concept of the state

The Concept of State Consti 1

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-51 November 16, 1945

CO KIM CHAM (alias CO CHAM), petitioner, vs.EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.

Marcelino Lontok for petitioner.Revilla and Palma for respondent Valdez Tan Keh.Respondent Judge Dizon in his own behalf.Vicente Hilado and J. A. Wolfson as amici curiae.

R E S O L U T I O N

FERIA, J.:

This is a motion for reconsideration of our decision rendered in this case filed by the respondent. Two attorneys at law, who were allowed to appear as amici curiae, have also presented memoranda to discuss certain points on which the dissenting opinions rely.

(1) It is contended that the military occupation of the Philippine Islands by the Japanese was not actual and effective because of the existence of guerrilla bands in barrios and mountains and even towns and villages; and consequently, no government de facto could have been validly established by the Japanese military forces in the Philippines under the precepts of the Hague Conventions and the law of nations.

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 these places, was not sufficient to make the military occupation ineffective, nor did it cause that occupation to cease, or prevent the constitution or establishment of a de facto government in the Islands. The belligerent occupation of the Philippines by the Japanese invaders became an accomplished fact from the time General Wainwright, Commander of the American and Filipino forces in Luzon, and General Sharp, Commander of the forces in Visayas and Mindanao, surrendered and ordered the surrender of their forces to the Japanese invaders, and the Commonwealth Government had become incapable of publicly exercising its authority, and the invader had substituted his own authority for that of the legitimate government in Luzon, Visayas and Mindanao.

"According to the rules of Land Warfare of the United States Army, belligerent or so-called military occupation is a question of fact. It presupposes a hostile invasion as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader is in position to substitute and has substituted his own authority for that of the legitimate government of the territory invaded." (International Law Chiefly as Interpreted and Applied by the United States, by Hyde Vol. II, pp. 361, 362.) " Belligerent occupation must be both actual and effective. Organized resistance must be overcome and the forces in possession must have taken


measures to establish law and order. It doubtless suffices if the occupying army can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district." (Id., p. 364.) "Occupation once acquired must be maintained . . . . It does not cease, however, . . . Nor does the existence of a rebellion or the operations of guerrilla bands cause it to cease, unless the legitimate government is re-established and the occupant fails promptly to suppress such rebellion or guerrilla operations." (Id., p. 365.)

But supposing arguendo that there were provinces or districts in these Islands not actually and effectively occupied by the invader, or in which the latter, consequently, had not substituted his own authority for that of the invaded government, and the Commonwealth Government had continued publicly exercising its authority, there is no question as to the validity of the judicial acts and proceedings of the courts functioning in said territory, under the municipal law, just as there can be no question as to the validity of the judgments and proceedings of the courts continued in the territory occupied by the belligerent occupant, under the law of nations.

(2) It is submitted that the renunciation in our Constitution and in the Kellog-Briand Pact of war as an instrument of national policy, rendered inapplicable the rules of international law authorizing the belligerent Japanese army of occupation to set up a provisional or de facto government in the Philippines, because Japan started war treacherously and emphasized was as an instrument of national policy; and that to give validity to the judicial acts of courts sponsored by the Japanese would be tantamount to giving validity to the acts of these invaders, and would be nothing short of legalizing the Japanese invasion of the Philippines.

In reply to this contention, suffice it to say that the provisions of the Hague Conventions which impose upon a belligerent occupant the duty to continue the courts as well as the municipal laws in force in the country unless absolutely prevented, in order to reestablish and insure "I" ordre et al vie publice," that is, the public order and safety, and the entire social and commercial life of the country, were inserted, not for the benefit of the invader, but for the protection and benefit of the people or inhabitants of the occupied territory and of those not in the military service, in order that the ordinary pursuits and business of society may not be unnecessarily deranged.

This is the opinion of all writers on international law up to date, among then Wheaton (Vol. II, p. 236) and Oppenheim (Vol. II, p. 338) in their recently revised Treatises on International Law, edited in the year 1944, and the Interpretation of the Supreme Court of the United States in many cases, specially in the case of Dow vs.Johnson (106 U. S., 158), in which that Court said: "As a necessary consequence of such occupation and domination, the political relations of its people to their former government are, for the time being, severed. But for their protection and benefit, and the protection and benefit of others not in the military service, or, in other words, in order that the ordinary pursuits and business of society may not be unnecessarily deranged, the municipal laws, that is, such as affect private rights of persons and property and provide for the punishment of crime, are generally allowed to continue in force, and to be administered by the ordinary tribunals as they were administered before the occupation. They are considered as continuing, unless suspended or superseded by the occupying belligerent." (Dow vs. Johnson, 100 U. S., 158; 25 U. S. [Law, ed.], 632).

The fact that the belligerent occupant is a treacherous aggressor, as Japan was, does not, therefore, exempt him from complying with the said precepts of the Hague Conventions, nor does it make null and void the judicial acts of the courts continued by the occupant in the territory occupied. To deny validity to such judicial acts would benefit the invader or aggressor, who is presumed to be intent upon causing as much harm as possible to the inhabitants or nationals of the enemy's territory, and prejudice the latter; it would cause more suffering to the conquered and assist the conqueror or


invader in realizing his nefarious design; in fine, it would result in penalizing the nationals of the occupied territory, and rewarding the invader or occupant for his acts of treachery and aggression.

(3) We held in our decision that the word "processes," as used in the proclamation of General Douglas MacArthur of October 23, 1944, cannot be interpreted to mean judicial processes; and because of the cogent reasons therein set forth, we did not deem it necessary to specify the processes to which said proclamation should be construed to refer. As some doubt still lingers in the minds of persons interested is sustaining a contrary interpretation or construction, we are now constrained to say that term as used in the proclamation should be construed to mean legislative and constitutional processes, by virtue of the maxim "noscitur a sociis." According to this maxim, where a particular word or phrase is ambiguous in itself or is equally susceptible of various meanings, its meaning may be made clear and specific by considering the company in which it is found. (Black on Interpretation of Laws, 2d ed., pp. 194-196.) Since the proclamation provides that "all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void," the word "processes" must be interpreted or construed to refer to the Executive Orders of the Chairman of the Philippine Executive Commission, Ordinances promulgated by the President of the so-called Republic of the Philippines, and the Constitution itself of said Republic, and others that are of the same class as the laws and regulations with which the word "processes" is associated.

To illustrate, "an English act required licenses for "houses, rooms, shops, or buildings, kept open for public refreshment, resort, and entertainment." It was adjudged that the word "entertainment," in this connection, did not necessarily mean a concert, dramatic performance, or other divertissement, nor did it necessarily imply the furnishing of food or drink, but that, judged from its associations, it meant the reception and accommodation of the public. So where a policy of marine insurance is specified to protect the assured against "arrests, restraints, and detainments of all kings, princes, and people," the word "people" means the ruling or governing power of the country, this signification being impressed upon it by its association with the words "kings" and "princes." Again, in a statute relating to imprisonment for debt, which speaks of debtors who shall be charged with "fraud" or undue preference to one creditor to the prejudice of another, the word "undue" means fraudulent. A statute of bankruptcy, declaring that any fraudulent "gift, transfer or delivery" of property shall constitute an act of bankruptcy, applies only to such deliveries as are in the nature of a gift — such as change the ownership of the property, to the prejudice of creditors; it does not include a delivery to a bailee for safekeeping." (Black on Interpretation of Laws, supra.)

(4) The state of Wheaton (International Law), 7th ed., p. 245) that "when it is said that an occupier's acts are valid, it must be remembered that no crucial instances exist to show that if his acts should all be reversed (by the restored government or its representatives) no international wrong would be committed," evidently does not mean that the restored government or its representatives may reverse the judicial acts and proceedings of the courts during the belligerent occupation without violating the law of nations and doing any wrong at all. A violation of the law of nations does not always and necessarily cause an international wrong. As the said judicial acts which apply the municipal laws, that is, such as affect private rights of persons and property, and provide for the punishment of crimes, are good and valid even after occupation has ceased, although it is true that no crucial instances exist to show that, were they reversed or invalidated by the restored or legitimate government, international wrong would be committed, it is nonetheless true and evident that by such abrogation national wrong would be caused to the inhabitants or citizens of the legitimate government. According to the law of nations and Wheaton himself, said judicial acts are legal and valid before and after the occupation has ceased and the legitimate government has been restored. As there are vested rights which have been acquired by he parties by virtue of such judgments, the restored government or its representative cannot reverse or abrogate them without causing wrong or injury to the interested parties, because such reversal would deprive them of their properties without due process of law.


In this connection, it may not be amiss to refer to the decision of the Supreme Court of the United States in the case of Raymond vs. Thomas (91 U. S., 712), quoted in our decision as applicable by analogy. In said case, the Commander in Chief of the United States forces in South Carolina, after the end of the Civil War and while the territory was still under Military Government, issued a special order annulling a decree rendered by a court of chancery in a case within its jurisdiction, on the wrong assumption that he had authority to do so under the acts of Congress approved March 2, and July 19, 1867, which defined his powers and duties. That Supreme Court declared void the said special order on the ground "that it was an arbitrary stretch of authority needful to no good end that can be imagined. Whether Congress could have conferred power to do such an act is a question we are not called upon to consider. It is an unbending rule of law that the exercise of military power where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires."

(5) It is argued with insistence that the courts of the Commonwealth continued in the Philippines by the belligerent occupant became also courts of Japan, and their judgments and proceedings being acts of foreign courts cannot now be considered valid and continued by the courts of the Commonwealth Government after the restoration of the latter. As we have already stated in our decision the fundamental reasons why said courts, while functioning during the Japanese regime, could not be considered as courts of Japan, it is sufficient now to invite attention to the decision of the Supreme Court of the United States in the case of The Admittance, Jecker vs. Montgomery (13 How., 498; 14 Law. ed., 240), which we did not deem necessary to quote in our decision, in which it was held that "the courts, established or sanctioned in Mexico during the war by the commanders of the American forces, were nothing more than the agents of the military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize." (The Admittance, Jecker vs. Montgomery, 13 How., 498; 14 Law. ed., 240.).

(6) The petition for mandamus in the present case is the plain, speedy and adequate remedy. The mandamusapplied for is not to compel the respondent judge to order the reconstitution of the record of the case, because the record had already been reconstituted by order of the court. It is sought to compel the respondent judge to continue the proceedings in said case. As the judge refused to act on the ground that he had no power or jurisdiction to continue taking cognizance of the case, mandamus and not appeal is the plain, speedy and adequate remedy. For it is a well established rule that "if a a court has erroneously decided some question of law or of practice, presented as a preliminary objection, and upon such erroneous construction has refused to go into the merits of the case, mandamus will lie to compel it to proceed." (High on Extraordinary Legal Remedies, section 151; Castro Revilla vs. Garduño, 53 Phil., 934.)

In view of the foregoing, the motion for reconsideration filed by the respondents is denied. The petition for oral argument on said motion for reconsideration, based on the resolution of division of this Court dated July 3, 1945, amendatory of section 2, Rule 54, of the Rules of Court, is also denied, since said resolution has not yet been adopted by this Court in banc, and the respondents and amici curiae were allowed to file, and they filed, their arguments in writing.

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

Separate Opinions


BENGZON, J., concurring:

I subscribe to the majority view, because it follows the trend of American juridical thought on the legal consequences of liberation from enemy conquest; and because General MacArthur's proclamation annulling all laws, regulations and " processes" other than those of the Commonwealth did not include judicial proceedings.

In ordinary parlance, process means, "Act of proceeding; procedure; progress"; "something that occurs in a series of actions or events"; "any phenomenon which shows a continuous change in time."1

In court language, process, of course, refers to the means whereby a court compels the appearance of a defendant before it or a compliance with its demands, and may include in its largest sense, all proceedings of the court, from the beginning to the end of a suit.2

Here we have, not a judicial statement, but a military proclamation of the great American liberator whose intent may be gleaned from his utterances and writings. Speaking at the inauguration of President Quezon, December 31, 1941, he called the occasion "symbolical of democratic processes."3 Announcing the discontinuance of United States Army's participation in Philippine affairs, he referred to "Government by constitutional process" and "Government under constitutional process." In the very proclamation of October 23, 1944, he promised to restore to the people "the sacred right of Government by constitutional process." Therefore, the word "processes" in that proclamation referred to orders or instructions, establishing governmental changes or practices — directives that may not fall strictly within the category of laws or regulations. I am fortified in this conclusion by the auxiliary rules of interpretation, noscitur a sociis and ejusdem generis.

Furthermore, General MacArthur could not have forgotten the classic Army tradition that, upon military occupation, usually the "legislative, executive or administrative" functions of the enemy Government are affected — not the judicial.4

Unconvincing is the argument that no judicial act is touched by Judge Dizon's order. The summons requiring the defendant to answer was a positive court action or proceeding.

Untenable is the position that petitioner should be restrictly to his remedy by appeal. Considering the numerous persons and cases affected, and the pressing importance of the issue, the Court may rightly entertain a petition for extraordinary legal remedy5.

PERFECTO, J., dissenting:

We are of opinion that the motion for reconsideration should be granted, and the petition denied.

We believe that the majority opinion in this case should be revoked and not be given effect:

1. Because it ignores one of the specific provisions of the October Proclamation issued by General Douglas McArthur;

2. Because it sets aside completely the true meaning and significance of the words "all processes," as nullified in said proclamation;


3. Because it attributes to General MacArthur an intention which is precisely the opposite of the one expressly manifested in the proclamation;

4. Because it wrongly surmises what General MacArthur could not have intended, on the false assumption that judicial processes during the Japanese regime are valid in accordance with international law;

5. Because it gives judicial processes under the Japanese regime such character of sacredness and untouchability that they cannot be nullified by the legitimate government;

6. Because it gives the judicial processes under the Japanese regime, although taken under the authority of an enemy, greater sanctity than those of a legitimate occupant or of a government de jure, which are always subject to nullification, in the discretion of the legitimate government;

7. Because it gives judicial processes under the Japanese regime greater force and validity than final decisions rendered by courts of the individual states of the United States of American, which cannot be enforced in our country without the institution of an action before our tribunals;

8. Because it exempts the parties in the judicial processes, under the Japanese regime, for the obligation of paying the necessary judicial fees to the Government of the Commonwealth, granting them a discriminatory privilege in violation of the "equal protection of the laws" clause of the Philippine Constitution;

9. Because it flagrantly violates the policy specifically delineated in the declaration of President Roosevelt regarding the Vargas "Executive Commission" and the Laurel "Philippine Republic;"

10. Because it validates foreign judicial processes taken when the Commonwealth Government was already reestablished in Philippine territory;

11. Because it ignores the fact that the judicial processes in question were taken under a foreign authority with an ideology which is the opposite of that underlying the Philippine legal and constitutional systems and repugnant to the judicial sense of our people;

12. Because it encourages, in some way, the defiant attitude adopted by plaintiff Co Kim Cham against the Commonwealth Government which has been reestablished in Philippine territory by filing the complaint before a court, under the Japanese regime, almost one month after the Commonwealth Government began functioning in Leyte with the absolute certainty that its authority will soon be extended throughout the Philippines;

13. Because it creates problems that might lead to either injustice or inconsistency on the part of this Court, such as the deposit of P12,500 made by plaintiff Co Kim Cham in "micky mouse" money, which is one of the processes validated in the majority opinion;

14. Because it subjects the legitimate government to greater restrictions than those imposed by international law upon a belligerent invader, notwithstanding the fact that The Hague Convention restrictions are only applied to the invader, and not to the restored legitimate government, there being absolutely no reason why international law should meddle with the domestic affairs of a legitimate government restored in her own territory;

15. Because there is absolutely no reason why an invader may revoke the officials acts of the ousted legitimate government, a right specifically recognized in the majority opinion, but the legitimate


government, once restored, is bound to respect such official acts of the defeated invader, as judicial processes, which is the same as granting outlaws greater privileges than those granted to law-abiding citizens.

On October 20, 1944, with the landing in Leyte of the armed forces of liberation, the Commonwealth Government under President Sergio Osmeña was reestablished in Philippine territory.

On October 23, 1944, General Douglas MacArthur issued his October Proclamation, nullifying all processes of any government other than the Commonwealth Government. Said proclamation was issued in keeping with the spirit and purposes of the following declaration of President Franklin Delano Roosevelt:

On the fourteenth of this month, a puppet government was set up in the Philippine Islands with Jose P. Laurel, formerly a justice of the Philippine Supreme Court, as "president." Jorge Vargas formerly a member of the Philippine Commonwealth Cabinet and Benigno Aquino, also formerly a member of that cabinet, were closely associated with Laurel in this movement. The first act of the new puppet regime was to sign a military alliance with Japan. The second act was a hypocritical appeal for American sympathy which was made in fraud and deceit, and was designed to confuse and mislead the Filipino people.

I wish to made it clear that neither the former collaborationist "Philippine Executive Commission" nor the present "Philippine Republic" has the recognition or sympathy of the Government of the United States . . . .

Our sympathy goes not to those who remain loyal to the United States and the Commonwealth — the great majority of the Filipino people who have not been deceived by the promises of the enemy . . .

October 23, 1943

FRANKLIN DELANO ROOSEVELTPresident of the United States

(From U. S. Naval War College, International Law Documents. 1943, pp. 93-94.)

Plaintiff Co and her attorneys must have been fully aware of the above-mentioned facts when on November 18, 1944, she filed the complaint in this case, and deposited in court the amount of P12,500.

The fact of the landing in Leyte was officially announced by the Japanese radio, by the papers published in Manila, all Japanese controlled, and by all agencies of Japanese propaganda, although with a few days' delay and with the usual distortion of real facts.

As to the real facts, it must be presumed that plaintiff and her attorneys obtained the same information generally circulated from underground sources — Filipino, Chinese, Spanish, Swedish, Swiss, Czechs, etc. — who were keeping short wave radio sets, and were circulating surreptitious sheets containing the latest war news, including developments in Leyte.

Although the Japanese kempei were becoming harsher, it is also a fact that in the second half of November, 1944, the Japanese forces in Manila were considerably weakened and reduced, being


deployed in great number in two opposite directions, north and south, and people were bolder in obtaining and propagating the real war news.

Among these were the victorious occupation of Leyte and Samar in October, 1944, and the crushing defeat suffered in said month by the bulk of the Japanese Navy in two greatest naval battles recorded in history, and the reestablishment of the Commonwealth Government including several measures adopted by the same.

Among the underground means of propaganda was the circulation of the mimeographed paper The Liberator, containing almost full accounts of political and war developments in Europe and in the Pacific.

When plaintiff filed her complaint in this case, she was fully aware that she was running the risk that her action and efforts in court might become useless or futile, besides the imminent reestablishment of the Commonwealth authority in Manila.

We may add that plaintiff, in fact, defied the authority of the Commonwealth Government reestablished in Philippine territory, when she filed said complaint about one month after said government was reestablished.

It is true that the Japanese were still controlling Manila then. But it is not less true that their control was precarious and everybody, including the Japanese themselves, was awaiting the arrival at any time of the American forces of Manila. The Japanese had already dug trenches in many places in Manila, built gun emplacements, and constructed, specially in the south side of the Pasig River, very visible military installations and other preparations to give battle within the City streets against the Fil-American forces. Everybody saw how the Japanese airplanes were reduced to a negligible minimum and how the American bombers, encountering no opposition, except from anti-aircrafts, ranged at will over all Japanese military installations in and around Manila and in the waterfronts of the City. In Manila, no aerial dogfights were seen after the first two days of bombing on September 21 and 22, 1944. After then, the Japanese fliers chose, as a wiser policy, to disappear completely from the Manila sky whenever American planes began to show up, to return one or two hours after the American planes had ended their mission.

Under these circumstances the position of plaintiff seems to become precarious and indefensible by her attitude of defiance to the Commonwealth Government, which was certain to be reestablished also in Manila, with the same sureness that a falling stone will follow the universal law of gravitation as stated by Isaac Newton.

In the present case plaintiff Co seeks to recover from defendant Eusebio Valdez Tan Keh the undivided half of a property located in Manila described in Torrens title under Transfer Certificate No. 64610 of the Register of Deeds of the City.

From the facts alleged in the complaint, as a condition precedent to the recovery of said undivided half, plaintiff had to return to defendant the amount of P12,500. As defendant refused to accept said amount, upon filing the complaint, plaintiff deposited in court said amount. It does not appear clearly what money was deposited. No doubt it must be of the kind commonly known as "mickey mouse" money, as the complaint was filed in the latter part of November, 1944. (President Osmeña and General MacArthur were already in Philippine territory with the Armed Forces of Liberation.).

If the proceedings had in the case until the record of the same was burned are to be validated, it is evident that plaintiff must be credited with having made a valid deposit in court in the amount of P12,500.


In case decision is rendered as prayed for in the complaint, and the undivided half of the property in question is adjudicated to the plaintiff, no one shall deny, as a matter of elemental justice, that defendant is entitled to receive the full amount of P12,500, which must be returned to him as a condition in order that he may relinquish his title to the property in favor of the plaintiff.

Now the problem facing us is how to determine the way in which defendant will recover the amount of P12,500. The amount was deposited in the court of that brazen political fraud inflicted upon our people, the Laurel Philippine Republic. But where is that court today? If the money could be located and disposed of, is it not absolutely worthless?

The decision will be rendered by the courts of the Commonwealth Government, the Court of First Instance of Manila, in the first place, and, in case of appeal, this Supreme Court, as a tribunal of last resort.

The decision necessarily will include a pronouncement as to how defendant will get the money. To make that pronouncement the Court of First Instance of Manila and this Supreme Court, undoubtedly, will be placed in a quandary.

Indeed we do not see how the money deposited in the court under the Japanese regime can be turned over to defendant.

The validation of the proceedings in question starts from the fiction that Commonwealth courts are continuations of the courts which functioned under enemy occupation and authority, including the Court of First Instance which functioned under the Vargas Philippine Executive Commission, and, later, the Laurel Philippine Republic, in which the complaint of this case has been filed. To follow this fiction to its natural consequences, the present Court of First Instance of Manila must be the one who ought to turn over the money to the defendant. Can it do it? Can it give a money which is not in its possession but in the possession of the defunct Court of First Instance under the Japanese regime?

As the Commonwealth courts have no money to turn over to the defendant, from whom and from where shall it get the money? This is a question that has never been answered, and we are afraid that it cannot be given any satisfactory answer.

As the defendant is entitled to his money, and the money must be paid by the plaintiff, it seems that plaintiff is the one who must find a way to give the money to defendant. But plaintiff may justly claim that she had done what was legally expected from her when, after offering the amount to defendant and the same refused to accept the money, she deposited it in court.

She cannot be compelled to disburse another P12,500 to be given to the defendant. If the Court of First Instance of Manila, in the decision it may render, should order her to pay P12,500 to the defendant, without taking into consideration what she has deposited in court in November, 1944, she may invoke the decision of this Supreme Court validating the proceedings, including therein the deposit of P12,500. If the deposit is valid, plaintiff is relieved from further obligations and in such case, how shall justice be rendered to defendant?

Our courts must not fall in the inconsistency of validating all the proceedings taken until the record of the case has been destroyed, and to except from said validation the deposit made by the plaintiff. If the deposit is valid, the courts must not allow such validation to be a simple mockery, and offensive farce without any other meaning than to make the administration of justice an object of laughter.


It is evident from the foregoing that the validation of the proceedings in question, in utter disregard of the October Proclamation issued by General MacArthur and of the Declaration of President Franklin D. Roosevelt, leads to an absurd situation from which our courts cannot escape and which will entangle them in a maze of problems incompatible with the administration of justice.

The validation of the processes in the case in question, including the deposit of P12,500, will place our courts of justice in the same predicament as the judge in the "Merchant of Venice," the Shakespearean masterpiece. The validity of the deposit made by plaintiff Co Kim Cham once recognized, she is entitled, like Shylock, to her pound of flesh, which can be denied her only through a judicial trick, the only way open to apparently avoid inconsistency.

In the preface to his work entitled "The Struggle for Law," the great jurist Jhering, expressed the following opinion as to the legal issue presented by the English dramatic genius:

One word more, on a point which has been contested even by those with whom I otherwise agree. I refer to my claim that injustice was done to Shylock.

I have not contended that the judge should have recognized Shylock bond to be valid; but that, once he had recognized its validity he should not, subsequently, have invalidated it by base cunning. The judge had the choice of deciding the bond valid or invalid. He should have declared it to be the latter, but he declared it to be the former. Shakespeare represents the matter as if this decision was the only possible one; no one in Venice doubted the validity of the bond; Antonio's friends, Antonio himself, the court, all were agreed that the bond gave the Jew a legal right. And confiding in his right thus universally acknowledged, Shylock calls for the aid of the court, and the "wise Daniel," after he had vainly endeavored to induce the revenge-thirsty creditor to surrender his right, recognized it. And now, after the judge's decision has been given after all doubt as to the legal right of the Jew has been removed by the judge himself, and not a word can be against it; after the whole assembly, the doge included, have accommodated themselves to the inevitable decree of the law — now that the victor, entirely sure of his case, intends to do what the judgment of the court authorized him to do, the same judge who had solemnly recognized his rights, renders those rights nugatory by an objection, a stratagem so contemptible that it is worthy of no serious attention. Is there any flesh without blood? The judge who accorded Shylock the right to cut a pound of flesh out of Antonio's body accorded him, at the same time, the right to Antonio's blood, without which flesh cannot be. Both refused to the Jew. He must take the flesh without the blood, and cut out only an exact pound of flesh, no more and no less. Do I say too much when I assert that here the Jew is cheated out of his legal right? True, it is done in the interest of humanity, but does chicanery cease to be chicanery because practiced in the name of humanity?

We vote for granting the motion for reconsideration to avoid placing our courts of justice in the predicament depicted in the Shylock case.

The next question we are about to discuss, concerning a procedural incident in this case, is most unusual. So far, we were concerned only with questions of right of parties coming to us for redress, and we have striven to champion the cause of those parties who, we believe, are deprived of their rights, victims of oppression, or denied justice. The problem confronting us now is essentially of internal character. Although it also affects the litigants in this case, it also transcends into the very official functions of this very Court.


What really is under test is the ability or capacity of this Court to administer justice. The question affects the rights and constitutional prerogatives of the individual members of the Tribunal in relation to the performance of their official duties.

Is a member of this Court entitled to hear the parties and their attorneys on a question pending before us before exercising his constitutional duty to vote on said question? May a majority deprive any member of the opportunity of being apprised of all the facts and all the arguments, written or oral, that the parties and their attorney may present in a case submitted to our consideration?

In the present case, a motion for reconsideration was filed by the respondent, in which it is prayed that said motion for reconsideration be set for hearing, invoking the resolution adopted by this Court on July 3, 1945, and in view of the special fact that there are two new members of this Court who did not have the opportunity of hearing the parties when this case was originally argued, or of participating when it was decided.

One of the new members proposed, seconded by two other members, that said hearing on the motion for reconsideration be set, alleging that he wants to have an opportunity of hearing the parties or their attorneys before voting on said motion.

