Consti CASE

.R. No.
76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.
R E S O L U T IO N
PER CURIAM:
In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first paragraph of Section 5 (not Section 7 as
erroneously stated) of Article XVIII of the proposed 1986 Constitution, which provides in full as follows:
Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.
Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare and answer the question of the
construction and definiteness as to who, among the present incumbent President Corazon Aquino and Vice-President Salvador Laurel and
the elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said Section 7 (sic) of
ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ...
The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.
Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that this
Court assumes no jurisdiction over petitions for declaratory relief. More importantly, the petition amounts in effect to a suit against the
incumbent President of the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents are immune from
suit or from being brought to court during the period of their incumbency and tenure.
The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of the aforequoted provision is
manifestly gratuitous, it being a matter of public record and common public knowledge that the Constitutional Commission refers therein to
incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of
their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second paragraph of the cited section provides
for the holding on the second Monday of May, 1992 of the first regular elections for the President and Vice-President under said 1986
Constitution. In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise sought to be questioned with
the claim that it was not established pursuant to the 1973 Constitution. The said cases were dismissed outright by this court which held that:
Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the
judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is
not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has recognized the
legitimacy of tlie present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the
Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs.
President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.];
and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there can be no question that President
Corazon C. Aquino and Vice-President Salvador H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of
the Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,
ACCORDINGLY, the petition is hereby dismissed.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.
MELENCIO-HERRERA, J., concurring:

GUTIERREZ, Jr., J., concurring:
FELICIANO, JJ.,concurring.
The petitioner asks the Court to declare who are "the incumbent President and Vice President elected in the February 7, 1986 elections" as
stated in Article XVIII, Section 5 of the Draft Constitution adopted by the Constitutional Commission of 1986.
We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over petitions for declaratory relief.
As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected President and Vice President in the February 7,
1986 elections should be addressed not to this Court but to other departments of government constitutionally burdened with the task of
making that declaration.
The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly provide 'that boards of canvassers in
each province and city shall certified who were elected President and Vice President in their respective areas. The certified returns are
transmitted to the legislature which proclaims, through the designated Presiding Head, who were duty elected.
Copies of the certified returns from the provincial and city boards of canvassers have not been furnished this Court nor is there any need to
do so. In the absence of a legislature, we cannot assume the function of stating, and neither do we have any factual or legal capacity to
officially declare, who were elected President and Vice President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution, we agree that there is no doubt the
1986 Constitutional Commission referred to President Corazon C. Aquino and Vice President Salvador H. Laurel.
Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.
For the foregoing reasons, we vote to DISMISS the instant petition.
CRUZ, J., concurring:
I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not yet been ratified and is therefore not yet
effective. I see here no actual conflict of legal rights susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs. Haworth,
300 U.S. 227; PACU vs. Secretary of Education, 97 Phil. 806.)
[A.M. No. 90-11-2697-CA. June 29, 1992.]

LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court of Appeals dated
14 November 1990.
RE S O LUTI ON
PADILLA, J.:
Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals, wrote a letter
dated 14 November 1990 addressed to this Court, seeking the correction of his seniority ranking
in the Court of Appeals.

It appears from the records that petitioner was first appointed Associate Justice of the Court of
Appeals on 20 June 1980 but took his oath of office for said position only on 29 November 1982,
after serving as Assistant Solicitor General in the Office of the Solicitor General since 1974. 1
On 17 January 1983, the Court of Appeals was reorganized and became the Intermediate
Appellate Court pursuant to Batas PambansaBlg. 129 entitled "An Act Reorganizing the
Judiciary. Appropriating Funds Therefor and For Other Purposes." 2 Petitioner was appointed
Appellate Justice in the First Special Cases Division of the Intermediate Appellate Court. On 7
November 1984, petitioner accepted an appointment to be ceased to be a member of the
Judiciary. 3
The aftermath of the EDSA Revolution in February 1986 brought about a reorganization of the
entire government, including the Judiciary. To effect the reorganization of the Intermediate
Appellate Court and other lower courts, a Screening Committee was created, with the then
Minister of Justice, now Senator Neptali Gonzales as Chairman and then Solicitor General, now
Philippine Ambassador to the United Nations SedfreyOrdoez as Vice Chairman. President
Corazon C. Aquino, exercising legislative powers by virtue of the revolution, issued Executive
Order No. 33 to govern the aforementioned reorganization of the Judiciary. 4
The Screening Committee recommended the return of petitioner as Associate Justice of the new
Court of Appeals and assigned him the rank of number eleven (11) in the roster of appellate court
justices. When the appointments were signed by President Aquino on 28 July 1986, petitioners
seniority ranking changed, however, from number eleven (11) to number twenty six (26). 5
Petitioner now alleges that the change in his seniority ranking could only be attributed to
inadvertence for, otherwise, it would run counter to the provisions of Section 2 of Executive
Order No. 33, which reads:
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"SECTION 2. Section 3, Chapter 1 of Batas PambansaBlg. 129, is hereby amended to read as

follows:
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"SEC. 2. Organization. There is hereby created a Court of Appeals which shall consist of a
Presiding Justice and fifty Associate Justices who shall be appointed by the President of the
Philippines. The Presiding Justice shall be so designated in his appointment and the Associate
Justice shall have precedence according to the dates of their respective appointments, or when
the appointments of two or more shall bear the same date, according to the order in which their
appointments were issued by the President. Any Member who is reappointed to the Court after
rendering service in any other position in the government shall retain the precedence to which he
was entitled under his original appointment, and his service in the Court shall, for all intents and
purpose be considered as continuous and uninterrupted." 6
Petitioner elaborates that President Aquino is presumed to have intended to comply with her own
Executive Order No. 33 so much so that the correction of the inadvertent error would only
implement the intent of the President as well as the spirit of Executive Order No. 33 and will not
provoke any kind of constitutional confrontation (between the President and the Supreme Court).
7
Petitioner points to the case of Justice Oscar Victoriano, former Presiding Justice of the Court of
Appeals who, according to petitioner, was transferred from his position as Justice of the Court of
Appeals to the Ministry of Justice as Commissioner of Land Registration and in 1986 was
reappointed to the Court of Appeals. Petitioner states that his (Victorianos) stint in the
Commission of Land Registration did not adversely affect his seniority ranking in the Court of
Appeals, for, in his case, Executive Order No. 33 was correctly applied. 8
In a resolution of the Court en banc dated 29 November 1990, the Court granted Justice Punos
request. 9 It will be noted that before the issuance of said resolution, there was no written
opposition to, or comment on petitioners aforesaid request. The dispositive portion of the
resolution reads:
"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno for correction of his
seniority ranking in the Court of Appeals is granted. The presiding Justice of the Court of
Appeals, the Honorable Rodolfo A. Nocon, is hereby directed to correct the seniority rank of
Justice Puno from number twelve (12) to number five (5). Let copies of this Resolution be
furnished the Court Administrator and the Judicial and Bar Council for their guidance and
information." 10
A motion for reconsideration of the resolution of the Court en banc dated 29 November 1990 was
later filed by Associate Justices Jose C. Campos, Jr. and Luis A. Javellana, two (2) of the
Associate Justices affected by the ordered correction. They contend that the present Court of
Appeals is a new Court with fifty one (51) members and that petitioner could not claim a
reappointment to a prior court; neither can he claim that he was returning to his former court, for
the courts where he had previously been appointed ceased to exist at the date of his last
appointment. 11
The Court en banc in a resolution dated 17 January 1992 required the petitioner to file his
comment on the motion for reconsideration of the resolution dated 29 November 1990.
In his Comment, petitioner argues that, by virtue of Executive Order No. 33 read in relation to
B.P. Blg. 129, his seniority ranking in the Court of Appeals is now number five (5) for, though
President Aquino rose to power by virtue of a revolution, she had pledged at the issuance of
Proclamation No. 3 (otherwise known as the Freedom Constitution) that "no right provided
under the unratified 1973 Constitution (shall) be absent in the Freedom Constitution." 12
Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually re-enacted the
last sentence of Sec. 3, Chapter 1 of B.P. Blg. 129, statutory construction rules on simultaneous
repeal and re-enactment mandate, according to petitioner, the preservation and enforcement of all
rights and liabilities which had accrued under the original statute. 13 Furthermore, petitioner
avers that, although the power of appointment is executive in character and cannot be usurped by
any other branch of the Government, such power can still be regulated by the Constitution and
by the appropriate law, in this case, by the limits set by Executive Order NO. 33 14 for the power
of appointment cannot be wielded in violation of law. 15

Justices Javellana and Campos were required by the Court to file their reply to Justice Punos
comment on their motion for reconsideration of the resolution of the Court en banc dated 24
January 1991.
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In their Reply and Supplemental Reply, Associate Justices Javellana and Campos submit that the
appeal or request for correction filed by the petitioner was addressed to the wrong party. They
aver that as petitioner himself had alleged the mistake to be an "inadvertent error" of the Office
of the President, ergo, he should have filed his request for correction also with said Office of the
President and not directly with the Supreme Court. 16 Furthermore, they point out that petitioner
had indeed filed with the Office of the President a request or petition for correction of his
ranking, (seniority) but the same was not approved such that his recourse should have been an
appropriate action before the proper court and impleading all parties concerned. The aforesaid
non-approval by the Office of the President they argue, should be respected by the Supreme
Court "not only on the basis of the doctrine of separation of powers but also their presumed
knowledge ability and even expertise in the laws they are entrusted to enforce" 17 for it (the nonapproval) is a confirmation that petitioners seniority ranking at the time of his appointment by
President Aquino was, in fact, deliberate and not an "inadvertent error" as petitioner would have
the Court believe. 18
The resolution of this controversy is not a pleasant task for the Court since it involves not only
members of the next highest court of the land but persons who are close to members of this
Court. But the controversy has to be resolved. The core issue in this case is whether the present
Court of Appeals is a new court such that it would negate any claim to precedence or seniority
admittedly enjoyed by petitioner in the Court of Appeals and Intermediate Appellate Court
existing prior to Executive Order No. 33 or whether the present Court of Appeals is merely a
continuation of the Court of Appeals and Intermediate Appellate Court existing prior to said
Executive Order No. 33.
It is the holding of the Court that the present Court of Appeals is a new entity, different and
distinct from the Court of Appeals or the Intermediate Appellate Court existing prior to
Executive Order No. 33, for it was created in the wake of the massive reorganization launched by
the revolutionary government of Corazon C. Aquino in the aftermath of the people power
(EDSA) revolution in 1986.
A resolution has been defined as "the complete overthrow of the established government in any
country or state by those who were previously subject to it" 19 or as "a sudden, radical and
fundamental change in the government or political system, usually effected with violence or at
least some acts of violence." 20 In Kelsens book, General Theory of Law and State, it is defined
as that which "occurs whenever the legal order of a community is nullified and replaced by a
new order . . . a way not prescribed by the first order itself." 21
It was through the February 1986 revolution, a relatively peaceful one, and more popularly
known as the "people power revolution" that the Filipino people tore themselves away from an
existing regime. This revolution also saw the unprecedented rise to power of the Aquino
government.
From the natural law point of view, the right of revolution has been defined as "an inherent right
of a people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional
methods of making such change have proved inadequate or are so obstructed as to be
unavailable." 22 It has been said that "the locus of positive law-making power lies with the
people of the state" and from there is derived "the right of the people to abolish, to reform and to
alter any existing form of government without regard to the existing constitution." 23
The three (3) clauses that precede the text of the Provisional (Freedom) Constitution, 24 read:
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"WHEREAS, the new government under President Corazon C. Aquino was installed through a
direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of
the Philippines;
"WHEREAS, the heroic action of the people was done in defiance of the provisions of the 1973
Constitution, as amended;
"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by virtue of the powers
vested in me by the sovereign mandate of the people, do hereby promulgate the following
Provisional Constitution."25
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These summarize the Aquino governments position that its mandate is taken from "a direct
exercise of the power of the Filipino people." 26
Discussions and opinions of legal experts also proclaim that the Aquino government was
"revolutionary in the sense that it came into existence in defiance of the existing legal processes"
27 and that it was a revolutionary government "instituted by the direct action of the people and in
opposition to the authoritarian values and practices of the overthrown government." 28
A question which naturally comes to mind is whether the then existing legal order was
overthrown by the Aquino government. "A legal order is the authoritative code of a polity. Such
code consists of all the rules found in the enactments of the organs of the polity. Where the state
operates under a written constitution, its organs may be readily determined from a reading of its
provisions. Once such organs are ascertained, it becomes an easy matter to locate their
enactments. The rules in such enactments, along with those in the constitution, comprise the legal
order of that constitutional state." 29 It is assumed that the legal order remains as a "culture
system" of the polity as long as the latter endures 30 and that a point may be reached, however,
where the legal system ceases to be operative as a whole for it is no longer obeyed by the
population nor enforced by the officials. 31
It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional
processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution as a
BatasangPambansa resolution had earlier declared Mr. Marcos at the winner in the 1986
presidential election. 32 Thus it can be said that the organization of Mrs. Aquinos Government
which was met by little resistance and her control of the state evidenced by the appointment of
the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet
officials, revampt of the Judiciary and the Military signalled the point where the legal system
then in effect, had ceased to be obeyed by the Filipino.
The Court holds that the Court of Appeals and Intermediate Appellate Court existing prior to
Executive Order No. 33 phased out as part of the legal system abolished by the revolution and
that the Court of Appeals established under Executive Order No. 33 was an entirely new court
with appointments thereto having no relation to earlier appointments to the abolished courts, and
that the reference to precedence in rank contained in the last sentence of Sec. 2, BP Blg. No. 129
as amended by Executive Order No. 33 refers to prospective situations as distinguished from
retroactive ones.
But even assuming, arguendo, that Executive Order No. 33 did not abolish the precedence or
seniority ranking resulting from previous appointment to the Court of Appeals or Intermediate
Appellate Court existing prior to the 1986 revolution, it is believed that President Aquino as head
of then revolutionary government, could disregard or set aside such precedence or seniority in
ranking when she made her appointments to the reorganized Court of Appeals in 1986.
It is to be noted that, at the time of the issuance of Executive Order No. 33, President Aquino was
still exercising the powers of a revolutionary government, encompassing both executive and
legislative powers, such that she could, if she so desired, amend, modify or repeal any part of
B.P. Blg. 129 or her own Executive Order No. 33. It should also be remembered that the same
situation was still in force when she issued the 1986 appointments to the Court of Appeals. In
other words, President Aquino, at the time of the issuance of the 1986 appointments, modified or
disregarded the rule embodied in B.P. Blg. 129 as amended by Executive Order No. 33, on
precedence or seniority in the case of the petitioner, for reasons known only to her. Since the
appointment extended by the President to the petitioner in 1986 for membership in the new Court
of Appeals with its implicit ranking in the roster of justices, was a valid appointment anchored on
the Presidents exercise of her then revolutionary powers, it is not for the Court at this time to
question or correct that exercise.
ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the seniority rankings
of members of the Court of Appeals, including that of the petitioner, at the time the appointments
were made by the President in 1986, are recognized and upheld.
SO ORDERED.
Paras, Grio-Aquino, Regalado, Davide, Jr. and Romero, JJ., concur.
Separate Opinions
FELICIANO, J., concurring:
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I agree with the conclusion reached in the majority opinion written by my learned brother,
Padilla, J. In particular, I agree that the Court of Appeals established by Executive Order No. 33
is a new court, and was not merely the old Intermediate Appellate Court with a new label.
If one examines the provisions of B.P. Blg. 129, known as "The Judiciary Reorganization Act of
1980," relating to the old Intermediate Appellate Court, it is quite clear that the previously
existing Court of Appeals was abolished and a new court, denominated the Intermediate
Appellate Court, was created. Thus, Section 3 of B.P. Blg. 129 reads as follows:
"Sec. 3. Organization. There is hereby created an Intermediate Appellate Court which shall
consist of a Presiding Appellate Justice and forty-nine Associate Appellate Justices who shall be
appointed by the President of the Philippines. The Presiding Appellate Justice shall be so
designated in his appointment, and the Associate Appellate Justices shall have precedence
according to the dates of their respective appointments, or when the appointments of two or more
of them shall bear the same date, according to the order in which their appointments were issued
by the President. Any member who is reappointed to the Court after rendering service in any
other position in the government shall retain the precedence to which he was entitled under his
original appointment, and his service in Court shall, to all intents and purposes, be considered as
continuous and uninterrupted." (Emphasis supplied)
Section 44 of the same statute provided as follows:
"Sec. 44. Transitory provisions. The provisions of this Act shall be immediately carried out in
accordance with an Executive Order to be issued by the President. The Court of Appeals, the
Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations
Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the
Municipal Circuit Courts shall continue to function as presently constituted and organized, until
the completion of the reorganization provided in this Act as declared by the President. Upon such
declaration, the said courts shall be deemed automatically abolished and the incumbents thereof
shall cease to hold office. The cases pending in the old Courts shall be transferred to the
appropriate Courts constituted pursuant to this Act, together with the pertinent function, records,
equipment, property and the necessary personnel.
x
(Emphasis supplied)
Executive Order No. 33, promulgated on 28 July 1986, provided in part as follows:
"Section 2. Section 3, Chapter I of Batas PambansaBlg. 129, is hereby amended to read as

