in the City of Manila, this 29th day of July
in the year of Our Lord, nineteen hundred and Because the power vested by our Constitution to the
forty-seven, and of the Independence of the several department of the government are in the nature
Philippines, the second. of grants, not recognition of pre-existing power, no
department of government may exercise any power or
authority not expressly granted by the Constitution or
MANUEL ROXAS by law by virtue express authority of the Constitution.
President of the Philippines
Executive Order No. 68 establishes a National War
By the President: Crimes Office and the power to establish government
office is essentially legislative.
EMILIO ABELLO
Chief of the Executive Office The order provides that person accused as war
criminals shall be tried by military commissions.
Whether such a provision is substantive or adjective, it
EXECUTIVE LEGISLATION is clearly legislative in nature. It confers upon military
commissions jurisdiction to try all persons charge with
Executive Order No. 68 is a veritable piece of Legislative war crimes. The power to define and allocate
measure, without the benefit of congressional jurisdiction for the prosecution of person accused of
enactment. any crime is exclusively vested by the Constitution in
Congress. .
The first question that is trust at our face spearheading
a group of other no less important question, is whether It provides rules of procedure for the conduct of trial of
or not the President of the Philippines may exercise the trial. This provision on procedural subject constitutes a
legislative power expressly vested in Congress by the usurpation of the rule-making power vested by
Constitution. . Constitution in the Supreme Court.
While there is no express provision in the fundamental It appropriates the sum of P7000,000 for the expenses
law prohibiting the exercise of legislative power by of the National War Crimes office established by the
agencies other than Congress, a reading of the whole said Executive Order No. 68. This constitutes another
context of the Constitution would dispel any doubt as to usurpation of legislative power as the power to vote
the constitutional intent that the legislative power is to appropriations belongs to Congress.
be exercised exclusively by Congress, subject only to the
veto power of the President of the President of the Executive Order No. 68., is, therefore, null and void,
Philippines, to the specific provision which allow the because, though it the President of the Philippines
president of the Philippines to suspend the privileges of usurped power expressly vested by the Constitution in
the writ of habeas corpus and to place any part of the Congress and in the Supreme Court.
Philippines under martial law, and to the rule-making
Challenged to show the constitutional or legal authority order to prevent or shortage of crops and
under which the President issued Executive Order No. hunger and destitution; (4) to take over
68, respondent could not give any definite answer. They industrial establishment in order to insure
attempted, however, to suggest that the President of the adequate production, controlling wages and
Philippines issued Executive Order No. 68 under the profits therein; (5) to prohibit lockouts and
emergency power granted to him by Commonwealth strikes whenever necessary to prevent the
Act No. 600, as amended by Commonwealth Act No. unwarranted suspension of work in
620, and Commonwealth Act No. 671, both of which are productive enterprises or in the interest of
transcribed below: national security; (6) to regulate the normal
hours of work for wage-earning and salaried
employees in industrial or business
undertakings of all kinds; (7) to insure an even
distribution of labor among the productive
COMMONWEALTH ACT NO. 600. enterprises; (8) to commandership and other
means of transportation in order to maintain,
AN ACT DECLARING A STATE OF as much as possible, adequate and continued
EMERGENCY AND AUTHORIZING transportation facilities; (9) to requisition and
THE PRESIDENT TO PROMULGATE take over any public service or enterprise for
RULES AND REGULATION TO use or operation by the Government;(10) to
SAFEGUARD THE INTEGRITY OF regulate rents and the prices of articles or
THE PHILIPPINES AND TO INSURE commodities of prime necessity, both
THE TRANQUILITY OF ITS imported and locally produced or
INHABITANTS. manufactured; and (11) to prevent, locally or
generally, scarcity, monopolization, hoarding
Be it enacted by the National Assembly of the injurious speculations, and private control
Philippines: affecting the supply, distribution and
movement of foods, clothing, fuel, fertilizer,
chemical, building, material, implements,
SECTION 1. The existence of war in many parts machinery, and equipment required in
of the world has created a national emergency agriculture and industry, with power to
which makes it necessary to invest the requisition these commodities subject to the
President of the Philippines with payment of just compensation. (As amended
extraordinary power in order to safeguard the by Com. Act No. 620.)
integrity of the Philippines and to insure the
tranquility of its inhabitants, by suppressing
espionage, lawlessness, and all subversive to SEC. 2. For the purpose of administering this
the people adequate shelter and clothing and Act and carrying out its objective, the
sufficient food supply, and by providing means President may designate any officer, without
for the speedy evacuation of the civilian additional compensation, or any department,
population the establishment of an air bureau, office, or instrumentality of the
protective service and the organization of National Government.
volunteer guard units, and to adopt such other
measures as he may deem necessary for the SEC. 3. Any person, firm, or corporation found
interest of the public. To carry out this policy guilty of the violation of any provision of this
the President is authorized to promulgate Act or of this Act or any of the rules or
rules and regulations which shall have the regulations promulgated by the President
force and effect off law until the date of under the authority of section one of this Act
adjournment of the next regulation which shall be punished by imprisonment of not
shall have the force and effect of law until the more than ten years or by a fine of not more
date of adjournment of the next regular than ten thousand pesos, or by both. If such
session of the First Congress of the violation is committed by a firm or
Philippines, unless sooner amended or corporation, the manager, managing director,
repealed by the Congress of Philippines. Such or person charge with the management of the
rules and regulation may embrace the business of such firm, or corporation shall be
following objects: (1) to suppress espionage criminally responsible therefor.
and other subversive activities; (2) to require
all able-bodied citizens (a) when not engaged SEC. 4. The President shall report to the
in any lawful occupation, to engage in farming national Assembly within the first ten days
or other productive activities or (b) to perform from the date of the opening of its next regular
such services as may bee necessary in the session whatever action has been taken by
public interest; (3) to take over farm lands in him under the authority herein granted.
SEC. 5. To carry out the purposed of this Act, which would lapse or otherwise became
the President is authorized to spend such inoperative, and to modify or suspend the
amounts as may be necessary from the sum operation or application of those of an
appropriated under section five administrative character; (e) to imposed new
Commonwealth Act Numbered four hundred taxes or to increase, reduce, suspend, or
and ninety-eight. abolish those in existence; (f) to raise funds
through the issuance of bonds or otherwise,
SEC. 6. If any province of this Act shall be and to authorize the expensive of the proceeds
declared by any court of competent thereof; (g) to authorize the National,
jurisdiction to be unconstitutional and void, provincial, city or municipal governments to
such declaration shall not invalidate the incur in overdrafts for purposes that he may
remainder of this Act. approve; (h) to declare the suspension of the
collection of credits or the payment of debts;
and (i) to exercise such other power as he may
SEC. 7. This Act shall take upon its approval. deem necessary to enable the Government to
fulfill its responsibilities and to maintain and
Approved, August 19, 1940. enforce its authority.