A majority resolved to deny the motion. We dissented from such action, and this opinion explains why we had to dissent.

The motion was made by one of the member of this Court, prompted not only by the desire to give the respondent ample opportunity to argue upon his motion for reconsideration and to give the movant a change of hearing oral arguments upon the vital questions raised in this case, but by the idea of granting the petition of the respondent in accordance with the resolution unanimously adopted by the Supreme Court on July 3, 1945, which reads as follows:

The Supreme Court, upon motion of Justice Perfecto, unanimously resolved to adopt the policy of granting litigants or their attorneys the most ample and fullest opportunity of presenting and arguing their cases, by permitting them to present, after oral arguments, memoranda within reasonable time, to argue in open court motions of reconsideration, and, in general, by liberalizing in the discretion of the Court the application of the rules, to insure, in the interest of justice, the most complete and free discussion of every question properly submitted. (41 Off. Gaz., No. 4, p. 284.)

It must be remembered that this resolution was adopted simultaneously with another proposed by Mr. Justice De Joya for the purpose of definitely stopping a practice which was not in keeping with the highest ethical standards of the law profession, or with the dignity of the Supreme Court. Said resolution reads as follows:

The Supreme Court, upon motion of Justice De Joya, unanimously resolved, as one of the means of maintaining the highest ethical standard of the legal profession, not to permit private discussion by lawyers of their cases with individual Justices. (41 Off. Gaz., No. 4, p. 284.)

We were fully aware that the real cause of the practice sought to be stopped by the De Joya Resolution was the desire of litigants and their attorneys to have important motions, such as motions for reconsideration, properly considered before they are acted upon.


In all courts other than the Supreme Court, the parties and their attorneys are always given the opportunity of arguing before the tribunals, or the corresponding judges, all their motions and their petitions, without distinction as to their importance or lack of importance.

But in the Supreme Court no such opportunity was granted in the past. All motions were acted upon without hearing and without granting the litigants or their attorneys the opportunity of properly discussing by oral argument the questions raised in said motions, although said questions are of great importance and of decisive nature, such as motions for new trial, rehearing, or reconsideration.

The fact that the resolutions upon said motions usually are not accompanied by any reason to support the action taken, although in many instances the motions raised important questions and in their preparation the lawyers employed weeks or months of painstaking research, study, thinking, and many sleepless nights, in order to present, in the best possible manner, the questions raised, gave rise to the suspicion, founded or unfounded, generally entertained by the members of the bar, that the members of the Supreme Court did not care to read even said motions. The suspicion was even stronger with respect to the almost invariable denial, expressed in one or two words, of motions for reconsiderations. From mere suspicion to a strong belief only one step is lacking.

To meet this unsatisfactory situation, resourceful litigants and attorneys decided to have private conversations with individual members of the Court to argue their motions without, naturally, giving the opposing parties the necessary opportunity to be heard therein.

The fact that some motions for reconsideration, although very few, were granted in cases where said private conversations took place, could not dispel the suspicion.

Years ago, we came to the conclusion that the only way of stopping the practice is to eliminate the causes, that is, to eliminate the unjustifiable restrictions which deprived parties and attorneys of all the opportunities to fully present the cases and argue their motions.

The practice of not allowing an attorney to argue orally and to submit, at the same time, a written memorandum was a cause of much dissatisfaction among the members of the bar; and it was also one of the causes which induced some of them to seek private conversations with members of the Supreme Court.

Convinced that these procedural restrictions are unreasonable as they serve only to restrict the opportunities by which this Court may be completely apprised of the questions of fact and of law submitted to their decision, we were of opinion that it is high time for the Supreme Court to do away with them.

That is the reason why we proposed the resolution which was unanimously adopted by the Supreme Court, incorporating amendments proposed by Mr. Justice Feria and Mr. Justice De Joya, and which we very willingly accepted.

This is the first time when a party in a litigation is seeking the opportunity to argue orally upon his motion for reconsideration according to the terms of the resolution.

We do not see any reason why the Supreme Court shall betray the faith of that party by ignoring a resolution unanimously adopted by the same Court.

One of the members thereof, invoking his official privilege, in the performance of his constitutional duties to be duly apprised of the questions raised in the motion for reconsideration, proposed that he


be given an opportunity to hear the parties in an oral argument. We do not understand why his proposition should be turned down, as it was, and why he should be denied the opportunity he needs for the proper performance of his constitutional duties.

In a legislative chamber composed of members belonging to opposing political parties, in the heated debates to vie for popular favor, the majority party have sometimes denied improperly some prerogatives to members of the minority party, but it is unheard of that a majority party ever denied any minority member a right essential to the proper performance of his official functions, such as the right to have proper information upon any question to be voted upon, the right to hear witness and arguments, the right to read memoranda, the right to ask questions to any other member of the chamber and to the chair, and to interrogate any person who might enlighten him as to matters under consideration of the chamber.

The Supreme Court is not a political body composed of members divided for partisan considerations. No one here is personally, politically, or economically interested in the result of any case. It is really inconceivable how a majority in this Court could trample upon the rights and privileges of a fellow member. It is more inconceivable if we take into account the fact that we consider ourselves as brethren, and by tradition we are calling ourselves as such.

We can understand that amour propre may induce judges not to entertain with sympathy motions for reconsideration, as one of the natural weaknesses of humankind is to resent that others should point out one's real or fancied mistakes. But when we assumed our position in the highest tribunal of the land, the only governmental institution on which our fundamental code bestowed the appellative "supreme," where we attained the uppermost position of honor to which a lawyer can aspire, we are supposed to have left that weakness behind, and all questions on matters which are official in nature submitted to us shall be viewed with absolute personal detachment, with the only aim of doing justice to all and anyone of the eighteen million inhabitants of this country that might come to us, without asking anything for ourselves, but giving all of ourselves to help our people attain their mission in the centuries and millennia to come.

We know that the publication of the resolution in question was received by members of the bar with a sigh of relief. They could not fail to welcome a procedural innovation which will to away with one of the headaches in the practice of the profession of law; how to argue in person a motion for reconsideration, and such other motions of decisive importance in the cases they are handling. We who had endured the same headaches sympathize with and share the disappointment that the action of the majority will inflict upon law practitioners. Such unhappiness cannot allow us to be happy. Happiness, to be true, must be shared with others. Unshared happiness is deceitful tinsel.

When the resolution was adopted by unanimous vote, we felt elated by the though that the cause of the administration of justice had advanced another step in the thorny way of procedural progress. We believed that the liberal spirit embodied in the resolution accomplished another triumph against outworn practices, without better claim for survival than the fact that they are mouldy appendices of an old routine, which is a strong appeal to those who would not lift a finger to find out if there are better things than those of which we are used to, to look in the realms of law and ideas for happier worlds to discover and conquer, to see if new pages of the book of science will offer hitherto unknown marvels for an improved service to human necessities, because they do not happen to feel the natural urge towards perfection, which is a permanent force in mankind.

Our satisfaction did not last long. The resolution lived a paper life in the minutes of the Supreme Court and in the pages of the Official Gazette, giving for almost four months new hopes to the members of the bar, hopes which !alas!, did not come true. The liberal spirit which we felt triumphant, suffered a crushing defeat, overwhelmed by the forces of reaction, bent on clinging to


the mistakes of the past. The liberal innovation was decreed decapitated, to give way to the revival of an absurd judicial practice, wholly unreasonable and unsatisfactory, and not the best suited for a more effective administration of justice by the highest tribunal of our country.

In this hour of sorrow at the running back of the clock of judicial progress, it is our hope that the last setback is not definite for all time. Someday the forces of progress will rally and again march forward, singing the blissful hymn of a new dawn. Setbacks are frequent in the trials and errors of democracy. But in the long run, reason will reign supreme. The slippery earthen feet of the idols of error shall be exposed and will cause them to crumble into a crash from which there is no possible redemption. What is good, is good; what is bad, is bad. We firmly believe that, for the proper performance of its official functions, for the most efficient fulfillment of its judicial duties, the Supreme Court should never curtail the opportunity of the parties and their lawyers to present and argue fully, in writing and by oral argument, all questions properly submitted to our consideration. It is the only way of reducing to the possible minimum our chances of rendering erroneous decisions. If we are not fully apprised of all information, evidence, and arguments that litigants and their attorneys might present and offer to present within the proper time, we are likely to overlook facts and ideas that might give the necessary clue to the correct solution of the factual or legal problems raised in the cases and which will determine whether we are doing justice or injustice.

Painstakingly searching and inquisitive in fact-finding, benedictine patience in trying to understand the respective positions of contending parties, and thoroughness in judicial investigation and in proving and testing legal propositions and theories in the medical laboratory of analysis and inquiry, are the prices of real and substantial justice. The prices are high, but justice is a treasure worth paying all the prices men can offer. Her value is so high that no price is enough to insure its attainment. It even merits, not only the best prices, but the noblest sacrifices. It is after all, one of the fundamental purposes of society. It is one of the dazzling gems with which human character is studied. No efforts must be spared to reach the goal where the golden wreaths and jewelled garlands of human aspirations lay.

HILADO, J., dissenting:

I am constrained to dissent from the resolution of the majority denying the motion for reconsideration filed by the respondents in this case. There will be no need of restating here all the arguments set forth in my dissent against the original majority opinion herein, as well as those which have been expressed in my concurring opinion in G.R. No. L-49, Peralta vs. Director of Prisons, p. 355, ante. However, in reiterating these arguments, by reference, in support of the present dissent, I feel in duty bound to reinforce them by some additional considerations in view of the resolution of the majority.

In the first place, the resolution of the majority says:

We held in our decision that the word "processes," as used in the proclamation of General Douglas MacArthur of October 23, 1944, cannot be interpreted to mean judicial processes; and because of the cogent reasons therein set forth, we did not deem it necessary to specify the processes to which said proclamation should be construed to refer. As some doubt still lingers in the minds of persons interested in sustaining a contrary interpretation or construction, we are now constrained to say that term as used in the proclamation should be construed to mean legislative and constitutional processes, by virtue of the maxim "noscitur a sociis." According to this maxim, where a particular word or phrase is ambiguous in itself or


is equally susceptible of various meanings, its meaning may be made clear and specific by considering the company in which it is found. (Black on Interpretation of Laws, 2d ed., pp. 194-196.) Since the proclamation provides that "all laws" regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void, the word "processes" must be interpreted or construed to refer to the Executive Orders of the Chairman of the Philippine Executive Commission, Ordinances promulgated by the President of the so-called Republic of the Philippines, and the Constitution itself of said Republic, and other that are of the same class as the laws and regulations with which the word "processes" is associated, (Pp. 5, 6.)

Here we have a frank admission that "the Constitution itself of said Republic" is among the "processes" declared null and void by the proclamation issued on October 23, 1944, by General of the Army Douglas MacArthur. Now, the courts of that "Republic" were organized and functioned under and by virtue of said Constitution, particularly under Article IV thereof. Section 4 of said Article provides that the members of the Supreme Court shall be appointed by the President with the advice of the Cabinet, and all judges of inferior courts shall be appointed by the President with the advice of the Supreme Court. Consequently, those courts, commencing with the Supreme Court down to the lowest justice of the peace or municipal court, had to be organized anew, for their constitution under said Article IV was to be different from that of the Commonwealth courts under Article VIII of the Commonwealth Constitution. And, of course, the courts, which has thus been created under the Constitution of the "Republic," could not derive their powers, authority or jurisdiction, if any, except from the same Constitution, and any pertinent legislation enacted pursuant thereto. But if, as admitted by the majority, that Constitution was null and void under General of the Army MacArthurs' aforesaid proclamation, no legal power, authority or jurisdiction could have been conferred by virtue thereof upon the said courts and, as a consequence, the so-called Court of First Instance of Manila wherein the proceedings in question were had could not validly exercise such power, authority or jurisdiction. As a corollary, all of said proceedings must of necessity be null and void.

When the record of the case was burned during the battle for the liberation of Manila, the only proceedings which had been had in civil case No. 3012 of the Japanese-sponsored Court of First Instance of Manila were: (1) the complaint Annex X of the petition for mandamus, dated November 17, 1944; (2) the notification Annex X-1 dated November 20, 1944; (3) the motion to dismiss Annex X-2, dated November 28, 1944; (4) the urgent motion for time to file opposition Annex X-3, dated December 14, 1944; and (5) the opposition to motion to dismiss Annex X-4, dated December 21, 1944. The case had not been heard yet; consequently, there had been no decision disposing thereof.

At that stage of the proceedings, the record was destroyed, and shortly thereafter, upon the liberation of the city, it became legally and physically impossible for that Japanese-sponsored court to continue functioning. The very Constitution under which it had been organized was admittedly declared null and void by the Commander in Chief of the liberation army in his aforesaid proclamation. As we believe having demonstrated in our dissenting opinion when this case was decided, that declaration of nullity was retroactive to the very inception of the laws, regulations and processes condemned thereby — that these were null and void ab initio. But, making another concession to the contrary view, let us suppose that under the aforesaid proclamation the Constitution of the "Republic" became null and void only upon the liberation of Manila is so far as this area was concerned. Under the same hypothesis, the Japanese-sponsored Court of First Instance of Manila created by authority of that instrument, and all its pending unfinished proceedings also became null and void upon the date of that liberation. When the Court of First Instance of Manila was reestablished under the Commonwealth Constitution and laws, it had absolutely nothing to do with either the defunct and so-called Court of First Instance of Manila under the "Republic" nor its "proceedings" which were, besides, nothing but a name without substance in the eyes of the law. And yet the majority would by mandamus compel the reestablished the Court of First Instance of


Manila to continue said legally non-existent proceedings to final judgment. This could not be done without considering those proceedings valid despite the nullity of the court in which they were had due to the admitted nullity of the Constitution of the "Republic of the Philippines" under which said court was created, and without making the Commonwealth of the Philippines respect pro tanto the said "Republic," which was the creature of the very representatives of the Japanese Empire who are currently being tried as War Criminals.

In the second place, the said resolution contains the following paragraphs:

It is submitted that the renunciation in our Constitution and in the Kellog-Briand Pact of war as an instrument of national policy, rendered inapplicable the rules of international law authorizing the belligerent Japanese army of occupation to set up a provisional or de facto government in the Philippines, because Japan started war treacherously and emphasized was as an instrument of national policy; and that to give validity to the judicial acts of courts sponsored by the Japanese would be tantamount to giving validity to the acts of these invaders, and would be nothing short of legalizing the Japanese invasion of the Philippines.

In reply to this contention, suffice it to say that the provisions of the Hague Conventions which impose upon a belligerent occupant the duty to continue the courts as well as the municipal laws in force in the country unless absolutely prevented, in order to reestablish and insure "I" ordre et la vie publice," that is, the public order and safety, and the entire social and commercial life of the country, were inserted, not for the benefit of the invaders, but for the protection and benefit of the people or inhabitants of the occupied territory and of those not in the military service, in order that the ordinary pursuits and business of society may not be unnecessarily deranged. (Pp. 3, 4.)

The trouble with the case of Japan in the Philippines is that, in establishing here the puppet regimes of the Philippine Executive Commission and the so-called Republic of the Philippines, she did not undertake to fulfill any duty as provided by the Hague Conventions in order to reestablish and insure public order and safety, etc. "for the protection and benefit of the people or inhabitants of the occupied territory and of those not in the military service, in order that the ordinary pursuits and business of society may not be unnecessarily deranged." Her sole purpose, as conclusively shown by her previous, contemporaneous, and subsequent acts in the Philippines, was to make of those puppet organization mere instrumentalities for the further prosecution of her war aims. The strict control and supervision which were constantly retained and exercised by the Japanese Army over, first the Philippine Executive Commission and, later, the so-called Republic, under the circumstances prevailing during the entire period of their existence, show to my mind that they were created merely to serve as such instrumentalities. A strong corroboration of this conclusion is found in the declaration of Mr. Jose P. Laurel, President of that "Republic," when Japan surrendered, that by the acceptance by Japan of the terms of the Potsdam Declaration the said "Republic" ceased to exist: this could only mean that said "Republic" was inseparably linked with Japan's war effort — if it had been intended only as a provisional government set up by the occupation army, it would have been considered by Mr. Laurel as terminated upon the liberation of the Philippines which happened beforeJapan's surrender. Any semblance of incidental benefit which to some eyes might have appeared to accrue therefrom to a more or less insignificant portion of our population, was not more than incidental or nominal. It should not be allowed to blindfold our eyes to the real and deceitful aim of the enemy. This is the same deceit to which President Roosevelt referred in his message dated October 23, 1943, cited in my main dissenting opinion.

If, fundamentally, the Japanese-sponsored Court of First Instance of Manila lacked all power and jurisdiction over the said civil case No. 3012, no amount of benefit to any particular litigants who


might have resorted to it, which may be said to arise from the proceedings of that court, could confer upon it such power and jurisdiction. This is so self-evident as to render demonstration unnecessary.

I, therefore, vote for the granting of the motion for reconsideration.

BRIONES, M., disidente:

Siento tener que disentir de la resolucion de la mayoria. Opino que el pedimento de reconsideration debe concederse y en consecuencia denegarse el mandamus solicitado por el recurrente.

Al interpretar la proclama del General MacArthur de 23 de Octubre de 1944 que anula todas las actuaciones del gobierno establecido en estas islas bajo la ocupacion militar japonesa, creo ue la inteleccion mas apropiada es que, como regla general, esa proclama anula todo, incluso las actuaciones judiciales (judicial processes), sobre todo aquellas cuya entidad y cuyos efectos rebasan el periodo de la esclavitud forzosa y transcienden y repercuten en la postliberacion. En otras palabras, la nulidad, la ineficacia debe ser la regla general; y validez, la eficacia la excepcion, la salvedad.

La razon de esto es sencilla. El gobierno de ocupacion representaba en nuestra vida un parentesis anomalo, de obligada ilegitimidad, y es nada mas que natural que el gobierno legitimo, de jure, al restaurarse, no transigiese con los actos y procesos de aquel gobierno, excepto en lo que fuera absolutamente necesario e irremediable. Caerian, por ejemplo, bajo esta excepcion solamente aquellos actos y procesos resultantes del hecho de que formabamos una comunidad civilizada con necesidades e intereses individuales y sociales complejos; y de que por instinto de conservacion y para vivir con cierto orden y relativa tranquilidad y no precipitarnos en la anarquia y en el caos habiamos menester la egida de un gobierno, sin importar que este no fuese hechura de nuestra voluntad y que inclusive no fuera repulsivo. Mas alla del minimum de esta forzosidad, no puede haber transaccion con los actos y procesos de aquel regimen.

Como corolario de esta inteleccion es obvio que por mucho que nos tienten y atraigen ciertas doctrinas y principios conocidos de derecho international sobre gobiernos de facto, no es conveniente y es hasta peligroso sentar reglas absolutas que a lo mejor no cuadran con las circunstancias peculiares de cada caso. Lo mas seguro es enjuiciar por sus propios meritos cada acto o proceso que se plantee.

En la determinacion judicial de esta clase de asuntos nunca se deben perder de vista, entre otras, las siguientes circunstancias: (1) que la invasion japonesa, aun en el apogeo de su fuerza, jamas pudo quebrantar le lealtad fundamental del pueblo filipino a su gobierno y al gobierno de los Estados Unidos de America; (2) que en casi todas partes de Filipinas esta lealtad hizo posible la articulacion y organization soterranea de fuerzas de resistencia contra el enemigo; (3) que si bien el control japones era por lo general efectivo en las ciudades y grandes poblaciones, era, sin embargo, precario en muchos pueblos y barrios, sobre todo en aquellos que no tenian valor estrategico o eran poco propicios a la confiscacion y rapiña, dominando practicamente en dichos sitios las guerrillas; (4) que en algunas regiones el gobierno del Commonwealth seguia funcionando, trasladandose de un sitio a otro para burlar la persecucion del enemigo a acuartelandose en zonas a donde no alcanzaba la accion de las guarniciones japonesas; (5) que muchos habitantes de los llanos y poblados se sustrajeron a la jurisdiccion del gobierno de fuerza predominante ( paramount force), refugiandose en las montañas y lugares dominados por las guerrillas y colocandose bajo la proteccion y salvaguardia de estas, o bien en sitios donde no habia ni japoneses ni guerrillas, (6) y


por ultimo, que despues del desembarco del General MacArthur y de sus fuerzas libertadoras en Leyte el 20 de Octubre de 1944, la lealtad filipina y el espiritu de resistencia llegaron a su maxima tension y la ocupacion japonesa se fue desmoronando rapidamente a pedazos hasta sufrir finalmente un colapso total.

Examinemos ahora el caso que nos ocupa. ¿Hay razones para catalogarlo excepcionalmente en la categoria de aquellos actos o procesos judiciales que, bajo la inteleccion ya antedicha, merecen que se les de vida y efectividad aun despues de fenecido el rigimen de ilegitimidad bajo el cual se iniciaron y tramitaron? Creo que no. Veanos por que.

De autos resulta que el expediente cuya reconstitucion se pide formose mediante demanda incoada ante el Juzgado de Primera Instancia de Manila el 17 de Noviembre de 1944, es decir, cuando ya las fuerzas libertadoras del General MacArthus estaban fuertemente asentadas en Leyte y el Gobierno del Commonwealth firmemente restablecido en suelo filipino. El asunto versaba sobre derechos relacionados con propiedad inmueble y el estado de su tramitacion no paso de la etapa de las alegaciones hasta que ocurrio el devastador incendio de Manila causado por los japoneses despues de la entrada de los Americanos en esta ciudad el 3 de Febrero de este ano, 1945. Los records del Juzgado se quemaron con motivo de dicho incendio, entre ellos el expediente de autos. Despues de la restauracion de los tribunales, la parte demandante pidio la reconstitucion del expediente por medio de copias de los escritos presentados. La parte demandada se opuso: primero, porque se trataba de un asunto incoado bajo la ocupacion japonesa y, por tanto, quedaba automaticamente anulado, despues de la liberacion de Manila, bajo los terminos de la proclama del General MacArthur de que se ha hecho mencion; segundo, porque no se podia confiar en la autenticidad de las copias proporcionadas por la parte demandante. El Juzgado estimo la opisicion por el fundamento de la invalidez y porque, a falta de una ley expresa del Commonwealth al efecto, no se consideraba autorizado para ordenar la reconstitucion del expediente y asumir jurisdiccion sobre el mismo. De ahi la interposicion del presente recurso de mandamus para compeler al Juzgado a ordenar la reconstitucion del expediente y a seguir conociendo del mismo.

Aunque es verdad que la Ciudad de Manila no estaba aun liberada cuando se presento la demanda de autos, con todo opino que el Juzgado no erro ni abuso de su discrecion al negarse a dar validez a lo tramitado bajo la ocupacion japonesa con motivo de dicha demanda y a reconstituir el expediente, a tenor de lo dispuesto en la proclama del General MacArthur tantas veces mencionada. Es evidente que no se trata aqui de un proceso judicial comprendido dentro del minimum de forzosidad de que hablo mas arriba y cuya validez y eficacia el gobierno legitimo no tendria mas remedio que reconocer so pena de causar un dano irreparable a las partes. No habia llegado a cristalizar ningun estado juridico definitivo en el asunto, no se habia dictado ninguna sentencia, ni siquiera habia comenzado a verse. No se pretende que las partes perderian algun derecho vital y sustantivo si no se reconstituyera el expediente quemado, o que no podria reproducirse el litigio ahora ante los tribunales del Commonwealth, en un pleito completamente nuevo y original.

Si esto es asi ¿por que, pues, se ha de compeler al gobierno legitimo, al tribunal de jure, a aceptar como validas y, por añadidura, a heredarlas y reconstituirlas, unas actuaciones tramitadas a ultima hora, de prisa y corriendo, cuando los japoneses ya estaban de retirada y las fuerzas libertadoras del General MacArthur estaban en visperas de una victoria aplastante y decisiva, maxime porque esas actuaciones no envolvian nada vital ni apremiante en el sentido de que su incoacion no pudiera haberse pospuesto para despues de la liberacion?

¿Por que no se ha de dar al gobierno legitimo, al tribunal de jure, cierta latitud en el ejercicio de su discrecion al determinar cual debe ser aceptado como valido en los autos y procesos de aquel regimen de fuerza predominante ( paramount force) y cual debe ser considerado como nulo e


ineficaz? ¿Es acaso que el gobierno legitimo ha de sentirse como paralizado y cohibido al enjuiciar los actos y procesos del gobierno establecido por el invasor?.

Y, sobre todo ¿por que al interpretar la proclama del General MacArthur hemos de restringirla demasiado en ves de darle la mayor latitud posible, limitada tan solo por aquel minimum de forzosidad de que he hablado antes? ¿No es acaso un principio bien establecido de derecho internacional que si el gobierno legitimo, al restaurarse, puede convalidar ciertos actos o procesos del gobierno de ocupacion, tambien puede optar por lo contrario y que no hay nada que en buena ley le impida hacerlo en gracia a la majestad de la soberania legitima? (Wheaton's International Law, pp. 244-245.)

Existen, ademas, otras consideraciones fuera de las indicadas. El 17 de Noviembre de 1944 en que se presento la demanda de autos la situacion en Manila ya era muy critica y alarmante. Los aviones aliados dominaban el aire. Los Japoneses estaban tratando desesperadamente de fortificar la ciudad. Parecia que iban a defenderse aqui hasta el ultimo cartucho. Las autoridades locales conminaban a la poblacion a que evacuara la ciudad en prevencion de batallas en las calles y de casa en casa. Bajo tales circunstancias es harto dudoso ques los tribunales estuvieran funcionando todavia normalmente entonces y que los procesos judiciales fueran tales como debian ser en una situacion ordenada y normal. Es evidente que tales procesos, tramitados en condiciones tan anomalas y precarias, no merecen que se les de validez reconstituyendolos, tanto mas cuanto que las partes nada pierden con su invalidacion, pudiendo, como pueden, someter sus contenciones a los tribunales restablecidos del Commonwealth mediante la incoacion de nuevos pleitos. Lo mas que tendrian que hacer seria pagar nuevos derechos de escribania y de sherifato, pero si protestasen por este nuevo pago, diria entonces que ello seria un buen argumento en contra de la reconstitucion.

En vista de todas las circunstancias, se puede afirmar con buen fundamento que la parte demandante, cuando presento su demanda en Noviembre de 1944, sabia o debia saber que el gobierno del Commonwealth — el de jure — ya estaba firmemente restablecido en suelo filipino, y que el tremendo exito de unas operaciones militares victoriosas estaba posibilitando rapidamente su pronta restauracion en plena capital del archipielago. Asi que por anologia se puede aplicar a este caso lo que en el asunto de State vs. Carroll (28 Conn., 449) se declaro, a saber:

When, therefore, in civil cases, the public or third persons had knowledge that the officer was not an officerde jure, the reason for validating the acts to which they submitted, or which they invoked, failed, and the law no longer protected them. (Cases on Amer. Admin. Law, 146.)