follows:
SEC. 3. Organization There is hereby created a Court of Appeals which shall consist of a
Presiding Justice and fifty Associate Justices who shall be appointed by the President of the
Philippines. The Presiding Justice shall be so designated in his appointment, and the Associate
Justices shall have precedence according to the dates of their respective appointments, or when
the appointments of two or more of them shall bear the same date, according to the order in
which their appointments were issued by the President. Any member who is reappointed to the
Court after rendering service in any other position in the government shall retain the precedence
to which he was entitled under his original appointment, and his service in the Court shall, for all
intents and purposes, be considered as continuous and uninterrupted." (Emphasis supplied)
Although Executive Order No. 33 spoke of amending Section 3, Chapter 1 of B.P. Blg. 129, it
will be seen that what really happened was the re-enactment of said Section 3, Chapter 1 of B.P.
Blg. 129. In other words, much more happened than simply the renaming of the old Intermediate
Appellate Court into (once again) Court of Appeals. If all that Executive Order No. 33 wanted to
achieve was the relabeling of the old Intermediate Appellate Court into the "Court of Appeals,"
there was no need to amend or re-enact Section 3 of B.P. Blg. 129. For Section 8 of Executive
Order No. 33 provided as follows:
"SECTION 8. The terms Intermediate Appellate Court, Presiding Appellate Justice and
Associate Appellate Justice(s) used in the Judiciary Reorganization Act of 1980 or in any other
law or executive order shall hereafter mean Court of Appeals, Presiding Justice and Associate
Justice(s), respectively."
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Thus, President Aquino was quite free, legally speaking to appoint to the new Court of Appeals
whoever in her judgment was fit and proper for membership in that new court in an order of
precedence that she was just then establishing.
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The sentence found in Section 3 of B.P. Blg. 129 as amended or re-enacted through the medium
of Section 2 of Executive Order No. 33
"Any Member who is reappointed to the Court after rendering service in any other position in the
government shall retain the precedence to which he was entitled under his original appointment,
and his service in the Court shall, for all intents and purposes, be considered as continuous and
uninterrupted."
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which my distinguished brother in the Court, Gutierrez, Jr., J., very heavily stressed,
contemplates in my submission the situation of a member of the new Court of Appeals accepting
appointment to some other department or branch of government, outside the Judiciary, and who
later receives an appointment once again to that same Curt of Appeals. But Mr. Justice Reynato
S. Puno was not in such a situation. The last preceding appointment to the Judiciary of Mr.
Justice Reynato S. Puno was to the then Intermediate Appellate Court newly created by B.P. Blg.
129. In 1984, he left that court to become Deputy Minister in the Ministry of Justice. His next
appointment to the Judiciary was not to the old Intermediate Appellate Court, which by that time
had passed on to history. His appointment dated 28 July 1986, was, in my view, as already noted,
to the new Court of Appeals established by Executive Order No. 33. Thus, the last sentence of
Section 3 of B.P. Blg. 129 (before re-enactment by Executive Order No. 33) afforded no basis for
a claim to the same numerical precedence in the new Court of Appeals that he would have been
entitled to had the old Intermediate Appellate Court not gone out of existence. It is difficult for
me to understand how a claim to a particular position in an order of precedence can be made
where the court itself, to which the new appointment is made, is a new and distinct court.
I vote to grant the Motion for Reconsideration.
BELLOSILLO, J., concurring:
I agree with the ponencia of Mr. Justice Padilla, so I vote to grant the motion for reconsideration
of Our Resolution of November 29, 1990. I am for respecting the seniority ranking of the
Associate Justices of the Court of Appeals at the time they were appointed by the President on
July 31, 1986.
I must admit that, like Mr. Justice Gutierrez, Jr., and Mr. Justice Padilla, it was not easy for me to
decide to participate in the deliberations in this case considering that it involves esteemed
colleagues in the Court of Appeals. As such, when subject Resolution was promulgated, I did not
react despite the proddings of well-meaning friends. It refused to be dragged into the "fray" in
deference to Justice Reynato S. Puno who would be adversely affected. I remained firm in my
resolve to stay away from the controversy. It was to me a personal privilege so to do, which i
could waive, as I did.
But circumstances have changed; not that I no longer revere my friendship with Justice Puno, but
as a member now of this Court it has become my duty no longer a mere privilege, much less a
right to aid the Court in resolving this controversy in the fairest possible way, a responsibility
I find no justification to shirk.
On August 1, 1986, at the oath-taking ceremonies for the newly-appointed members of the Court
of Appeals at Malacaang, when I noticed Justice Puno take a seat on my right, 1 I asked him to
transfer to the left where our senior justices were assigned. I was assuming that he should be on
the left because he was appointed to the old Appellate Court ahead of me. But he showed me the
list where he appeared as No. 26, Justice Lising, No. 25, and I was No. 24. Since he appeared
perturbed with his new rank, I suggested to him to seek the help of then Justice Secretary Neptali
A. Gonzales, Chairman of the Screening Committee that processed the appointments of the new
members of the Court of Appeals, and who was then just a meter and a half in front of us. But
after talking to Secretary Gonzales, Justice Puno returned to his original assigned seat. When I
asked him what happened, he simply shrugged his shoulders. Obviously, he failed in his bid.
We then took our oath in the order we were ranked in the list.
Some two (2) months or so later, in an En Banc session back in the Court of Appeals, as we were
seated side by side with Justice Puno, 2 I inquired again from him as to what happened to his
request with Malacaang conveyed through the Presiding Justice for the correction of his
ranking. Justice Puno told me it was not granted.
The letter of then Presiding Justice Emilio A. Gancayco dated August 7, 1986, which was his
second in fact on the subject, addressed to Executive Secretary Joker P. Arroyo, is enlightening
and informative
"Dear Sir:
In relation to my letter of August 5, 1986 informing you of the possible over-sight in the ranking
of Mr. Justice REYNATO S. PUNO in his reappointment as member of this Court, I am

furnishing you a certification of the Clerk of Court to the same effect, and also in relation to the
ranking of Messrs. Rodolfo A. Nocon and Jorge A. Coquia who in accordance with their original
appointment to this Court are more senior than Mr. Justice Oscar R. Victoriano in the said order.
If Her Excellency President Corazon Aquino should decide to rearrange the ranking of the
incumbent justices of this Court in accordance with the provisions of Section 2, Executive Order
# 33 their proper ranking should be as follows:
No. 3 Mr. Justice Rodolfo A. Nocon;

No. 4 Mr. Justice Jorge A. Coquia;
No. 5 Mr. Justice Oscar R. Victoriano; and
No. 11 Mr. Justice Reynato S. Puno."
While this letter perhaps did not elicit the desired response from Executive Secretary Arroyo as
his answer did not squarely settle the issue, the message is clear, i.e., Malacaang did not grant
the request for correction of what was perceived to be a "possible oversight", even after it was
twice brought to its attention. Here I am reminded of the principle in procedure that a motion that
is not granted, especially after an unreasonable length of time, is deemed denied, and the lapse of
more than four (4) years before Justice Puno finally came to Us 3 is reasonably unreasonable.
The letter-appointment of President Corazon C. Aquino addressed to then Chief Justice Claudio
Teehankee dated July 31, 1986, in fact categorically specifies the order of seniority of her
appointees, thus
"Dear Mr. Chief Justice.
I have appointed the Presiding Justice and the Associate Justices of the Court of Appeals under
the following order of seniority:
1. Hon. Emilio A. Gancayco, Presiding Justice . . .

3. Hon. Oscar R. Victoriano, Associate Justice
4. Hon. Rodolfo A. Nocon, Associate Justice
5. Hon. Jorge A. Coquia, Associate Justice . . .
12. Hon. Jose C. Campos, Jr., Associate Justice . . .
16. Hon. Luis A. Javellana, Associate Justice . . .
26. Hon. Reynato S. Puno, Associate Justice . . ."
x"
Considering the circumstances herein narrated, I find it difficult to yield to the proposition that
an error was committed through inadvertence by Malacaang in the ranking of the justices
appointed to the Court of Appeals on July 31, 1986.
The above-quoted letter of President Aquino also brings to focus the ranking of Justice Oscar R.
Victoriano who was junior to Justices Nocon and Coquia in the old Court, as reflected in the
letter of Presiding Justice Gancayco. However, in the letter of the President, Justice Victoriano
was ranked No. 3, while Justices Nocon and Coquia were ranked No. 4 and No. 5, respectively.
Hence, it is not accurate to say that Justice Victoriano was reinstated to his former rank in the old
Court, but was even given a rank higher than Justices Nocon and Coquia. This "possible
oversight" was also brought to the attention of Malacaang but, like the case of Justice Puno, no
correction was made.
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All these clearly support the view of Mr. Justice Padilla in his ponencia, as well as of Mr. Justice
Feliciano in his concurring opinion, that the present Court of Appeals is an entirely different
court, distinct from the old Intermediate Appellate Court or the former Court of Appeals, with a
new members although some were drawn from the now defunct Intermediate Appellate Court,
and that the "error" referred to by Justice Puno could not have been only through "inadvertence"
but deliberate, otherwise, Malacaang could have readily effected the correction?
But whether the "error" was deliberate or committed through inadvertence, is Our Court the
proper venue for the correction? Can We now correct this alleged error of the appointing
authority? Worse, can We direct the Office of the President to do what is exclusively within its
prerogative?
This brings me to the final point which bothers me still further. If We sustain the claim that the
present Court of Appeals is merely a continuation of the old Intermediate Appellate Court, or of
the old Court of Appeals, then We may be swarmed with requests not only for re-ranking but also
for reinstatement of those who were not reappointed on July 31, 1986, but against whom no
charges have been filed. For then, should they not be allowed to enjoy their security of tenure as
civil servants under the Constitution?
In the case of Justice Jorge S. Imperial, he was a member of the old Intermediate Appellate Court
who was not reappointed to the new Court of Appeals on July 31, 1986. There was no charge
against him. He was later reappointed but only on January 2, 1987. Should We also order that he
be reinstated to his former rank in the Intermediate Appellate Court? Then, We may have to
dislodge some of the present division Chairmen of the Court of Appeals to accommodate him.
That would be unsettling, disturbing, and disruptive of the present system. I do not think We
wish this to happen.
GUTIERREZ, JR., J., dissenting:
I regret that I have to differ from the position taken by Mr. Justice Padilla regarding the seniority
ranking of Justice Reynato S. Puno in the Court of Appeals.

I agree that the resolution of the controversy is not a pleasant one for us since it involves persons
who are close to the members of this Court. For me, the task is particularly difficult because
apart from close personal relationship, I also highly respect the parties considerable talents,
abilities and qualifications. I have known Justice Jose C. Campos, Jr. since my student days and
as a junior member of this Court, I once urged his nomination for appointment to the Supreme
Court even before he started to serve in the Court of Appeals. Justice Luis A. Javellana was my
colleague in the Social Security System while Justice Reynato S. Puno and I worked together in
the Office of the Solicitor General.
I believe, however, that we can resolve the issues on the basis of the facts and the applicable law,
in the same way that we reverse or affirm the parties respective ponencias disregarding personal
feelings or close association.
The applicable provision of law in this case was introduced into the Judiciary Act of 1948 by
Rep. Act No. 5204 on June 15, 1968 when it amended the first paragraph of Section 24 to read:
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library
"Provided, however, that any member of the Court of Appeals who has been reappointed to that
court after rendering service in any other branch of the government shall retain the precedence to
which he is entitled under his original appointment and his service in court shall, to all intents
and purposes, be considered as continuous and uninterrupted . . ."
This provision was reiterated in all subsequent repealing or amendatory acts and continues to the
present. It is found in Batas PambansaBlg. 129, Section 3 and in Executive Order No. 33 under
President Corazon C. Aquino reorganized the Court of Appeals.
I respectfully submit that from 1968 to 1992, there was no single moment when this provision
ceased to exist. It was never repealed and never disappeared from the law. Everybody, including
the appointing power is, of course, bound by the law.
I agree with Justice Padillas discussion of President Aquinos powers in a revolutionary
government, a government revolutionary in the sense that it came into existence in defiance of
the existing legal processes.
I, however, believe that the appointments of the Justices of the Court of Appeals in 1986 were
not a personal act of a revolutionary President. Far from it.
First, President Aquinos government ceased to be revolutionary on March 25, 1986 when she
promulgated Proclamation No. 3, which she called the Freedom Constitution. Her government
became a constitutional one bound by the Freedom Constitution and the executive orders issued
under its authority.
Second, one significant provision of the Freedom Constitution states that "all elective and
appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment
and qualification of their successors, if such appointment is made within a period of one year
from February 26, 1986." (Section 2, Article III, Emphasis supplied).
Third, the President implemented the above provision of the Constitution on July 28, 1986 when
she issued Executive Order No. 33 which amended B.P. 129. As earlier stated, Executive Order
No. 33 reiterated verbatim the provision of B.P. No. 129 which provided for retention of
precedence of a member who is reappointed after a sting in another position in the government.
President Aquino was bound by the provisions of Executive Order No. 33 because it is a law
enacted pursuant to constitutional authority. She could no longer act as a revolutionary President
because there was a Constitution, and there were statutes under that Constitution, in existence.
More important, Executive Order No. 33 was enacted precisely to provide for the reorganization
of the Intermediate Appellate Court into the Court of Appeals. The President intended that every
provision of Executive Order No. 33 should be followed precisely for the purpose for which it
was enacted, namely, reorganization of the appellate court. I cannot understand the reasoning
which says that all provisions of Executive Order No. 33 must apply in the reorganization of the
Court of Appeals except the provision on retention of seniority by a reappointed member which
must be for the future only.
Even assuming that this one sentence of Executive Order No. 33 was intended to be prospective,
then the President has to follow B.P. No. 129 because Proclamation No. 3, Article IV provides:
"SECTION 1. All existing laws, decrees, executive orders, proclamations, letters of instruction,
implementing rules and regulations, and other executive issuances not inconsistent with this
Proclamation shall remain operative until amended, modified, or repealed by the President or the
regular legislative body to be established under a New Constitution."
For us lawyers, there is one signal feature of President Aquinos six years in the presidency and
this is her dedicated personal observance of the rule of law. Even when some of our decisions
nullified her favorite projects, she unhesitatingly ordered compliance with our interpretation of
the law. I cannot believe that the President would knowingly violate one provision of a law she
promulgated even as she complied with ever other provision of that same law.
Not only the law but also the facts support the correctness of our November 29, 1990 resolution.
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We stated in our resolution:
"Following this specific provision on seniority, the Screening Committee recommended the
return and reappointment of Justice Puno as Associate Justice of the New Court of Appeals. He
was assigned the seniority rank of number eleven (11) following Associate Justice Vicente V.
Mendoza who was given the seniority rank of number ten (10). Unfortunately, however, due to a
mistake which can only be inadvertent, the seniority rank of Justice Puno appears to have been
changed from number eleven (11) to number twenty six (26), after the appointments in the new
Court of Appeals were signed by President Aquino. Through his letter, Justice Puno prays for the
correction of his seniority ranking alleging that he should now be given the seniority rank of
number five (5) instead of number twelve (12) in the Court of Appeals.
We find the petition for correction of ranking by Justice Puno to be meritorious. The mistake in
the ranking of Justice Puno from number eleven (11) to number twenty six (26) in the 1986
judicial reorganization has to be corrected, otherwise, there will be a violation of the clear
mandate of Executive Order No. 33 that any member who is reappointed to the Court after
rendering service in any other position in the government shall retain the precedence to which he
was entitled under his original appointment, and his service in the court shall, for all intents and
purposes be considered as continuous and uninterrupted. In fine, the executive service of Justice
Puno as Deputy Minister of Justice should not adversely affect the continuity of his service in the
judiciary upon his return and appointment thereto on July 28,1 986. Otherwise, the salutary
purpose of Executive Order No. 33 which is to attract competent members of the judiciary to
serve in other branches of the government without fear of losing their seniority status in the
judiciary in the event of their return thereto would be defeated . . ." (Res. dtd. 11-29-90, pp. 2-3)
Nobody disputes the fact that the Screening Committee headed by the then Secretary of Justice
Neptali Gonzales and a member of which was our own Justice Leo D. Medialdea ranked Justice
Reynato S. Puno as No. 11 in their recommendation.
When the appointments came out, Mr. Puno was No. 26. This, of course, violates not only
Executive Order No. 33 but also the laws on the same subject which preceded it.
That the President never intended to violate a key provision of law is shown in the September 17,
1986 letter of Executive Secretary Joker P. Arroyo, appended to the Reply submitted by Justices
Campos and Javellana. The explanation reads:
"17 September 1986

Hon. Emilio A. Gancayco
Presiding Justice
Court of Appeals
Manila.
Sir:
In reply to your enclosed letter of August 7, 1986, please be informed that the President had
nothing to do with the order of seniority. The list and order of seniority was submitted by a
screening committee and passed on to the Supreme Court for review.
Very truly yours,
(SGD.) JOKER P. ARROYO

Executive Secretary"
When Secretary Arroyo states that the President had nothing to do with the order or sequence of
seniority, it means that she just followed the recommendations of her own Screening Committee,
which recommendations had already been reviewed by the Supreme Court. She did not select
any recommendees her own. She never deviated from the recommendations because everybody
recommended was appointed. The change from No. 11 to No. 26 could not have been a
deliberate act of the President as she had nothing to do with the order of seniority of the Justices
she was appointing. The change could only have been an inadvertence because it was violative
not only of the law but also of the recommendations of her Screening Committee.
There are other matters raised in the letter and reply of Justices Campos and Javellana which
have been answered by Justice Puno in his Comment. I find no need to comment on them at this
time.
I regret if my answer to the query of Justice Campos led him to be lulled into inaction. Justice
Campos called me up over the telephone inquiring about the petition of Justice Puno before I was
aware that there was such a petition. I try to read all petitions filed with the court en banc but I do
so only after they are placed in the agenda and are in the next order of business of a particular
session. My staff never places a copy of any petition on my desk until it is entered in the agenda.
It is unfortunate that Justices Campos, Camilon, delaFuente, Javellana, Purisima, de Pano, and
Bellosillo were not furnished copies of the letter-petition of Justice Puno but this is for then
Chief Justice Marcelo B. Fernan and Clerk of Court Atty. Daniel T. Martinez to explain.
Justices Campos and Javellana state that "Justice Puno is 50 years old and to put him in No. 5
will destroy the chances of those displaced by him who are older than he to aspire for
promotion."
The fears of the good Justices are unfounded. Except for the Presiding Justice, a greater number
of "junior" Justices have been appointed in the past ten years to the Supreme Court from the
Court of Appeals, than the most senior Justices of that Court. In other words, there has been more
by passing of senior members than adherence to the seniority listing. In fact, the latest
nominations of the Judicial and Bar Council for position to which Justice Bellosillo was
appointed, included Justice Campos and excluded Justices Kapunan and Puno. I understand that
in the past few vacancies in this court, Justice Campos has been nominated more often than
Justice Puno.
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Our resolution dated November 29, 1990 correcting the seniority ranking of Justice Puno was a
unanimous decision of this Court except for Mr. Justice Padilla were discussed and fully
deliberated upon. Since our resolution is based on both the facts and the law, I see no reason why
we should modify or set it aside.
I, therefore, vote to reiterate the Courts resolution dated November 29, 1990.
Narvasa, C.J., Bidin, Medialdea and Nocon, JJ., concur.