Es igualmente aplicable por anologia esto que se dijo en el asunto de State vs. Taylor (108 N. C., 196):

The citizen is justly chargeable with laches, does that which is his own wrong and wrong to the public, when he recognizes, tolerates, encourage and sustains a mere usurper, one whom he knows, or ought, under the circumstances, to know to be such. In such cases, neither justice, necessity nor public policy requires that the acts of the usurper shall be upheld as valid for any purpose. Indeed, these things, the spirit and purpose of government strongly suggest the contrary. (Cases on Amer. Admin. Law, 143.)

Ahora pasare a tratar de un punto procesal. El mandamus procede cuando hay de por medio un deber ministerial que cumplir y a la parte agraviada no le queda otro remedio expedito y adecuado. ¿Es este el caso que tenemos ante nosotros? Creo que no. El Juzgado tenia perfecta discrecion para reconstituir o no el expediente en cuestion porque mientras, por un lado, no se creia autorizado para asumir jurisdiccion sobre un asunto heredado de la ocupacion japonesa a falta de una ley


expresa del Commonwealth que le autorizase para ello, por otro lado con su proceder no privada a las partes del derecho de plantear sus desavenencias ante los tribunales del gobierno legitimo restablecido, en medio de la presente atmosfera de plena libertad y plena justicia. Pero de todas maneras, aun suponiendo que el Juzgado haya incurrido en error al ejercer su discrecion de la manera que ejercio, a la parte agraviada le quedaba un remedio expedito y adecuado: la apelacion.

En resumen, mi inteleccion del asunto que nos ocupa es la siguiente:

(a) Que la proclama del General MacArthur anula, como regla general, todos los actos y procesos legislativos, administrativos y aun judiciales del gobierno de superior fuerza establecido por los japoneses durante la guerra.

(b) Que esa proclama, sin embargo, deja excepcionalmente un margen para cierto minimum de validez forzosa, minimum impuesto por las exigencias del instinto de conservacion, del orden y de la vida civilizada que teniamos que vivir y conllevar en medio de los riesgos, tribulaciones y horrores bajo la ocupacion militar.

(c) Que el caso que tenemos ante nosotros no cae dentro del radio de ese minimum no solo porque no envolvia para las partes nada urgente ni vitalmente forzoso que hiciese inaplazable su planteamiento ante los tribunales del regimen de ocupacion en visperas de la victoria devisiva de las fuerzas libertadoras y cuando el gobierno de Commonwealth ya estaba firmemente restablecido en suelo filipino y la situacion en Manile era a todas luces anormal, sino porque nada hay que prive a las partes de su derecho de promover el mismo litigo ante los tribunales del Commonwealth mediante la incoacion de un expediente nuevo y original.

(d) Y, finalmente, que aun suponiendo que el Juzgado haya incurrido en error, el recurso procedente no es el demandamus sino la apelacion.

Footnotes

1 For principal decision, see page 113, ante.

BENGZON, J., concurring.

1 Webster's New International Dictionary, Second Edition.

2 Neal-Millar C. vs. Owens (42 S. E., 266; 267; 115 Ga., 959); Rich vs. Trimble ([Vt.], 2 Tyler, 349, 350).

3 41 Off. Gaz., 156.

4 Lieber's Instructions for the Government of Armies of the United States in the Field (section 1, paragraph 6), quoted in The Law of Civil Government under Military Occupation, Magoon's Reports, p. 14.5 Yu Cong Eng vs. Trinidad (47 Phil., 385).

5 Yu Cong Eng vs, Trinidad (47 Phil., 385).


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 Arsenio Dizon 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 MacArthur’s 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 MacArthur’s 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)



Manila

EN BANC

G.R. No. L-36409 October 26, 1973

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.LORETA GOZO, defendant-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Jaime M. Lantin and Solicitor Norberto P. Eduardo for plaintiff-appellee.

Jose T. Nery for defendant-appellant.

FERNANDO, J.:

Appellant seeks to set aside a judgment of the Court of First Instance of Zambales, convicting her of a violation of an ordinance of Olongapo, Zambales, requiring a permit from the municipal mayor for the construction or erection of a building, as well as any modification, alteration, repair or demolition thereof. She questions its validity, or at the very least, its applicability to her, by invoking due process, 1 a contention she would premise on what for her is the teaching of People v. Fajardo. 2 If such a ground were far from being impressed with solidity, she stands on quicksand when she would deny the applicability of the ordinance to her, on the pretext that her house was constructed within the naval base leased to the American armed forces. While yielding to the well-settled doctrine that it does not thereby cease to be Philippine territory, she would, in effect, seek to emasculate our sovereign rights by the assertion that we cannot exercise therein administrative jurisdiction. To state the proposition is to make patent how much it is tinged with unorthodoxy. Clearly then, the lower court decision must be affirmed with the sole modification that she is given thirty days from the finality of a judgment to obtain a permit, failing which, she is required to demolish the same.

The facts are undisputed. As set forth in the decision of the lower court: "The accused bought a house and lot located inside the United States Naval Reservation within the territorial jurisdiction of Olongapo City. She demolished the house and built another one in its place, without a building permit from the City Mayor of Olongapo City, because she was told by one Ernesto Evalle, an assistant in the City Mayor's office, as well as by her neighbors in the area, that such building permit was not necessary for the construction of the house. On December 29, 1966, Juan Malones, a building and lot inspector of the City Engineer's Office, Olongapo City, together with Patrolman Ramon Macahilas of the Olongapo City police force apprehended four carpenters working on the house of the accused and they brought the carpenters to the Olongapo City police headquarters for interrogation. ... After due investigation, Loreta Gozo was charged with violation of Municipal Ordinance No. 14, S. of 1964 with the City Fiscal's Office." 3 The City Court of Olongapo City found her guilty of violating Municipal Ordinance No. 14, Series of 1964 and sentenced her to an imprisonment of one month as well as to pay the costs. The Court of Instance of Zambales, on appeal, found her guilty on


the above facts of violating such municipal ordinance but would sentence her merely to pay a fine of P200.00 and to demolish the house thus erected. She elevated the case to the Court of Appeals but in her brief, she would put in issue the validity of such an ordinance on constitutional ground or at the very least its applicability to her in view of the location of her dwelling within the naval base. Accordingly, the Court of Appeals, in a resolution of January 29, 1973, noting the constitutional question raised, certified the case to this Court.

There is, as mentioned in the opening paragraph of this petition, no support in law for the stand taken by appellant.

1. It would be fruitless for her to assert that local government units are devoid of authority to require building permits. This Court, from Switzer v. Municipality of Cebu, 4 decided in 1911, has sanctioned the validity of such measures. It is much too late in the day to contend that such a requirement cannot be validly imposed. Even appellant, justifiably concerned about the unfavorable impression that could be created if she were to deny that such competence is vested in municipal corporations and chartered cities, had to concede in her brief: "If, at all; the questioned ordinance may be predicated under the general welfare clause ... ." 5 Its scope is wide, well-nigh all embracing, covering every aspect of public health, public morals, public safety, and the well being and good order of the community. 6

It goes without saying that such a power is subject to limitations. Certainly, if its exercise is violative of any constitutional right, then its validity could be impugned, or at the very least, its applicability to the person adversely affected could be questioned. So much is settled law. Apparently, appellant has adopted the view that a due process question may indeed be raised in view of what for her is its oppressive character. She is led to such a conclusion, relying on People v. Fajardo. 7 A more careful scrutiny of such a decision would not have led her astray, for that case is easily distinguishable. The facts as set forth in the opinion follow: "It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo as mayor of the municipality of Baao, Camarines Sur, the municipal council passed the ordinance in question providing as follows: "... 1. Any person or persons who will construct or repair a building should, before constructing or repairing, obtain a written permit from the Municipal Mayor. ... 2. A fee of not less than P2.00 should be charged for each building permit and P1.00 for each repair permit issued. ... 3. [Penalty]-Any violation of the provisions of the above, this ordinance, shall make the violator liable to pay a fine of not less than P25 nor more than P50 or imprisonment of not less than 12 days nor more than 24 days or both, at the discretion of the court. If said building destroys the view of the Public Plaza or occupies any public property, it shall be removed at the expense of the owner of the building or house. ... ." Four years later, after the term of appellant Fajardo as mayor had expired, he and his son-in-law, appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's name, located along the national highway and separated from the public plaza by a creek ... . On January 16, 1954, the request was denied, for the reason among others that the proposed building would destroy the view or beauty of the public plaza ... . On January 18, 1954, defendants reiterated their request for a building permit ..., but again the request was turned down by the mayor. Whereupon, appellants proceeded with the construction of the building without a permit, because they needed a place of residence very badly, their former house having been destroyed by a typhoon and hitherto they had been living on leased property." 8

Clearly then, the application of such an ordinance to Fajardo was oppressive. A conviction therefore for a violation thereof both in the justice of the peace court of Baao, Camarines Sur as well as in the Court of First Instance could not be sustained. In this case, on the contrary, appellant never bothered to comply with the ordinance. Perhaps aware of such a crucial distinction, she would assert in her brief: "The evidence showed that even if the accused were to secure a permit from the Mayor, the same would not have been granted. To require the accused to obtain a permit before constructing her house would be an exercise in futility. The law will not require anyone to perform an impossibility, neither in law or in fact: ... ." 9 It would be from her own version, at the very least then,


premature to anticipate such an adverse result, and thus to condemn an ordinance which certainly lends itself to an interpretation that is neither oppressive, unfair, or unreasonable. That kind of interpretation suffices to remove any possible question of its validity, as was expressly announced in Primicias v. Fugoso. 10 So it appears from this portion of the opinion of Justice Feria, speaking for the Court: "Said provision is susceptible of two constructions: one is that the Mayor of the City of Manila is vested with unregulated discretion to grant or refuse to grant permit for the holding of a lawful assembly or meeting, parade, or procession in the streets and other public places of the City of Manila; and the other is that the applicant has the right to a permit which shall be granted by the Mayor, subject only to the latter's reasonable discretion to determine or specify the streets or public places to be used for the purpose, with a view to prevent confusion by overlapping, to secure convenient use of the streets and public places by others, and to provide adequate and proper policing to minimize the risk of disorder. After a mature deliberation, we have arrived at the conclusion that we must adopt the second construction, that is, construe the provisions of the said ordinance to mean that it does not confer upon the Mayor the power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places where the parade or procession may pass or the meeting may be held." 11 If, in a case affecting such a preferred freedom as the right to assembly, this Court could construe an ordinance of the City of Manila so as to avoid offending against a constitutional provision, there is nothing to preclude it from a similar mode of approach in order to show the lack of merit of an attack against an ordinance requiring a permit. Appellant cannot therefore take comfort from any broad statement in the Fajardo opinion, which incidentally is taken out of context, considering the admitted oppressive application of the challenged measure in that litigation. So much then for the contention that she could not have been validly convicted for a violation of such ordinance. Nor should it be forgotten that she did suffer the same fate twice, once from the City Court and thereafter from the Court of First Instance. The reason is obvious.Such ordinance applies to her.

2. Much less is a reversal indicated because of the alleged absence of the rather novel concept of administrative jurisdiction on the part of Olongapo City. Nor is novelty the only thing that may be said against it. Far worse is the assumption at war with controlling and authoritative doctrines that the mere existence of military or naval bases of a foreign country cuts deeply into the power to govern. Two leading cases may be cited to show how offensive is such thinking to the juristic concept of sovereignty, People v. Acierto, 12 and Reagan v. Commissioner of Internal Revenue. 13 As was so emphatically set forth by Justice Tuason in Acierto: "By the Agreement, it should be noted, the Philippine Government merely consents that the United States exercise jurisdiction in certain cases. The consent was given purely as a matter of comity, courtesy, or expediency. The Philippine Government has not abdicated its sovereignty over the bases as part of the Philippine territory or divested itself completely of jurisdiction over offenses committed therein. Under the terms of the treaty, the United States Government has prior or preferential but not exclusive jurisdiction of such offenses. The Philippine Government retains not only jurisdictional rights not granted, but also all such ceded rights as the United States Military authorities for reasons of their own decline to make use of. The first proposition is implied from the fact of Philippine sovereignty over the bases; the second from the express provisions of the treaty." 14 There was a reiteration of such a view in Reagan. Thus: "Nothing is better settled than that the Philippines being independent and sovereign, its authority may be exercised over its entire domain. There is no portion thereof that is beyond its power. Within its limits, its decrees are supreme, its commands paramount. Its laws govern therein, and everyone to whom it applies must submit to its terms. That is the extent of its jurisdiction, both territorial and personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution of sovereignty." 15 Then came this paragraph dealing with the principle of auto-limitation: "It is to be admitted any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction." A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence." 16 The opinion was at pains to point out though that even then, there is at the most diminution of jurisdictional rights, not its disappearance. The words employed follow: "Its laws may as to some persons found within its territory no longer control. Nor does the matter end there. It is not precluded from allowing another power to participate in the exercise of jurisdictional right over certain


portions of its territory. If it does so, it by no means follows that such areas become impressed with an alien character. They retain their status as native soil. They are still subject to its authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease to the American armed forces by virtue of the military bases agreement of 1947. They are not and cannot be foreign territory." 17

Can there be anything clearer, therefore, than that only a turnabout, unwarranted and unjustified, from what is settled and orthodox law can lend the slightest degree of plausibility to the contention of absence of administrative jurisdiction. If it were otherwise, what was aptly referred to by Justice Tuason "as a matter of comity, courtesy, or expediency" becomes one of obeisance and submission. If on a concern purely domestic in its implications, devoid of any connection with national security, the Military-Bases Agreement could be thus interpreted, then sovereignty indeed becomes a mockery and an illusion. Nor does appellant's thesis rest on less shaky foundation by the mere fact that Acierto and Reagan dealt with the competence of the national government, while what is sought to be emasculated in this case is the so-called administrative jurisdiction of a municipal corporation. Within the limits of its territory, whatever statutory powers are vested upon it may be validly exercised. Any residual authority and therein conferred, whether expressly or impliedly, belongs to the national government, not to an alien country. What is even more to be deplored in this stand of appellant is that no such claim is made by the American naval authorities, not that it would do them any good if it were so asserted. To quote from Acierto anew: "The carrying out of the provisions of the Bases Agreement is the concern of the contracting parties alone. Whether, therefore, a given case which by the treaty comes within the United States jurisdiction should be transferred to the Philippine authorities is a matter about which the accused has nothing to do or say. In other words, the rights granted to the United States by the treaty insure solely to that country and can not be raised by the offender." 18 If an accused would suffer from such disability, even if the American armed forces were the beneficiary of a treaty privilege, what is there for appellant to take hold of when there is absolutely no showing of any alleged grant of what is quaintly referred to as administrative jurisdiction? That is all, and it is more than enough, to make manifest the futility of seeking a reversal.

WHEREFORE, the appealed decision of November 11, 1969 is affirmed insofar as it found the accused, Loreta Gozo, guilty beyond reasonable doubt of a violation of Municipal Ordinance No. 14, series of 1964 and sentencing her to pay a fine of P200.00 with subsidiary imprisonment in case of insolvency, and modified insofar as she is required to demolish the house that is the subject matter of the case, she being given a period of thirty days from the finality of this decision within which to obtain the required permit. Only upon her failure to do so will that portion of the appealed decision requiringdemolition be enforced. Costs against the accused.

Makalintal, C.J., Zaldivar, Castro, Teehankee, Makasiar, Antonio and Esguerra, JJ., concur.

Barredo, J., took no part.

Footnotes

1 According to Article III, Section 1, paragraph 1 of the Constitution: "No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws."

2 104 Phil. 443 (1958).

3 Decision, Appendix A to the Brief for the Defendant-Appellant, 1A-1B.


4 20 Phil. 111. Cf. People v. Cruz, 54 Phil. 25 (1929); Tan Chat v. Municipality of Iloilo, 60 Phil. 465 (1934); Hipolito v. City of Manila, 87 Phil. 180 (1950); Uy Matiao and Co. v. The City of Cebu, 93 Phil. 300 (1953) ; University of the East v. City of Manila, 96 Phil. 316 (1954); Verzosa v. City of Baguio, 109 Phil. 571 (1960) ; Lopera v. Vicente, L-18102, June 30, 1962, 5 SCRA 549; People v. Soria, L-18982, January 31, 1963, 7 SCRA 242.

5 Brief for the Defendant-Appellant, 10. She would cite Sec. 2238 of the Revised Administrative Code, but strict accuracy would demand that she should refer to the specific provision in the Olongapo city charter.

6 Cf. United States v. Alexander, 8 Phil. 29 (1907): Punzalan v. Ferriols, 19 Phil. 214 (1911); United States v. Espiritusanto, 23 Phil. 610 (1912); United States v. Ten Yu, 24 Phil. 1 (1912); United States v. Abundan, 24 Phil. 165 (1913); Case v. Board of Health, 24 Phil. 250 (1913); United States v. Hilario, 24 Phil. 392 (1913).; United States v. Chan Tienco, 25 Phil. 89 (1913); United States v. Joson, 26 Phil. 1 (1913); Rivera v. Campbell, 34 Phil. 348 (1916) ; United States v. Salaveria, 39 Phil. 103 (1918); Kwong Sing v. City of Manila, 41 Phil. 103 (1920); Vinco v. Municipality of Hinigaran, 41 Phil. 790 (1917); People v. Cruz, 54 Phil. 24 (1929); Tan Chat v. Municipality of Iloilo, 60 Phil. 465 (1934); People v. Lardizabal, 61 Phil. 360 (1935); Malabon Sugar Co. v. Municipality of Malabon, 61 Phil. 717 (1935); People v. Chan, 65 Phil. 611 (1938); People v. Sabarre, 65 Phil. 684 (1938); People v. Esguerra, 81 Phil. 33 (1948); Ebona v. Municipality of Daet, 85 Phil. 369 (1950); Manila Race Horse Trainers Asso. v. De la Fuente, 88 Phil. 60 (1951); Vega v. Municipal Board of the City of Iloilo, 94 Phil. 949 (1954); Co Kiam v. City of Manila, 96 Phil. 649 (1955); Physical Therapy Org. of the Phil. v. Municipal Board of Manila, 101 Phil. 1142 (1957); Uy Ha v. City Mayor, 108 Phil. 400 (1960); Gaerlan v. Baguio City Council, 109 Phil. 1100 (1960); Gerena v. City of Manila 110 Phil. 958 (1961).

7 104 Phil. 443 (1958).

8 Ibid, 444-445.

9 Brief for the Defendant-Appellant, 11.

10 80 Phil. 71 (1948).

11 Ibid, 77.

12 92 Phil. 534 (1953).

13 L-26379, Dec. 27, 1969, 30 SCRA 968.

14 92 Phil. 534, 542.

15 30 SCRA 968, 973.

16 Ibid.

17 Ibid, 973-974.


18 92 Phil. 534, 542.

53 SCRA 476 – Political Law – Sovereignty

Loreta Gozo bought a house and lot which was located inside the US Naval Reservation which is within the territorial jurisdiction of Olongapo City. Upon the advice of an assistant in the Mayor’s Office and some neighbors, she demolished the house standing thereon without acquiring the necessary permits and then later on erected another house. She was then charged by the City Engineer’s Office for violating a municipal order which requires her to secure permits for any demolition and/or construction within the City. She was convicted in violation thereof by the lower court. She appealed and countered that the City of Olongapo has no administrative jurisdiction over the said lot because it is within a Naval Base of a foreign country.

ISSUE: Is the Municipal Ordinance enforceable within the US Naval Base?

HELD: Yes. The Philippine Government has not abdicated its sovereignty over the bases as part of the Philippine territory or divested itself completely of jurisdiction over offenses committed therein. Under the terms of the treaty, the United States Government has prior or preferential but not exclusive jurisdiction of such offenses. The Philippine Government retains not only jurisdictional rights not granted, but also all such ceded rights as the United States Military authorities for reasons of their own decline to make use of (Military Bases Agreement). Hence, in the exercise of its sovereignty, the State through the City of Olongapo does have administrative jurisdiction over the lot located within the US Naval Base.


PEOPLE vs GOZO [53 SCRA 476] (G.R. No. L-36409) Oct. 26, 1973Principle of Sovereignty as Auto-LimitationFacts:

Loreta Gozo seeks to set aside a judgment of the Court of First Instance of Zambales, convicting her of a violation of an ordinance of Olongapo, Zambales, requiring a permit from the municipal mayor for the construction or erection of a building, as well as any modification, alteration, repair or demolition thereof. She questions its validity, or at the very least, its applicability to her, by invoking due process citing the case of People v. Fajardo. She contend that her house was constructed within the naval base leased to the American armed forces located inside the United States Naval Reservation within the territorial jurisdiction of Olongapo City and therefore shall be exempted from the Municipal Ordinance No. 14.

Issue:

WON the property of the Appellant shall be exmpeted from the application of the Municipal Ordinance.

Ruling:

Yes. The appellant’s contention that because her property was located within the naval baseleased to the American armed forces located inside the United States Naval Reservation, shemust be entitled of the exemption from complying with the ordanance was given no merit. Though the property yielded within the Naval base of US, it is a clear doctrine that thePhilippines still possesses the sovereignty over that area – given the record that it is still a partof its territory. Thus, it can still enforce its administrative jurisdiction by virtue of its governmentinstrumetalities which the people sojourning to that territory must always adhere andrespect.Citing the case of Reagan vs CIR it states that,

“By the Agreement, it should be noted, the Philippine Government merely consents that the United States exercise jurisdiction in certain cases. The consent was given purely as a matter of comity, courtesy, or expediency. The Philippine Government has not abdicated its sovereignty over the bases as part of the Philippine territory or divested itself completely of jurisdiction over offenses committed therein. Under the terms of the treaty, the United States Government has prior or preferential but not exclusive jurisdiction of such offenses. The Philippine Government retains not only jurisdiction alrights not granted, but also all such ceded rights as the United States Military authorities for reasons of their own decline to make use of. The first proposition is implied from the fact of Philippine sovereignty over the bases; the second from the express provisions of the treaty. "Thus, the Philippine jurisdictional right might be diminished but will never disappear. This manifests the principle of Sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction." A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence."WHEREFORE, the appealed decision of November 11, 1969 is affirmed insofar as it found theaccused, Loreta Gozo, guilty beyond reasonable doubt of a violation of Municipal Ordinance No.14, series of 1964 and sentencing her to pay a fine of P200.00 with subsidiary imprisonment incase of insolvency, and modified insofar as she is required to demolish the house that is thesubject matter of the case, she being given a period of thirty days from the finality of thisdecision within which to obtain the required permit. Only upon her failure to do so will thatportion of the appealed decision requiringdemolition be enforced. Costs against the accused



Manila

EN BANC

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.

R E S O L U T I O N

In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, 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 Dizon and 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 cham vs. 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 nationalharakiri. 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 Luriavs. 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 x x x x x x x x

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'etat c'est moi," 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 Brodett vs. De la Rosa and Vda. de Escaler (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 hundred-fold 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.

x x x x x x x x x

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 aninternational 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."

x x x x x x x x x

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." (Ruffy vs. 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 (Alcantara vs. 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 juregovernment 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 non-sovereign 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 Osmeña 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 Jager vs. Attorney General of Naval; Belgian case of Auditeur Militaires vs. Van Dieren; cases of Petain, Laval and Quisling.


Constitutional Law. Political Law. Effects of Cession.

LAUREL v. MISA77 PHIL 856

FACTS:Anastacio Laurel filed a petition for habeas corpus contending that he cannot be prosecuted for the crime of treason defined and penalized by the Article 114 of the Revised Penal Code on the grounds that the sovereignty of the legitimate government and the allegiance of Filipino citizens was then suspended, and that there was a change of sovereignty over the Philippines upon the proclamation of the Philippine Republic.

ISSUE:1. Is the absolute allegiance of the citizens suspended during Japanese occupation?2. Is the petitioner subject to Article 114 of the Revised Penal Code?

HELD: The absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy of their legitimate government on sovereign is not abrogated or severed by the enemy occupation because the sovereignty of the government or sovereign de jure is not transferred to the occupier. There is no such thing as suspended allegiance.The petitioner is subject to the Revised Penal Code for the change of form of government does not affect the prosecution of those charged with the crime of treason because it is an offense to the same government and same sovereign people.


Criminal Law 2 Digests: TREASON

LAUREL V. MISA

FACTS:

A petition for habeas corpus was filed by Anastacio Laurel. He claims 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 for the reasons that the sovereignty of the legitimate government in the Philippines and consequently the correlative allegiance of Filipino citizen thereto were then suspended; and that there was a change of sovereignty over these Islands upon the proclamation of the Philippine Republic.

ISSUE: WHETHER THE ABSOLUTE ALLEGIANCE OF A FILIPINO CITIZEN TO THE GOVERNMENT BECOMES SUSPENDED DURING OCCUPATION

HELD:

No. 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. It remains vested in the legitimate government.

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. The political laws which prescribe the reciprocal rights, duties and obligation of government and citizens, are suspended in abeyance during military occupation.

DISSENT:

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 [ Art. II, Sec. 3 ] as part of law of the nation.

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 displaced government, if it is legitimate for the military occupant to demand and enforce from the inhabit ants such obedience as may be necessary for the security of his forces, for the maintenance of the law and order, and for the proper administration of the country.



Manila

EN BANC

G.R. No. L-533 August 20, 1946

RAMON RUFFY, ET AL., petitioners, vs.THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.

Placido C. Ramos for petitioners.Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for respondents.

TUASON, J.:

This was a petition for prohibition, praying that the respondents, the Chief of Staff and the General Court Martial of the Philippine Army, be commanded to desist from further proceedings in the trial of petitioners before that body. Preliminary injunction having been denied by us and the General Court Martial having gone ahead with the trial, which eventually resulted in the acquittal of one of the defendants, Ramon Ruffy, the dismissal of the case as to another, Victoriano Dinglasan, and the conviction of Jose L. Garcia, Prudente M. Francisco, Dominador Adeva and Andres Fortus, the last-named four petitioners now seek in their memorandum to convert the petition into one for certiorari, with the prayer that the records of the proceedings before the General Court Martial be ordered certified to this court for review.

The ground of the petition was that the petitioners were not subject to military law at the time the offense for which they had been placed on trial was committed. In their memorandum they have raised an additional question of law — that the 93d Article of War is unconstitutional.

An outline of the petitioner's previous connection with the Philippine Army, the Philippine Constabulary, and/or with guerrilla organizations will presently be made. This outline is based on allegations in the petition and the answer, and on exhibits attached thereto and to the parties' memoranda, exhibits which were offered in the course of the oral argument and admitted without objection. The said exhibits are public documents certified by the officials who had them in custody in their official capacity. They are presumed to be authentic, as we have no doubt they are.

It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the Provincial Commander, Prudente M. Francisco, a junior officer, and Andres Fortus, a corporal, all of the Philippine Constabulary garrison stationed in Mindoro. When, on February 27, 1942, the Japanese forces landed in Mindoro, Major Ruffy retreated to the mountains instead of surrendering to the enemy, disbanded his company, and organized and led a guerrilla outfit known as Bolo Combat team of Bolo Area. Lieutenant Francisco, Corporal Fortus and Jose L. Garcia, the last then a civilian joined Major Ruffy's organization towards the latter part of 1942, while Dominador Adeva and Victoriano Dinglasan, then likewise civilians, became its members some time in 1943..

Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the Philippine Army, also took to the hills of Panay and led the operation of the 6th Military District, one of the districts into


which the Philippine Army had been divided before the war. About November, 1942, Colonel Peralta succeeded in contacting the General Headquarters of General MacArthur in Australia as the result of which on February 13, 1943, the 6th Military District was recognized by the Headquarters of the Southwest Pacific Area as a military unit and part of its command.

Even before General MacArthur's recognition of the 6th Military District Colonel Peralta had extended its sphere of operation to comprise Mindoro and Marinduque, and had, on January 2, 1943, named Major Ruffy as Acting Commander for those two provinces and Commanding Officer of the 3rd Battalion, 66 Infantry 61st Division, Philippine Corps. After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of Special Orders No. 99, dated November 2, 1943, and signed by Enrique L. Jurado, Major, OSE, Commanding, was assigned as S-3 in the Bolo Area. Major, later Lieut. Col., Jurado, it should be noted, had been dispatched by the 6th Military District to Mindoro to assume operational control supervision over the Bolo Area unit and to make and direct the necessary report to the Headquarters, 6th Military District, in Panay. On April 26, 1944, by General Orders No. 40 of the 6th Military District, 2d Lieutenant Francisco was promoted to the rank of 1st Lieutenant (Brevet), effective April 15, 1944, subject to approval by the President of the Philippines, and was re-assigned to the Bolo Area. As to Andres Fortus he was assigned to the same Bolo Area as probationary 3d lieutenant for two-month probationary training, by the Headquarters of the 6th Military District, as per Special Orders No. 70, dated May 15, 1944.

According to a memorandum of the Chief of Staff, 6th Military District, dated January 1943, and signed by L.R. Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia and Dominador Adeva were appointed 3d lieutenants, infantry as of December 31, 1942. Garcia later was promoted to the rank of captain, effective March 15, 1943, as per Special Orders No. 82, issued in the field, 6th Military District, and dated August 28, 1943. On May 24, 1943, Jose L. Garcia took his oath before Captain Esteban P. Beloncio, then Acting Commanding Officer, 3d Battalion, 66th Infantry Regiment, 61st Division, 6th Military District.

As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be Commanding Officer of the Bolo Combat Team in Mindoro and to undertake other missions of Military character. Pursuant to instructions, Colonel Jurado on November 2, 1943, assigned Major Ruffy as Commanding Officer of the Bolo Area with 3d Lieut. Dominador Adeva and 2d Lieut. Prudente M. Francisco as members of his staff and Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99 dated November 2, 1943. In a memorandum of Colonel Jurado for Major Ruffy bearing date 25 June, 1944, it was stated that Captain Garcia had been given P5,000 for palay and Lieut. Francisco P9,000, P5,000 for palay and P4,000 for salary of the personnel B. Company.

A change in the command of the Bolo Area was effected by Colonel Jurado on June 8, 1944: Major Ruffy was relieved of his assignment as Commanding Officer, Bolo Battalion, and Capt. Esteban P. Beloncio was put in Ruffy's place. On October 19, 1944, Lieut. Col. Jurado was slain allegedly by the petitioners. After the commission of this crime, the petitioners, it is alleged, seceded from the 6th Military District. It was this murder which gave rise to petitioner's trial, the legality of which is now being contested.

On July 26, 1941, the President of the Untied States issued a military order the pertinent paragraph of which stated: ". . . as Commander in Chief of the Army and Navy of the United States, I hereby call and order into the service of the armed forces of the United States Army, for the period of the existing emergency, and place under the command of the general officer, United States Army, to be designated by the Secretary of War, from time to time, all of the organized military forces of the Government of the Commonwealth." Following the issuance of President Roosevelt's order General Douglas MacArthur was appointed Commanding General of the United States Armed Forces in the Far East.


It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the enemy occupation of the Philippines, the National Defense Act and all laws and regulations creating and governing the existence of the Philippine Army including the Articles of War, were suspended and in abeyance during such belligerent occupation."

The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law and Precedents and the subsequent paragraph which has been omitted furnish a complete answer to petitioner's contention of the Philippines by Japanese forces, the officers and men of the Philippine Army did not cease to be fully in the service, though in a measure,' only in a measure, they were not subject to the military jurisdiction, if they were not active duty. In the latter case, like officers and soldiers on leave of absence or held as prisoners of war, they could not be held guilty of a breach of the discipline of the command or of a neglect of duty, or disobedience of orders, or mutiny, or subject to a military trial therefor; but for an act unbecoming an officer and a gentleman, or an act which constitutes an offense of the class specified in the 95th Article of War, they may in general be legally held subject to military jurisdiction and trial. "So a prisoner of war, though not subject, while held by the enemy, to the discipline of his own army, would, when exchanged of paroled, be not exempt from liability for such offenses as criminal acts or injuriuos conduct committed during his captivity against other officers or soldiers in the same status." (Winthrop's Military Law and Precedents, 2d Edition, pp. 91, 92.)

The rule invoked by counsel, namely, that laws of political nature or affecting political relations are considered superseded or in abeyance during the military occupation, is intended for the governing of the civil inhabitants of the occupied territory. It is not intended for and does not bind the enemies in arms. This is self-evident from the very nature of things. The paradox of a contrary ruling should readily manifest itself. Under the petitioner's theory the forces of resistance operating in an occupied territory would have to abide by the outlawing of their own existence. They would be stripped of the very life-blood of an army, the right and the ability to maintain order and discipline within the organization and to try the men guilty of breach thereof.

The surrender by General Wainright of the Fil-American Forces does not profit the petitioner's who were former members of the Philippine Constabulary any more than does the rule of war or international law they cite. The fall of Bataan and Corregidor did not end the war. It did not, legally or otherwise, keep the United States and the Commonwealth of the Philippines from organizing a new army, regular or irregular, out of new men and men in the old service who had refused to surrender or who having surrendered, had decided to carry on the fight through other diverse means and methods. The fall of Corregidor and Bataan just marked the beginning of the gigantic preparation for the gigantic drive that was to fight its way to and beyond the Philippines in fulfillment of General MacArthur's classic promise, "I shall return." The heroic role which the guerrillas played in that preparation and in the subsequent liberation of the Philippines is now history.

Independently of their previous connection with the Philippine Army and the Philippine Constabulary, Captain Francisco and Lieutenant Fortus as well as Major Garcia and Lieutenant Adeva were subject to military jurisdiction.

The 2d Article of War defines and enumerates the persons subject to military law as follows:

Art. 2. Persons Subject to Military Law. — The following persons are subject to these articles and shall be understood as included in the term "any person subject to military law" or "persons subject to military law," whenever used in these articles:

(a) All officers, members of the Nurse Corps and soldiers belonging to the Regular Force of the Philippine Army; all reservists, from the dates of their call to active duty and while on


such active duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or order to obey the same;

(b) Cadets, flying cadets, and probationary third lieutenants;

(c) All retainers to the camp and all persons accompanying or serving with the Army of the Philippines in the field in time of war or when martial law is declared though not otherwise subject to these articles;

(d) All persons under sentences adjudged by courts-martial.

It is our opinion that the petitioners come within the general application of the clause in sub-paragraph (a); "and all other persons lawfully called, drafted, or ordered into, or to duty for training in, the said service, from the dates they are required by the terms of the call, draft, or order to obey the same." By their acceptance of appointments as officers in the Bolo Area from the General Headquarters of the 6th Military District, they became members of the Philippine Army amendable to the Articles of War. The Bolo Area, as has been seen, was a contigent of the 6th Military District which, as has also been pointed out, had been recognized by and placed under the operational control of the United States Army in the Southwest Pacific. The Bolo Area received supplies and funds for the salaries of its officers and men from the Southwest Pacific Command. As officers in the Bolo Area and the 6th Military District, the petitioners operated under the orders of duly established and duly appointed commanders of the United States Army.

The attitude of the enemy toward underground movements did not affect the military status of guerrillas who had been called into the service of the Philippine Army. If the invaders refused to look upon guerrillas, without distinctions, as legitimate troops, that did not stop the guerillas who had been inducted into the service of the Philippine Army from being component parts thereof, bound to obey military status of guerrillas was to be judged not by the concept of the army of the country for which they fought.

The constitutionality of the 93d Article of War is assailed. This article ordains "that any person subject to military law who commits murder in time of was shall suffer death or imprisonment for life, as the court martial may direct." It is argued that since "no review is provided by that law to be made by the Supreme Court, irrespective of whether the punishment is for life imprisonment or death", it violates Article VIII, section 2, paragraph 4, of the Constitution of the Philippines which provides that "the National Assembly may not deprive the Supreme Court of its original jurisdiction over all criminal cases in which the penalty imposed is death or life imprisonment."

We think the petitioners are in error. This error arose from failure to perceive the nature of courts martial and the sources of the authority for their creation.

Courts martial are agencies of executive character, and one of the authorities "for the ordering of courts martial has been held to be attached to the constitutional functions of the President as Commander in Chief, independently of legislation." (Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a portion of the judiciary. "The Supreme Court of the United States referring to the provisions of the Constitution authorizing Congress to provide for the government of the army, excepting military offenses from the civil jurisdiction, and making the President Commander in Chief, observes as follows: "These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner then and now practiced by civilized nations, and that the power to do so is given without any connection between it and the 3d Article of the United States; indeed that the two powers are entirely independent of each other."


"Not belonging to the judicial branch of the government, it follows that courts-martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as Commander in Chief, to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives." (Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Of equal interest Clode, 2 M. F., 361, says of these courts in the British law: "It must never be lost sight of that the only legitimate object of military tribunals is to aid the Crown to maintain the discipline and government of the Army." (Footnote No. 24, p. 49, Winthrop's Military Law and Precedents, 2d Edition.)

Our conclusion, therefore, is that the petition has no merit and that it should be dismissed with costs. It is so ordered.

Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and Padilla, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

We agree with the rule that laws of political nature or affecting political relations are considered in abeyance during enemy military occupation, although we maintain that the rule must be restricted to laws which are exclusively political in nature. We agree with the theory that the rule is not intended for and does not bind the enemies in arms, but we do not agree with the theory that the rule is intended for the civil inhabitants of the occupied territory without exception. We are of opinion that the rule does not apply to civil government of the occupied territory. Enemy occupation does not relieve them from their sworn official duties. Government officers wield powers and enjoy privileges denied to private citizens. The wielding of powers and enjoyment of privileges impose corresponding responsibilities, and even dangers that must be faced during emergency.

The petitioners assailed the constitutionally of the 93rd Article of War, providing that "any person subject to military law who commits murder in time of war shall suffer death or imprisonment for life, as the court-martial may direct," because no review is provided by said law to be made by the Supreme Court, irrespective of whether the punishment is for life imprisonment or death, such omission being a violation of section 2 (4) , Article VIII, of the Constitution of the Philippines.

Petitioners are mistaken. The silence of the law as to the power of the Supreme Court to review the decisions and proceedings of courts-martial, especially when the penalty imposed is death or life imprisonment, should not be understood as negating such power, much more when it is recognized and guaranteed by specific provisions of the fundamental law. At any rate, any doubt in interpreting the silence of the law must be resolved in favor of a construction that will make the law constitutional.

Furthermore, it may not be amiss to recall the fact that the National Assembly, in approving the Articles of War (Commonwealth Act No. 408), had never intended to deny or diminish the power of the Supreme Court to review, revise, reverse or modify final judgments and decrees of courts martial created and organized under the Articles of War. On the contrary, it was clearly understood that the decrees and the decisions of said courts-martial are subject to review by the Supreme Court. The last Committee report on the Articles of War was rendered to the National Assembly by its Committee on Third Reading, commonly known as the "Little Senate," which submitted the bill


printed in final form. As chairman of the committee and in behalf of the same, we submitted the report recommending the approval of the bill on third reading with the express statement and understanding that it would not deprive the Supreme Court of its constitutional revisionary power on final judgments and decrees of courts-martial proposed to be created, which were and are to be considered as part of the judicial system, being included in the denomination of inferior courts mentioned in section 1, Article VIII, of the constitution. With the said statement and understanding, the National Assembly, without any dissenting vote, approved the Articles of War as recommended by the Committee on third Reading.

Consequently, petitioners' contention is untenable, the premise upon which they assailed the constitutionality of the 93rd Article of War being groundless in view of the actuation of the national Assembly.

The majority appear to concur in petitioners' premise that, by the silence of the Articles of War, the Supreme Court is deprived of its constitutional power to review final decisions of courts-martial. The majority even go as far as to justify the constitutionality of such deprivation on the theory that courts martial belong, not to the judicial branch of the government, but to the executive department, citing as authority therefor Winthrop's Military Law and Precedents. The majority are in error.

In our opinion in Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) and in Homma vs. Styer (L-244), we have shown that this Supreme Court enjoys the power to revise the actuations and decisions of military commissions, especially if they act without jurisdiction or violate the law, military commissions being included within the denomination of inferior courts under the provisions of our Constitution. Courts-martial are, likely military commissions, inferior courts. The fact that they are military tribunals does not change their essence as veritable tribunals or courts of justice, as agencies of the government in the administration of justice. Their functions are essentially judicial. Except in cases where judicial functions are specifically entrusted by the Constitution to other agencies — such as impeachment to Congress, legislative electoral contests to the Electoral Tribunals — all judicial functions are vested in the Supreme Court and in such inferior courts as may be established by law. Courts-martial are inferior courts established by law.

The majority's theory is based on an authority which has no bearing or application under the Constitution of the Philippines. Winthrop's Military Law and Precedents has in mind the Constitution of the United States of America, the provisions of which regarding the judicial department are essentially different from those contained in our own Constitution.

Article III of the Constitution of the United States of America is as follows:

SECTION 1. The Judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of the Supreme Court and Inferior Courts, shall hold their offices during good behavior, and shall at stated times, received for their services, a compensation, which shall not be diminished during their continuance in office.

SEC. 2. The Judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; — to all cases affecting Ambassadors, other public Ministers and Consuls; — to all cases of admirality and maritime jurisdiction; — to controversies to which the United States shall be a party; — to controversies between two or more States; — between a States and citizens of another State; — between citizens of another State; — between citizens of different States, — between citizens of the same State claiming lands


under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects.

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

SEC. 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attached.

A comparison of the above provision with that of the Constitution of the Philippines will readily show that the former does not have the negative provision contained in the latter to the effect that our Supreme Court may not be deprived of certain specific judicial functions.

Section 2 of Articles VIII of our Constitution is as follows:

SEC. 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, nor of its jurisdiction to review, revise, reverse, modify of affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in —

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulations is in question.

(2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

(3) All cases in which the jurisdiction of any trial courts is in issue.

(4) All criminal cases in which the penalty imposed is death or life imprisonment.

(5) All cases in which an error or question of law is involved.

It is our considered opinion that the theory maintained in Winthrop's Military Law and Precedents and in the decisions of the Supreme Court of the United States cited therein to the effect that the trial and punishment of military and naval offenses by courts-martial are executive functions because the only legitimate object of military tribunals "is to aid the Crown to maintain the discipline and


government of the Army," as applied in the Philippine, is basically wrong, being rooted in the English monarchial ideology.

Military tribunals are tribunals whose functions are judicial in character and in nature. No amount of logodaedaly may change the nature of such functions. The trial and punishment of offenses, whether civil or military naval or aerial, since time immemorial, have always been considered as judicial functions. The fact that such trial and punishment are entrusted to "tribunals or courts-martial" shows the nuclear idea of the nature of the function. Tribunals and courts are the agencies employed by government to administer justice.

The very fact that in this case the Supreme Court has given due course to the petition, required respondents to answer, set the case for hearing and, in fact, heard it, instead of ordering the outright dismissal of the petition as soon as it was filed, thus following the same procedure in Reyes vs. Crisologo, (L-54, 41 Off. Gaz., 1096) and in Yamashita vs. Styer (supra), is a conclusive evidence of the fact of that this Supreme Court has the jurisdiction and power to review the proceedings and decision of military tribunals, such as courts-martials, military commissions, and other similar bodies exercising judicial functions limited to military personnel.

It appearing that petitioners impugning the jurisdiction of the court-martial which has tried and convicted them, we are of opinion that the petition must be granted in the sense that the records of the court-martial in question should, be elevated to the Supreme Court for revision, so that we may decide the question on the court-martial's jurisdiction and give petitioners the justice they are claiming for.


Ruffy vs Chief of StaffG.R. No. L-533

75 Phil 875August 20, 1956

Petitioners: Ramon Ruffy, et al. Respondents: The Chief of Staff, et al.

FACTS: During the Japanese insurrection in the Philippines, military men were assigned at designated camps or military bases all over the country. Japanese forces went to Mindoro thus forcing petitioner and his band move up the mountains and organize a guerilla outfit and call it the "Bolo area". A certain Capt. Beloncio relieved Ruffy and fellow petitioners of their position and duties in the "Bolo area" by the new authority vested upon him because of the recent change of command. Capt. Beloncio was thus allegedly slain by Ruffy and his fellow petitioners.

ISSUE: Whether or not the petitioners were subject to military law at the time the offense was committed, which was at the time of war and the Japanese occupancy.

HELD: The Court held that the petitioners were still subject to military law since members of the Armed Forces were still covered by the National Defense Act, Articles of War and other laws even during an occupation. The act of unbecoming of an officer and a gentleman is considered as a defiance of 95th Article of War held petitioners liable to military jurisdiction and trial. Moreover, they were operating officers, which makes them even more eligible for the military court's jurisdiction.

In consideration of the foregoing, the petition has no merit and should be dismissed. Thus, the petition is hereby DENIED.

Constitutional Law 1: State Functions / Concept of State (Textbook: Cruz, Professor: Atty. Usita)


Manila


EN BANC

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

THE COLLECTOR OF INTERNAL REVENUE, petitioner, vs.ANTONIO CAMPOS RUEDA, respondent..

Assistant Solicitor General Jose P. Alejandro and Special Attorney Jose G. Azurin, (O.S.G.) for petitioner.

Ramirez and Ortigas for respondent.

FERNANDO, J.:

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

The decision of the Court of Tax Appeals, now under review, sets forth the background facts as follows: "This is an appeal interposed by petitioner Antonio Campos Rueda as administrator of the estate of the deceased Doña Maria de la Estrella Soriano Vda. de Cerdeira, from the decision of the respondent Collector of Internal Revenue, assessing against and demanding from the former the sum P161,874.95 as deficiency estate and inheritance taxes, including interest and penalties, on the transfer of intangible personal properties situated in the Philippines and belonging to said Maria de la Estrella Soriano Vda. de Cerdeira. Maria de la Estrella Soriano Vda. de Cerdeira (Maria Cerdeira for short) is a Spanish national, by reason of her marriage to a Spanish citizen and was a resident of Tangier, Morocco from 1931 up to her death on January 2, 1955. At the time of her demise she left, among others, intangible personal properties in the Philippines." 3 Then came this portion: "On September 29, 1955, petitioner filed a provisional estate and inheritance tax return on all the properties of the late Maria Cerdeira. On the same date, respondent, pending investigation, issued an assessment for state and inheritance taxes in the respective amounts of P111,592.48 and P157,791.48, or a total of P369,383.96 which tax liabilities were paid by petitioner ... . On November 17, 1955, an amended return


was filed ... wherein intangible personal properties with the value of P396,308.90 were claimed as exempted from taxes. On November 23, 1955, respondent, pending investigation, issued another assessment for estate and inheritance taxes in the amounts of P202,262.40 and P267,402.84, respectively, or a total of P469,665.24 ... . In a letter dated January 11, 1956, respondent denied the request for exemption on the ground that the law of Tangier is not reciprocal to Section 122 of the National Internal Revenue Code. Hence, respondent demanded the payment of the sums of P239,439.49 representing deficiency estate and inheritance taxes including ad valorem penalties, surcharges, interests and compromise penalties ... . In a letter dated February 8, 1956, and received by respondent on the following day, petitioner requested for the reconsideration of the decision denying the claim for tax exemption of the intangible personal properties and the imposition of the 25% and 5% ad valorem penalties ... . However, respondent denied request, in his letter dated May 5, 1956 ... and received by petitioner on May 21, 1956. Respondent premised the denial on the grounds that there was no reciprocity [with Tangier, which was moreover] a mere principality, not a foreign country. Consequently, respondent demanded the payment of the sums of P73,851.21 and P88,023.74 respectively, or a total of P161,874.95 as deficiency estate and inheritance taxes including surcharges, interests and compromise penalties." 4

The matter was then elevated to the Court of Tax Appeals. As there was no dispute between the parties regarding the values of the properties and the mathematical correctness of the deficiency assessments, the principal question as noted dealt with the reciprocity aspect as well as the insisting by the Collector of Internal Revenue that Tangier was not a foreign country within the meaning of Section 122. In ruling against the contention of the Collector of Internal Revenue, the appealed decision states: "In fine, we believe, and so hold, that the expression "foreign country", used in the last proviso of Section 122 of the National Internal Revenue Code, refers to a government of that foreign power which, although not an international person in the sense of international law, does not impose transfer or death upon intangible person properties of our citizens not residing therein, or whose law allows a similar exemption from such taxes. It is, therefore, not necessary that Tangier should have been recognized by our Government order to entitle the petitioner to the exemption benefits of the proviso of Section 122 of our Tax. Code." 5

Hence appeal to this court by petitioner. The respective briefs of the parties duly submitted, but as above indicated, instead of ruling definitely on the question, this Court, on May 30, 1962, resolve to inquire further into the question of reciprocity and sent back the case to the Court of Tax Appeals for the motion of evidence thereon. The dispositive portion of such resolution reads as follows: "While section 122 of the Philippine Tax Code aforequoted speaks of 'intangible personal property' in both subdivisions (a) and (b); the alleged laws of Tangier refer to 'bienes muebles situados en Tanger', 'bienes muebles radicantes en Tanger', 'movables' and 'movable property'. In order that this Court may be able to determine whether the alleged laws of Tangier grant the reciprocal tax exemptions required by Section 122 of the Tax Code, and without, for the time being, going into the merits of the issues raised by the petitioner-appellant, the case is [remanded] to the Court of Tax Appeals for the reception of evidence or proof on whether or not the words `bienes muebles', 'movables' and 'movable properties as used in the Tangier laws, include or embrace 'intangible person property', as used in the Tax Code." 6 In line with the above resolution, the Court of Tax Appeals admitted evidence submitted by the administrator petitioner Antonio Campos Rueda, consisting of exhibits of laws of Tangier to the effect that "the transfers by reason of death of movable properties, corporeal or incorporeal, including furniture and personal effects as well as of securities, bonds, shares, ..., were not subject, on that date and in said zone, to the payment of any death tax, whatever might have been the nationality of the deceased or his heirs and legatees." It was further noted in an order of such Court referring the matter back to us that such were duly admitted in evidence during the hearing of the case on September 9, 1963. Respondent presented no evidence." 7

The controlling legal provision as noted is a proviso in Section 122 of the National Internal Revenue Code. It reads thus: "That no tax shall be collected under this Title in respect of intangible personal property (a) if the decedent at the time of his death was a resident of a foreign country which at the


time of his death did not impose a transfer tax or death tax of any character in respect of intangible person property of the Philippines not residing in that foreign country, or (b) if the laws of the foreign country of which the decedent was a resident at the time of his death allow a similar exemption from transfer taxes or death taxes of every character in respect of intangible personal property owned by citizens of the Philippines not residing in that foreign country." 8 The only obstacle therefore to a definitive ruling is whether or not as vigorously insisted upon by petitioner the acquisition of internal personality is a condition sine qua non to Tangier being considered a "foreign country". Deference to the De Lara ruling, as was made clear in the opening paragraph of this opinion, calls for an affirmance of the decision of the Court of Tax Appeals.

It does not admit of doubt that if a foreign country is to be identified with a state, it is required in line with Pound's formulation that it be a politically organized sovereign community independent of outside control bound by penalties of nationhood, legally supreme within its territory, acting through a government functioning under a regime of law. 9 It is thus a sovereign person with the people composing it viewed as an organized corporate society under a government with the legal competence to exact obedience to its commands. 10 It has been referred to as a body-politic organized by common consent for mutual defense and mutual safety and to promote the general welfare. 11 Correctly has it been described by Esmein as "the juridical personification of the nation." 12 This is to view it in the light of its historical development. The stress is on its being a nation, its people occupying a definite territory, politically organized, exercising by means of its government its sovereign will over the individuals within it and maintaining its separate international personality. Laski could speak of it then as a territorial society divided into government and subjects, claiming within its allotted area a supremacy over all other institutions. 13 McIver similarly would point to the power entrusted to its government to maintain within its territory the conditions of a legal order and to enter into international relations. 14 With the latter requisite satisfied, international law do not exact independence as a condition of statehood. So Hyde did opine. 15

Even on the assumption then that Tangier is bereft of international personality, petitioner has not successfully made out a case. It bears repeating that four days after the filing of this petition on January 6, 1958 in Collector of Internal Revenue v. De Lara, 16 it was specifically held by us: "Considering the State of California as a foreign country in relation to section 122 of our Tax Code we believe and hold, as did the Tax Court, that the Ancilliary Administrator is entitled the exemption from the inheritance tax on the intangible personal property found in the Philippines." 17 There can be no doubt that California as a state in the American Union was in the alleged requisite of international personality. Nonetheless, it was held to be a foreign country within the meaning of Section 122 of the National Internal Revenue Code. 18

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


WHEREFORE, the decision of the respondent Court of Tax Appeals of October 30, 1957 is affirmed. Without pronouncement as to costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Villamor and Makasiar, JJ., concur.

Reyes, J.B.L., J., concurs in the result.

Teehankee and Barredo, JJ., took no part.

Footnotes

1 Commonwealth Act No. 466 as amended (1939).

2 Collector of Internal Revenue v. De Lara, 102 Phil. 813 (1958).

3 Annex C, Petition, Decision of Court of Tax Appeals, p. 1.

4 Ibid, pp. 2-3.

5 Ibid, p. 9.

6 Resolution, pp. 4-5.

7 Order of November 19, 1963 p. 2.

8 Section 122 of the National Internal Revenue Code (1939) reads insofar as relevant: "For the purposes of this Title the terms 'gross estate' and 'gift' include real estate and tangible personal property, or mixed, physically located in the Philippines; franchise which must be exercised in the Philippines; shares, obligations, or bonds issued by any corporation or sociedad anonima organized or constituted in the Philippines in accordance with its laws; shares, obligations, or bonds issued by any foreign corporation eighty-five per centum of the business of which is located in the Philippines; shares, obligations, or bonds issued by any foreign corporation if such shares, obligations, or bonds have acquired a business situs in the Philippines; shares or rights in any partnership, business or industry established in the Philippines; or any personal property, whether tangible or intangible, located in the Philippines; Provided, however, That in the case of a resident, the transmission or transfer of any intangible personal property, regardless of its location, subject to the taxes prescribed in this Title; And provided, further, that no tax shall be collected under this Title in respect of intangible personal property (a) if the decedent at the time of his death was a resident of a foreign country which at the time of his death did not impose a transfer tax or death tax of any character in respect of intangible personal property of citizens of the Philippines not residing in that foreign country, or (b) if the laws of the foreign country of which the decedent was a resident at the time of his death allow a similar exemption from transfer taxes or death taxes of every character in respect of intangible personal property owned by citizens of the Philippines not residing in that foreign country."


9 Cf. Pound: "The political organization of a society legally supreme within and independent of legal control from without." II Jurisprudence, p. 346 (1959).

10 Cf. Willoughby, Fundamental Concepts of Public Law, p. 3 (1925).

11 Cf. 1 Cooley, Constitutional Limitations, p. 3 (1927).

12 Cf. Cohen, Recent Theories of Sovereignty, p. 15 (1937). Pitamic speaks of it as a juridical organization of human beings. Treatise on the State, p. 17 (1933).

13 Laski, Grammar of Polities, p. 25 (1934).

14 Cf. McIver, The State, p. 22 (1926).

15 Hyde, International Law, 2nd ed., p. 22 (1945).

16 102 Phil. 813 (1958).

17 Ibid, p. 820.

18 In the subsequent case of Collector of Internal Revenue v. Fisher, L-11622, January 28, 1961, 1 SCRA 93, this Court did find that the reciprocity found in the California statutes was partial not total, thus holding that Section 122 would not apply, without however reversing the doctrine that an international personality is not a requisite. "

19 97 Phil. 352 (1955).

20 Ibid, p. 354.

42 SCRA 23 – Political Law – Definition of “State”

In January 1955, Maria Cerdeira died in Tangier, Morocco (an international zone [foreign

country] in North Africa). At the time of her death, she was a Spanish citizen and was a


resident of Tangier. She however left some personal properties (shares of stocks and other

intangibles) in the Philippines. The designated administrator of her estate here is Antonio

Campos Rueda.

In the same year, the Collector of Internal Revenue (CIR) assessed the estate for deficiency

tax amounting to about P161k. Campos Rueda refused to pay the assessed tax as

he claimed that the estate is exempt from the payment of said taxes pursuant to section

122 of the Tax Code which provides:

That no tax shall be collected under this Title in respect of intangible personal

property (a) if the decedent at the time of his death was a resident of a foreign

country which at the time of his death did not impose a transfer tax or death tax

of any character in respect of intangible person property of the Philippines not

residing in that foreign country, or (b) if the laws of the foreign country of which

the decedent was a resident at the time of his death allow a similar exemption

from transfer taxes or death taxes of every character in respect of intangible

personal property owned by citizens of the Philippines not residing in that foreign

country.

Campos Rueda was able to prove that there is reciprocity between Tangier and the

Philippines.

However, the CIR still denied any tax exemption in favor of the estate as it averred that

Tangier is not a “state” as contemplated by Section 22 of the Tax Code and that the

Philippines does not recognize Tangier as a foreign country.

ISSUE: Whether or not Tangier is a state.

HELD: Yes. For purposes of the Tax Code, Tangier is a foreign country.

A foreign country to be identified as a state must be a politically organized sovereign

community independent of outside control bound by penalties of nationhood, legally

supreme within its territory, acting through a government functioning under a regime of

law. The stress is on its being a nation, its people occupying a definite territory, politically

organized, exercising by means of its government its sovereign will over the individuals

within it and maintaining its separate international personality.

Further, the Supreme Court noted that there is already an existing jurisprudence (Collector

vs De Lara) which provides that even a tiny principality, that of Liechtenstein, hardly an

international personality in the sense, did fall under the exempt category provided for

in Section 22 of the Tax Code. Thus, recognition is not necessary. Hence, since it was proven

that Tangier provides such exemption to personal properties of Filipinos found therein so

must the Philippines honor the exemption as provided for by our tax law with respect to the

doctrine of reciprocity.


COLLECTOR OF INTERNAL REVENUE vs CAMPOS RUEDA (Anjie's Version)

October 29, 1971FACTS:Collector of Internal Revenue held Antonio Campos Rueda, as administrator of the estate of the late EstrellaSoriano Vda. De Cerdeira, liable for the stun of P161,974.95 as deficiency estate and inheritance taxes for the transfer of intangible personal properties in the Philippines, the deceased, a Spanish national having been a resident of Tangier, Morocco from 1931 up to the time of her death in 1955.Rueda’s request for exemption was denied on the ground that the law of Tangier is not reciprocal to Section 122 of the National Internal Revenue Code.Rueda requested for the reconsideration of the decision denying the claim for tax exemption. However, respondent denied this request on the grounds that there was no reciprocity with Tangier, which was moreover a mere principality, not a foreign country.Court of Tax Appeals ruled that the expression 'foreign country,' used in the last proviso of Section 122 of the National Internal Revenue Code, refers to a government of that foreign power which, although not an international person in the sense of international law, does not impose transfer or death taxes upon intangible personal properties of our citizens not residing therein, or whose law allows a similar exemption from such taxes. It is, therefore, not necessary that Tangier should have been recognized by our Government in order to entitle the petitioner to the exemption benefits of the last provision of Section 122 of our Tax Code.ISSUE:Whether or not the requisites of statehood or at least so much thereof as may be necessary for the acquisition of an international personality, must be satisfied for a "foreign country" to fall within the exemption of Section122 of the National Internal Revenue CodeDECISION:Supreme Court affirmed Court of tax Appeals Ruling.If a foreign country is to be identified with a state, it is required in line with Pound's formulation that it be apolitically organized sovereign community independent of outside control bound by ties of nationhood, legally supreme within its territory, acting through a government functioning under a regime of law.It is thus a sovereign person with the people composing it viewed as an organized corporate society under a government with the legal competence to exact obedience to its commands.The stress is on its being a nation, its people occupying a definite territory, politically organized, exercising by means of its government its sovereign will over the individuals within it and maintaining its separate international personality.State is a territorial society divided into government and subjects, claiming within its allotted area a supremacy over all other institutions. Moreover, similarly would point to the power entrusted to its government to maintain within its territory the conditions of a legal order and to enter into international relations. With the latter requisite satisfied, international law does not exact independence as a condition of statehood.This Court did commit itself to the doctrine that evens a tiny principality that of Liechtenstein, hardly an international personality in the traditional sense, did fall under this exempt category.


Collector of Internal Revenue vs Antonio Campos Rueda [G.R. L-13250] October 29, 1971

by Quolete

En Banc

Facts:

Maria Cerdiera is a Spanish national (Filipina married to a Spanish citizen), lived in Morocco and died

there. In the Philippines, she left intangible properties. The person tasked as administrator of the

intangible properties is Antonio Campos Rueda. He filed a provisional estate and inheritance tax return

on all properties left by her. The Collector of Internal Revenue, the respondent, pending the

investigation of the tax value of the properties, issued an assessment for estate tax worth P111,592.48

and inheritance tax worth P187,791.48 with a total amount of P369,383.96. These tax liabilities were

paid by Antonio Rueda.

Later, Campos Rueda filed an amended tax return wherein the properties worth P396,308.90 are

claimed as exempted from taxes. Respondent, still pending investigation on the same subject, issued

another assessment for estate tax worth P202,262.40 and inheritance taxed worth P267,402.84 with a

total amount of P469,665.24.

Issues:

Respondent’s reply to the request for exemption of taxes, etc.:

(1) There is no reciprocity as it did not meet the requirements mentioned in Section 122 of the

National Internal Revenue Code. Tangier is a mere principality and not a foreign country.

(Note: As argued, section 122, in relation to the case, grants certain exemption of taxes provided that

‘reciprocity’ be met and for reciprocity to be met, Tangier must be a foreign country within the

meaning of Section 122).

(2) Respondent denied request for exemption because the law of Tangier is not reciprocal to Section

122 of the National Internal Revenue Code.


(3) Respondent demanded the payment of the sums of 239,439.49 representing deficiency estate and

inheritance tax including ad valorem penalties, surcharges, interests and compromise penalties.

The Court of Tax Appeals ruled:

(1) Tangier allows a similar law for the exemption of taxes. Such exemption is sufficient to entitle

Antonio Rueda to the exemption benefits. There is no lacking of reciprocity.

The Collector of Internal Revenue asked a question of law:

(1) Whether the requisites of statehood is necessary (sine qua non) for the acquisition of international

personality.

(2) Whether acquisition of international personality is required for a ‘foreign country’ to fall within the

exemption of Section 122 of the National Internal Revenue Code.

The Supreme Court referred the case back to the Court of Tax Appeals to determine whether the

alleged law of Tangier did grant the reciprocal tax exemption required by Section 122.

Held:

(1) Requisite of Statehood is necessary.

It does not admit of doubt that if a foreign country is to be identified with a state, it is required in line

with Pound’s formulation that:“it be a politically organized sovereign community independent of

outside control bound by penalties of nationhood, legally supreme within its territory, acting through a

government functioning under a regime of law.”

(2) Tangier is a state.

(3) Section 122 does not require that the “foreign country” possess an international personality. In

other words, international personality is not a requisite.

(4) Supreme Court affirms Court of Tax Appeals ruling. (Note: Look at the ruling of the Court of Appeals

found in the issue.)



Manila

EN BANC

G.R No. 187167 August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAÑETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners, vs.HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS,Respondents.

D E C I S I O N

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 95221(RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline regime of nearby territories.

The Antecedents


In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over their "territorial sea," the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens, taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the country’s waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the country’s nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions.13

In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands" not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and included – its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS III’s framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the petition’s compliance with the case or controversy requirement for judicial review grounded on petitioners’ alleged lack of locus standiand (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the country’s compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the country’s security, environment and economic interests or relinquish the Philippines’ claim over Sabah.

Respondents also question the normative force, under international law, of petitioners’ assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners’ prayer for an injunctive writ.

The Issues


The petition raises the following issues:

1. Preliminarily –

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional.

On the Threshold IssuesPetitioners Possess LocusStandi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners’ locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying one of the requirements for granting citizenship standing.17

The Writs of Certiorari and ProhibitionAre Proper Remedies to Testthe Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18

Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of government.20 Issues of constitutional import are sometimes crafted out of statutes which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law.

RA 9522 is Not UnconstitutionalRA 9522 is a Statutory Toolto Demarcate the Country’s


Maritime Zones and ContinentalShelf Under UNCLOS III, not toDelineate Philippine Territory

Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris’ technical description, Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris.22

Petitioners’ theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the world’s oceans and submarine areas, recognizing coastal and archipelagic States’ graduated authority over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. – The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77).

Even under petitioners’ theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the "outermost islands and drying reefs of the archipelago."24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire


(or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.26

RA 9522’s Use of the Frameworkof Regime of Islands to Determine theMaritime Zones of the KIG and theScarborough Shoal, not Inconsistentwith the Philippines’ Claim of SovereigntyOver these Areas

Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our territorial claim" over that area.27 Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion from the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles of territorial waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional deliberations, vis-à-vis the Philippines’ obligations under UNCLOS III, belie this view. 1avvphi1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory renunciation of the Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.

Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increasedthe Philippines’ total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29

Extent of maritime area using RA 3046, as amended, taking into account the Treaty of Paris’ delimitation (in square nautical miles)

Extent of maritime area using RA 9522, taking into account UNCLOS III (in square nautical miles)

Internal or archipelagic waters 166,858 171,435

Territorial Sea 274,136 32,106

Exclusive 382,669


Economic Zone

TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.30

Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:


SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31

Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint will inevitably "depart to an appreciable extent from the general configuration of the archipelago."

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating the provision of international law which states: "The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural configuration of the archipelago.34 (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits. 1avvphi1 The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:


1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which states that "The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles."

2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the baselines system. This will enclose an additional 2,195 nautical miles of water.

3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were later found to be located either inland or on water, not on low-water line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under the Republic of the Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which is above water at high tide," such as portions of the KIG, qualifies under the category of "regime of islands," whose islands generate their own applicable maritime zones.37

Statutory Claim Over Sabah underRA 5446 Retained

Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Actis without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 notIncompatible with the Constitution’sDelineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.38

Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil. –


1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.

2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.

x x x x

4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage45 does not place them in lesser footing vis-à-vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines,regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States’ archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47

Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional rights x x x."49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of


marine wealth (Article XII, Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space – the exclusive economic zone – in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners’ reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it weakens the country’s case in any international dispute over Philippine maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.

ANTONIO T. CARPIOAssociate Justice

WE CONCUR:

RENATO C. CORONAChief Justice

PRESBITERO J. VELASCO, JR.Associate Justice

TERESITA J. LEONARDO-DE CASTROAssociate Justice

ARTURO D. BRION DIOSDADO M. PERALTA


Associate Justice Associate Justice

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

ROBERTO A. ABADAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

JOSE PORTUGAL PEREZAssociate Justice

JOSE C. MENDOZAAssociate Justice

MARIA LOURDES P. A. SERENOAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONAChief Justice

Footnotes

1 Entitled "An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes."

2 Entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines."

3 The third "Whereas Clause" of RA 3046 expresses the import of treating the Philippines as an archipelagic State:

"WHEREAS, all the waters around, between, and connecting the various islands of the Philippine archipelago, irrespective of their width or dimensions, have always been considered as necessary appurtenances of the land territory, forming part of the inland waters of the Philippines."

4 One of the four conventions framed during the first United Nations Convention on the Law of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10 September 1964.

5 UNCLOS III entered into force on 16 November 1994.

6 The Philippines signed the treaty on 10 December 1982.


7 Article 47, paragraphs 1-3, provide:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. (Emphasis supplied)

x x x x

8 UNCLOS III entered into force on 16 November 1994. The deadline for the filing of application is mandated in Article 4, Annex II: "Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientific and technical advice." (Underscoring supplied)

In a subsequent meeting, the States parties agreed that for States which became bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year period will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009, barely met the deadline.

9 Rollo, p. 34.

10 Which provides: "The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines."

11 Entered into between the Unites States and Spain on 10 December 1898 following the conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the United States "the archipelago known as the Philippine Islands" lying within its technical description.

12 The Treaty of Washington, between Spain and the United States (7 November 1900), transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain Convention (2 January 1930) demarcating boundary lines between the Philippines and North Borneo.

13 Article II, Section 7, Section 8, and Section 16.


14 Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the Constitution.

15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).

16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165 Phil. 303 (1976).

17 Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring). The two other factors are: "the character of funds or assets involved in the controversy and a clear disregard of constitutional or statutory prohibition." Id.

18 . Rollo, pp. 144-147.

19 See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (dismissing a petition for certiorari and prohibition assailing the constitutionality of Republic Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC, G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare unconstitutional Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic Act No. 9189).

20 See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari against the Philippine Senate and nullifying the Senate contempt order issued against petitioner).

21 Rollo, p. 31.

22 Respondents state in their Comment that petitioners’ theory "has not been accepted or recognized by either the United States or Spain," the parties to the Treaty of Paris. Respondents add that "no State is known to have supported this proposition." Rollo, p. 179.

23 UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner Magallona himself defined as "a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. x x x x" (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997]) (Italicization supplied).

24 Following Article 47 (1) of UNCLOS III which provides:

An archipelagic State may draw straight archipelagic baselines joining the outermost points of theoutermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied)

25 Under the United Nations Charter, use of force is no longer a valid means of acquiring territory.


26 The last paragraph of the preamble of UNCLOS III states that "matters not regulated by this Convention continue to be governed by the rules and principles of general international law."

27 Rollo, p. 51.

28 Id. at 51-52, 64-66.

29 Based on figures respondents submitted in their Comment (id. at 182).

30 Under Article 74.

31 See note 7.

32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.

33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123 nautical west of Zambales.

34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).

35 Rollo, p. 159.

36 Section 2, RA 9522.

37 Article 121 provides: "Regime of islands. —

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf."

38 Rollo, pp. 56-57, 60-64.

39 Paragraph 2, Section 2, Article XII of the Constitution uses the term "archipelagic waters" separately from "territorial sea." Under UNCLOS III, an archipelagic State may have internal waters – such as those enclosed by closing lines across bays and mouths of rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: "Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters." (Emphasis supplied)

40 Mandated under Articles 52 and 53 of UNCLOS III:


Article 52. Right of innocent passage. —

1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3.

2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. (Emphasis supplied)

Article 53. Right of archipelagic sea lanes passage. —

1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.

2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.

3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.

5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane.

6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes.

7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it.


8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.

9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.

10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given.

11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article.

12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation. (Emphasis supplied)

41 Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled "AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN."

42 The relevant provision of UNCLOS III provides:

Article 17. Right of innocent passage. —

Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. (Emphasis supplied)

Article 19. Meaning of innocent passage. —

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;


(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage

Article 21. Laws and regulations of the coastal State relating to innocent passage. —

1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:

(a) the safety of navigation and the regulation of maritime traffic;

(b) the protection of navigational aids and facilities and other facilities or installations;

(c) the protection of cables and pipelines;

(d) the conservation of the living resources of the sea;

(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;

(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;

(g) marine scientific research and hydrographic surveys;


(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.

2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.

3. The coastal State shall give due publicity to all such laws and regulations.

4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.

43 The right of innocent passage through the territorial sea applies only to ships and not to aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through the sovereign territory of a State arises only under an international agreement. In contrast, the right of innocent passage through archipelagic waters applies to both ships and aircrafts (Article 53 (12), UNCLOS III).

44 Following Section 2, Article II of the Constitution: "Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations." (Emphasis supplied)

45 "Archipelagic sea lanes passage is essentially the same as transit passage through straits" to which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V. Lowe, The Law of the Sea 127 (1999).

46 Falling under Article 121 of UNCLOS III (see note 37).

47 Within the exclusive economic zone, other States enjoy the following rights under UNCLOS III:

Article 58. Rights and duties of other States in the exclusive economic zone. —

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.

x x x x

Beyond the exclusive economic zone, other States enjoy the freedom of the high seas, defined under UNCLOS III as follows:


Article 87. Freedom of the high seas. —

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of overflight;

(c) freedom to lay submarine cables and pipelines, subject to Part VI;

(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;

(e) freedom of fishing, subject to the conditions laid down in section 2;

(f) freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

48 See note 13.

49 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Tañada v. Angara, 338 Phil. 546, 580-581 (1997).

50 G.R. No. 101083, 30 July 1993, 224 SCRA 792.

51 "The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens."

52 "The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources."

53 This can extend up to 350 nautical miles if the coastal State proves its right to claim an extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77).

54 Rollo, pp. 67-69.


55 Article 47 (1) provides: "An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1." (Emphasis supplied) in the Area.

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

VELASCO, JR., J.:

I concur with the ponencia and add the following complementary arguments and observations:

A statute is a product of hard work and earnest studies of Congress to ensure that no constitutional provision, prescription or concept is infringed. Withal, before a law, in an appropriate proceeding, is nullified, an unequivocal breach of, or a clear conflict with, the Constitution must be demonstrated in such a way as to leave no doubt in the mind of the Court.1 In the same token, if a law runs directly afoul of the Constitution, the Court’s duty on the matter should be clear and simple: Pursuant to its judicial power and as final arbiter of all legal questions,2 it should strike such law down, however laudable its purpose/s might be and regardless of the deleterious effect such action may carry in its wake.

Challenged in these proceedings is the constitutionality of Republic Act (RA 9522) entitled "An Act to Amend Certain Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the Archipelagic Baselines Of The Philippines and for Other Purposes." For perspective, RA 3046, "An Act to Define the Baselines of the Territorial Sea of the Philippines, was enacted in 1961 to comply with the United Nations Convention on the Law of the Sea (UNCLOS) I. Eight years later, RA 5446 was enacted to amend typographical errors relating to coordinates in RA 3046. The latter law also added a provision asserting Philippine sovereignty over Sabah.

As its title suggests, RA 9522 delineates archipelagic baselines of the country, amending in the process the old baselines law, RA 3046. Everybody is agreed that RA 9522 was enacted in response to the country’s commitment to conform to some 1982 Law of the Sea Convention (LOSC) or UNCLOS III provisions to define new archipelagic baselines through legislation, the Philippines having signed3 and eventually ratified4 this multilateral treaty. The Court can take judicial notice that RA 9522 was registered and deposited with the UN on April 4, 2009.

As indicated in its Preamble,5 1982 LOSC aims, among other things, to establish, with due regard for the sovereignty of all States, "a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans." One of the measures to attain the order adverted to is to have a rule on baselines. Of particular relevance to the Philippines, as an archipelagic state, is Article 47 of UNCLOS III which deals with baselines:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

http://www.lawphil.net/judjuris/juri2011/aug2011/gr_187167_2011.html#top


2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.

x x x x

9. The archipelagic State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.6 (Emphasis added.)

To obviate, however, the possibility that certain UNCLOS III baseline provisions would, in their implementation, undermine its sovereign and/or jurisdictional interests over what it considers its territory,7 the Philippines, when it signed UNCLOS III on December 10, 1982, made the following "Declaration" to said treaty:

The Government of the Republic of the Philippines [GRP] hereby manifests that in signing the 1982 United Nations Convention on the Law of the Sea, it does so with the understandings embodied in this declaration, made under the provisions of Article 310 of the Convention, to wit:

The signing of the Convention by the [GRP] shall not in any manner impair or prejudice the sovereign rights of the [RP] under and arising from the Constitution of the Philippines;

Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the United States of America [USA], under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the [USA] and Great Britain of January 2, 1930;

x x x x

Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto;

The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines. The [GRP] maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution;

The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty independence and security;

The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.8 (Emphasis added.)

Petitioners challenge the constitutionality of RA 9522 on the principal ground that the law violates Section 1, Article I of the 1987 Constitution on national territory which states:


Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Emphasis supplied.)

According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission which drafted the 1987 Constitution, the aforequoted Section 1 on national territory was "in substance a copy of its 1973 counterpart."9 Art. I of the 1973 Constitution reads:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the air space, the subsoil, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Emphasis added.)

As may be noted both constitutions speak of the "Philippine archipelago," and, via the last sentence of their respective provisions, assert the country’s adherence to the "archipelagic principle." Both constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2) other territories belonging to the Philippines. So what or where is Philippine archipelago contemplated in the 1973 and 1987 Constitutions then? Fr. Bernas answers the poser in the following wise:

Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the 1973 Constitution. x x x

x x x x

x x x To understand [the meaning of national territory as comprising the Philippine archipelago], one must look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final form.

Section 1 of the first draft submitted by the Committee on National Territory almost literally reproduced Article I of the 1935 Constitution x x x. Unlike the 1935 version, however, the draft designated the Philippines not simply as the Philippines but as "the Philippine archipelago.10 In response to the criticism that the definition was colonial in tone x x x, the second draft further designated the Philippine archipelago, as the historic home of the Filipino people from its beginning.11

After debates x x x, the Committee reported out a final draft, which became the initially approved version: "The national territory consists of the Philippine archipelago which is the ancestral home of the Filipino people and which is composed of all the islands and waters embraced therein…"

What was the intent behind the designation of the Philippines as an "archipelago"? x x x Asked by Delegate Roselller Lim (Zamboanga) where this archipelago was, Committee Chairman Quintero answered that it was the area delineated in the Treaty of Paris. He said that objections to the colonial implication of mentioning the Treaty of Paris was responsible for the omission of the express mention of the Treaty of Paris.


Report No. 01 of the Committee on National Territory had in fact been explicit in its delineation of the expanse of this archipelago. It said:

Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a huge or giant rectangle will emerge, measuring about 600 miles in width and 1,200 miles in length. Inside this giant rectangle are the 7,100 islands comprising the Philippine Islands. From the east coast of Luzon to the eastern boundary of this huge rectangle in the Pacific Ocean, there is a distance of over 300 miles. From the west coast of Luzon to the western boundary of this giant rectangle in the China sea, there is a distance of over 150 miles.

When the [US] Government enacted the Jones Law, the Hare-Hawes Cutting Law and the Tydings McDuffie Law, it in reality announced to the whole world that it was turning over to the Government of the Philippine Islands an archipelago (that is a big body of water studded with islands), the boundaries of which archipelago are set forth in Article III of the Treaty of Paris. It also announced to the whole world that the waters inside the giant rectangle belong to the Philippines – that they are not part of the high seas.

When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was ceding to the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines specified in the treaty, and that the archipelago consisted of the huge body of water inside the boundaries and the islands inside said boundaries.

The delineation of the extent of the Philippine archipelago must be understood in the context of the modifications made both by the Treaty of Washington of November 7, 1900, and of the Convention of January 12, 1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and the Turtle and Mangsee Islands. However, x x x the definition of the archipelago did not include the Batanes group[, being] outside the boundaries of the Philippine archipelago as set forth in the Treaty of Paris. In literal terms, therefore, the Batanes islands would come not under the Philippine archipelago but under the phrase "all other territories belong to the Philippines."12x x x (Emphasis added.)

From the foregoing discussions on the deliberations of the provisions on national territory, the following conclusion is abundantly evident: the "Philippine archipelago" of the 1987 Constitution is the same "Philippine archipelago" referred to in Art. I of the 1973 Constitution which in turn corresponds to the territory defined and described in Art. 1 of the 1935 Constitution,13 which pertinently reads:

Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris concluded between the [US] and Spain on the tenth day of December, [1898], the limits of which are set forth in Article III of said treaty, together with all the islands in the treaty concluded at Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between the [US] and Great Britain x x x.

While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so the nationalistic arguments went, being "a repulsive reminder of the indignity of our colonial past,"14 it is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of the national territory.

On the other hand, the phrase "all other territories over which the Philippines has sovereignty or jurisdiction," found in the 1987 Constitution, which replaced the deleted phrase "all territories belonging to the Philippines by historic right or legal title"15 found in the 1973 Constitution, covers areas linked to the Philippines with varying degrees of certainty.16 Under this category would fall: (a) Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee


on National Territory, described as belonging to the Philippines in all its history;17 (b) Sabah, over which a formal claim had been filed, the so-called Freedomland (a group of islands known as Spratleys); and (c) any other territory, over which the Philippines had filed a claim or might acquire in the future through recognized modes of acquiring territory.18 As an author puts it, the deletion of the words "by historic right or legal title" is not to be interpreted as precluding future claims to areas over which the Philippines does not actually exercise sovereignty.19

Upon the foregoing perspective and going into specifics, petitioners would have RA 9522 stricken down as unconstitutional for the reasons that it deprives the Philippines of what has long been established as part and parcel of its national territory under the Treaty of Paris, as supplemented by the aforementioned 1900 Treaty of Washington or, to the same effect, revises the definition on or dismembers the national territory. Pushing their case, petitioners argue that the constitutional definition of the national territory cannot be remade by a mere statutory act.20 As another point, petitioners parlay the theory that the law in question virtually weakens the country’s territorial claim over the Kalayaan Island Group (KIG) and Sabah, both of which come under the category of "other territories" over the Philippines has sovereignty or jurisdiction. Petitioners would also assail the law on grounds related to territorial sea lanes and internal waters transit passage by foreign vessels.