CRUZ, J., dissenting:
I join Mr. Justice Gutierrez in his dissent, with these brief additional remarks.
Sec. 3 of BP 129 laid down the original precedence rule applicable to members of the
Intermediate Appellate Court. This was embodied in Sec. 2 of EO 33 without change except as to
the name of the court. The first provision was not repealed. As Mr. Justice Feliciano points out, it
was merely "re-enacted."
I do not think the re-enacted rule was intended to operate prospectively only. I believe it
continues to be available to the former members of the Intermediate Appellate Court no less than
to the members of the Court of Appeals.
It is a well-known canon of construction that apparently conflicting provisions should be
harmonized whenever possible. The ponencia would instead revoke Sec. 3. of BP 129 even
though Sec. 2 of EO 33 has not repealed but in fact re-enacted it. I would reconcile the two
provisions and give effect to both.
Significantly, Sec. 8 of EO 33 provides that "the term Intermediate Appellate Court . . . shall
hereafter mean Court of Appeals."
Narvasa, C.J., concurs.

Endnotes:
1. Rollo, p. 10.
2. B.P. Blg. 129 was passed by the BatasangPambansa on 10 August 1981 and signed into law by
President Ferdinand E. Marcos on 14 August 1981.
3. Rollo, p. 4.
4. Executive Order No. 33 was issued on 28 July 1986 by President Corazon C. Aquino.
5. Rollo, p. 2.
6. Rollo, pp. 5, 5-A.
7. Ibid., p. 5-A.
8. Ibid.
9. Rollo, pp. 1-3.
10. Ibid., p. 3.
11. Ibid., p. 18.
12. Rollo, pp. 28-29. Remarks of President Corazon C. Aquino at a media briefing announcing
the promulgation of a transition Constitution (otherwise known as the Freedom Constitution) at
the Freedom Hall, Malacaang, March 25, 1986.
13. Rollo, pp. 26-27. See also Alcantara, Statutes, 1990 ed., p. 164 citing Crawford: Statutory
Construction and Agpalo, Statutory Construction, 1990 ed., p. 304 citing American Bible Society
v. City of Manila, 101 Phil. 386.
14. Rollo, p. 41.
15. Ibid., p. 42.
16. Rollo, pp. 47-50.
17. Cuerdo v. Commission on Audit, 166 SCRA 657 citing Tagum Doctors Enterprises v.
Gregorio Apsay, Et Al., G.R. No. 81188, August 30, 1988.
18. Rollo, p. 49.
19. Kitlow v. Kiely, 44 F. Ed. 227, 232.
20. State v. Diamond, 202 P. 988, 991.
21. Kelsen, General Theory of Law and State (1946), p. 117.
22. H. Black, Handbook of American Constitutional Law II, 4th edition, 1927.
23. Political Rights as Political Questions. The Paradox of Luther v. Borden, 100 Harvard Law
Review 1125, 1133 (1987).
24. Proclamation No. 3 (1986).
25. Ibid.
26. Proclamation No. 1 (1986) and Proclamation No. 3 (1986).
27. J. Bernas, Proclamation No. 3 with Notes by Joaquin Bernas, S.J. 3 (1986).
28. Address by U.P. President, now Senator Edgardo Angara, Bishops-Businessmens
Conference, March 21, 1986, 27 U.P. Gazette 28, 29.
29. Fernandez, Law and Polity: Towards a Systems Concept of Legal Validity, 46 Phil. Law
Journal, 390-391 (1971).
30. Id., at 422.
31. Fernandez, supra note 29.
32. 1973 Constitution, Art. VII, Sec. 5.
BELLOSILLO, J., concurring:
1. As prearranged by the Protocol Officer, the newly-appointed Justices were assigned seats
according to seniority from left to right, so that when called to take their oath they would only
have to rise, move forward, turn around, and face the President, as well as their families and
friends, for their oath-taking so that seniority ranking would automatically be observed in
reverse, from right o left.
2. In En Banc sessions, even numbers are assigned consecutively on one side and odd numbers
on the other side, and Justice Puno and myself were ranked No. 26 and 24, respectively.
3. The letter-request of Justice Puno to this Court is dated November 14, 1990, while the reply of
Executive Secretary Joker P. Arroyo which did not grant the request, is dated September 17,
1986.
Case 2.G.R. no. L-5, September 17, 1945 CO KIM CHAM, petitioner vs. EUSEBIO VALDEZ TAN KEH
and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents FACTS OF THE
CASE: Petitioner Co Kim Cham filed a motion for mandamus that the respondent Judge is ordered to
continue
the proceeding which was initiated under the regime of the so
-called Republic of the Philippines during
the Japanese military occupation. The petitioner had a pending civil case no. 3012 with the Court of
First Instance of Manila where the respondent judge refused to continue hearings of the said case after the
Liberation of the Manila and the American occupation, saying that a proclamation issued on October 23,
1944 by General Douglas MacArthur had invalidated and nullified all judicial proceedings and
judgments of the courts of the Philippines. Lower courts have no jurisdiction to take cognizance of and
continue judicial proceedings pending in the courts of the defunct Republic of the Philippines without an
enabling law. ISSUES: Petitioner Co Kim Chan filed a petition for mandamus, seeking to continue the
proceedings of his civil case. The petition is faced with three issues: 1. WON the judicial proceedings and
decisions made during the existing court in the Philippines during the Japanese occupation were valid and
remained valid even after the reoccupation of the United States.
2. WON the proclamation MacArthur issued on October 23, 1944, in which he declared 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 invalidated all judgments and judicial acts and proceedings of the courts.
3. And, WON if t
he said judicial acts and proceedings were not invalidated by MacArthurs proclamation,
those courts could continue hearing the cases pending before them. DECISION: The Court of First
Instance of Manila had the jurisdiction to continue the final judgment of the proceedings in civil case no.
3012, which involves civil rights of the parties under laws of Commonwealth Government. The Writ of
mandamus directed to the respondent judge, ordering him to take cognizance of and continue to final
judgment the proceedings in civil case no. 3012.
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 oth
er cases now pending on a;; the courts of these Islands.
RATIO DECIDENDI: 1. The Philippine Executive Commission and the Republic of the Philippines
under the Japanese occupation may be considered de facto governments, supported by the military force
and deriving their authority from the laws of war. Municipal laws and private laws, however, usually
remain in force unless suspended or changed by the
conqueror. Civil obedience is expected even during war, for 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. And if they were not valid, then it would not have been necessary for MacArthur to come out
with a proclamation abrogating them. The second q
uestion, the court said, hinges on the interpretation of the phrase processes of any other government and
whether or not he intended it to annul all other judgments and judicial proceedings of
courts during the Japanese military occupation. IF, according to international law, non-political judgments
and judicial proceedings of de facto governments are valid and remain valid even after the occupied
territory has been liberated, then it
could not have been MacArthurs intention to refer to judicial proces
ses, which would be in violation of international law. A wellknown rule of statutory construction is: A statute ought never to be construed to violate the law of
nations if any other possible construction remains.
Another is that where great inconvenie
nce will result from a particular construction, 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.
2. MacArthur annulled proceedings of other governments, but this cannot be applied on judicial
proceedings because such a construction would violate the law of nations. Annulling judgments of courts
made during the Japanese occupation would clog the dockets and violate international law, therefore what
MacArthur said should not be construed to mean that judicial
proceedings are included in the phrase processes of any other governments.
It is a legal maxim that, excepting of a political nature, law once e
stablished continues until changed by
some competent legislative power. IT IS NOT CHANGED MERELY BY CHANGE OF
SOVEREIGNTY. Until, of
course, the new sovereign by legislative act creates a change. 3. Since the laws remain valid, the court
must continue hearing the case pending before it. 3 kinds of de facto government:
First, established through rebellion (govt gets possession and control through force or the voice of the
majority and maintains itself against the will of the rightful government) Second, through occupation
(established and maintained by military forces that invade and occupy a territory of the enemy in the
course of war; denoted as a government of paramount force) Third, through insurrection (established as
an independent government by the inhabitants of a country who rise in insurrection against the parent
state)
The Supreme Court, in a resolution, acted on the petition for the writ of habeas corpus filed by petitioner
Anastacio Laurel based on the theory that a Filipino citizen who adhered to the enemy giving the latter
aid and comfort during the Japanese occupation cannot be prosecuted for the crime of treason defined and
penalized by article 114 of the revised penal code for the reason that 1) that the sovereignty of the
legitimate government in the Philippines and consequently, the correlative allegiance of Filipino citizens
thereto was then suspended; and 2) that there was a change of sovereignty over these islands upon the
proclamation of the Philippine republic. Issues: Whether or not the allegiance of the accused as a Filipino
citizen was suspended and that there was a change of sovereignty over the Phil Islands. HELD: The
accused was found guilty. A citizen or subject owes, not a qualified and temporary, but an absolute and
permanent allegiance, which consists in the obligation of fidelity and obedience to his government of
sovereign. A citizen or subject owes, not a qualified and temporary, but an absolute and permanent
allegiance, which consists in the obligation of fidelity and obedience to his government of sovereign. The
absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy to their
legitimate government tor sovereign is not abrogated or severed by the enemy occupation, because the
sovereignty of the government or sovereign de jure is not transferred thereby the occupier. No transfer of
sovereignty was made; hence, it is presumed that the Philippine Government still had the power.
Moreover, sovereignty cannot be suspended; it is either subsisting or eliminated and replaced.
Sovereignty per se wasnt susp
ended; rather, it was the exercise of sovereignty that was suspended. Thus, there is no suspended
allegiance. Regarding the change of Government. There is no such change since the sovereign is still the
same. There was only a mere change of Government from Commonwealth to the Republic of the
Philippines. DISSENT: During the long period of Japanese occupation, all the political laws of the
Philippines were suspended. Thus, treason under the Revised Penal Code cannot be punishable where the
laws of the land
are momentarily halted. Regarding the change of sovereignty, it is true that the Philippines wasnt
sovereign at the time of the Commonwealth since it was under the United States. Hence, the acts of
treason done cannot carry over to the new Republic where the Philippines is now indeed sovereign
G.R. No. L-46763 February 28, 1978

ANTONIO VASCO, petitioner,
vs.
COURT OF APPEALS, LEONOR INES LUCIANO, as Presiding Judge of the
Juvenile & Domestic Relations Court, Quezon City; NICANOR SALAYSAY, as
Sheriff for the Province of Rizal, and ANGELINA REYES Y BAJACAN, REYNALDO
VASCO and LOLITA VASCO, respondents.
Quasha, Asperilla, Ancheta, Valmonte, Pea &Marcoa for petitioner.
Alejandro S. Quizon for private respondents.
AQUINO, J.:
This case is about the trial court's jurisdiction to execute pending appeal a judgment for
support.
The Juvenile and Domestic Relations Court of Quezon City in a decision dated October
5, 1976 found that Reynaldo Vasco and Lolita Vasco (born on April 8, 1952 and April 27,
1954, respectively) are the illegitimate children of Antonio Vasco and Angelina Reyes. It
ordered Antonio to pay them the sum of P200 as monthly allowance for support,
beginning October, 1976 plus P500 as attorney's fees (Civil Case No. QE-00888, Reyes
vs. Vasco).
Antonio Vasco appealed to the Court of Appeals from that decision. He perfected his
appeal on January 6, 1977. In its order dated April 21, 1977 the lower court approved
Vasco's record on appeal and ordered the elevation of the record to the Court of
Appeals.
On June 22, 1977, or two months after the approval of the record on appeal, Reynaldo
Vasco and Lolita Vasco filed a motion for the execution of the said judgment pending
appeal.
Antonio Vasco opposed that motion on the ground that the lower court had no
jurisdiction to grant execution. He invoked section 9, Rule 41 of the Rules of Court.
The lower court granted the motion in its order of July 13, 1972. Antonio Vasco assailed
that order of execution in his petition for certiorari in the Court of Appeals.
The Court of Appeals in its decision of August 10, 1977 upheld that order of execution
pending appeal in the "interest of substantial justice" and on the theory that the judiciary
is an agency of the State acting as parenspatriae and that if the said order is erroneous,
the error is only an error of judgment and is not a grave abuse of discretion or an act in
excess of jurisdiction.
On August 26, 1977 Antonio Vasco filed in this Court the instant petition for certiorari.
The petition is meritorious because the trial court had no jurisdiction (long after the
perfection of the appeal) to issue an order for execution pending appeal It had no
jurisdiction because, after the perfection of the appeal, "the trial court loses its
jurisdiction over the case, except to issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by the appeal to prove
compromises offered by the parties prior to the transmittal of the record on appeal to the
appellate court, and to permit the prosecution of pauper's appeals" (Sec. 9, Rule 41,
Rules of Court.)
An order for execution pending appeal does not fall within the said exceptions because
it is a proceeding involving the very matter litigated by the appeal (Cabilao vs. Judge of
the Court of First Instance of Zamboanga, L-18454, August 29, 1966, 17 SCRA 992,
997).
Before the rendition of the judgment, the plaintiffs could have availed themselves in the
lower court of the provisional remedy of support pendente lite (Rule 61, Rules of Court).
They did not do so.
On the other hand, the general rule is that an appeal stays the execution of the
judgment (Araneta vs. Gatmaitan, 101 Phil. 328, 338; Caragao vs. Maceren and
Sebellino 92 Phil. 121, 124).
In granting execution pending appeal, the lower court relied upon Garcia vs. Court of
Appeals, 114 Phil. 619 and Hamoy vs. Batingolo, 116 Phil. 115. The facts of the two
cases are different from the situation in the instant case.
The Garcia case refers to supportpendente lite which is immediately executory. The
Hamoy case refers to an execution pending appeal against a person who was not a
party to the case and who had a remedy in the trial court, which issued the writ of
execution, even if the appeal of a party had already been perfected. That is different
from the incident in this case.
The instant case is governed by the rule that a trial court, in ordering (after the approval
of the bill of exceptions, now record on appeal) the execution of a judgment requiring
the husband to pay support to his wife, acted without jurisdiction and, therefore, the
order of execution is illegal and void (Marcelo vs. Estacio, 69 Phil. 145; Estacio vs.
Provincial Warden of Rizal, 69 Phil. 150).
Contrary to the impression of the Court of Appeals, the trial court's error is not merely an
error of judgment. It is clear that the trial court acted without jurisdiction. Hence,
certiorari lies to annul its order of execution pending appeal.
The Court of Appeals in sustaining the trial court's order of execution cited the demands
of substantial justice and the role of the State asparenspatriae protecting the interests of
minors (Cabanas vs. Pilapil, L-25843, July 25, 1974, 58 SCRA 94).
It is axiomatic that the courts should endeavor to do substantial justice in all cases and
that as much as possible technicalities should be eschewed. As has been said, a
technicality should be an aid to justice and not its great hindrance and chief enemy.
And, as the saying goes, we should dispense compassionate justice which is the
hallmark of the New Society. "For Moses gave us only the Law with its frigid demands
and merciless justice, while Jesus Christ brought us loving forgiveness as well." (Line
17, Chapter 1, Gospel of Saint John).
However, we should not forget that procedural rules have their own wholesome
rationale in the orderly administration of justice. Justice has to be administered
according to the rules in order to obviate arbitrariness, caprice or whimsicality.
As to the doctrine of parenspatriae (father of his country), its relevancy to this case is
doubtful because the recipients of the support granted by the lower court are no longer
honors. The doctrine refers to the inherent power and authority of the state to provide
protection of the person and property of a person non sui juries. Under that doctrine, the
state has the sovereign power of guardianship over persons under disability. Thus, the
state is considered the parenspatriae of minors. (67 C.J.S. 624; Government of the P. I.
vs. Monte de Piedad, 35 Phil. 728, 747; 31 Words and Phrases Judicially Defined, Per.
Ed., pp. 99-100).
WHEREFORE, the decision of the Court of Appeals and the lower court's order and writ
of execution are reversed and set aside. No costs.
SO ORDERED.
Barredo, Acting (Chairman), Concepcion, Jr., and Santos, JJ., concur.
Fernando, J., took no part.
Separate Opinions
ANTONIO, J., concurring:

I concur in the result. I am, however, of the view that private respondents should now
file with the Appellate Court a petition for support pendente lite under Rule 61 of the
Rules of Court. It goes without saying that if, before the rendition of judgment, the trial
court may "provisionally" grant alimonypendente lite, with more reason may an
Appellate Court grant such support, after the trial court has conducted a full dress trial
and rendered a judgment on the basis thereof, finding that the claims of filiation and
support have been adequately proven (Ramos v. Court of appeal, 45 SCRA 604).
On the basis of the decision, there appears to be prima facie evidence of the right of
Reynaldo and Lolita for support pendente lite. According to the said decision, the
testimony of the mother, corroborated by the declaration of Crispina Hernandez,
godmother of Reynaldo Vasco, on the petition has remained uncontroverted. Petitioner's
denials not only are uncorroborated, and "appear weak and pro forma", they also
"sustained the oral testimony of the plaintiffs' mother regarding their intimate
relationship and other circumstances attendant to plaintiffs' birth". Lolita Vasco is a
nursing student, while her brother, Reynaldo, stopped schooling due to lack of funds. In
its Order of July 13, 1977, the Juvenile and Domestic Relations Court found that private
respondents "are totally without any source of income." Even if they are over 21 years,
they are still entitled to support for education since Article 290 of the Civil Code provides
that support includes the education of the person to be supported "until he completes
his education, or training for some profession, trade or vocation, even beyond the age of
majority." (Javier v. Lucero, 94 Phil. 634).
Separate Opinions
ANTONIO, J., concurring:
I concur in the result. I am, however, of the view that private respondents should now
file with the Appellate Court a petition for support pendente lite under Rule 61 of the
Rules of Court. It goes without saying that if, before the rendition of judgment, the trial
court may "provisionally" grant alimonypendente lite, with more reason may an
Appellate Court grant such support, after the trial court has conducted a full dress trial
and rendered a judgment on the basis thereof, finding that the claims of filiation and
support have been adequately proven (Ramos v. Court of appeal, 45 SCRA 604).
On the basis of the decision, there appears to be prima facie evidence of the right of
Reynaldo and Lolita for support pendente lite. According to the said decision, the
testimony of the mother, corroborated by the declaration of Crispina Hernandez,
godmother of Reynaldo Vasco, on the petition has remained uncontroverted. Petitioner's
denials not only are uncorroborated, and "appear weak and pro forma", they also
"sustained the oral testimony of the plaintiffs' mother regarding their intimate
relationship and other circumstances attendant to plaintiffs' birth". Lolita Vasco is a
nursing student, while her brother, Reynaldo, stopped schooling due to lack of funds. In
its Order of July 13, 1977, the Juvenile and Domestic Relations Court found that private
respondents "are totally without any source of income." Even if they are over 21 years,
they are still entitled to support for education since Article 290 of the Civil Code provides
that support includes the education of the person to be supported "until he completes
his education, or training for some profession, trade or vocation, even beyond the age of
majority." (Javier v. Lucero, 94 Phil. 634).
Co Kim Chan v Valdez Tan Keh

Posted on December 4, 2008 by danabatnag
Co Kim Chan v Valdez Tan Keh
Facts of the case: Co Kim Chan had a pending civil case, initiated during the Japanese
occupation, with the Court of First Instance of Manila. After the Liberation of the Manila and the
American occupation, Judge ArsenioDizon refused to continue hearings on the case, saying that
a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial
proceedings and judgments of the courts of the Philippines and, without an enabling law, lower
courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in
the courts of the defunct Republic of the Philippines (the Philippine government under the
Japanese).
The court resolved three issues:
1. Whether or not judicial proceedings and decisions made during the Japanese occupation were
valid and remained valid even after the American occupation;
2. Whether or not the October 23, 1944 proclamation MacArthur issued in which he declared 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 invalidated all judgments and judicial acts and proceedings of the
courts;
3. And whether or not if they were not invalidated by MacArthurs proclamation, those courts
could continue hearing the cases pending before them.
Ratio: Political and international law recognizes that all acts and proceedings of a de facto
government are good and valid. The Philippine Executive Commission and the Republic of the
Philippines under the Japanese occupation may be considered de facto governments, supported
by the military force and deriving their authority from the laws of war.
Municipal laws and private laws, however, usually remain in force unless suspended or changed
by the conqueror. Civil obedience is expected even during war, for 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. And if they were not valid, then it would not have been
necessary for MacArthur to come out with a proclamation abrogating them.
The second question, the court said, hinges on the interpretation of the phrase processes of any
other government and whether or not he intended it to annul all other judgments and judicial
proceedings of courts during the Japanese military occupation.
IF, according to international law, non-political judgments and judicial proceedings of de facto
governments are valid and remain valid even after the occupied territory has been liberated, then
it could not have been MacArthurs intention to refer to judicial processes, which would be in
violation of international law.
A well-known rule of statutory construction is: A statute ought never to be construed to violate
the law of nations if any other possible construction remains.
Another is that where great inconvenience will result from a particular construction, 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.
Annulling judgments of courts made during the Japanese occupation would clog the dockets and
violate international law, therefore what MacArthur said should not be construed to mean that
judicial proceedings are included in the phrase processes of any other governments.
In the case of US vs Reiter, the court said that if such laws and institutions are continued in use
by the occupant, they become his and derive their force from him. The laws and courts of the
Philippines did not become, by being continued as required by the law of nations, laws and
courts of Japan.
It is a legal maxim that, excepting of a political nature, law once established continues until
changed by some competent legislative power. IT IS NOT CHANGED MERELY BY CHANGE
OF SOVEREIGNTY. Until, of course, the new sovereign by legislative act creates a change.
Therefore, even assuming that Japan legally acquired sovereignty over the Philippines, and the
laws and courts of the Philippines had become courts of Japan, as the said courts and laws
creating and conferring jurisdiction upon them have continued in force until now, it follows that
the same courts may continue exercising the same jurisdiction over cases pending therein before
the restoration of the Commonwealth Government, until abolished or the laws creating and
conferring jurisdiction upon them are repealed by the said government.
DECISION: Writ of mandamus issued to the 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.
Summary of ratio:
1. International law says the acts of a de facto government are valid and civil laws continue even
during occupation unless repealed.
2. MacArthur annulled proceedings of other governments, but this cannot be applied on judicial
proceedings because such a construction would violate the law of nations.

3. Since the laws remain valid, the court must continue hearing the case pending before it.
***3 kinds of de facto government: one established through rebellion (govt gets possession and
control through force or the voice of the majority and maintains itself against the will of the
rightful government)
through occupation (established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war; denoted as a government of paramount force)
through insurrection (established as an independent government by the inhabitants of a country
who rise in insurrection against the parent state)
G.R. No. L-409
January 30, 1947
ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. EribertoMisa, etc., the Court, acting on the
petition for habeas corpus filed by Anastacio Laurel and based on a theory that a Filipino
citizen who adhered to the enemy giving the latter aid and comfort during the Japanese
occupation cannot be prosecuted for the crime of treason defined and penalized by article
114 of the Revised Penal Code, for the reason (1) that the sovereignty of the legitimate
government in the Philippines and, consequently, the correlative allegiance of Filipino
citizens thereto was then suspended; and (2) that there was a change of sovereignty over
these Islands upon the proclamation of the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and temporary, but an
absolute and permanent allegiance, which consists in the obligation of fidelity and
obedience to his government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and temporary allegiance which a
foreigner owes to the government or sovereign of the territory wherein he resides, so long
as he remains there, in return for the protection he receives, and which consists in the
obedience to the laws of the government or sovereign. (Carlisle vs. Unite States, 21 Law.
ed., 429; Secretary of State Webster Report to the President of the United States in the
case of Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the inhabitants of a territory
occupied by the enemy of their legitimate government or sovereign is not abrogated or
severed by the enemy occupation, because the sovereignty of the government or

sovereign de jure is not transferred thereby to the occupier, as we have held in the cases
of Co Kim Cham vs. Valdez Tan Keh and Dizon(75 Phil., 113) and of Peralta vs. Director
of Prisons (75 Phil., 285), and if it is not transferred to the occupant it must necessarily
remain vested in the legitimate government; that the sovereignty vested in the titular
government (which is the supreme power which governs a body politic or society which
constitute the state) must be distinguished from the exercise of the rights inherent thereto,
and may be destroyed, or severed and transferred to another, but it cannot be suspended
because the existence of sovereignty cannot be suspended without putting it out of
existence or divesting the possessor thereof at least during the so-called period of
suspension; that what may be suspended is the exercise of the rights of sovereignty with
the control and government of the territory occupied by the enemy passes temporarily to
the occupant; that the subsistence of the sovereignty of the legitimate government in a
territory occupied by the military forces of the enemy during the war, "although the
former is in fact prevented from exercising the supremacy over them" is one of the "rules
of international law of our times"; (II Oppenheim, 6th Lauterpacht ed., 1944, p. 482),
recognized, by necessary implication, in articles 23, 44, 45, and 52 of Hague Regulation;
and that, as a corollary of the conclusion that the sovereignty itself is not suspended and
subsists during the enemy occupation, the allegiance of the inhabitants to their legitimate
government or sovereign subsists, and therefore there is no such thing as suspended
allegiance, the basic theory on which the whole fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United State was suspended in
Castine, set forth in the decision in the case of United States vs. Rice, 4 Wheaton, 246,
253, decided in 1819, and quoted in our decision in the cases of Co Kim Cham vs. Valdez
Tan Keh and Dizonand Peralta vs. Director of Prisons, supra, in connection with the
question, not of sovereignty, but of the existence of a government de facto therein and its
power to promulgate rules and laws in the occupied territory, must have been based,
either on the theory adopted subsequently in the Hague Convention of 1907, that the
military occupation of an enemy territory does not transfer the sovereignty to the
occupant; that, in the first case, the word "sovereignty" used therein should be construed
to mean the exercise of the rights of sovereignty, because as this remains vested in the
legitimate government and is not transferred to the occupier, it cannot be suspended
without putting it out of existence or divesting said government thereof; and that in the
second case, that is, if the said conclusion or doctrine refers to the suspension of the
sovereignty itself, it has become obsolete after the adoption of the Hague Regulations in
1907, and therefore it can not be applied to the present case;
Considering that even adopting the words "temporarily allegiance," repudiated by
Oppenheim and other publicists, as descriptive of the relations borne by the inhabitants of
the territory occupied by the enemy toward the military government established over
them, such allegiance may, at most, be considered similar to the temporary allegiance
which a foreigner owes to the government or sovereign of the territory wherein he resides
in return for the protection he receives as above described, and does not do away with the
absolute and permanent allegiance which the citizen residing in a foreign country owes to
his own government or sovereign; that just as a citizen or subject of a government or
sovereign may be prosecuted for and convicted of treason committed in a foreign country,
in the same way an inhabitant of a territory occupied by the military forces of the enemy
may commit treason against his own legitimate government or sovereign if he adheres to
the enemies of the latter by giving them aid and comfort; and that if the allegiance of a
citizen or subject to his government or sovereign is nothing more than obedience to its
laws in return for the protection he receives, it would necessarily follow that a citizen
who resides in a foreign country or state would, on one hand, ipso facto acquire the
citizenship thereof since he has enforce public order and regulate the social and
commercial life, in return for the protection he receives, and would, on the other hand,
lose his original citizenship, because he would not be bound to obey most of the laws of
his own government or sovereign, and would not receive, while in a foreign country, the
protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of the rights of
sovereignty by the legitimate government in the territory occupied by the enemy military
forces, because the authority of the legitimate power to govern has passed into the hands
of the occupant (Article 43, Hague Regulations), the political laws which prescribe the
reciprocal rights, duties and obligation of government and citizens, are suspended or in
abeyance during military occupation (Co Kim chamvs. Valdez Tan Keh and dizon,
supra), for the only reason that as they exclusively bear relation to the ousted legitimate
government, they are inoperative or not applicable to the government established by the
occupant; that the crimes against national security, such as treason and espionage;
inciting to war, correspondence with hostile country, flight to enemy's country, as well as
those against public order, such as rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear relation to, and are
penalized by our Revised Penal Code as crimes against the legitimate government, are
also suspended or become inapplicable as against the occupant, because they can not be
committed against the latter (Peralta vs. Director of Prisons, supra); and that, while the
offenses against public order to be preserved by the legitimate government were
inapplicable as offenses against the invader for the reason above stated, unless adopted by
him, were also inoperative as against the ousted government for the latter was not
responsible for the preservation of the public order in the occupied territory, yet article
114 of the said Revised Penal Code, was applicable to treason committed against the
national security of the legitimate government, because the inhabitants of the occupied
territory were still bound by their allegiance to the latter during the enemy occupation;
Considering that, although the military occupant is enjoined to respect or continue in
force, unless absolutely prevented by the circumstances, those laws that enforce public
order and regulate the social and commercial life of the country, he has, nevertheless, all
the powers of de facto government and may, at his pleasure, either change the existing
laws or make new ones when the exigencies of the military service demand such action,
that is, when it is necessary for the occupier to do so for the control of the country and the
protection of his army, subject to the restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations, the laws of humanity and the
requirements of public conscience (Peralta vs. Director of Prisons, supra; 1940 United
States Rules of Land Warfare 76, 77); and that, consequently, all acts of the military
occupant dictated within these limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the legitimate government which
have not been adopted, as well and those which, though continued in force, are in conflict
with such laws and orders of the occupier, shall be considered as suspended or not in
force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the obligation of fidelity and
obedience of a citizen or subject to his government or sovereign does not demand from
him a positive action, but only passive attitude or forbearance from adhering to the
enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of
the preceding consideration, to repeal or suspend the operation of the law of treason,
essential for the preservation of the allegiance owed by the inhabitants to their legitimate
government, or compel them to adhere and give aid and comfort to him; because it is
evident that such action is not demanded by the exigencies of the military service or not
necessary for the control of the inhabitants and the safety and protection of his army, and
because it is tantamount to practically transfer temporarily to the occupant their
allegiance to the titular government or sovereign; and that, therefore, if an inhabitant of
the occupied territory were compelled illegally by the military occupant, through force,
threat or intimidation, to give him aid and comfort, the former may lawfully resist and die
if necessary as a hero, or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended allegiance would lead to
disastrous consequences for small and weak nations or states, and would be repugnant to
the laws of humanity and requirements of public conscience, for it would allow invaders
to legally recruit or enlist the Quisling inhabitants of the occupied territory to fight
against their own government without the latter incurring the risk of being prosecuted for
treason, and even compel those who are not aid them in their military operation against
the resisting enemy forces in order to completely subdue and conquer the whole nation,
and thus deprive them all of their own independence or sovereignty such theory would
sanction the action of invaders in forcing the people of a free and sovereign country to be
a party in the nefarious task of depriving themselves of their own freedom and
independence and repressing the exercise by them of their own sovereignty; in other
words, to commit a political suicide;
(2) Considering that the crime of treason against the government of the Philippines
defined and penalized in article 114 of the Penal Code, though originally intended to be a
crime against said government as then organized by authority of the sovereign people of
the United States, exercised through their authorized representative, the Congress and the
President of the United States, was made, upon the establishment of the Commonwealth
Government in 1935, a crime against the Government of the Philippines established by
authority of the people of the Philippines, in whom the sovereignty resides according to
section 1, Article II, of the Constitution of the Philippines, by virtue of the provision of
section 2, Article XVI thereof, which provides that "All laws of the Philippine Islands . . .
shall remain operative, unless inconsistent with this Constitution . . . and all references in
such laws to the Government or officials of the Philippine Islands, shall be construed, in
so far as applicable, to refer to the Government and corresponding officials under this
constitution;
Considering that the Commonwealth of the Philippines was a sovereign government,
though not absolute but subject to certain limitations imposed in the Independence Act
and incorporated as Ordinance appended to our Constitution, was recognized not only by
the Legislative Department or Congress of the United States in approving the
Independence Law above quoted and the Constitution of the Philippines, which contains
the declaration that "Sovereignty resides in the people and all government authority
emanates from them" (section 1, Article II), but also by the Executive Department of the
United States; that the late President Roosevelt in one of his messages to Congress said,
among others, "As I stated on August 12, 1943, the United States in practice regards the
Philippines as having now the status as a government of other independent nations in
fact all the attributes of complete and respected nationhood" (Congressional Record, Vol.
29, part 6, page 8173); and that it is a principle upheld by the Supreme Court of the
United States in many cases, among them in the case of Jones vs. United States (137
U.S., 202; 34 Law. ed., 691, 696) that the question of sovereignty is "a purely political
question, the determination of which by the legislative and executive departments of any
government conclusively binds the judges, as well as all other officers, citizens and
subjects of the country.
Considering that section I (1) of the Ordinance appended to the Constitution which
provides that pending the final and complete withdrawal of the sovereignty of the United
States "All citizens of the Philippines shall owe allegiance to the United States", was one
of the few limitations of the sovereignty of the Filipino people retained by the United
States, but these limitations do not away or are not inconsistent with said sovereignty, in
the same way that the people of each State of the Union preserves its own sovereignty
although limited by that of the United States conferred upon the latter by the States; that
just as to reason may be committed against the Federal as well as against the State
Government, in the same way treason may have been committed during the Japanese
occupation against the sovereignty of the United States as well as against the sovereignty
of the Philippine Commonwealth; and that the change of our form of government from
Commonwealth to Republic does not affect the prosecution of those charged with the
crime of treason committed during the Commonwealth, because it is an offense against
the same government and the same sovereign people, for Article XVIII of our
Constitution provides that "The government established by this constitution shall be
known as the Commonwealth of the Philippines. Upon the final and complete withdrawal
of the sovereignty of the United States and the proclamation of Philippine independence,
the Commonwealth of the Philippines shall thenceforth be known as the Republic of the
Philippines";
This Court resolves, without prejudice to write later on a more extended opinion, to deny
the petitioner's petition, as it is hereby denied, for the reasons above set forth and for
others to be stated in the said opinion, without prejudice to concurring opinion therein, if
any. Messrs. Justices Paras and Hontiveros dissent in a separate opinion. Mr. justice
Perfecto concurs in a separate opinion.
Separate Opinions
PERFECTO, J., concurring:
Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While
there is peace, there are no traitors. Treason may be incubated when peace reigns. Treasonable
acts may actually be perpetrated during peace, but there are no traitors until war has started.
As treason is basically a war crime, it is punished by the state as a measure of self-defense and
self-preservation. The law of treason is an emergency measure. It remains dormant until the
emergency arises. But as soon as war starts, it is relentlessly put into effect. Any lukewarm
attitude in its enforcement will only be consistent with national harakiri. All war efforts would
be of no avail if they should be allowed to be sabotaged by fifth columnists, by citizens who
have sold their country out to the enemy, or any other kind of traitors, and this would certainly be
the case if he law cannot be enforced under the theory of suspension.
Petitioner's thesis that allegiance to our government was suspended during enemy occupation is
advanced in support of the proposition that, since allegiance is identical with obedience to law,
during the enemy occupation, the laws of the Commonwealth were suspended. Article 114 of the
Revised Penal Code, the law punishing treason, under the theory, was one of the laws obedience
to which was also suspended.
Allegiance has been defined as the obligation for fidelity and obedience which the individual
owes to his government or his sovereign in return for the protection which he receives.
"Allegiance", as the return is generally used, means fealty or fidelity to the government of
which the person is either a citizen or subject. Murray vs.The Charming Betsy, 6 U.S. (2
Cranch), 64, 120; 2 Law. ed., 208.
"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty of
obedience of a subject to the sovereign, under whose protection he is." United States vs.
Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law.ed., 890.
Allegiance is that duty which is due from every citizen to the state, a political duty
binding on him who enjoys the protection of the Commonwealth, to render service and
fealty to the federal government. It is that duty which is reciprocal to the right of
protection, arising from the political relations between the government and the citizen.
Wallace vs.Harmstad, 44 Pa. (8 Wright), 492, 501.
By "allegiance" is meant the obligation to fidelity and obedience which the individual
owes to the government under which he lives, or to his sovereign, in return for the
protection which he receives. It may be an absolute and permanent obligation, or it may
be a qualified and temporary one. A citizen or subject owes an absolute and permanent
allegiance to his government or sovereign, or at least until, by some open and distinct act,
he renounces it and becomes a citizen or subject of another government or sovereign, and