It is remarkable that petitioners could seriously argue that RA 9522 revises the Philippine territory as defined in the Constitution, or worse, constitutes an abdication of territory.

It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982 LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime zones. Or as the ponencia aptly states, RA 9522 aims to mark-out specific base points along the Philippine coast from which baselines are drawn to serve as starting points to measure the breadth of the territorial sea and maritime zones.21 The baselines are set to define the sea limits of a state, be it coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as petitioners would insist at every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that countries can have territories outside their baselines. Far from having a dismembering effect, then, RA 9522 has in a limited but real sense increased the country’s maritime boundaries. How this situation comes about was extensively explained by then Minister of State and head of the Philippine delegation to UNCLOS III Arturo Tolentino in his sponsorship speech22 on the concurrence of the Batasang Pambansa with the LOSC:

x x x x

Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area inside the archipelagic base lines become a unified whole and the waters between the islands which formerly were regarded by international law as open or international seas now become waters under the complete sovereignty of the Filipino people. In this light there would be an additional area of 141,800 square nautical miles inside the base lines that will be recognized by international law as Philippine waters, equivalent to 45,351,050 hectares. These gains in the waters of the sea, 45,211,225 hectares outside the base lines and 141,531,000 hectares inside the base lines, total 93,742,275 hectares as a total gain in the waters under Philippine jurisdiction.

From a pragmatic standpoint, therefore, the advantage to our country and people not only in terms of the legal unification of land and waters of the archipelago in the light of international law, but also in terms of the vast resources that will come under the dominion and jurisdiction of the Republic of the Philippines, your Committee on Foreign Affairs does not hesitate to ask this august Body to concur in the Convention by approving the resolution before us today.


May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of the Sea.

Lest it be overlooked, the constitutional provision on national territory, as couched, is broad enough to encompass RA 9522’s definition of the archipelagic baselines. To reiterate, the laying down of baselines is not a mode of acquiring or asserting ownership a territory over which a state exercises sovereignty. They are drawn for the purpose of defining or establishing the maritime areas over which a state can exercise sovereign rights. Baselines are used for fixing starting point from which the territorial belt is measured seawards or from which the adjacent maritime waters are measured. Thus, the territorial sea, a marginal belt of maritime waters, is measured from the baselines extending twelve (12) nautical miles outward.23 Similarly, Art. 57 of the 1982 LOSC provides that the Exclusive Economic Zone (EEZ) "shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured."24 Most important to note is that the baselines indicated under RA 9522 are derived from Art. 47 of the 1982 LOSC which was earlier quoted.

Since the 1987 Constitution’s definition of national territory does not delimit where the Philippine’s baselines are located, it is up to the political branches of the government to supply the deficiency. Through Congress, the Philippines has taken an official position regarding its baselines to the international community through RA 3046,25 as amended by RA 544626 and RA 9522. When the Philippines deposited a copy of RA 9522 with the UN Secretary General, we effectively complied in good faith with our obligation under the 1982 LOSC. A declaration by the Court of the constitutionality of the law will complete the bona fides of the Philippines vis-a-vis the law of the sea treaty.

It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an imposing impact on the signatory states’ jurisdiction and even their sovereignty. But this actuality, without more, can hardly provide a justifying dimension to nullify the complying RA 9522. As held by the Court in Bayan Muna v. Romulo,27 treaties and international agreements have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary acts, states may decide to surrender or waive some aspects of their sovereignty. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or reciprocal undertaking. On the premise that the Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution.

As a signatory of the 1982 LOSC, it behooves the Philippines to honor its obligations thereunder. Pacta sunt servanda, a basic international law postulate that "every treaty in force is binding upon the parties to it and must be performed by them in good faith."28 The exacting imperative of this principle is such that a state may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty."29

The allegation that Sabah has been surrendered by virtue of RA 9522, which supposedly repealed the hereunder provision of RA 5446, is likewise unfounded.

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2 of RA 5446. Petitioners obviously have read too much into RA 9522’s amendment on the baselines found in an older law.


Aside from setting the country’s baselines, RA 9522 is, in its Sec. 3, quite explicit in its reiteration of the Philippines’ exercise of sovereignty, thus:

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and jurisdiction over all portions of the national territory as defined in the Constitution and by provisions of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, as amended.

To emphasize, baselines are used to measure the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. Having KIG and the Scarborough Shoal outside Philippine baselines will not diminish our sovereignty over these areas. Art. 46 of UNCLOS III in fact recognizes that an archipelagic state, such as the Philippines, is a state "constituted wholly by one or more archipelagos and may include other islands." (emphasis supplied) The "other islands" referred to in Art. 46 are doubtless islands not forming part of the archipelago but are nevertheless part of the state’s territory.

The Philippines’ sovereignty over KIG and Scarborough Shoal are, thus, in no way diminished. Consider: Other countries such as Malaysia and the United States have territories that are located outside its baselines, yet there is no territorial question arising from this arrangement. 30

It may well be apropos to point out that the Senate version of the baseline bill that would become RA 9522 contained the following explanatory note: The law "reiterates our sovereignty over the Kalayaan Group of Islands declared as part of the Philippine territory under Presidential Decree No. 1596. As part of the Philippine territory, they shall be considered as a ‘regime of islands’ under Article 121 of the Convention."31 Thus, instead of being in the nature of a "treasonous surrender" that petitioners have described it to be, RA 9522 even harmonizes our baseline laws with our international agreements, without limiting our territory to those confined within the country’s baselines.

Contrary to petitioners’ contention, the classification of KIG and the Scarborough Shoal as falling under the Philippine’s regime of islands is not constitutionally objectionable. Such a classification serves as compliance with LOSC and the Philippines’ assertion of sovereignty over KIG and Scarborough Shoal. In setting the baseline in KIG and Scarborough Shoal, RA 9522 states that these are areas "over which the Philippines likewise exercises sovereignty and jurisdiction." It is, thus, not correct for petitioners to claim that the Philippines has lost 15,000 square nautical miles of territorial waters upon making this classification. Having 15,000 square nautical miles of Philippine waters outside of our baselines, to reiterate, does not translate to a surrender of these waters. The Philippines maintains its assertion of ownership over territories outside of its baselines. Even China views RA 9522 as an assertion of ownership, as seen in its Protest32 filed with the UN Secretary-General upon the deposit of RA 9522.

We take judicial notice of the effective occupation of KIG by the Philippines. Petitioners even point out that national and local elections are regularly held there. The classification of KIG as under a "regime of islands" does not in any manner affect the Philippines’ consistent position with regard to sovereignty over KIG. It does not affect the Philippines’ other acts of ownership such as occupation or amend Presidential Decree No. 1596, which declared KIG as a municipality of Palawan.

The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not detract to the constitutionality of the law in question. The resolution of the problem lies with the political departments of the government.


All told, the concerns raised by the petitioners about the diminution or the virtual dismemberment of the Philippine territory by the enactment of RA 9522 are, to me, not well grounded. To repeat, UNCLOS III pertains to a law on the seas, not territory. As part of its Preamble,33 LOSC recognizes "the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans x x x."

This brings me to the matter of transit passage of foreign vessels through Philippine waters.

Apropos thereto, petitioners allege that RA 9522 violates the nuclear weapons-free policy under Sec. 8, in relation to Sec. 16, Art. II of the Constitution, and exposes the Philippines to marine pollution hazards, since under the LOSC the Philippines supposedly must give to ships of all states the right of innocent passage and the right of archipelagic sea-lane passage.

The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption and pursuit by the Philippines of "a policy of freedom from nuclear weapons in its territory." On the other hand, the succeeding Sec. l6 underscores the State’s firm commitment "to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." Following the allegations of petitioners, these twin provisions will supposedly be violated inasmuch as RA 9522 accedes to the right of innocent passage and the right of archipelagic sea-lane passage provided under the LOSC. Therefore, ships of all nations––be they nuclear-carrying warships or neutral commercial vessels transporting goods––can assert the right to traverse the waters within our islands.

A cursory reading of RA 9522 would belie petitioners’ posture. In context, RA 9522 simply seeks to conform to our international agreement on the setting of baselines and provides nothing about the designation of archipelagic sea-lane passage or the regulation of innocent passage within our waters. Again, petitioners have read into the amendatory RA 9522 something not intended.

Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic party-states in terms of transit under Arts. 51 to 53, which are explained below:

To safeguard, in explicit terms, the general balance struck by [Articles 51 and 52] between the need for passage through the area (other than straits used for international navigation) and the archipelagic state’s need for security, Article 53 gave the archipelagic state the right to regulate where and how ships and aircraft pass through its territory by designating specific sea lanes. Rights of passage through these archipelagic sea lanes are regarded as those of transit passage:

(1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for safe, continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.

(2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.

(3) Archipelagic sea lanes passage is the exercise in accordance with the present Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.34


But owing to the geographic structure and physical features of the country, i.e., where it is "essentially a body of water studded with islands, rather than islands with water around them,"35 the Philippines has consistently maintained the conceptual unity of land and water as a necessary element for territorial integrity,36 national security (which may be compromised by the presence of warships and surveillance ships on waters between the islands),37 and the preservation of its maritime resources. As succinctly explained by Minister Arturo Tolentino, the essence of the archipelagic concept is "the dominion and sovereignty of the archipelagic State within its baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable unity of the land and water domain."38 Indonesia, like the Philippines, in terms of geographic reality, has expressed agreement with this interpretation of the archipelagic concept. So it was that in 1957, the Indonesian Government issued the Djuanda Declaration, therein stating :

[H]istorically, the Indonesian archipelago has been an entity since time immemorial. 1avvphi1 In view of the territorial entirety and of preserving the wealth of the Indonesian state, it is deemed necessary to consider all waters between the islands and entire entity.

x x x On the ground of the above considerations, the Government states that all waters around, between and connecting, the islands or parts of islands belonging to the Indonesian archipelago irrespective of their width or dimension are natural appurtenances of its land territory and therefore an integral part of the inland or national waters subject to the absolute sovereignty of Indonesia.39 (Emphasis supplied.)

Hence, the Philippines maintains the sui generis character of our archipelagic waters as equivalent to the internal waters of continental coastal states. In other words, the landward waters embraced within the baselines determined by RA 9522, i.e., all waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.40 Accordingly, such waters are not covered by the jurisdiction of the LOSC and cannot be subjected to the rights granted to foreign states in archipelagic waters, e.g., the right of innocent passage,41 which is allowed only in the territorial seas, or that area of the ocean comprising 12 miles from the baselines of our archipelago; archipelagic sea-lane passage;42 over flight;43 and traditional fishing rights.44

Our position that all waters within our baselines are internal waters, which are outside the jurisdiction of the 1982 LOSC,45 was abundantly made clear by the Philippine Declaration at the time of the signing of the LOSC on December 10, 1982. To reiterate, paragraphs 5, 6 and 7 of the Declaration state:

5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential decrees of Proclamation of the republic of the Philippines; the Government x x x maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution;

6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence and security;

7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines and removes straits connecting this water with the economic zone or high seas from the rights of foreign vessels to transit passage for international navigation. (Emphasis supplied.)46


More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity of the Philippine state as comprising both water and land was strengthened by the proviso in its first article, viz: "The waters around, between, and connecting the islands of the [Philippine] archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (emphasis supplied)

In effect, contrary to petitioners’ allegations, the Philippines’ ratification of the 1982 LOSC did not matter-of-factly open our internal waters to passage by foreign ships, either in the concept of innocent passage or archipelagic sea-lane passage, in exchange for the international community’s recognition of the Philippines as an archipelagic state. The Filipino people, by ratifying the 1987 Constitution, veritably rejected the quid pro quo petitioners take as being subsumed in that treaty.

Harmonized with the Declaration and the Constitution, the designation of baselines made in RA 9522 likewise designates our internal waters, through which passage by foreign ships is not a right, but may be granted by the Philippines to foreign states but only as a dissolvable privilege.

In view of the foregoing, I vote to DISMISS the Petition.

PRESBITERO J. VELASCO, JR.Associate Justice

Footnotes

1 League of Cities of the Phil. v. COMELEC, G.R. No. 176951, December 21, 2009, 608 SCRA 636.

2 Under Art. VIII, Sec. 5 of the Constitution, the Supreme Court is empowered to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: all cases in which the Constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphasis supplied.)

3 December 10, 1982.

4 May 8, 1984.

5 Available on <http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm> (visited July 28, 2011).

6 UNCLOS, Art. 47, December 10, 1982.

7 J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines A Commentary 57 (2003).

8 See J. Batongbacal, The Metes and Bounds of the Philippine National Territory, An International Law and Policy Perspective, Supreme Court of the Philippines, Philippine Judicial Academy Third Distinguished Lecture, Far Eastern University, June 27, 2008.


9 J. Bernas, supra note 7, at 10.

10 Citing Report No. 01 of the Committee on National Territory.

11 Citing Report No. 02 of the Committee on National Territory.

12 J. Bernas, supra note 7, at 11-14.

13 Id. at 14.

14 Id. at 9; citing Speech, Session February 15, 1972, of Delegates Amanio Sorongon, et al.

15 The history of this deleted phrase goes back to the last clause of Art. I of the 1935 Constitution which included "all territory over which the present Government of the Philippine Islands exercises jurisdiction. See J. Bernas, supra note 7, at 14.


17 Id.; citing deliberations of the February 17, 1972 Session.

18 Id.

19 De Leon, Philippine Constitution 62 (2011).

20 Petition, pp. 4-5.

21 Art. 48 of UNCLOS III provides that the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from the archipelagic baseline drawn in accordance with Art. 47.

22 R.P. Lotilla, The Philippine National Territory: A Collection of Related Documents 513-517 (1995); citing Batasang Pambansa, Acts and Resolution, 6th Regular Session.


24 UNCLOS III, Art. 57.

25 June 17, 1961.

26 September 18, 1968.

27 G.R. No. 159618, February 1, 2011; citing Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.

28 Art. 26, Vienna Convention on the Law of Treaties, 1969.

29 Art. 13, Declaration of Rights and Duties of States Adopted by the International Law Commission, 1949.

30 See J. Batongbacal, supra note 8.


31 Id.

32 The Protest reads in part: "The above-mentioned Philippine Act illegally claims Huangyan Island (referred as "Bajo de Masinloc" in the Act) of China as "areas over which the Philippines likewise exercises sovereignty and jurisdiction." The Chinese Government hereby reiterates that Huangyan Island and Nansha Islands have been part of the territory of China since ancient time. The People’s Republic of China has indisputable sovereignty over Huangyan Island and Nansha Islands and their surrounding areas. Any claim to territorial sovereignty over Huangyan Island and Nansha Islands by any other State is, therefore, null and void." Available on

<http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/ communicationsredeposit/mzn69_2009_chn.pdf> (visited August 9, 2011).

33 Supra note 5.

34 C. Ku, The Archipelagic States Concept and Regional Stability in Southeast Asia, Case W. Res. J. Int’l L., Vol. 23:463, 469; citing 1958 U.N. Conference on the Law of the Sea, Summary Records 44, Doc. A/Conf. 13/42.

35 Id.

36 Hiran W. Jayewardene, The Regime of Islands in International Law, AD Dordrecht: Martinus Nijhoff Publishers, p. 103 (1990).

37 Id. at 112.

38 UNCLOS III Off. Rec., Vol. II, 264, par. 65, and also pars. 61-62 and 66; cited in B. Kwiatkowska, "The Archipelagic Regime in Practice in the Philippines and Indonesia – Making or Breaking International Law?", International Journal of Estuarine and Coastal Law, Vol. 6, No. 1, pp. 6-7.

39 4 Whiteman D.G., International Law 284 (1965); quoted in C. Ku, supra note 34, at 470.

40 1987 Constitution, Art. I.

41 LOSC, Arts. 52 and 54.

42 LOSC, Art. 53, par. 2.


44 LOSC, Art. 51.


46 Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, "The United Nations Convention on the Law of the Sea: Implications of Philippine Ratification," 9 Philippine Yil (1983) 48-9 and 61-2; and Congress of the Philippines, First Regular Session, Senate, S. No. 232, Explanatory Note and An Act to Repeal Section 2 (concerning TS baselines around Sabah disputed with Malaysia) of the 1968 Act No. 5446.


Magallona v. Ermita (Case Digest)Posted on August 24, 2014 by MissDennieIdea

MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011

Facts:

In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as an

Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty of State parties over their

territorial sea. Then in 1968, it was amended by R.A. 5446, correcting some errors in R.A. 3046

reserving the drawing of baselines around Sabah.

In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984. The

requirements complied with are: to shorten one baseline, to optimize the location of some basepoints

and classify KIG and Scarborough Shoal as ‘regime of islands’.

Petitioner now assails the constitutionality of the law for three main reasons:

1. it reduces the Philippine maritime territory under Article 1;

2. it opens the country’s waters to innocent and sea lanes passages hence undermining our

sovereignty and security; and

3. treating KIG and Scarborough as ‘regime of islands’ would weaken our claim over those territories.

Issue: Whether R.A. 9522 is constitutional?

Ruling:

1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm that

regulates conduct of States. On the other hand, RA 9522 is a baseline law to mark out basepoints


along coasts, serving as geographic starting points to measure. it merely notices the international

community of the scope of our maritime space.

2. If passages is the issue, domestically, the legislature can enact legislation designating routes within

the archipelagic waters to regulate innocent and sea lanes passages. but in the absence of such,

international law norms operate.

the fact that for archipelagic states, their waters are subject to both passages does not place them in

lesser footing vis a vis continental coastal states. Moreover, RIOP is a customary international law, no

modern state can invoke its sovereignty to forbid such passage.

3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it

increased the Phils.’ total maritime space. Moreover, the itself commits the Phils.’ continues claim of

sovereignty and jurisdiction over KIG.

If not, it would be a breach to 2 provisions of the UNCLOS III:

Art. 47 (3): ‘drawing of basepoints shall not depart to any appreciable extent from the general

configuration of the archipelago’.

Art 47 (2): the length of baselines shall not exceed 100 mm.

KIG and SS are far from our baselines, if we draw to include them, we’ll breach the rules: that it should

follow the natural configuration of the archipelago


655 SCRA 476 – Political Law – National Territory – RA 9522 is

Constitutional

In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the Philippines was

enacted – the law is also known as the Baselines Law. This law was meant to comply with the terms of

the third United Nations Convention on the Law of the Sea (UNCLOS III), ratified by the Philippines in

February 1984.

Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among others,

that the law decreased the national territory of the Philippines hence the law is unconstitutional. Some

of their particular arguments are as follows:

a. the law abandoned the demarcation set by the Treaty of Paris and other ancillary treaties – this also

resulted to the exclusion of our claim over Sabah;

b. the law, as well as UNCLOS itself, describes the Philippine waters as “archipelagic” waters which, in

international law, opens our waters landward of the baselines to maritime passage by all vessels

(innocent passage) and aircrafts (overflight), undermining Philippine sovereignty and national security,

contravening the country’s nuclear-free policy, and damaging marine resources, in violation of relevant

constitutional provisions;

c. the classification of the Kalayaan Island Group (KIG), as well as the Scarborough Shoal (bajo de

masinloc), as a “regime of islands” pursuant to UNCLOS results in the loss of a large maritime area but

also prejudices the livelihood of subsistence fishermen.

ISSUE: Whether or not the contentions of Magallona et al are tenable.

HELD: No. The Supreme Court emphasized that RA 9522, or UNCLOS, itself is not a means to acquire,

or lose, territory. The treaty and the baseline law has nothing to do with the acquisition, enlargement,

or diminution of the Philippine territory. What controls when it comes to acquisition or loss of territory

is the international law principle on occupation, accretion, cession and prescription and NOT the

execution of multilateral treaties on the regulations of sea-use rights or enacting statutes to comply

with the treaty’s terms to delimit maritime zones and continental shelves.

The law did not decrease the demarcation of our territory. In fact it increased it. Under the old law

amended by RA 9522 (RA 3046), we adhered with the rectangular lines enclosing the Philippines. The

area that it covered was 440,994 square nautical miles (sq. na. mi.). But under 9522, and with the

inclusion of the exclusive economic zone, the extent of our maritime was increased to 586,210 sq. na.

mi. (See image below for comparison)

If any, the baselines law is a notice to the international community of the scope of the maritime space

and submarine areas within which States parties exercise treaty-based rights.


Anent their particular contentions:

a. The law did not abandon the Sabah claim. This is evident on the provision of Section 2 of RA 9522:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided

in this Act is without prejudice to the delineation of the baselines of the territorial sea

around the territory of Sabah, situated in North Borneo, over which the Republic of the

Philippines has acquired dominion and sovereignty.

b. UNCLOS may term our waters as “archipelagic waters” and that we may term it as our “internal

waters”, but the bottom line is that our country exercises sovereignty over these waters and UNCLOS

itself recognizes that. However, due to our observance of international law, we allow the exercise of

others of their right of innocent passage. No modern State can validly invoke its sovereignty to

absolutely forbid innocent passage that is exercised in accordance with customary international law

without risking retaliatory measures from the international community.

c. The classification of the KIG (or the Spratly’s), as well as the Scarborough Shoal, as a regime of

islands did not diminish our maritime area. Under UNCLOS and under the baselines law, since they are

regimes of islands, they generate their own maritime zones – in short, they are not to be enclosed

within the baselines of the main archipelago (which is the Philippine Island group). This is because if

we do that, then we will be enclosing a larger area which would already depart from the provisions of

UNCLOS – that the demarcation should follow the natural contour of the archipelago.

Nevertheless, we still continue to lay claim over the KIG and the Scarborough Shoal through effective

occupation.

NOTES:

Under UNCLOS and the baselines law, we have three levels of maritime zones where we

exercise treaty-based rights:

a. territorial waters – 12 nautical miles from the baselines; where we exercise sovereignty

b. contiguous zone – 24 nautical miles from the baselines; jurisdiction where we can enforce customs,

fiscal, immigration, and sanitation laws (CFIS).

c. exclusive economic zone – 200 nautical miles from the baselines; where we have the right to exploit

the living and non-living resources in the exclusive economic zone

Note: a fourth zone may be added which is the continental shelf – this is covered by Article 77 of the

UNCLOS.



Manila

EN BANC

G.R. No. 104226 August 12, 1993

CONCHITA ROMUALDEZ-YAP, petitioner, vs.THE CIVIL SERVICE COMMISSION and THE PHILIPPINE NATIONAL BANK, respondents.

Estelito P. Mendoza for petitioner.

The Solicitor General for the Civil Service Commission.

Domingo A. Santiago, Jr. for Philippine National Bank.

PADILLA, J.:

This is a special civil action for certiorari under Rule 65 of the Rules of Court, assailing Resolution No. 92-201 of the respondent Civil Service Commission, which upheld the petitioner's separation from the Philippine National Bank(PNB) as a result of the abolition of the Fund Transfer Department pursuant to a reorganization under Executive Order No. 80, dated 3 December 1986.

Petitioner Conchita Romualdez-Yap started working with the Philippine National Bank on 20 September 1972 as special assistant with the rank of Second Assistant Manager assigned to the office of the PNB President. After several promotions, she was appointed in 1983 Senior Vice President assigned to the Fund Transfer Department.

Starting 1 April 1986 up to 20 February 1987, petitioner filed several applications for leave of absence (due to medical reasons) which were duly approved. While she was on leave, Executive Order No. 80 (Revised Charter of the PNB) was approved on 3 December 1986. Said executive order authorized the restructure/reorganization and rehabilitation of PNB. Pursuant to the reorganization plan, the Fund Transfer Department was abolished and its functions transferred to the International Department.

Consequently, petitioner was notified of her separation from the service in a letter dated 30 January 1987, thus:

Pursuant to the Transitory Provision of the 1986 Revised Charter of the Bank, please be informed that Management has approved your separation from the


service effective February 16, 1986. You shall be entitled to the regular benefits allowed under existing law. (emphasis supplied)

Please be informed further that under Sec. 37 of the Bank's 1986 Revised Charter, any officer or employee who feels aggrieved by any matter treated above may submit his case to the Civil Service Commission. 1

This letter was received by petitioner's secretary at the PNB head office on 16 February 1987.

Petitioner's first recorded appeal to the Civil Service Commission questioning her separation is a letter dated 4 August 1989. Then CSC Chairman Samilo N. Barlongay upheld the validity of her separation from the service in a letter/opinion dated 30 August 1989 (this was allegedly received by petitioner only on 26 February 1990) stating thus:

xxx xxx xxx

It may be mentioned in this connection, that inasmuch as you did not avail of the ERIP/Supplementary Retirement Plans adopted by the PNB in 1986, you have therefore lost your right thereto. Moreover, since you lack the required number of years of service to entitle you to retirement benefits under existing laws, you may be entitled to the return of your GSIS personal contributions. Considering further that you have exhausted all your accumulated leave credits as you went on leave of absence for the period from April 1, 1986 to February 20, 1987, there is no legal or valid basis to entitle you to payment of terminal leave.

Finally, pursuant to Section 16, Article XVIII of the Transitory Provisions of the 1987 Philippine Constitution, you may be entitled to payment of separation subject to auditing rules and regulations. 2

In her motion for reconsideration with the Civil Service Commission, dated 5 March 1990, questioning Chairman Barlongay's ruling, petitioner claimed:

1. The opinion/ruling was not fully supported by the evidence on record;

2. Errors of law prejudicial to the interest of the movant have been committed. She argued:

. . . that her separation from the service was illegal and was done in bad faith considering that her termination on February 16, 1986 was made effective prior to the effectivity of Executive Order No. 80 on December 3, 1986, which law authorized the reorganization of the PNB, and even before February 25, 1986, when President Corazon C. Aquino came into power. She further claims that although the notice of termination was dated January 30, 1987 it was only served upon her on February 16, 1987 when the new Constitution which guarantees security of tenure to public employees was already in effect. 3

xxx xxx xxx

. . . the bad faith in her separation from the service in 1987 was evident from the recent restoration of the Fund Transfer Department as a separate and distinct unit from the International Department . . .4


Denying the motion for reconsideration, the Civil Service Commission in its aforecited Resolution No. 92-201, dated 30 January, 1992, ruled:

Sec. 33 of EO 80 (1986 Revised Charter of the PNB) provides:

Sec. 33. Authority to Reorganize. — In view of reduced operations contemplated under this charter in pursuance of the national policy expressed in the "Whereas" clause hereof, a reorganization of the Bank and a reduction in force are hereby authorized to achieve greater efficiency and economy in operations, including the adoption of a new staffing pattern to suit the reduced operations envisioned. The program of reorganization shall begin immediately after the approval of this Order, and shall be completed within six (6) months and shall be fully implemented within eighteen (18) months thereafter." Clearly; as aforequoted, PNB was authorized to undergo reorganization and to effect a reduction in force to "achieve greater efficiency and economy in operations". It cannot, be disputed that reduction in force necessitates, among others, the abolition of positions/offices. The records show that prior to its reorganization, PNB originally had 7,537 positions which were reduced to 5,405 after the reorganization. Indeed, 2,132 positions were abolished, that is, the original positions in PNB were reduced by 28%. This reduction in force likewise included the senior officer positions, in PNB, which were reduced, thus:

Positions Incumbents Proposed Position

President 1 1 1Sr. Exec. VP 1 1 0Exec. VP 3 2 2Senior VP 12 11 7Vice Pres. 33 27 15

The position of movant Yap (SVP) was one among the original twelve (12) SVP positions. It was one among the five (5) SVP positions which were abolished. In fact, the FTD of which she was then the incumbent SVP, was merged with the International Department to which its functions were closedly related.

It should be noted that as ruled by the Supreme Court in Dario vs. Mison (G.R. NO. 81954):

Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese Wall. . . . .

. . . Good faith, as a component of a reorganization under a constitutional regime is judged from the facts of each case.

In the instant case, therefore, this Commission is inclined to believe that the reorganization of PNB was done in good faith. For indeed, the reorganization was pursued to achieve economy. It undertook reduction in force as a means to streamline the numbers of the workforce. It was incidental that movant Yap's position


was one among those abolished. Movant Yap failed to substantiate her claim by clear and convincing evidence that the abolition of her position was a result of her close identification with the previous regime, being a sister of former First Lady Imelda Romualdez Marcos. This being so, and pursuant to the presumption of regularity in the performance of official functions, the abolition of movant Yap's position should be upheld. PNB, in the instant case, has clearly proved by substantial evidence that its act in terminating the services of some of its employees was done in good faith. 5

Overruling her imputation of bad faith, i.e. her separation was illegal because it took effect on 16 February 1986 or even before the promulgation of EO No. 80 on 3 December 1986, the CSC noted that the year "1986" stated in the notice of her separation from the service was a typographical error. PNB submitted documents (p. 6 of Resolution No. 92-201) supporting its stand that the separation actually took effect on 16 February 1987.

On the issue of bad faith as related to the later restoration of the Fund Transfer Department, the subject CSC resolution adds:

xxx xxx xxx

It may be mentioned that the recent restoration of the Fund Transfer Department, actually was a merger of the Fund Transfer Group, the Foreign Remittance Development and Coordinating Unit based on board Resolution No. 60 of March 12, 1991, or after the lapse of over four (4) years from the date it was abolished in 1987. Moreover, the restoration of the Fund Transfer Department and other offices in the PNB was primarily caused by the improved financial capability and present needs of the Bank. This improved financial condition of the PNB is evident from the 1990 Annual Report it submitted. It may be further stated that the re-established FTD is headed by a Vice President, a position much lower in rank than the former department headed by a Senior Vice President.

Furthermore, it should be noted that granting arguendo that movant Yap's termination from the service was tainted with bad faith, she however, is now barred from assailing the same as she did not seasonably assert her right thereto. Records show that she was separated from PNB on February 16, 1987 and it was only in 1989 or about 2 years thereafter when she brought this matter to this Commission. By her inaction in questioning her termination within a period of one year, she is considered to have acquiesced to her separation from the service and abandoned her right to the position. 6

In the present petition before the Court, the following issues are raised:

1. Existence of bad faith in the reorganization of the Philippine National Bank resulting in the separation from the service of petitioner.

2. Erroneous application of the Dario v. Mison doctrine vis-a-vis PNB's reorganization.

3. Erroneous application of the one (1) year prescriptive period for quo warranto proceedings in petitioner's case.

Dario v. Mison 7 laid down the requirement of good faith in the reorganization of a government bureau wherein offices are abolished. It says:


. . . Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are not, as a consequence, imposing a "cause" for restructuring. Retrenchment in the course of a reorganization in good faith is still removal "not for cause" if by "cause" we refer to "grounds" or conditions that call for disciplinary action. Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case.

In Petitioner's case, the following instances are cited by her as indicia of bad faith:

1. The abolished department was later restored and the number of senior vice presidents was increased.

2. PNB did not follow the prescribed sequence of separation of employees from the service contained in Rep. Act No. 6656 which is:

Sec. 3. In the separation of personnel pursuant to reorganization, the following order of removal shall be followed:

(a) Casual employees with less than five (5) years of government service;

(b) Casual employees with five (5) years or more of government service;

(c) Employees holding temporary appointments; and

(d) Employees holding permanent appointments: Provided, That those in the same category as enumerated above, who are least qualified in terms of performance and merit shall be laid off first, length of service notwithstanding.

3. Petitioner was not extended preference in appointment to the positions in the new staffing pattern as mandated by Sec. 4 of Rep. Act 6656, her qualification and fitness for new positions were never evaluated or considered in violation of Sec. 27 of P.D. 807 which was incorporated as Sec. 29 Ch. 5 Subtitle A, Book V of the Administrative Code of 1987.

4. Lack of notice and bearing before separation from the service.


5. Petitioner was forced to take a leave of absence and prevented from reporting for work.

6. There is a discrepancy in the date of her separation from the service and the effectivity thereof.

7. PNB employees in the Fund Transfer Department identified with her were reassigned or frozen.

8. She is listed as having resigned instead of being separated or dismissed which was what actually happened.

9. The dismissal was politically motivated, she being a sister of Mrs. Imelda Romualdez Marcos, wife of deposed President Ferdinand Marcos.

Executive Order No. 80 conferred upon the PNB the authority to reorganize. The order was issued by then Pres. Corazon Aquino on 3 December 1986 while she was exercising the powers vested in the President of the Philippines by the Freedom Constitution. After 3 December 1986, what remained to be done was the implementation of the reorganization. There is no doubt as to the legal basis for PNB's reorganization. The real question is: was it done in good faith, tested by the Dario v. Mison doctrine?

To start with it is almost absurd for petitioner to insist that her termination from the service was antedated to 16 February 1986. At that time, the reorganization of PNB had not even been conceived. In most of PNB's pleadings, it has documented and supported its stand that the year of petitioner's separation is 1987 not 1986. The antedating of the termination date, aside from being clearly a typographical error, is a periphernal issue. The real issue is existence of bad faith consisting of tangible bureaucratic/management pressures exerted to ease her out of office. Bad faith has been defined as a state of mind affirmatively operating with furtive design or with some motive of self interest or ill will or for an ulterior purpose. 8 It is the performance of an act with the knowledge that the actor is violating the fundamental law or right, even without willful intent to injure or purposive malice to perpetrate a damnifying harm. 9

PNB's reorganization, to repeat, was by virtue of a valid law. At the time of reorganization, due to the critical financial situation of the bank, departments, positions and functions were abolished or merged. The abolition of the Fund Transfer Department (FTD) was deemed necessary. This, to the Court's mind, was a management prerogative exercised pursuant to a business judgment. At this point, a distinction can be made in ruling on the validity of a reorganization between a government bureau or office performing constituent functions (like the Customs) and a government-owned or controlled corporation performing ministrant functions (like the PNB).

Constituent function are those which constitute the very bonds of society and are compulsory in nature; ministrant functions are those undertaken by way of advancing the general interests of society, and are merely optional. Commercial or universal banking is, ideally, not a governmental but a private sector, endeavor. It is an optional function of government.

. . . The principles determining whether or not a government shall exercise certain of these optional functions are: (1) that a government should do for the public welfare those things which private capital would not naturally undertake and (2) that a government should do those things which by its very, nature it is better equipped to administer for the public welfare than is any private individual or group of individuals (Malcolm, The Government of the Philippine Islands, pp. 19-20)


From the above we may infer that, strictly speaking, there are functions which our government is required to exercise to promote its objectives as expressed in our Constitution and which are exercised by it as an attribute of sovereignty, and those which it may exercise to promote merely the welfare, progress and prosperity of the people. To this latter class belongs the organization of those corporations owned or controlled by the government to promote certain aspects of the economic life of our people such as the National Coconut Corporation. These are what we call government-owned or controlled corporations which may take on the form of a private enterprise or one organized with powers and formal characteristics of a private corporation under the Corporation Law. (Bacani vs. Nacoco, No, L-9657, November 29, 1956, 100 Phil. 468)

But a reorganization whether in a government bureau performing constituent functions or in a government-owned or controlled corporation performing ministrant functions must meet a common test, the test of good faith. In this connection, the philosophy behind PNB's reorganization is spelled out in the whereas clauses of Executive Order No. 80:

WHEREAS, within the context of the general policy there nevertheless exists a clear role for direct government-participation in the banking system, particularly in servicing the requirements of agriculture, small and medium scale industry, export development, and the government sector.

WHEREAS, in pursuit of this national policy there is need to restructure the government financial institutions, particularly the Philippine National Bank, to achieve a more efficient and effective use of available scarce resources, to improve its viability, and to avoid unfair competition with the private sector, and

WHEREAS, the reorganization and rehabilitation of the Philippine National Bank into a similar but stronger and more operationally viable bank is an important component of the nationalization programs for both the financial system and the government corporation sector; . . . .

Whether there was a hidden political agenda to persecute petitioner due to her consanguinial relation to Mrs. Imelda Romualdez Marcos, the widow of former President Marcos, is not clearly shown. On the other hand, it is entirely possible that, precisely because of such consanguinial relation, petitioner may have been the object of deferential, if not special treatment under the Marcos regime. It is part of the Filipino culture to extend such deferential, if not special treatment to close relatives of persons in power. Many times this is carried to unwholesome extremes. But a discontinuance of such deferential or special treatment in the wake of a change in government or administration is not bad faith per se. It may be merely putting things in their proper places.

Due to the restructuring — and this is empirically verifiable — PNB became once more a viable banking institution. The restoration of the FTD four years after it was abolished and its functions transferred to the International Department, can be attributed to the bank's growth after reorganizations, thereby negating malice or bad faith in that reorganization. The essence of good faith lies in an honest belief in the validity of one's right. 10 It consists of an honest intention to abstain from taking an unconscionable and unscrupulous advantage of another, its absence should be established by convincing evidence. 11

The records also clearly indicate that starting April 1986 to February 1987, petitioner went on leave of absence for medical reasons. While she was not reporting to the office, the bank's reorganization got underway. She continued, however, receiving her salaries, allowances, emoluments, honoraria


and fees up to March 1987. Employees who were affected by the reorganization had the option to avail of the bank's Separation Benefits Plan/Early Retirement Plan (SBP/ERIP). Petitioner opted not to avail of such plan and instead submitted to the result of the bank's ongoing reorganization and management's discretion. If petitioner had the desire for continued employment with the bank, she could have asserted it for management's consideration. There is no proof on record that she affirmatively expressed willingness to be employed. Since she cannot rebut the CSC finding that her earliest appeal was made on 4 August 1989, there is no reason for this Court to hold that she did not sleep on her rights. On the contrary, her present argument that bad faith existed at the time of the abolition of the FTD because it was restored four years later is a little too late. Who could have predicted in 1986 or 1987 that PNB would be able to rise from its financial crisis and become a viable commercial bank again? The decision to abolish the FTD at the time it was abolished, to repeat, was a business judgment made in good faith.

PNB for its part submits that its reorganization was effected in good faith because —

a) There was not only a perceptible but substantial restructuring of the PNB hierarchy showing reduction of personnel, consolidation of offices and abolition of positions.

b) Two thousand one hundred thirty two (2,132) positions were abolished during the period from February 16, 1986 to January 14, 1987 leaving a lean workforce of five thousand four hundred five (5,405) as of latter date per B.R. No. 34 hereto attached as Annex "R".

c) The number of senior officers, including Senior Vice Presidents, was accordingly reduced.

Another issue raised by petitioner is PNB's alleged non-compliance with the mandate of Sections 2 and 4 of Rep. Act No. 6656. These Sections provide:

Sec. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving to a claim for reinstatement or reappointment by an aggrieved party.

(a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned;

(b) Where an office is abolished and another performing substantially the same functions is created;

(c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit;


(d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices;

(e) Where the removal violates the order of separation provided in Section 3 hereof.

xxx xxx xxx

Sec. 4. Officers and employees holding permanent, appointments shall be given preference for appointment to the new position in the approved staffing pattern comparable to their former positions or in case there are not enough comparable positions, to positions next lower in rank.

No new employees shall be taken in until all permanent officers and employees have been appointed, including temporary and casual employees who possess the necessary qualification requirements, among which is the appropriate civil service eligibility, for permanent appointment to positions in the approved staffing pattern, in case there are still positions to be filled, unless such positions are policy-determining, primarily confidential or highly technical in nature.

In the first place, Rep. Act No. 6656 cannot be invoked by petitioner because it took effect on 15 June 1987, or after PNB's reorganization had already been implemented. But assuming, ex gratia argumenti, that it is applicable here and petitioner must be accorded preferential right to appointment in the bank, PNB in its rejoinder impressively asserts:

Needless to say, there were various committees that were created in the implementation of the organizational restructuring of the Bank based on the foregoing policy guidelines. Each personnel to be retained was evaluated in terms of relative fitness and merit along with the other personnel of the Bank. Thus, when then SVP Federico Pascual was chosen to head the International Department from among other officers of the Bank, including Ms. Yap, his qualifications far exceeded those of the other candidates for the position.

We attach hereto as Annexes "G-1" and "G-2" the service records of Mr. Federico Pascual and Petitioner Ms. Yap, respectively, which clearly show that the qualifications of Mr. Pascual far exceed those of Petitioner Yap. Aside from being a lawyer having been a law graduate from the University of the Philippines, he is also a Bachelor of Arts degree holder from Ateneo de Manila and a Master of Laws graduate o Columbia Law School. He had studied Masteral Arts in Public Administration at the London School of Economics and had undergone extensive seminars since 1974 at the International Department and had been assigned in several foreign branches of the Bank. Before he resigned from the Bank, he held the second highest position of Executive Vice President and served as Acting President of the Bank before the incumbent president, President Gabriel Singson assumed his position.

On the other hand, the service record of Petitioner Yap will show that she only holds a Bachelor of Science in Commerce Degree from Assumption Convent and has undergone only one seminar on Management and Leadersbip Training Program. She entered the Bank service in 1972. (Rollo at pp. 312 to 313)

xxx xxx xxx


The prayer in the petition at bar seeks petitioner's immediate reinstatement to her former position as senior vice president and head of the Fund Transfer Department, or reappointment to a position of comparable or equivalent rank without loss of seniority rights and pay, etc., under the bank's new staffing pattern.

A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action for quo warranto (Rule 66, Sec. 6, Rules of Court). The petitioner therein must show a clear legal right to the office allegedly held unlawfully by another. 12

An action for quo warranto should be brought within one (1) year after ouster from office; 13 the failure to institute the same within the reglementary period constitutes more than a sufficient basis for its dismissal 14 since it is not proper that the title to a public office be subjected to continued uncertainty . . . 15 An exception to this prescriptive period lies only if the failure to file the action can be attributed to the acts of a responsible government officer and not of the dismissed employee. 16

Measured by the above jurisprudence, petitioner's action may be said to be one for quo warranto, seeking reinstatement to her former position which at present is occupied by another. She cannot invoke De Tavera v.Phil. Tuberculosis Society, Inc., et. al. 17 and contend that there is no claim of usurpation of office, and that quo warrantomay be availed of to assert one's right to an office in the situation obtaining in the case at bar.

Santos v. CA, et. al. 18 and Magno v. PNNC Corp. 19 are invoked by petitioner to illustrate that this action is one for separation without just cause, hence, the prescriptive period is allegedly four (4) years in accordance with Article 1146 of the Civil Code. 20 We do not agree. Petitioner's separation from the service was due to the abolition of her office in implementation of a valid reorganization. This is not the unjustifiable cause which results in injury to the rights of a person contemplated by Article 1146. The abolition of the office was not a whimsical, thoughtless move. It was a thoroughly evaluated action for streamlining functions based on a rehabilitation plan. 21 At the time of the abolition of the Fund Transfer Department in 1986, foreign exchange losses of the bank amounted to P81.1 Million. 22 The head of office was a Senior Vice President. At the time of restoration of the department in 1991, it was headed by a vice president (lower in rank) and showed earnings of P2,620.0 Million. 23 Other departments abolished in 1986 were also subsequently restored.

Restoring petitioner to her previous position with backwages would be unjust enrichment to her, considering that she had abandoned or showed lack of interest in reclaiming the same position when the bank was not yet fully rehabilitated and she only insisted on reinstatement in August 1989 or two (2) years after her alleged unjustified separation.

To those who feel that their unjustified separation from the service is for a cause beyond their control, the aforecited Magno case teaches:

. . . while We fully recognize the special protection which the Constitution, labor laws, and social legislation accord the workingman, We cannot, however, alter or amend the law on prescription to relieve him of the consequences of his inaction. Vigilantibus, non dormientibus, jura subveniunt (Laws come to the assistance of the vigilant, not of the sleeping). His explanation that he could not have filed the complaint earlier because "he was prevented to do so beyond his control for the simple reason that private respondent have (sic) tried to circumvent the law by merely floating" him is very flimsy and does not even evoke sympathetic consideration, if at all it is proper and necessary. We note that petitioner herein is not an unlettered man; he seems to be educated and assertive of his rights and appears to be familiar with judicial procedures. He filed a motion for extension of time to file the petition and the petition itself without the assistance of counsel. We cannot


believe that if indeed he had a valid grievance against PNCC he would not have taken immediate positive steps for its redress.

WHEREFORE, premises considered, the assailed CSC resolution is AFFIRMED. The petition is DISMISSED for failure to show grave abuse of discretion on the part of said CSC in rendering the questioned resolution. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason, Puno and Vitug, JJ., concur.

# Footnotes

1 Rollo, p. 12.

2 Rollo, pp. 43-44.

3 Resolution No. 92-201, CSC, Rollo, p. 31.

4 Ibid., p. 32.

5 Ibid., pp. 33-34.

6 Rollo at p. 36.

7 G.R. No. 81954, August 8, 1989, 176 SCRA 92-93.

8 Air France v. Carrascoso L-21438, September 28, 1966, 18 SCRA 166.

9 De Castro v. Carranza, 50460-R, July 3, 1974, see Moreno, F.B., Philippine Law Dictionary, Third Edition.

10 Bernardo vs. Bernardo, 96 Phil., 205.

11 Hilario vs. Galvez, 45494-R, August 19, 1971.

12 Carillo vs. CA, G.R. No. L-24554, May 31, 1967, 77 SCRA 170.

13 Cornejo vs. Secretary of Justice, G.R. No. L-32818, June 28, 1974, 57 SCRA 663.

14 Alejo vs. Marquez, G.R. No. L-29053, February 27, 1971, 37 SCRA 762.

15 Villegas vs. de la Cruz, G.R. No. L-23752, December 31, 1965, 15 SCRA 720.

16 Cristobal vs. Melchor, G.R. No. L-43203, July 29, 1977, 75 SCRA 175.


17 G.R. No. L-48928, February 25, 1982, 112 SCRA 243.

18 G.R. No. L-47750, February 29, 1980, 96 SCRA 448.

19 G.R. No. L-87320, June 6, 1991, 198 SCRA 230.

20 Article 1146, Civil Code, provides:

Art 1146. The following actions must be instituted within four years:

1. Upon an injury to the rights of the plaintiff;

2. Upon a quasi-delict."

21 Annex F-2, Rollo at 336.

22 PNB's Rejoinder, p. 29, Rollo at 293.

23 Ibid., p. 294.


Bacani v. NACOCO DigestG.R. No. L-9657 Nov. 29, 1956Two-fold Function of the Government

FACTS: 1. Bacani and Matoto are court stenographers both assigned in the CFI of Manila. During the pendency of another civil

case (Civil Case No. 2293 entitled 'Francisco Sycip vs. NACOCO'), Alikpala, counsel for NACOCO(Nat’l Coconut Corporation) , requested the said stenographers for copies of the transcript of the stenographic notes taken by them during the hearing. Plaintiffs complied with the request by delivering to Counsel Alikpala the needed transcript containing 714 pages and thereafter submitted to him their bills for the payment of their fees. The NACOCO paid the amount of P564 to Bacani and P150 to Matoto for said transcript at the rate of P1 per page.

3. Subsequently, the Auditor General required the plaintiffs to reimburse said amounts by virtue of a DOJ circular which stated that NACOCO, being a government entity, was exempt from the payment of the fees in question.

4. Petitioners countered that NACOCO is not a government entity within the purview of section 16, Rule 130 of the Rules of Court while the defendants set up as a defense that the NACOCO is a government entity within the purview of section 2 of the Revised Administrative Code of 1917 hence, exempt from paying the stenographers’ fees under Rule 130 of the Rules of Court.

ISSUE: Whether or not NACOCO is a government entity.

No, it is not.

1. GOCCs do not acquire that status for the simple reason that they do not come under the classification of municipal or public corporation. While NACOCO was organized for the purpose of “adjusting the coconut industry to a position independent of trade preferences in the United States” and of providing “Facilities for the better curing of copra products and the proper utilization of coconut by-products”, a function which our government has chosen to exercise to promote the coconut industry. It was given a corporate power separate and distinct from the government, as it was made subject to the provisions of the Corporation Law in so far as its corporate existence and the powers that it may exercise are concerned (sections 2 and 4, Commonwealth Act No. 518). It may sue and be sued in the same manner as any other private corporations, and in this sense it is an entity different from our government.

2. There are functions which our government is required to exercise to promote its objectives as expressed in our Constitution and which are exercised by it as an attribute of sovereignty, and those which it may exercise to promote merely the welfare, progress and prosperity of the people.

3. President Wilson enumerates the constituent functions as follows:

(1) The keeping of order and providing for the protection of persons and property from violence and robbery.(2) The fixing of the legal relations between man and wife and between parents and children.(3) The regulation of the holding, transmission, and interchange of property, and the determination of its liabilities for debt or for crime.(4) The determination of contract rights between individuals.(5) The definition and punishment of crime.(6) The administration of justice in civil cases.(7) The determination of the political duties, privileges, and relations of citizens.(8) Dealings of the state with foreign powers: the preservation of the state from external danger or encroachment and the advancement of its international interests.’

4. The most important of the ministrant functions are: public works, public education, public charity, health and safety regulations, and regulations of trade and industry. The principles deter mining whether or not a government shall exercise certain of these optional functions are: (1) that a government should do for the public welfare those things which private capital would not naturally undertake and (2) that a government should do these things which by its very nature it is better equipped to administer for the public welfare than is any private individual or group of individuals.- See more at: http://lawsandfound.blogspot.com/2012/11/bacani-v-nacoco-digest.html#sthash.0OWknteT.dpuf


Bacani Vs Nacoco [G.R. No. L-9657. November 29, 1956Bacani Vs Nacoco [G.R. No. L-9657. November 29, 1956]

Facts: Plaintiffs herein are court stenographers assigned in Branch VI of the Court of First Instance of Manila. During the pendency of Civil Case No. 2293 of said court, entitled Francisco Sycip vs. National Coconut Corporation, AssistantCorporate Counsel Federico Alikpala, counsel for Defendant ,requested said stenographers for copies of thetranscript of the stenographic notes taken by them during the hearing. Plaintiffs complied with the request by delivering to Counsel Alikpala the needed transcript containing 714 pages and thereafter submitted to him their billsfor the payment of their fees. The National Coconut Corporation paid the amount of P564 to Leopoldo T. Bacaniand P150 to Mateo A. Matoto for said transcript at the rate of P1 per page the Auditor General required the Plaintiffs to reimburse said amounts on the strength of a circular of the Department of Justice wherein the opinion was expressed that the National Coconut Corporation, being a government entity, was exempt from the payment of the fees in question.