an alien while domiciled in a country owes it a temporary allegiance, which is continuous
during his residence. Carlisle vs. United States, 83 U.S. (16 Wall.), 147, 154; 21 Law ed.,
426.
"Allegiance," as defined by Blackstone, "is the tie or ligament which binds the subject to
the King, in return for that protection which the King affords the subject. Allegiance, both
expressed and implied, is of two sorts, the one natural, the other local, the former being
perpetual, the latter temporary. Natural allegiance is such as is due from all men born
within the King's dominions immediately upon their birth, for immediately upon their
birth they are under the King's protection. Natural allegiance is perpetual, and for this
reason, evidently founded on the nature of government. Allegiance is a debt due from the
subject upon an implied contract with the prince that so long as the one affords protection
the other will demean himself faithfully. Natural-born subjects have a great variety of
rights which they acquire by being born within the King's liegance, which can never be
forfeited but by their own misbehaviour; but the rights of aliens are much more
circumscribed, being acquired only by residence, and lost whenever they remove. If an
alien could acquire a permanent property in lands, he must owe an allegiance equally
permanent to the King, which would probably be inconsistent with that which he owes
his natural liege lord; besides, that thereby the nation might, in time, be subject to foreign
influence and feel many other inconveniences." Indians within the state are not aliens, but
citizens owing allegiance to the government of a state, for they receive protection from
the government and are subject to its laws. They are born in allegiance to the government
of the state. Jackson vs.Goodell, 20 Johns., 188, 911. (3 Words and Phrases, Permanent
ed., 226-227.)
Allegiance. Fealty or fidelity to the government of which the person is either a citizen
or subject; the duty which is due from every citizen to the state; a political duty, binding
on him who enjoys the protection of the commonwealth, to render service and fealty to
the federal government; the obligation of fidelity and obedience which the individual
owes to the government or to the sovereign under which he lives in return for the
protection he receives; that duty is reciprocal to the right of protection he receives; that
duty which is reciprocal to the right of protection, arising from the political relations
between the government and the citizen.
Classification. Allegiance is of four kinds, namely: (1) Natural allegiance that
which arises by nature and birth; (2) acquired allegiance that arising through some
circumstance or act other than birth, namely, by denization or naturalization; (3) local
allegiance-- that arising from residence simply within the country, for however short a
time; and (4) legal allegiance that arising from oath, taken usually at the town or leet,
for, by the common law, the oath of allegiance might be tendered to every one upon
attaining the age of twelve years. (3 C.J.S., p.885.)
Allegiance. the obligation of fidelity and obedience which the individual owes to the
government under which he lives, or to his sovereign in return for the protection he
receives. 15 R.C.L., 140.(Ballentine Law Dictionary, p. 68.).
"Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to
his state the obligation of obedience and support which he owes to it. The state is the
political person to whom this liege fealty is due. Its substance is the aggregate of persons
owing this allegiance. The machinery through which it operates is its government. The
persons who operate this machinery constitute its magistracy. The rules of conduct which
the state utters or enforces are its law, and manifest its will. This will, viewed as legally
supreme, is its sovereignty. (W.W. Willoughby, Citizenship and Allegiance in
Constitutional and International Law, 1 American Journal of International Law, p. 915.).
The obligations flowing from the relation of a state and its nationals are reciprocal in
character. This principle had been aptly stated by the Supreme Court of the United States
in its opinion in the case of Luria vs. United States:
Citizenship is membership in a political society and implies a duty of allegiance on the
part of the member and a duty protection on the part of the society. These are reciprocal
obligations, one being a compensation for the other. (3 Hackworth, Digest of
International Law, 1942 ed., p.6.)
Allegiance. The tie which binds the citizen to the government, in return for the
protection which the government affords him. The duty which the subject owes to the
sovereign, correlative with the protection received.
It is a comparatively modern corruption of ligeance (ligeantia), which is derived from
liege (ligius), meaning absolute or unqualified. It signified originally liege fealty, i. e.,
absolute and qualified fealty. 18 L. Q. Rev., 47.
x xx
x xx
x xx
Allegiance may be an absolute and permanent obligation, or it may be a qualified and

temporary one; the citizen or subject owes the former to his government or sovereign,
until by some act he distinctly renounces it, whilst the alien domiciled in the country
owes a temporary and local allegiance continuing during such residence. (Carlisle vs.
United States, 16 Wall. [U.S.], 154; 21 Law.ed., 426.(1 Bouvier's Law Dictionary, p.
179.).
The above quotations express ideas that do not fit exactly into the Philippine pattern in view of
the revolutionary insertion in our Constitution of the fundamental principle that "sovereignty
resides in the people and all government authority emanates from them." (Section 1, Article II.)
The authorities above quoted, judges and juridical publicists define allegiance with the idea that
sovereignty resides somewhere else, on symbols or subjects other than the people themselves.
Although it is possible that they had already discovered that the people and only the people are
the true sovereign, their minds were not yet free from the shackles of the tradition that the
powers of sovereignty have been exercised by princes and monarchs, by sultans and emperors,
by absolute and tyrannical rules whose ideology was best expressed in the famous words of one
of the kings of France: "L'etatc'estmoi," or such other persons or group of persons posing as the
government, as an entity different and in opposition to the people themselves. Although
democracy has been known ever since old Greece, and modern democracies in the people,
nowhere is such principle more imperative than in the pronouncement embodied in the
fundamental law of our people.
To those who think that sovereignty is an attribute of government, and not of the people, there
may be some plausibility in the proposition that sovereignty was suspended during the enemy
occupation, with the consequence that allegiance must also have been suspended, because our
government stopped to function in the country. But the idea cannot have any place under our
Constitution. If sovereignty is an essential attribute of our people, according to the basic
philosophy of Philippine democracy, it could not have been suspended during the enemy
occupation. Sovereignty is the very life of our people, and there is no such thing as "suspended
life." There is no possible middle situation between life and death. Sovereignty is the very
essence of the personality and existence of our people. Can anyone imagine the possibility of
"suspended personality" or "suspended existence" of a people? In no time during enemy
occupation have the Filipino people ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is incompatible with our
Constitution.
There is similarity in characteristics between allegiance to the sovereign and a wife's loyalty to
her husband. Because some external and insurmountable force precludes the husband from
exercising his marital powers, functions, and duties and the wife is thereby deprived of the
benefits of his protection, may the wife invoke the theory of suspended loyalty and may she
freely share her bed with the assailant of their home? After giving aid and comfort to the
assailant and allowing him to enjoy her charms during the former's stay in the invaded home,
may the wife allege as defense for her adultery the principle of suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of independence on July 4, 1946, is
unacceptable. We have already decided in Brodettvs. De la Rosa and Vda. deEscaler (p. 752,
ante) that the Constitution of the Republic is the same as that of the Commonwealth. The advent
of independence had the effect of changing the name of our Government and the withdrawal by
the United States of her power to exercise functions of sovereignty in the Philippines. Such facts
did not change the sovereignty of the Filipino people. That sovereignty, following our
constitutional philosophy, has existed ever since our people began to exist. It has been
recognized by the United States of America, at least since 1935, when President Roosevelt
approved our Constitution. By such act, President Roosevelt, as spokesman of the American
people, accepted and recognized the principle that sovereignty resides in the people that is, that
Philippine sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long before the proclamation of
independence on July 4, 1946. Since the early part of the Pacific war, President Quezon had been
sitting as representative of a sovereign people in the Allied War Council, and in June, 1945, the
same Filipino people took part outstanding and brilliant, it may be added in the drafting
and adoption of the charter of the United Nations, the unmistakable forerunner of the future
democratic federal constitution of the world government envisioned by all those who adhere to
the principle of unity of all mankind, the early realization of which is anxiously desired by all
who want to be spared the sufferings, misery and disaster of another war.
Under our Constitution, the power to suspend laws is of legislative nature and is lodged in
Congress. Sometimes it is delegated to the Chief Executive, such as the power granted by the
Election Code to the President to suspend the election in certain districts and areas for strong
reasons, such as when there is rebellion, or a public calamity, but it has never been exercised by
tribunals. The Supreme Court has the power to declare null and void all laws violative of the
Constitution, but it has no power, authority, or jurisdiction to suspend or declare suspended any
valid law, such as the one on treason which petitioner wants to be included among the laws of the
Commonwealth which, by his theory of suspended allegiance and suspended sovereignty, he
claims have been suspended during the Japanese occupation.
Suppose President Quezon and his government, instead of going from Corregidor to Australia,
and later to Washington, had fled to the mountains of Luzon, and a group of Filipino renegades
should have killed them to serve the interests of the Japanese imperial forces. By petitioner's
theory, those renegades cannot be prosecuted for treason or for rebellion or sedition, as the laws
punishing them were suspended. Such absurd result betrays the untenability of the theory.
"The defense of the State is a prime duty of Government, and in the fulfillment of that duty all
citizens may be required by law to render personal, military or civil service." Thus, section 2 of
Article II of the Constitution provides: That duty of defense becomes more imperative in time of
war and when the country is invaded by an aggressor nation. How can it be fulfilled if the
allegiance of the citizens to the sovereign people is suspended during enemy occupation? The
framers of the Constitution surely did not entertain even for the moment the absurdity that when
the allegiance of the citizens to the sovereign people is more needed in the defense of the
survival of the state, the same should be suspended, and that upon such suspension those who
may be required to render personal, military or civil service may claim exemption from the
indispensable duty of serving their country in distress.
Petitioner advances the theory that protection in the consideration of allegiance. He argues that
the Commonwealth Government having been incapacitated during enemy occupation to protect
the citizens, the latter were relieved of their allegiance to said government. The proposition is
untenable. Allegiance to the sovereign is an indispensable bond for the existence of society. If
that bond is dissolved, society has to disintegrate. Whether or not the existence of the latter is the
result of the social compact mentioned by Roseau, there can be no question that organized
society would be dissolved if it is not united by the cohesive power of the citizen's allegiance. Of
course, the citizens are entitled to the protection of their government, but whether or not that
government fulfills that duty, is immaterial to the need of maintaning the loyalty and fidelity of
allegiance, in the same way that the physical forces of attraction should be kept unhampered if
the life of an individual should continue, irrespective of the ability or inability of his mind to
choose the most effective measures of personal protection.
After declaring that all legislative, executive, and judicial processes had during and under the
Japanese regime, whether executed by the Japanese themselves or by Filipino officers of the
puppet government they had set up, are null and void, as we have done in our opinions in Co
Kim Cham vs. Valdez Tan Keh and Dizon(75 Phil., 113), in Peralta vs. Director of Prison (75,
Phil., 285), and in several other cases where the same question has been mentioned, we cannot
consistently accept petitioner's theory.
If all laws or legislative acts of the enemy during the occupation were null and void, and as we
cannot imagine the existence of organized society, such as the one constituted by the Filipino
people, without laws of the Commonwealth were the ones in effect during the occupation and the
only ones that could claim obedience from our citizens.
Petitioner would want us to accept the thesis that during the occupation we owed allegiance to
the enemy. To give way to that paradoxical and disconcerting allegiance, it is suggested that we
accept that our allegiance to our legitimate government was suspended. Petitioner's proposition
has to fall by its own weight, because of its glaring absurdities. Allegiance, like its synonyms,
loyalty and fidelity, is based on feelings of attraction, love, sympathy, admiration, respect,
veneration, gratitude, amity, understanding, friendliness. These are the feelings or some of the
feelings that bind us to our own people, and are the natural roots of the duty of allegiance we
owe them. The enemy only provokes repelling and repulsive feelings hate, anger, vexation,
chagrin, mortification, resentment, contempt, spitefulness. The natural incompatibility of
political, social and ethical ideologies between our people and the Japanese, making impossible
the existence of any feeling of attraction between them, aside from the initial fact that the
Japanese invaded our country as our enemy, was aggravated by the morbid complexities of
haughtiness, braggadocio and beastly brutality of the Nippon soldiers and officers in their
dealings with even the most inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of our face, offer him the other to be
further slapped, may appear to be divinely charitable, but to make them a reality, it is necessary
to change human nature. Political actions, legal rules and judicial decisions deal with human
relations, taking man as he is, not as he should be. To love the enemy is not natural. As long as
human pyschology remains as it is, the enemy shall always be hated. Is it possible to conceive an
allegiance based on hatred?
The Japanese, having waged against us an illegal war condemned by prevailing principles of
international law, could not have established in our country any government that can be legally
recognized as de facto. They came as bandits and ruffians, and it is inconceivable that banditry
and ruffianism can claim any duty of allegiance even a temporary one from a decent
people.
One of the implications of petitioner's theory, as intimated somewhere, is that the citizens, in case
of invasion, are free to do anything not forbidden by the Hague Conventions. Anybody will
notice immediately that the result will be the doom of small nations and peoples, by whetting the
covetousness of strong powers prone on imperialistic practices. In the imminence of invasion,
weak-hearted soldiers of the smaller nations will readily throw away their arms to rally behind
the paladium of the invaders.
Two of the three great departments of our Government have already rejected petitioner's theory
since September 25, 1945, the day when Commonwealth Act No. 682 took effect. By said act,
creating the People's Court to try and decide all cases of crime against national security
"committed between December 8, 1941 and September 2, 1945," (section 2), the legislative and
executive departments have jointly declared that during the period above mentioned, including
the time of Japanese occupation, all laws punishing crimes against national security, including
article 114 of the Revised Penal Code, punishing treason, had remained in full effect and should
be enforced.
That no one raised a voice in protest against the enactment of said act and that no one, at the time
the act was being considered by the Senate and the House of Representatives, ever dared to
expose the uselessness of creating a People's Court to try crime which, as claimed by petitioner,
could not have been committed as the laws punishing them have been suspended, is a historical
fact of which the Supreme Court may take judicial notice. This fact shows universal and
unanimous agreement of our people that the laws of the Commonwealth were not suspended and
that the theory of suspended allegiance is just an afterthought provoked by a desperate effort to
help quash the pending treason cases at any cost.
Among the arguments adduced in favor of petitioner's theory is that it is based on generally
accepted principles of international law, although this argument becomes futile by petitioner's
admission that the theory is advantageous to strong powers but harmful to small and weak
nations, thus hinting that the latter cannot accept it by heart. Suppose we accept at face value the
premise that the theories, urged by petitioner, of suspended allegiance and suspended sovereignty
are based on generally accepted principles of international law. As the latter forms part of our
laws by virtue of the provisions of section 3 of Article II of the Constitution, it seems that there is
no alternative but to accept the theory. But the theory has the effect of suspending the laws,
especially those political in nature. There is no law more political in nature than the Constitution
of the Philippines. The result is an inverted reproduction of the Greek myth of Saturn devouring
his own children. Here, under petitioner's theory, the offspring devours its parent.
Can we conceive of an instance in which the Constitution was suspended even for a moment?
There is conclusive evidence that the legislature, as policy-determining agency of government,
even since the Pacific war started on December 7, 1941, intimated that it would not accept the
idea that our laws should be suspended during enemy occupation. It must be remembered that in
the middle of December, 1941, when Manila and other parts of the archipelago were under
constant bombing by Japanese aircraft and enemy forces had already set foot somewhere in the
Philippines, the Second National Assembly passed Commonwealth Act No. 671, which came
into effect on December 16, 1941. When we approved said act, we started from the premise that
all our laws shall continue in effect during the emergency, and in said act we even went to the
extent of authorizing the President "to continue in force laws and appropriations which would
lapse or otherwise become inoperative," (section 2, [d]), and also to "promulgate such rules and
regulations as he may deem necessary to carry out the national policy," (section 2), that "the
existence of war between the United States and other countries of Europe and Asia, which
involves the Philippines, makes it necessary to invest the President with extraordinary powers in
order to meet the resulting emergency." (Section 1.) To give emphasis to the intimation, we
provided that the rules and regulations provided "shall be in force and effect until the Congress
of the Philippines shall otherwise provide," foreseeing the possibility that Congress may not
meet as scheduled as a result of the emergency, including invasion and occupation by the enemy.
Everybody was then convinced that we did not have available the necessary means of repelling
effectivity the enemy invasion.
Maybe it is not out of place to consider that the acceptance of petitioner's theory of suspended
allegiance will cause a great injustice to those who, although innocent, are now under indictment
for treason and other crimes involving disloyalty to their country, because their cases will be
dismissed without the opportunity for them to revindicate themselves. Having been acquitted
upon a mere legal technicality which appears to us to be wrong, history will indiscriminality
classify them with the other accused who were really traitors to their country. Our conscience
revolts against the idea of allowing the innocent ones to go down in the memory of future
generations with the infamous stigma of having betrayed their own people. They should not be
deprived of the opportunity to show through the due process of law that they are free from all
blame and that, if they were really patriots, they acted as such during the critical period of test.
HILADO, J., concurring:

I concur in the result reached in the majority opinion to the effect that during the so-called
Japanese occupation of the Philippines (which was nothing more than the occupation of Manila
and certain other specific regions of the Islands which constituted the minor area of the
Archipelago) the allegiance of the citizens of this country to their legitimate government and to
the United States was not suspended, as well as the ruling that during the same period there was
no change of sovereignty here; but my reasons are different and I proceed to set them forth:
I. SUSPENDED ALLEGIANCE.
(a) Before the horror and atrocities of World War I, which were multiplied more than a hundredfold in World War II, the nations had evolved certain rules and principles which came to be
known as International Law, governing their conduct with each other and toward their respective
citizens and inhabitants, in the armed forces or civilian life, in time of peace or in time of war.
During the ages which preceded that first world conflict the civilized governments had no
realization of the potential excesses of which "men's inhumanity to man" could be capable. Up to
that time war was, at least under certain conditions, considered as sufficiently justified, and the
nations had not on that account, proscribed nor renounced it as an instrument of national policy,
or as a means of settling international disputes. It is not for us now to dwell upon the reasons
accounting for this historical fact. Suffice it to recognize its existence in history.
But when in World War I civilized humanity saw that war could be, as it actually was, employed
for entirely different reasons and from entirely different motives, compared to previous wars, and
the instruments and methods of warfare had been so materially changed as not only to involve
the contending armed forces on well defined battlefields or areas, on land, in the sea, and in the
air, but to spread death and destruction to the innocent civilian populations and to their
properties, not only in the countries engaged in the conflict but also in neutral ones, no less than
61 civilized nations and governments, among them Japan, had to formulate and solemnly
subscribe to the now famous Briand-Kellogg Pact in the year 1928. As said by Justice Jackson of
the United States Supreme Court, as chief counsel for the United States in the prosecution of
"Axis war criminals," in his report to President Truman of June 7, 1945:
International law is not capable of development by legislation, for there is no
continuously sitting international legislature. Innovations and revisions in international
law are brought about by the action of governments designed to meet a change
circumstances. It grows, as did the common law, through decisions reached from time to
time in adopting settled principles to new situations.
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After the shock to civilization of the war of 1914-1918, however, a marked reversion to
the earlier and sounder doctrines of international law took place. By the time the Nazis
came to power it was thoroughly established that launching an aggressive war or the
institution of war by treachery was illegal and that the defense of legitimate warfare was
no longer available to those who engaged in such an enterprise. It is high time that we act
on the juridical principle that aggressive war-making is illegal and criminal.
The re-establishment of the principle of justifiable war is traceable in many steps. One of
the most significant is the Briand-Kellogg Pact of 1928 by which Germany, Italy, and
Japan, in common with the United States and practically all the nations of the world,
renounced war as an instrument of national policy, bound themselves to seek the
settlement of disputes only by pacific means, and condemned recourse to war for the
solution of international controversies.
Unless this Pact altered the legal status of wars of aggression, it has no meaning at all and
comes close to being an act of deception. In 1932 Mr. Henry L. Stimson, as United States
Secretary of State, gave voice to the American concept of its effect. He said, "war
between nations was renounced by the signatories of the Briand-Kellogg Treaty. This
means that it has become illegal throughout practically the entire world. It is no longer to
be the source and subject of rights. It is no longer to be the principle around which the
duties, the conduct, and the rights of nations revolve. It is an illegal thing. . . . By that
very act we have made obsolete many legal precedents and have given the legal
profession the task of re-examining many of its Codes and treaties.
This Pact constitutes only one reversal of the viewpoint that all war is legal and has
brought international law into harmony with the common sense of mankind that
unjustifiable war is a crime.
Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of
1924 for the Pacific Settlement of International Disputes, signed by the representatives of
forty-eight governments, which declared that "a war of aggression constitutes ..an
International crime. . . .
The Eight Assembly of the League of Nations in 1927, on unanimous resolution of the
representatives of forty-eight member-nations, including Germany, declared that a war of
aggression constitutes an international crime. At the Sixth Pan-American Conference of
1928, the twenty-one American Republics unanimously adopted a resolution stating that
"war of aggression constitutes an international crime against the human species."
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We therefore propose to change that a war of aggression is a crime, and that modern
international law has abolished the defense that those who incite or wage it are engaged
in legitimate business. Thus may the forces of the law be mobilized on the side of peace.
("U.S.A. An American Review," published by the United States Office of War
Information, Vol. 2, No. 10; emphasis supplied.).
When Justice Jackson speaks of "a marked reversion to the earlier and sounder doctrines of
international law" and "the re-establishment of the principle of justifiable war," he has in mind
no other than "the doctrine taught by Grotius, the father of international law, that there is a
distinction between the just and the unjust war the war of defense and the war of aggression"
to which he alludes in an earlier paragraph of the same report.
In the paragraph of said report immediately preceding the one last above mentioned Justice
Jackson says that "international law as taught in the 19th and the early part of the 20th century
generally declared that war-making was not illegal and no crime at law." But, as he says in one of
the paragraphs hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a
reversal of the view-point that all war is legal and has brought international law into harmony
with the common sense of mankind that unjustifiable war is a crime. Then he mentions as
other reversals of the same viewpoint, the Geneva Protocol of 1924 for the Pacific Settlement of
International Disputes, declaring that a war of aggression constitutes an international crime; the
8th assembly of the League of Nations in 1927, declaring that a war of aggression constitutes an
international crime; and the 6th Pan-American conference of 1928, which unanimously adopted
a resolution stating that war of aggression constitutes an international crime against the human
species: which enumeration, he says, is not an attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific, first, against the United States, and
later, in rapid succession, against other allied nations, was a war of aggression and utterly
unjustifiable. More aggressive still, and more unjustifiable, as admitted on all sides, was its
attack against the Philippines and its consequent invasion and occupation of certain areas thereof.
Some of the rules and principles of international law which have been cited for petitioner herein
in support of his theory of suspended allegiance, have been evolved and accepted during those
periods of the history of nations when all war was considered legal, as stated by Justice Jackson,
and the others have reference to military occupation in the course of really justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the aggressive war
which threw the entire Pacific area into a seething cauldron from the last month of 1941 of the
first week of September, 1945, expressly agreed to outlaw, proscribe and renounce war as an
instrument of national policy, and bound herself to seek the settlement of her disputes with other
nations only by pacific means. Thus she expressly gave her consent to that modification of the
then existing rules and principles of international law governing the matter. With the
modification, all the signatories to the pact necessarily accepted and bound themselves to abide
by all its implications, among them the outlawing, prescription and renunciation of military
occupation of another nation's territory in the course of a war thus outlawed, proscribed and
renounced. This is only one way of saving that the rules and principles of international law
therefore existing on the subject of military occupation were automatically abrogated and
rendered ineffective in all future cases of war coming under the ban and condemnation of the
pact.
If an unjustifiable war is a crime; if a war of aggression constitutes an international crime; if such
a war is an international crime against the human species: a nation which occupies a foreign
territory in the course of such a war cannot possibly, under any principle of natural or positive
law, acquire or posses any legitimate power or right growing out or incident to such occupation.
Concretely, Japan in criminally invading the Philippines and occupying certain portions of its
territory during the Pacific war, could not have nor exercise, in the legal sense and only this
sense should we speak here with respect to this country and its citizens, any more than could a
burglar breaking through a man's house pretends to have or to exercise any legal power or right
within that house with respect either to the person of the owner or to his property. To recognize
in the first instance any legal power or right on the part of the invader, and in the second any
legal power or right on the part of the burglar, the same as in case of a military occupant in the
course of a justifiable war, would be nothing short of legalizing the crime itself. It would be the
most monstrous and unpardonable contradiction to prosecute, condemn and hang the
appropriately called war criminals of Germany, Italy, and Japan, and at the same time recognize
any lawfulness in their occupation invaded. And let it not be forgotten that the Philippines is a
member of the United Nations who have instituted and conducted the so-called war crimes trials.
Neither should we lose sight of the further fact that this government has a representative in the
international commission currently trying the Japanese war criminals in Tokyo. These facts leave
no room for doubt that this government is in entire accord with the other United Nations in
considering the Pacific war started by Japan as a crime. Not only this, but this country had six
years before the outbreak of the Pacific war already renounced war as an instrument of national
policy (Constitution, Article II, section 2), thus in consequence adopting the doctrine of the
Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong and improper for this Court to
apply to the occupation by Japan of certain areas of the Philippines during that war the rules and
principles of international law which might be applicable to a military occupation occurring in
the course of a justifiable war. How can this Court recognize any lawfulness or validity in that
occupation when our own government has sent a representative to said international commission
in Tokyo trying the Japanese "war criminals" precisely for the "crimes against humanity and
peace" committed by them during World War II of which said occupation was but part and
parcel? In such circumstances how could such occupation produce no less an effect than the
suspension of the allegiance of our people to their country and government?
(b) But even in the hypothesis and not more than a mere hypothesis that when Japan
occupied the City of Manila and certain other areas of the Philippines she was engaged in a
justifiable war, still the theory of suspended allegiance would not hold good. The continuance of
the allegiance owed to a notion by its citizens is one of those high privileges of citizenship which
the law of nations denies to the occupant the power to interfere with.
. . . His (of occupant) rights are not, however, commensurate with his power. He is thus
forbidden to take certain measures which he may be able to apply, and that irrespective of
their efficacy. The restrictions imposed upon him are in theory designed to protect the
individual in the enjoyment of some highly important privileges. These concern his
allegiance to the de jure sovereign, his family honor and domestic relations, religious
convictions, personal service, and connection with or residence in the occupied territory.
The Hague Regulations declare that the occupant is forbidden to compel the inhabitants
to swear allegiance to the hostile power. . . . (III Hyde, International Law, 2d revised ed.,
pp. 1898-1899.)
. . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance. Since
the authority of the occupant is not sovereignty, the inhabitants owe no temporary
allegiance to him. . . . (II Oppenheim, International Law, pp. 341-344.)
The occupant's lack of the authority to exact an oath of allegiance from the inhabitants of the
occupied territory is but a corollary of the continuance of their allegiance to their own lawful
sovereign. This allegiance does not consist merely in obedience to the laws of the lawful
sovereign, but more essentially consists in loyalty or fealty to him. In the same volume and pages
of Oppenheim's work above cited, after the passage to the effect that the inhabitants of the
occupied territory owe no temporary allegiance to the occupant it is said that "On the other hand,
he may compel them to take an oath sometimes called an 'oath of neutrality' . . . willingly
to submit to his 'legitimate commands.' Since, naturally, such "legitimate commands" include the
occupant's laws, it follows that said occupant, where the rule is applicable, has the right to
compel the inhabitants to take an oath of obedience to his laws; and since according to the same
rule, he cannot exact from the inhabitants an oath of obedience to his laws; and since, according
to the same rule, he cannot exact from the inhabitants an oath of allegiance, it follows that
obedience to his laws, which he can exact from them, does not constitute allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last degree. To say that when the
one's country is unable to afford him in its protection, he ceases to be bound to it by the sacred
ties of allegiance, is to advocate the doctrine that precisely when his country is in such distress,
and therefore most needs his loyalty, he is absolved from the loyalty. Love of country should be
something permanent and lasting, ending only in death; loyalty should be its worth offspring.
The outward manifestation of one or the other may for a time be prevented or thwarted by the
irresistible action of the occupant; but this should not in the least extinguish nor obliterate the
invisible feelings, and promptings of the spirit. And beyond the unavoidable consequences of the
enemy's irresistible pressure, those invisible feelings and promptings of the spirit of the people
should never allow them to act, to speak, nor even to think a whit contrary to their love and
loyalty to the Fatherland. For them, indicted, to face their country and say to it that, because
when it was overrun and vanquished by the barbarous invader and, in consequence was disabled
from affording them protection, they were released from their sacred obligation of allegiance and
loyalty, and could therefore freely adhere to its enemy, giving him aid and comfort, incurring no
criminal responsibility therefor, would only tend to aggravate their crime.
II. CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that "Sovereignty resides in the people and all
government authority emanates from them." The Filipino people are the self-same people before
and after Philippine Independence, proclaimed on July 4, 1946. During the life of the
Commonwealth sovereignty resided in them under the Constitution; after the proclamation of
independence that sovereignty remained with them under the very same fundamental law. Article
XVIII of the said Constitution stipulates that the government established thereby shall be known
as the Commonwealth of the Philippines; and that upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine independence, "The
Commonwealth of the Philippines shall thenceforth be known as the Republic of the
Philippines." Under this provision the Government of the Philippines immediately prior to
independence was essentially to be the identical government thereafter only the name of that
government was to be changed.
Both before and after the adoption of the Philippine Constitution the people of the Philippines
were and are always the plaintiff in all criminal prosecutions, the case being entitled: "The
People of the Philippines vs. (the defendant or defendants)." This was already true in
prosecutions under the Revised Penal Code containing the law of treason. "The Government of
the Philippines" spoken of in article 114 of said Code merely represents the people of the
Philippines. Said code was continued, along with the other laws, by Article XVI, section 2, of the
Constitution which constitutional provision further directs that "all references in such laws to the
Government or officials of the Philippine Islands shall be construed, in so far as applicable, to
refer to the Government and corresponding officials under this Constitution" of course,
meaning the Commonwealth of the Philippines before, and the Republic of the Philippines after,
independence (Article XVIII). Under both governments sovereignty resided and resides in the
people (Article II, section 1). Said sovereignty was never transferred from that people they are
the same people who preserve it to this day. There has never been any change in its respect.
If one committed treason againsts the People of the Philippines before July 4, 1946, he continues
to be criminally liable for the crime to the same people now. And if, following the literal wording
of the Revised Penal Code, as continued by the Constitution, that accused owed allegiance upon
the commission of the crime to the "Government of the Philippines," in the textual words of the
Constitution (Article XVI, section 2, and XVIII) that was the same government which after
independence became known as the "Republic of the Philippines." The most that can be said is
that the sovereignty of the people became complete and absolute after independence that they
became, politically, fully of age, to use a metaphor. But if the responsibility for a crime against a
minor is not extinguished by the mere fact of his becoming of age, why should the responsibility
for the crime of treason committed against the Filipino people when they were not fully
politically independent be extinguished after they acquire this status? The offended party
continues to be the same only his status has changed.
PARAS, J., dissenting:

During the long period of Japanese occupation, all the political laws of the Philippines were
suspended. This is full harmony with the generally accepted principles of the international law
adopted by our Constitution(Article II, section 3) as a part of the law of the Nation. Accordingly,
we have on more than one occasion already stated that "laws of a political nature or affecting
political relations, . . . are considered as suspended or in abeyance during the military
occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 113, 124), and that the rule
"that laws of political nature or affecting political relations are considered suspended or in
abeyance during the military occupation, is intended for the governing of the civil inhabitants of
the occupied territory." (Ruffyvs. Chief of Staff, Philippine Army, 75, Phil., 875, 881.)
The principle is recognized by the United States of America, which admits that the occupant will
naturally suspends all laws of a political nature and all laws which affect the welfare and safety
of his command, such action to be made known to the inhabitants.(United States Rules of Land
Welfare, 1940, Article 287.) As allegiance to the United States is an essential element in the
crime of treason under article 114 of the Revised Penal Code, and in view of its position in our
political structure prior to the independence of the Philippines, the rule as interpreted and
practiced in the United States necessarily has a binding force and effect in the Philippines, to the
exclusion of any other construction followed elsewhere, such as may be inferred, rightly or
wrongly, from the isolated cases 1 brought to our attention, which, moreover, have entirely
different factual bases.
Corresponding notice was given by the Japanese occupying army, first, in the proclamation of its
Commander in chief of January 2, 1942, to the effect that as a "result of the Japanese Military
operations, the sovereignty of the United States of America over the Philippines has completely
disappeared and the Army hereby proclaims the Military Administration under martial law over
the district occupied by the Army;" secondly, in Order No. 3 of the said Commander in Chief of
February 20, 1942, providing that "activities of the administrative organs and judicial courts in
the Philippines shall be based upon the existing statutes, orders, ordinances and customs until
further orders provided that they are not inconsistent with the present circumstances under the
Japanese Military Administration;" and, thirdly, in the explanation to Order No. 3 reminding that
"all laws and regulations of the Philippines has been suspended since Japanese occupation," and
excepting the application of "laws and regulations which are not proper act under the present
situation of the Japanese Military Administration," especially those "provided with some political
purposes."
The suspension of the political law during enemy occupation is logical, wise and humane. The
latter phase outweighs all other aspects of the principle aimed more or less at promoting the
necessarily selfish motives and purposes of a military occupant. It thus consoling to note that the
powers instrumental in the crystallization of the Hague Conventions of 1907 did not forget to
declare that they were "animated by the desire to serve . . . the interest of the humanity and the
over progressive needs of civilization," and that "in case not included in the Regulations adopted
by them, the inhabitants and the belligerents remain under the protection and the rule of the
principles of international law, as they result from the usages established among civilized
peoples, from the laws of humanity, and the dictates of the public conscience." These saving
statements come to the aid of the inhabitants in the occupied territory in a situation wherein, even
before the belligerent occupant "takes a further step and by appropriate affirmative action
undertakes to acquire the right of sovereignty for himself, . . . the occupant is likely to regard to
himself as clothed with freedom to endeavor to impregnate the people who inhabit the area
concerned with his own political ideology, and to make that endeavor successful by various
forms of pressure exerted upon enemy officials who are permitted to retain the exercise of
normal governmental functions." (Hyde, International Law, Vol. III, Second Revised Edition,
1945, p. 1879.)
The inhabitants of the occupied territory should necessarily be bound to the sole authority of the
invading power, whose interest and requirements are naturally in conflict with those of the
displaced government, if it is legitimate for the military occupant to demand and enforce from
the inhabitants such obedience as may be necessary for the security of his forces, for the
maintenance of law and order, and for the proper administration of the country (United States
Rules of Land Warfare, 1940, article 297), and to demand all kinds of services "of such a nature
as not to involve the population in the obligation of taking part in military operations against
their own country" (Hague Regulations, article 52);and if, as we have in effect said, by the
surrender the inhabitants pass under a temporary allegiance to the government of the occupant
and are bound by such laws, and such only, as it chooses to recognize and impose, and the
belligerent occupant `is totally independent of the constitution and the laws of the territory, since
occupation is an aim of warfare, and the maintenance and safety of his forces, and the purpose of
war, stand in the foreground of his interest and must be promoted under all circumstances or
conditions." (Peralta vs. Director of Prisons, 75 Phil., 285, 295), citing United States vs. Rice, 4
Wheaton, 246, and quoting Oppenheim, International Law, Vol. II. Sixth Edition, Revised,
1944,p. 432.)
He would be a bigot who cannot or would refuse to see the cruel result if the people in an
occupied territory were required to obey two antagonistic and opposite powers. To emphasize
our point, we would adopt the argument, in a reverse order, of Mr. Justice Hilado in Peralta vs.
Director of Prisons (75 Phil., 285, 358), contained in the following passage:
To have bound those of our people who constituted the great majority who never
submitted to the Japanese oppressors, by the laws, regulations, processes and other acts of
those two puppet governments, would not only have been utterly unjust and downright
illegal, but would have placed them in the absurd and impossible condition of being
simultaneously submitted to two mutually hostile governments, with their respective
constitutional and legislative enactments and institutions on the one hand bound to
continue owing allegiance to the United States and the Commonwealth Government, and,
on the other, to owe allegiance, if only temporary, to Japan.
The only sensible purpose of the treason law which is of political complexion and taken out
of the territorial law and penalized as a new offense committed against the belligerent occupant,
incident to a state of war and necessary for the control of the occupant (Alcantaravs. Director of
Prisons, 75 Phil., 494), must be the preservation of the nation, certainly not its destruction or
extermination. And yet the latter is unwittingly wished by those who are fond of the theory that
what is suspended is merely the exercise of sovereignty by the de jure government or the latter's
authority to impose penal sanctions or that, otherwise stated, the suspension refers only to the
military occupant. If this were to be the only effect, the rule would be a meaningless and
superfluous optical illusion, since it is obvious that the fleeing or displaced government cannot,
even if it should want, physically assert its authority in a territory actually beyond its reach, and
that the occupant, on the other hand, will not take the absurd step of prosecuting and punishing
the inhabitants for adhering to and aiding it. If we were to believe the opponents of the rule in
question, we have to accept the absurd proposition that the guerrillas can all be prosecuted with
illegal possession of firearms. It should be borne in the mind that "the possession by the
belligerent occupant of the right to control, maintain or modify the laws that are to obtain within
the occupied area is an exclusive one. The territorial sovereign driven therefrom, can not
compete with it on an even plane. Thus, if the latter attempt interference, its action is a mere
manifestation of belligerent effort to weaken the enemy. It has no bearing upon the legal quality
of what the occupant exacts, while it retains control. Thus, if the absent territorial sovereign,
through some quasi-legislative decree, forbids its nationals to comply with what the occupant has
ordained obedience to such command within the occupied territory would not safeguard the
individual from the prosecution by the occupant." (Hyde, International Law, Vol. III, Second
Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent occupant to prosecute and punish the
inhabitants for "war treason" or "war crimes," as an incident of the state of war and necessity for
the control of the occupied territory and the protection of the army of the occupant, against
which prosecution and punishment such inhabitants cannot obviously be protected by their native
sovereign, it is hard to understand how we can justly rule that they may at the same time be
prosecuted and punished for an act penalized by the Revised Penal Code, but already taken out
of the territorial law and penalized as a new offense committed against the belligerent occupant.
In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution of the
Commonwealth Government was suspended during the occupation of the Philippines by the
Japanese forces or the belligerent occupant at regular war with the United States," and the
meaning of the term "suspended" is very plainly expressed in the following passage (page 298):
No objection can be set up to the legality of its provisions in the light of the precepts of
our Commonwealth Constitution relating to the rights of the accused under that
Constitution, because the latter was not in force during the period of the Japanese military
occupation, as we have already stated. Nor may said Constitution be applied upon its
revival at the time of the re-occupation of the Philippines by the virtue of the priciple of
postliminium, because "a constitution should operate prospectively only, unless the words
employed show a clear intention that it should have a retrospective effect," (Cooley's
Constitutional Limitations, seventh edition, page 97, and a case quoted and cited in the
foot-note), especially as regards laws of procedure applied to cases already terminated
completely.
In much the same way, we should hold that no treason could have been committed during the
Japanese military occupation against the United States or the Commonwealth Government,
because article 114 of the Revised Penal Code was not then in force. Nor may this penal
provision be applied upon its revival at the time of the reoccupation of the Philippines by virtue
of the principle of postliminium, because of the constitutional inhibition against any ex post facto
law and because, under article 22 of the Revised Penal Code, criminal laws shall have a
retroactive effect only in so far as they favor the accused. Why did we refuse to enforce the
Constitution, more essential to sovereignty than article 114 of the Revised Penal Code in the
aforesaid of Peralta vs. Director of Prisons if, as alleged by the majority, the suspension was
good only as to the military occupant?
The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports our position.
As analyzed and described in United States vs. Reiter (27 Fed. Cas., 773), that case "was decided
by the Supreme Court of the United States the court of highest human authority on that
subject and as the decision was against the United States, and in favor of the authority of
Great Britain, its enemy in the war, and was made shortly after the occurrence of the war out of
which it grew; and while no department of this Government was inclined to magnify the rights of
Great Britain or disparage those of its own government, there can be no suspicion of bias in the
mind of the court in favor of the conclusion at which it arrived, and no doubt that the law seemed
to the court to warrant and demand such a decision. That case grew out of the war of 1812,
between the United States and Great Britain. It appeared that in September, 1814, the British
forces had taken the port of Castine, in the State of Maine, and held it in military occupation; and
that while it was so held, foreign goods, by the laws of the United States subject to duty, had
been introduced into that port without paying duties to the United States. At the close of the war
the place by treaty restored to the United States, and after that was done Government of the
United States sought to recover from the persons so introducing the goods there while in
possession of the British, the duties to which by the laws of the United States, they would have
been liable. The claim of the United States was that its laws were properly in force there,
although the place was at the time held by the British forces in hostility to the United States, and
the laws, therefore, could not at the time be enforced there; and that a court of the United States
(the power of that government there having since been restored) was bound so to decide. But this
illusion of the prosecuting officer there was dispelled by the court in the most summary manner.
Mr. Justice Story, that great luminary of the American bench, being the organ of the court in
delivering its opinion, said: 'The single question is whether goods imported into Castine during
its occupation by the enemy are liable to the duties imposed by the revenue laws upon goods
imported into the United States.. We are all of opinion that the claim for duties cannot be
sustained. . . . The sovereignty of the United States over the territory was, of course, suspended,
and the laws of the United States could no longer be rightfully enforced there, or be obligatory
upon the inhabitants who remained and submitted to the conquerors. By the surrender the
inhabitants passed under a temporary allegiance of the British Government, and were bound by
such laws, and such only, as it chose to recognize and impose. From the nature of the case no
other laws could be obligatory upon them. . . . Castine was therefore, during this period, as far as
respected our revenue laws, to be deemed a foreign port, and goods imported into it by the
inhabitants were subjects to such duties only as the British Government chose to require. Such
goods were in no correct sense imported into the Unites States.' The court then proceeded to say,
that the case is the same as if the port of Castine had been foreign territory, ceded by treaty to the
United States, and the goods had been imported there previous to its cession. In this case they
say there would be no pretense to say that American duties could be demanded; and upon
principles of public or municipal law, the cases are not distinguishable. They add at the
conclusion of the opinion: 'The authorities cited at the bar would, if there were any doubt, be
decisive of the question. But we think it too clear to require any aid from authority.' Does this
case leave room for a doubt whether a country held as this was in armed belligerents occupation,
is to be governed by him who holds it, and by him alone? Does it not so decide in terms as plain
as can be stated? It is asserted by the Supreme Court of the United States with entire unanimity,
the great and venerated Marshall presiding, and the erudite and accomplished Story delivering
the opinion of the court, that such is the law, and it is so adjudged in this case. Nay, more: it is
even adjudged that no other laws could be obligatory; that such country, so held, is for the
purpose of the application of the law off its former government to be deemed foreign territory,
and that goods imported there (and by parity of reasoning other acts done there) are in no correct
sense done within the territory of its former sovereign, the United States."
But it is alleged by the majority that the sovereignty spoken of in the decision of the United
States vs. Rice should be construed to refer to the exercise of sovereignty, and that, if sovereignty
itself was meant, the doctrine has become obsolete after the adoption of the Hague Regulations
in 1907. In answer, we may state that sovereignty can have any important significance only when
it may be exercised; and, to our way of thinking, it is immaterial whether the thing held in
abeyance is the sovereignty itself or its exercise, because the point cannot nullify, vary, or
otherwise vitiate the plain meaning of the doctrinal words "the laws of the United States could no
longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and
submitted to the conquerors." We cannot accept the theory of the majority, without in effect
violating the rule of international law, hereinabove adverted to, that the possession by the
belligerent occupant of the right to control, maintain or modify the laws that are to obtain within
the occupied area is an exclusive one, and that the territorial sovereign driven therefrom cannot
compete with it on an even plane. Neither may the doctrine in the United States vs. Rice be said
to have become obsolete, without repudiating the actual rule prescribed and followed by the
United States, allowing the military occupant to suspend all laws of a political nature and even
require public officials and inhabitants to take an oath of fidelity (United States Rules of Land
Warfare, 1940, article 309). In fact, it is a recognized doctrine of American Constitutional Law
that mere conquest or military occupation of a territory of another State does not operate to
annex such territory to occupying State, but that the inhabitants of the occupied district, no
longer receiving the protection of their native State, for the time being owe no allegiance to it,
and, being under the control and protection of the victorious power, owe to that power fealty and
obedience. (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)
The majority have resorted to distinctions, more apparent than real, if not immaterial, in trying to
argue that the law of treason was obligatory on the Filipinos during the Japanese occupation.
Thus it is insisted that a citizen or subject owes not a qualified and temporary, but an absolute
and permanent allegiance, and that "temporary allegiance" to the military occupant may be
likened to the temporary allegiance which a foreigner owes to the government or sovereign to the
territory wherein he resides in return for the protection he receives therefrom. The comparison is
most unfortunate. Said foreigner is in the territory of a power not hostile to or in actual war with
his own government; he is in the territory of a power which has not suspended, under the rules of
international law, the laws of political nature of his own government; and the protections
received by him from that friendly or neutral power is real, not the kind of protection which the
inhabitants of an occupied territory can expect from a belligerent army. "It is but reasonable that
States, when they concede to other States the right to exercise jurisdiction over such of their own
nationals as are within the territorial limits of such other States, should insist that States should
provide system of law and of courts, and in actual practice, so administer them, as to furnish
substantial legal justice to alien residents. This does not mean that a State must or should extend
to aliens within its borders all the civil, or much less, all the political rights or privileges which it
grants to its own citizens; but it does mean that aliens must or should be given adequate
opportunity to have such legal rights as are granted to them by the local law impartially and
judicially determined, and, when thus determined, protected." (Willoughby, The Fundamental
Concepts of Public Law [1931], p. 360.)
When it is therefore said that a citizen of a sovereign may be prosecuted for and convicted of
treason committed in a foreign country or, in the language of article 114 of the Revised Penal
Code, "elsewhere," a territory other than one under belligerent occupation must have been
contemplated. This would make sense, because treason is a crime "the direct or indirect purpose
of which is the delivery, in whole or in part, of the country to a foreign power, or to pave the way
for the enemy to obtain dominion over the national territory" (Albert, The Revised Penal Code,
citing 3 Groizard, 14); and, very evidently, a territory already under occupation can no longer be
"delivered."
The majority likewise argue that the theory of suspended sovereignty or allegiance will enable
the military occupant to legally recruit the inhabitants to fight against their own government,
without said inhabitants being liable for treason. This argument is not correct, because the
suspension does not exempt the occupant from complying with the Hague Regulations (article
52) that allows it to demand all kinds of services provided that they do not involve the population
"in the obligation of taking part military operations against their own country." Neither does the
suspension prevent the inhabitants from assuming a passive attitude, much less from dying and
becoming heroes if compelled by the occupant to fight against their own country. Any
imperfection in the present state of international law should be corrected by such world agency
as the United Nations organizations.
It is of common knowledge that even with the alleged cooperation imputed to the collaborators,
an alarming number of Filipinos were killed or otherwise tortured by the ruthless, or we may say
savage, Japanese Army. Which leads to the conclusion that if the Filipinos did not obey the
Japanese commands and feign cooperation, there would not be any Filipino nation that could
have been liberated. Assuming that the entire population could go to and live in the mountains, or
otherwise fight as guerrillas after the formal surrender of our and the American regular
fighting forces, they would have faced certain annihilation by the Japanese, considering that
the latter's military strength at the time and the long period during which they were left military
unmolested by America. In this connection, we hate to make reference to the atomic bomb as a
possible means of destruction.
If a substantial number of guerrillas were able to survive and ultimately help in the liberation of
the Philippines, it was because the feigned cooperation of their countrymen enabled them to get
food and other aid necessary in the resistance movement. If they were able to survive, it was
because they could camouflage themselves in the midst of the civilian population in cities and
towns. It is easy to argue now that the people could have merely followed their ordinary pursuits
of life or otherwise be indifferent to the occupant. The fundamental defect of this line of thought
is that the Japanese assumed to be so stupid and dumb as not to notice any such attitude. During
belligerent occupation, "the outstanding fact to be reckoned with is the sharp opposition between
the inhabitants of the occupied areas and the hostile military force exercising control over them.
At heart they remain at war with each other. Fear for their own safety may not serve to deter the
inhabitants from taking advantage of opportunities to interfere with the safety and success of the
occupant, and in so doing they may arouse its passions and cause to take vengeance in cruel
fashion. Again, even when it is untainted by such conduct, the occupant as a means of attaining
ultimate success in its major conflict may, under plea of military necessity, and regardless of
conventional or customary prohibitions, proceed to utilize the inhabitants within its grip as a
convenient means of military achievement." (Hyde, International Law, Vol. III, Second Revised
Edition [1945], p. 1912.) It should be stressed that the Japanese occupation was not a matter of a
few months; it extended over a little more than three years. Said occupation was a fact, in spite of
the "presence of guerrilla bands in barrios and mountains, and even in towns of the Philippines
whenever these towns were left by Japanese garrisons or by the detachments of troops sent on
patrol to those places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.) The
law of nations accepts belligerent occupation as a fact to be reckoned with, regardless of the
merits of the occupant's cause. (Hyde, International Law, Second Revised Edition [1945], Vol.
III, p. 1879.)
Those who contend or fear that the doctrine herein adhere to will lead to an over-production of
traitors, have a wrong and low conception of the psychology and patriotism of their countrymen.
Patriots are such after their birth in the first place, and no amount of laws or judicial decisions
can make or unmake them. On the other hand, the Filipinos are not so base as to be insensitive to
the thought that the real traitor is cursed everywhere and in all ages. Our patriots who fought and
died during the last war, and the brave guerrillas who have survived, were undoubtedly
motivated by their inborn love of country, and not by such a thing as the treason law. The
Filipino people as a whole, passively opposed the Japanese regime, not out of fear of a treason
statute but because they preferred and will prefer the democratic and civilized way of life and
American altruism to Japanese barbaric and totalitarian designs. Of course, there are those who
might at heart have been pro-Japanese; but they met and will unavoidably meet the necessary
consequences. The regular soldiers faced the risks of warfare; the spies and informers subjected
themselves to the perils of military operations, likely received summary liquidation or
punishments from the guerrillas and the parties injured by their acts, and may be prosecuted as
war spies by the military authorities of the returning sovereign; those who committed other
common crimes, directly or through the Japanese army, may be prosecuted under the municipal
law, and under this group even the spies and informers, Makapili or otherwise, are included, for
they can be made answerable for any act offensive to person or property; the buy-and-sell
opportunists have the war profits tax to reckon with. We cannot close our eyes to the conspicuous
fact that, in the majority of cases, those responsible for the death of, or injury to, any Filipino or
American at the hands of the Japanese, were prompted more by personal motives than by a
desire to levy war against the United States or to adhere to the occupant. The alleged spies and
informers found in the Japanese occupation the royal road to vengeance against personal or
political enemies. The recent amnesty granted to the guerrillas for acts, otherwise criminal,
committed in the furtherance of their resistance movement has in a way legalized the penal
sanctions imposed by them upon the real traitors.
It is only from a realistic, practical and common-sense point of view, and by remembering that
the obedience and cooperation of the Filipinos were effected while the Japanese were in
complete control and occupation of the Philippines, when their mere physical presence implied
force and pressure and not after the American forces of liberation had restored the Philippine
Government that we will come to realize that, apart from any rule of international law, it was
necessary to release the Filipinos temporarily from the old political tie in the sense indicated
herein. Otherwise, one is prone to dismiss the reason for such cooperation and obedience. If there
were those who did not in any wise cooperate or obey, they can be counted by the fingers, and let
their names adorn the pages of Philippine history. Essentially, however, everybody who took
advantage, to any extent and degree, of the peace and order prevailing during the occupation, for
the safety and survival of himself and his family, gave aid and comfort to the enemy.
Our great liberator himself, General Douglas MacArthur, had considered the laws of the
Philippines ineffective during the occupation, and restored to their full vigor and force only after
the liberation. Thus, in his proclamation of October 23, 1944, he ordained that "the laws now
existing on the statute books of the Commonwealth of the Philippines . . . are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy occupation
and control," and that "all laws . . . 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." Repeating what we have said in Co Kim Cham vs. Valdez Tan
Keh and Dizon (75 Phil., 113, 133), "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 President of the United States, and later
embodied in the Hague Conventions of 1907."
The prohibition in the Hague Conventions (Article 45) against "any pressure on the population to
take oath to the hostile power," was inserted for the moral protection and benefit of the
inhabitants, and does not necessarily carry the implication that the latter continue to be bound to
the political laws of the displaced government. The United States, a signatory to the Hague
Conventions, has made the point clear, by admitting that the military occupant can suspend all
the laws of a political nature and even require public officials and the inhabitants to take an oath
of fidelity (United States Rules of Land Warfare, 1940, article 309), and as already stated, it is a
doctrine of American Constitutional Law that the inhabitants, no longer receiving the protection
of their native state, for the time being owe no allegiance to it, and, being under the control and
protection of the victorious power, owe to that power fealty and obedience. Indeed, what is
prohibited is the application of force by the occupant, from which it is fair to deduce that the
Conventions do not altogether outlaw voluntary submission by the population. The only strong
reason for this is undoubtedly the desire of the authors of the Conventions to give as much
freedom and allowance to the inhabitants as are necessary for their survival. This is wise and
humane, because the people should be in a better position to know what will save them during
the military occupation than any exile government.
"Before he was appointed prosecutor, Justice Jackson made a speech in which he warned against
the use of judicial process for non judicial ends, and attacked cynics who "see no reason why
courts, just like other agencies, should not be policy weapons. If we want to shoot Germans as a
matter of policy, let it be done as such, said he, but don't hide the deed behind a court. If you are
determined to execute a man in any case there is no occasion for a trial; the word yields no
respect for courts that are merely organized to convict." Mussoloni may have got his just
desserts, but nobody supposes he got a fair trial. . . . Let us bear that in mind as we go about
punishing criminals. There are enough laws on the books to convict guilty Nazis without risking
the prestige of our legal system. It is far, far better that some guilty men escape than that the idea
of law be endangered. In the long run the idea of law is our best defense against Nazism in all its
forms." These passages were taken from the editorial appearing in the Life, May 28, 1945, page
34, and convey ideas worthy of some reflection.
If the Filipinos in fact committed any errors in feigning cooperation and obedience during the
Japanese military occupation, they were at most borrowing the famous and significant words
of President Roxas errors of the mind and not of the heart. We advisedly said "feigning" not
as an admission of the fallacy of the theory of suspended allegiance or sovereignty, but as an
affirmation that the Filipinos, contrary to their outward attitude, had always remained loyal by
feeling and conscience to their country.
Assuming that article 114 of the Revised Penal Code was in force during the Japanese military
occupation, the present Republic of the Philippines has no right to prosecute treason committed
against the former sovereignty existing during the Commonwealth Government which was none
other than the sovereignty of the United States. This court has already held that, upon a change of
sovereignty, the provisions of the Penal Code having to do with such subjects as treason,
rebellion and sedition are no longer in force (People vs. Perfecto, 43 Phil., 887). It is true that, as
contended by the majority, section 1 of Article II of the Constitution of the Philippines provides
that "sovereignty resides in the people," but this did not make the Commonwealth Government
or the Filipino people sovereign, because said declaration of principle, prior to the independence
of the Philippines, was subervient to and controlled by the Ordinance appended to the
Constitution under which, in addition to its many provisions essentially destructive of the
concept of sovereignty, it is expressly made clear that the sovereignty of the United States over
the Philippines had not then been withdrawn. The framers of the Constitution had to make said
declaration of principle because the document was ultimately intended for the independent
Philippines. Otherwise, the Preamble should not have announced that one of the purposes of the
Constitution is to secure to the Filipino people and their posterity the "blessings of
independence." No one, we suppose, will dare allege that the Philippines was an independent
country under the Commonwealth Government.
The Commonwealth Government might have been more autonomous than that existing under the
Jones Law, but its non-sovereign status nevertheless remained unaltered; and what was enjoyed
was the exercise of sovereignty over the Philippines continued to be complete.
The exercise of Sovereignty May be Delegated. It has already been seen that the
exercise of sovereignty is conceived of as delegated by a State to the various organs
which, collectively, constitute the Government. For practical political reasons which can
be easily appreciated, it is desirable that the public policies of a State should be

formulated and executed by governmental agencies of its own creation and which are not
subject to the control of other States. There is, however, nothing in a nature of
sovereignty or of State life which prevents one State from entrusting the exercise of
certain powers to the governmental agencies of another State. Theoretically, indeed, a
sovereign State may go to any extent in the delegation of the exercise of its power to the
governmental agencies of other States, those governmental agencies thus becoming
quoad hoc parts of the governmental machinery of the State whose sovereignty is
exercised. At the same time these agencies do not cease to be Instrumentalities for the
expression of the will of the State by which they were originally created.
By this allegation the agent State is authorized to express the will of the delegating State,
and the legal hypothesis is that this State possesses the legal competence again to draw to
itself the exercise, through organs of its own creation, of the powers it has granted. Thus,
States may concede to colonies almost complete autonomy of government and reserve to
themselves a right of control of so slight and so negative a character as to make its
exercise a rare and improbable occurence; yet, so long as such right of control is
recognized to exist, and the autonomy of the colonies is conceded to be founded upon a
grant and the continuing consent of the mother countries the sovereignty of those mother
countries over them is complete and they are to be considered as possessing only
administrative autonomy and not political independence. Again, as will be more fully
discussed in a later chapter, in the so-called Confederate or Composite State, the
cooperating States may yield to the central Government the exercise of almost all of their
powers of Government and yet retain their several sovereignties. Or, on the other hand, a
State may, without parting with its sovereignty of lessening its territorial application,
yield to the governing organs of particular areas such an amplitude of powers as to create
of them bodies-politic endowed with almost all of the characteristics of independent
States. In all States, indeed, when of any considerable size, efficiency of administration
demands that certain autonomous powers of local self-government be granted to
particular districts. (Willoughby, The Fundamental Concepts of Public Law [1931], pp.
74, 75.).
The majority have drawn an analogy between the Commonwealth Government and the States of
the American Union which, it is alleged, preserve their own sovereignty although limited by the
United States. This is not true for it has been authoritatively stated that the Constituent States
have no sovereignty of their own, that such autonomous powers as they now possess are had and
exercised by the express will or by the constitutional forbearance of the national sovereignty, and
that the sovereignty of the United States and the non-sovereign status of the individual States is
no longer contested.
It is therefore plain that the constituent States have no sovereignty of their own, and that
such autonomous powers as they now possess are had and exercised by the express will
or by the constitutional forbearance of the national sovereignty. The Supreme Court of
the United States has held that, even when selecting members for the national legislature,
or electing the President, or ratifying proposed amendments to the federal constitution,
the States act, ad hoc, as agents of the National Government. (Willoughby, the
Fundamental Concepts of Public Law [1931], p.250.)
This is the situation at the present time. The sovereignty of the United States and the nonsovereign status of the individual States is no longer contested. (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 251, 252.)
Article XVIII of the Constitution provides that "The government established by this Constitution
shall be known as the Commonwealth of the Philippines. Upon the final and complete
withdrawal of the sovereignty of the United States and the proclamation of Philippine
independence, the Commonwealth of the Philippines shall thenceforth be known as the Republic
of the Philippines." From this, the deduction is made that the Government under the Republic of
the Philippines and under the Commonwealth is the same. We cannot agree. While the
Commonwealth Government possessed administrative autonomy and exercised the sovereignty
delegated by the United States and did not cease to be an instrumentality of the latter
(Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75), the Republic of the
Philippines is an independent State not receiving its power or sovereignty from the United States.
Treason committed against the United States or against its instrumentality, the Commonwealth
Government, which exercised, but did not possess, sovereignty (id., p. 49), is therefore not
treason against the sovereign and independent Republic of the Philippines. Article XVIII was
inserted in order, merely, to make the Constitution applicable to the Republic.
Reliance is also placed on section 2 of the Constitution which provides that all laws of the
Philippines Islands shall remain operative, unless inconsistent therewith, until amended, altered,
modified or repealed by the Congress of the Philippines, and on section 3 which is to the effect
that all cases pending in courts shall be heard, tried, and determined under the laws then in force,
thereby insinuating that these constitutional provisions authorize the Republic of the Philippines
to enforce article 114 of the Revised Penal Code. The error is obvious. The latter article can
remain operative under the present regime if it is not inconsistent with the Constitution. The fact
remains, however, that said penal provision is fundamentally incompatible with the Constitution,
in that those liable for treason thereunder should owe allegiance to the United States or the
government of the Philippines, the latter being, as we have already pointed out, a mere
instrumentality of the former, whereas under the Constitution of the present Republic, the
citizens of the Philippines do not and are not required to owe allegiance to the United States. To
contend that article 114 must be deemed to have been modified in the sense that allegiance to the
United States is deleted, and, as thus modified, should be applied to prior acts, would be to
sanction the enactment and application of an ex post facto law.
In reply to the contention of the respondent that the Supreme Court of the United States has held
in the case of Bradford vs. Chase National Bank (24 Fed. Supp., 38), that the Philippines had a
sovereign status, though with restrictions, it is sufficient to state that said case must be taken in
the light of a subsequent decision of the same court in Cincinnati Soap Co. vs. United States (301
U.S., 308), rendered in May, 1937, wherein it was affirmed that the sovereignty of the United
States over the Philippines had not been withdrawn, with the result that the earlier case only be
interpreted to refer to the exercise of sovereignty by the Philippines as delegated by the mother
country, the United States.
No conclusiveness may be conceded to the statement of President Roosevelt on August 12, 1943,
that "the United States in practice regards the Philippines as having now the status as a
government of other independent nations--in fact all the attributes of complete and respected
nationhood," since said statement was not meant as having accelerated the date, much less as a
formal proclamation of, the Philippine Independence as contemplated in the Tydings-McDuffie
Law, it appearing that (1) no less also than the President of the United States had to issue the
proclamation of July 4, 1946, withdrawing the sovereignty of the United States and recognizing
Philippine Independence; (2) it was General MacArthur, and not President Osmea who was
with him, that proclaimed on October 23, 1944, the restoration of the Commonwealth
Government; (3) the Philippines was not given official participation in the signing of the
Japanese surrender; (4) the United States Congress, and not the Commonwealth Government,
extended the tenure of office of the President and Vice-President of the Philippines.
The suggestion that as treason may be committed against the Federal as well as against the State
Government, in the same way treason may have been committed against the sovereignty of the
United States as well as against the sovereignty of the Philippine Commonwealth, is immaterial
because, as we have already explained, treason against either is not and cannot be treason against
the new and different sovereignty of the Republic of the Philippines.
Footnotes
PARAS, J.,dissenting:
1
English case of De Jagervs. Attorney General of Naval; Belgian case

of AuditeurMilitairesvs. Van Dieren; cases of Petain, Laval and Quisling.
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.R. No.

76180 October 24, 1986

MELENCIO-HERRERA, J., concurring:

[A.M. No. 90-11-2697-CA. June 29, 1992.]

in the Court of Appeals.

"SECTION 2. Section 3, Chapter 1 of Batas PambansaBlg. 129, is hereby amended to read as

of appointment cannot be wielded in violation of law. 15

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"Section 2. Section 3, Chapter I of Batas PambansaBlg. 129, is hereby amended to read as

BELLOSILLO, J., concurring:

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of Mr. Justice REYNATO S. PUNO in his reappointment as member of this Court, I am

No. 3 Mr. Justice Rodolfo A. Nocon;

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1. Hon. Emilio A. Gancayco, Presiding Justice . . .

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ranking of Justice Reynato S. Puno in the Court of Appeals.

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law library : red

We stated in our resolution:

"17 September 1986

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(SGD.) JOKER P. ARROYO

Narvasa, C.J., Bidin, Medialdea and Nocon, JJ., concur.

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Narvasa, C.J., concurs.

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G.R. No. L-46763 February 28, 1978

Alejandro S. Quizon for private respondents.

ANTONIO, J., concurring:

Co Kim Chan v Valdez Tan Keh

proceedings because such a construction would violate the law of nations.

G.R. No. L-409

January 30, 1947

ANASTACIO LAUREL, petitioner,

severed by the enemy occupation, because the sovereignty of the government or

he renounces it and becomes a citizen or subject of another government or sovereign, and

Allegiance may be an absolute and permanent obligation, or it may be a qualified and

HILADO, J., concurring:

PARAS, J., dissenting:

be easily appreciated, it is desirable that the public policies of a State should be

English case of De Jagervs. Attorney General of Naval; Belgian case

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