Issue : WON NACOCO is a Government Entity

Held: They do not acquire that status for the simple reason that they donot come under the classification of municipal or public corporation. Take for instance the National CoconutCorporation. While it was organized with the purpose of ³adjusting the coconut industry to a position independent of trade preferences in the United States´ and of providing ³Facilities for the better curing of copra products and the proper utilization of coconut by-products´, a function which our government has chosen to exercise to promote thecoconut industry, however, it was given a corporate power separate and distinct from our government, for it wasmade subject to the provisions of our Corporation Law in so far as its corporate existence and the powers that it mayexercise are concerned (sections 2 and 4, Commonwealth Act No. 518). It may sue and be sued in the same manner as any other private corporations, and in this sense it is an entity different from our government. As this Court hasaptly said, ³The mere fact that the Government happens to be a majority stockholder does not make it a public. the term ³Government of the Republic of the Philippines´ used in section 2 of the Revised Administrative Code refers only to that government entity through which the functions of thegovernment are exercised as an attribute of sovereignty, and in this are included those arms through which political authority is made effective whether they be provincial, municipal or other form of local government. These are whatwe call municipal corporations. They do not include government entities which are given a corporate personality separate and distinct from the government and which are governed by the Corporation Law. Their powers, dutiesand liabilities have to be determined in the light of that law and of their corporate charters. They do not thereforecome within the exemption clause prescribed in section 16, Rule 130 of our Rules of Court



Manila

EN BANC

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

PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, petitioner, vs.COURT OF INDUSTRIAL RELATIONS, REUEL ABRAHAM, MILAGROS ABUEG, AVELINO ACOSTA, CAROLINA ACOSTA, MARTIN AGSALUD, JOSEFINA AGUINALDO, GLORIA ALBANO, ANTONIO ALUNING, COSME ALVAREZ, ISABEL ALZATE, AURORA APUSEN, TOMAS ARCANGEL, LOURDES ARJONELLO, MANUEL AROMIN, DIONISIO ASISTIN, JOSE AURE, NICASIO AZNAR, EUGENIO AZURIN, CLARITA BACUGAN, PIO BALAGOT, HEREDIO BALMACEDA, ESTHER BANAAG, JOVENCIO BARBERO, MONICO BARBADILLO, HERNANDO BARROZO, FILIPINA BARROZO, REMEDIO BARTOLOME, ANGELINA BASCOS, JOSE BATALLA, ALMARIO BAUTISTA, EUGENIO BAUTISTA, JR., HERMALO BAUTISTA, JUANITO BAUTISTA, SEVERINO BARBANO, CAPPIA BARGONIA, ESMERALDA BERNARDEZ, RUBEN BERNARDEZ, ALFREDO BONGER, TOMAS BOQUIREN, ANGELINA BRAVO, VIRGINIA BRINGA, ALBERTO BUNEO, SIMEON CABANAYAN, LUCRECIA CACATIAN, LEONIDES CADAY, ANGELINA CADOTTE, IGNACIO CALAYCAY, PACIFICO CALUB, RUFINO CALUZA, CALVIN CAMBA, ALFREDO CAMPOSENO, BAGUILITA CANTO, ALFREDO CARRERA, PEDRO CASES, CRESCENTE CASIS, ERNESTO CASTANEDA, HERMINIO CASTILLO, JOSE CASTRO, LEONOR CASTRO, MADEO CASTRO, MARIA PINZON CASTRO, PABLO CATURA, RESTITUTO CESPADES, FLORA CHACON, EDMUNDO CORPUZ, ESTHER CRUZ, CELIA CUARESMA, AQUILINO DACAYO, DIONISIA DASALLA, SOCORRO DELFIN, ABELARDO DIAZ, ARTHUR DIAZ, CYNTHIA DIZON, MARCIA DIZON, ISABELO DOMINGO, HONORATA DOZA, CAROLINA DUAD, JUSTINIANO EPISTOLA, ROMEO ENCARNACION, PRIMITIVO ESCANO, ELSA ESPEJO, JUAN ESPEJO, RIZALINA ESQUILLO, YSMAEL FARINAS, LORNA FAVIS, DAN FERNANDEZ, JAIME FERNANDEZ, ALFREDO FERRER, MODESTO FERRER, JR., EUGENIO FLANDEZ, GUILLERMO FLORENDO, ALFREDO FLORES, DOMINGA FLORES, ROMEO FLORES, LIGAYA FONTANILLA, MELCHOR GASMEN, LEILA GASMENA, CONSUELO GAROLAGA, ALFONSO GOROSPE, CESAR GOROSPE, RICARDO GOROSPE, JR., CARLITO GUZMAN, ERNESTO DE GUZMAN, THELMA DE GUZMAN, FELIX HERNANDEZ, SOLIVEN HERNANDO, FRANCISCO HIDALGO, LEONILO INES, SIXTO JAQUIES, TRINIDAD JAVIER, FERMIN LAGUA, GUALBERTO LAMBINO, ROMAN LANTING, OSCAR LAZO, ROSARIO LAZO, JOSEFINA DE LARA, AMBROSIO LAZOL, NALIE LIBATIQUE, LAMBERTO LLAMAS, ANTONIO LLANES, ROMULA LOPEZ, ADRIANO LORENZANA, ANTONIO MACARAEG, ILDEFONSO MAGAT, CECILIO MAGHANOY, ALFONSO MAGSANOC, AVELINA MALLARE, AUGUSTO MANALO, DOMINADOR MANASAN, BENITO MANECLANG, JR., TIRSO MANGUMAY, EVELIA MANZANO, HONORANTE MARIANO, DOMINGO MEDINA, MARTIN MENDOZA, PERFECTO MILANA, EMILIO MILLAN, GREGORIO MONEGAS, CONSOLACION NAVALTA, NOLI OCAMPO, VICENTE CLEGARIO, ELPIDIO PALMONES, ARACELI PANGALANGAN, ISIDORO PANLASIGUI, JR., ARTEMIO PARIS, JR.,


FEDERICO PAYUMO, JR., NELIA PAYUMO, BITUEN PAZ, FRANCISCO PENGSON, OSCAR PERALTA, PROCORRO PERALTA, RAMON PERALTA, MINDA PICHAY, MAURO PIMENTEL, PRUDENCIO PIMENTEL, LEOPOLDO PUNO, REYNALDO RABE, ROLANDO REA, CONSTANTINO REA, CECILIA RICO, CECILIO RILLORAZA, AURORA ROMAN, MERCEDES RUBIO, URSULA RUPISAN, OLIVIA SABADO, BERNARDO SACRAMENTO, LUZ SALVADOR, JOSE SAMSON, JR., ROMULA DE LOS SANTOS, ANTONIO SAYSON, JR., FLORANTE SERIL, MARIO SISON, RUDY SISON, PROCEDIO TABIN, LUCENA TABISULA, HANNIBAL TAJANO, ENRIQUE TIANGCO, JR., JUSTINIANO TOBIAS, NYMIA TOLENTINO, CONSTANTE TOLENTINO, TEODORO TOREBIO, FEDERICO TRINIDAD, JOVENCINTO TRINIDAD, LAZARO VALDEZ, LUDRALINA VALDEZ, MAXIMINA VALDEZ, FRANCISCO VELASCO, JR., ROSITA VELASCO, SEVERO VANTANILLA, VENANCIO VENTIGAN, FELICITAS VENUS, NIEVES DE VERA, ELISEO VERSOZA, SILVESTRE VILA, GLORIA VILLAMOR, ALEJANDRO VELLANUEVA, DAVID VILLANUEVA, CAROLINA VILLASENOR ORLANDO VILLASTIQUE, MAJELLA VILORIN, ROSARIO VILORIA, MAY VIRATA, FEDERICO VIRAY, MELBA YAMBAO, MARIO ZAMORA, AUTENOR ABUEG, SOTERO ACEDO, HONRADO ALBERTO, FELIPE ALIDO, VICENTE ANCHUELO, LIBERTAD APEROCHO, MARIANO BALBAGO, MARIO BALMACEDA, DAISY BICENIO, SYLVIA BUSTAMANTE, RAYMUNDO GEMERINO, LAZARO CAPURAS, ROGELIO CARUNGCONG, ZACARIAS CAYETANO, JR., LILY CHUA, ANDRES CRUZ, ARTURO CRUZ, BIENVENIDO ESTEBAN, PABLO JARETA, MANUEL JOSE, NESTORIA KINTANAR, CLEOPATRIA LAZEM. MELCHOR LAZO, JESUS LUNA, GASPAR MARINAS, CESAR MAULSON, MANUEL MEDINA, JESUS PLURAD, LAKAMBINI RAZON, GLORIA IBANEZ, JOSE SANTOS, ELEAZAR SQUI, JOSE TAMAYO, FELIPE TENORIO, SILVINO UMALI, VICENTE ZARA, SATURNINO GARCIA, WILLIAM GARCIA, NORMA GARINGARAO, ROSARIO ANTONIO, RUBEN BAUTISTA, QUIRINO PUESTO, NELIA M. GOMERI, OSCAR R. LANUZA, AURORA M. LINDAYA, GREGORIO MOGSINO, JACRM B. PAPA, GREGORIO R. RIEGO, TERESITA N. ROZUL, MAGTANGOL SAMALA, PORFIRIO AGOCOLIS, LEONARDO MONTE, HERMELINO PATI, ALFREDO PAYOYO, PURIFICACION ROJAS, ODANO TEANO, RICARDO SANTIAGO, and MARCELO MANGAHAS, respondents.

Gov't. Corp. Counsel Leopoldo M. Abellera, Trial Attorneys Manuel M. Lazaro and Vicente Constantine, Jr., for petitioner.

Renato B. Kare and Simeon C. Sato for private respondents.

FERNANDO, J.:

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


raised that petitioner does not come within the coverage of the Eight-Hour Labor Law persuasive. 5 We cannot then grant the reversal sought. We affirm.

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

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

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


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

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


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

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

3. The contention of petitioner that the Eight-Hour Labor Law 41 does not apply to it hardly deserves any extended consideration. There is an air of casualness in the way such an argument was advanced in its petition for review as well as in its brief. In both pleadings, it devoted less than a full page to its discussion. There is much to be said for brevity, but not in this case. Such a terse and summary treatment appears to be a reflection more of the inherent weakness of the plea rather than the possession of an advocate's enviable talent for concision. It did cite Section 2 of the Act, but its very language leaves no doubt that "it shall apply to all persons employed in any industry or occupation, whether public or private ... ." 42 Nor are private respondents included among the employees who are thereby barred from enjoying the statutory benefits. It cited Marcelo v. Philippine National Red Cross 43 and Boy Scouts of the Philippines v. Araos. 44 Certainly, the activities to which the two above public corporations devote


themselves can easily be distinguished from that engaged in by petitioner. A reference to the pertinent sections of both Republic Acts 2265 and 2155 on which it relies to obtain a ruling as to its governmental character should render clear the differentiation that exists. If as a result of the appealed order, financial burden would have to be borne by petitioner, it has only itself to blame. It need not have required private respondents to render overtime service. It can hardly be surmised that one of its chief problems is paucity of personnel. That would indeed be a cause for astonishment. It would appear, therefore, that such an objection based on this ground certainly cannot suffice for a reversal. To repeat, respondent Court must be sustained.

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

Makalintal, C.J., Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion Jr. and Martin, JJ., concur.

Makasiar, Muñoz Palma, JJ., took no part.

Teehankee J., is on leave.

1 L-21484, November 29, 1969, 30 SCRA 649.

2 Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172, 182.

3 It suffices to note the more detailed provisions on social justice and protection to labor in Article II of the Constitution and the categorical requirement in Section 12 of Article XIV that the State "formulate and implement an agrarian reform program aimed at emancipating the tenant from the bondage of the soil and achieving the goals enunciated in this Constitution."

4 Cf. Laski, The State in Theory and Practice 269 (1935). 1äwphï1.ñët

5 Com. Act No. 444 (1939).

6 Cf. Petition, par. V.

7 Cf. Ibid, par. VI,

8 Cf. lbid, par. VIII.

9 Cf. Ibid, par. IX.

10 Cf. Ibid, pars X-XII.


11 Commonwealth Act No. 444 as amended by the Eight-Hour Labor Law. It was approved on June 20, 1959.

12 It was approved and took effect on June 19, 1959.

13 Commonwealth Act No. 2265, Section 2.

14 It was approved and took effect on June 20, 1964.

15 Republic Act No. 4155, Section 1.

16 Ibid, Section 2.

17 L-21484, November 29, 1969, 30 SCRA 649.

18 100 Phil. 468 (1956).

19 30 SCRA 649, 661-662.

20 Ibid, 662.

21 100 Phil. 468 (1956).

22 The State (1898).

23 Ibid, 42.

24 39 Phil. 660.

25 Ibid, 717-718.

26 L-32096, October 24, 1970, 35 SCRA 481.

27 Ibid, 491.

28 Ibid, 491-492.

29 Laski, op. cit, 75.

30 70 Phil. 726 (1940).

31 Cf. Philippine Air Lines, Inc. v. Philippine Air Lines Employees Association, L-24626, June 28, 1974, 57 SCRA 489 and Almira v. B. F. Goodrich Philippines, Inc., L-34974, July 25, 1974, 58 SCRA 120.

32 98 Phil. 800 (1956).

33 Ibid, 806.


34 107 Phil. 404 (1960).

35 99 Phil. 854 (1956).

36 Ibid, 411.

37 Philippine Virginia Tobacco Administration v. Judge Honorato B. Masakayan, L-29538, November 29, 1972, 48 SCRA 187.

38 Ibid, 191.

39 Cf. Price Stabilization Corp. v. Court of Industrial Relations, L-14613, Nov. 30, 1962, 6 SCRA 745; National Development Co. v. Court of Industrial Relations, L-15422, Nov. 30, 1962, 6 SCRA 763; Manila Railroad Co. v. Court of Industrial Relations, L-18389, Jan. 31, 1963, 7 SCRA 174; Insular Sugar Refining Corp. v. Court of Industrial Relations, L-19247, May 31, 1963, 8 SCRA 270; National Shipyards and Steel Corp. v. Court of Industrial Relations, L-17874, Aug. 31, 1963, 8 SCRA 781; Manila Railroad Co. v. Court of Industrial Relations, L-17871, Jan. 31, 1964, 10 SCRA 120; National Waterworks and Sewerage Authority v. NWSA Consolidated Unions, L-18938, Aug. 31, 1964, 11 SCRA 766; National Shipyards and Steel Corporation v. Court of Industrial Relations, L-20838, July 30, 1965, 14 SCRA 755; Government Service Insurance System v. Olase, L-19988, Jan. 5, 1967, 19 SCRA 1; National Shipyards and Steel Corporation v. Court of Industrial Relations, L-21675, May 23, 1967, 20 SCRA 134; National Waterworks and Sewerage Authority v. NWSA Consolidated Union, L-26894, Feb. 28, 1969, 27 SCRA 227; Agricultural Credit and Cooperative Financing Administration v. Confederation of Unions, L-21484, Nov. 29, 1969, 30 SCRA 649; National Power Corporation v. National Power Corporation Employees and Workers Association L-26169, June 30, 1970, 33 SCRA 806; Philippine Charity Sweepstakes Employees Association v. Court of Industrial Relations, L-34688, Aug. 30, 1972 46 SCRA 754; National Waterworks and Sewerage Authority v. NWSA Consolidated Union, L-32019, Oct. 26, 1973, 53 SCRA 432. .

40 There are overtones of the Bacani doctrine in SSS Employees Association v. Soriano, L-18081, November 18, 1963, 9 SCRA 511 and GSIS v. GSIS Employees Association, L-17185, February 28, 1964, 10 SCRA 269. It should be obvious that to the extent that they relied on the distinction between constituent and ministrant functions, they are now, in the language of Frankfurter, "derelicts in the sea of constitutional law."

41 Commonwealth Act No. 444.

42 The relevant portion of Section 2 of Com. Act No. 444 reads as follows: "This Act shall apply to all persons employed in any industry or occupation, whether public or private, with the exception of farm laborers, laborers who prefer to be paid on piece work basis, managerial employees, outside sales personnel, domestic servants, persons in the personal service of another and members of the family of the employer working for him."

43 101 Phil. 545 (1957).


44 102 Phil. 1080 (1958).

PVTA vs CIRG.R. No. L-32052

65 SCRA 416July 25, 1975

Petitioner: Philippine Virginia Tobacco AdministrationRespondent: Court of Industrial Relations

FACTS: Private respondents filed a petition seeking relief for their alleged overtime services (in excess of their 8 regular hours a day) and the failure to pay for said compensation in accordance with Commonwealth Act No. 444.

Section 1: The legal working day for any person employed by another shall not be of more than eight (8) hours daily.

Petitioner denies allegations for lack of a cause of action and jurisdiction.

Respondents filed a Petition for Certiorari on grounds that the corporation is exercising governmental functions and is therefore exempt from CA No. 444 which was denied and dismissed by RTC and CA. Motion for Reconsideration were also DENIED.

ISSUE: Whether or not PVTA discharges governmental and not proprietary functions and is exempt from CA No. 444.

HELD: It is an inherent state function which makes government required to support its people and promote their general welfare. This case explains and portrays the expanded role of government necessitated by the increased responsibility to provide for the general welfare.

The Court held that the distinction and between constituent and ministrant functions, which the Chief Justice points out, is already irrelevant considering the needs of the present time. He says that "The growing complexities of modern society have rendered this traditional classification of the functions of government obsolete." The distinction between constituent and ministrant functions is now considered obsolete.

The Court affirms that the Petition as well as the subsequent Motion for Reconsideration beDENIED.

Constitutional Law 1: State Functions / Concept of State (Constituent and Ministrant) (Textbook: Cruz, Professor, Atty. Usita)


PVTA v. CIRG.R. No. L-32052 July 25, 1975

Fernando, J.

Facts:

Private respondents filed a petition wherein they alleged their employment relationship, the overtime services in excess of the regular eight hours a day rendered by them, and the failure to pay them overtime compensation in accordance with Commonwealth Act No. 444. Their prayer was for the differential between the amount actually paid to them and the amount allegedly due them. Petitioner Philippine Virginia Tobacco Administration would predicate its plea for the reversal of the order complained of on the basic proposition that it is beyond the jurisdiction of respondent Court as it is exercising governmental functions and that it is exempt from the operation of Commonwealth Act No. 444.

Issue:

whether PVTA discharges governmental and not proprietary functions

Held:

No. A reference to the enactments creating petitioner corporation suffices to demonstrate the merit of petitioner’s plea that it performs governmental and not proprietary functions. As originally established by Republic Act No. 2265, its purposes and objectives were set forth thus: “(a) To promote the effective merchandising of Virginia tobacco in the domestic and foreign markets so that those engaged in the industry will be placed on a basis of economic security; (b) To establish and maintain balanced production and consumption of Virginia tobacco and its manufactured products, and such marketing conditions as will insure and stabilize the price of a level sufficient to cover the cost of production plus reasonable profit both in the local as well as in the foreign market; (c) To create, establish, maintain, and operate processing, warehousing and marketing facilities in suitable centers and supervise the selling and buying of Virginia tobacco so that the farmers will enjoy reasonable prices that secure a fair return of their investments; (d) To prescribe rules and regulations governing the grading, classifying, and inspecting of Virginia tobacco; and (e) To improve the living and economic conditions of the people engaged in the tobacco industry.” The


amendatory statute, Republic Act No. 4155, renders even more evident its nature as a governmental agency. Its first section on the declaration of policy reads: “It is declared to be the national policy, with respect to the local Virginia tobacco industry, to encourage the production of local Virginia tobacco of the qualities needed and in quantities marketable in both domestic and foreign markets, to establish this industry on an efficient and economic basis, and, to create a climate conducive to local cigarette manufacture of the qualities desired by the consuming public, blending imported and native Virginia leaf tobacco to improve the quality of locally manufactured cigarettes.” The objectives are set forth thus: “To attain this national policy the following objectives are hereby adopted: 1. Financing; 2. Marketing; 3. The disposal of stocks of the Agricultural Credit Administration (ACA) and the Philippine Virginia Tobacco Administration (PVTA) at the best obtainable prices and conditions in order that a reinvigorated Virginia tobacco industry may be established on a sound basis; and 4. Improving the quality of locally manufactured cigarettes through blending of imported and native Virginia leaf tobacco; such importation with corresponding exportation at a ratio of one kilo of imported to four kilos of exported Virginia tobacco, purchased by the importer-exporter from the Philippine Virginia Tobacco Administration.”

Functions relating to the maintenance of peace and the prevention of crime, those regulating property and property rights, those relating to the administration of justice and the determination of political duties of citizens, and those relating to national defense and foreign relations may not be strictly considered constituent. Under the traditional constituent-ministrant classification, such constituent functions are exercised by the State as attributes of sovereignty, and not merely to promote the welfare, progress and prosperity of the people — these latter functions being ministrant, the exercise of which is optional on the part of the government. Nonetheless, the growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only because it was better equipped to administer for the public welfare than is any private individual or group of individuals”, continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice.



Manila

EN BANC

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

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

William A. Kincaid and Thomas L. Hartigan for appellant. Attorney-General Avanceña for appellee.

TRENT, J.:

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


Attorney-General and in representation of the Government of the Philippine Islands," the $80.000, together with interest, for the benefit of those persons or their heirs appearing in the list of names published in the Official Gazette instituted on May 3, 1912, by the Government of the Philippine Islands, represented by the Insular Treasurer, and after due trial, judgment was entered in favor of the plaintiff for the sum of $80,000 gold or its equivalent in Philippine currency, together with legal interest from February 28, 1912, and the costs of the cause. The defendant appealed and makes the following assignment of errors:

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

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

3. That the court erred in stating that the Government of the Philippine Islands has subrogated the Spanish Government in its rights, as regards an important sum of money resulting from a national subscription opened by reason of the earthquake of June 3, 1863, in these Island.

4. That the court erred in not declaring that Act Numbered 2109, passed by the Philippine Legislature on January 30, 1912, is unconstitutional.

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

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

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

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

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

Excellency: The Board of Directors of the Monte de Piedad y Caja de Ahorros of Manila informs your Excellency, First: That the funds which it has up to the present been able to dispose of have been exhausted in loans on jewelry, and there only remains the sum of one thousand and odd pesos, which will be expended between to-day and day after tomorrow.


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

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

GENERAL GOVERNMENT OF THE PHILIPPINES. MANILA, February 1, 1883.

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


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

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

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

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

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

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

H. M. Government shall be advised hereof. lawphi1.net

(Signed) P. DE RIVERA.

By the royal order of December 3, 1892, the Governor-General of the Philippine Islands was ordered to "inform this ministerio what is the total sum available at the present time, taking into consideration the sums delivered to the Monte de Piedad pursuant to the decree issued by your general Government on February 1, 1883," and after the rights of the claimants, whose names were published in the Official Gazette of Manila on April 7, 1870, and their heirs had been established, as therein provided, as such persons "have an unquestionable right to be paid the donations assigned to them therein, your general Government shall convoke them all within a reasonable period and shall pay their shares to such as shall identify themselves, without regard to their financial status," and finally "that when all the proceedings and operations herein mentioned have been concluded and the Government can consider itself free from all kinds of claims on the part of those interested in the distribution of the funds deposited in the vaults of the Treasury, such action may be taken as the circumstances shall require, after first consulting the relief board and your general Government and taking account of what sums have been delivered to the Monte de Piedad and those that were expended in 1888 to relieve public calamities," and "in order that all the points in connection with the proceedings had as a result of the earthquake be clearly understood, it is indispensable that the offices hereinbefore mentioned comply with the provisions contained in paragraphs 2 and 3 of the royal order of June 25, 1879." On receipt of this Finance order by the Governor-General, the


Department of Finance was called upon for a report in reference to the $80,000 turned over to the defendant, and that Department's report to the Governor-General dated June 28, 1893, reads:

Intendencia General de Hacienda de Filipinas (General Treasury of the Philippines) — Excellency. — By Royal Order No. 1044 of December 3, last, it is provided that the persons who sustained losses by the earthquakes that occurred in your capital in the year 1863 shall be paid the amounts allotted to them out of the sums sent from Spain for this purpose, with observance of the rules specified in the said royal order, one of them being that before making the payment to the interested parties the assets shall be reduced to money. These assets, during the long period of time that has elapsed since they were turned over to the Treasury of the Philippine Islands, were used to cover the general needs of the appropriation, a part besides being invested in the relief of charitable institutions and another part to meet pressing needs occasioned by public calamities. On January 30, last, your Excellency was please to order the fulfillment of that sovereign mandate and referred the same to this Intendencia for its information and the purposes desired (that is, for compliance with its directions and, as aforesaid, one of these being the liquidation, recovery, and deposit with the Treasury of the sums paid out of that fund and which were expended in a different way from that intended by the donors) and this Intendencia believed the moment had arrived to claim from the board of directors of the Monte de Piedad y Caja de Ahorros the sum of 80,000 pesos which, by decree of your general Government of the date of February 1, 1883, was loaned to it out of the said funds, the (Monte de Piedad) obligating itself to return the same within the period of eight days if H. M. Government did not approve the delivery. On this Intendencia's demanding from the Monte de Piedad the eighty thousand pesos, thus complying with the provisions of the Royal Order, it was to be supposed that no objection to its return would be made by the Monte de Piedad for, when it received the loan, it formally engaged itself to return it; and, besides, it was indisputable that the moment to do so had arrived, inasmuch as H. M. Government, in ordering that the assets of the earthquake relief fund should he collected, makes express mention of the 80,000 pesos loaned to the Monte de Piedad, without doubt considering as sufficient the period of ten years during which it has been using this large sum which lawfully belongs to their persons. This Intendencia also supposed that the Monte de Piedad no longer needed the amount of that loan, inasmuch as, far from investing it in beneficient transactions, it had turned the whole amount into the voluntary deposit funds bearing 5 per cent interests, the result of this operation being that the debtor loaned to the creditor on interest what the former had gratuitously received. But the Monte de Piedad, instead of fulfilling the promise it made on receiving the sum, after repeated demands refused to return the money on the ground that only your Excellency, and not the Intendencia (Treasury), is entitled to order the reimbursement, taking no account of the fact that this Intendencia was acting in the discharge of a sovereign command, the fulfillment of which your Excellency was pleased to order; and on the further ground that the sum of 80,000 pesos which it received from the fund intended for the earthquake victims was not received as a loan, but as a donation, this in the opinion of this Intendencia, erroneously interpreting both the last royal order which directed the apportionment of the amount of the subscription raised in the year 1863 and the superior decree which granted the loan, inasmuch as in this letter no donation is made to the Monte de Piedad of the 80,000 pesos, but simply a loan; besides, no donation whatever could be made of funds derived from a private subscription raised for a specific purpose, which funds are already distributed and the names of the beneficiaries have been published in the Gaceta, there being lacking only the mere material act of the delivery, which has been unduly delayed. In view of the unexpected reply made by the Monte de Piedad, and believing it useless to insist further in the matter of the claim for the aforementioned loan, or to argue in support thereof, this Intendencia believes the intervention of your Excellency necessary in this matter, if the royal Order No. 1044 of December 3, last, is to be complied with, and for this purpose I beg your Excellency kindly to order the Monte de Piedad to reimburse within the period of eight


days the 80,000 which it owes, and that you give this Intendencia power to carry out the provisions of the said royal order. I must call to the attention of your Excellency that the said pious establishment, during the last few days and after demand was made upon it, has endorsed to the Spanish-Filipino Bank nearly the whole of the sum which it had on deposit in the general deposit funds.

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

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

On March 16, 1902, the Philippine government called upon the defendant for information concerning the status of the $80,000 and received the following reply:

MANILA, March 31, 1902.

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

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

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

Manila, November 19, 1913 (Sgd.) EMILIO LAZCANOTEGUI, Secretary

(Sgd.) O. K. EMILIO MORETA,Managing Director.


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

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

The Spanish nation was professedly Roman Catholic and its King enjoyed the distinction of being deputy ex officio of the Holy See and Apostolic Vicar-General of the Indies, and as such it was his duty to protect all pious works and charitable institutions in his kingdoms, especially those of the Indies; among the latter was the Monte de Piedad of the Philippines, of which said King and his deputy the Governor-General of the Philippines, as royal vice-patron, were, in a special and peculiar manner, the protectors; the latter, as a result of the cession of the Philippine Islands, Implicitly renounced this high office and tacitly returned it to the Holy See, now represented by the Archbishop of Manila; the national subscription in question was a kind of foundation or pious work, for a charitable purpose in these Islands; and the entire subscription not being needed for its original purpose, the royal vice-patron, with the consent of the King, gave the surplus thereof to an analogous purpose; the


fulfillment of all these things involved, in the majority, if not in all cases, faithful compliance with the duty imposed upon him by the Holy See, when it conferred upon him the royal patronage of the Indies, a thing that touched him very closely in his conscience and religion; the cessionary Government though Christian, was not Roman Catholic and prided itself on its policy of non-interference in religious matters, and inveterately maintained a complete separation between the ecclesiastical and civil powers.

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

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

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

And in their supplemental brief counsel say:

By the conceded facts the money in question is part of a charitable subscription. The donors were persons in Spain, the trustee was the Spanish Government, the donees, the cestuis que trustent, were certain persons in the Philippine Islands. The whole matter is one of trusteeship. This is undisputed and indisputable. It follows that the Spanish Government at no time was the owner of the fund. Not being the owner of the fund it could not transfer the


ownership. Whether or not it could transfer its trusteeship it certainly never has expressly done so and the general terms of property transfer in the Treaty of Paris are wholly insufficient for such a purpose even could Spain have transferred its trusteeship without the consent of the donors and even could the United States, as a Government, have accepted such a trust under any power granted to it by the thirteen original States in the Constitution, which is more than doubtful. It follows further that this Government is not a proper party to the action. The only persons who could claim to be damaged by this payment to the Monte, if it was unlawful, are the donors or the cestuis que trustent, and this Government is neither.

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

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

It is further contended that the obligation on the part of the Monte de Piedad to return the $80,000 to the Government, even considering it a loan, was wiped out on the change of sovereignty, or inn other words, the present Philippine Government cannot maintain this action for that reason. This contention, if true, "must result from settled principles of rigid law," as it cannot rest upon any title to the fund in the Monte de Piedad acquired prior to such change. While the obligation to return the $80,000 to the Spanish Government was still pending, war between the United States and Spain ensued. Under the Treaty of Paris of December 10, 1898, the Archipelago, known as the Philippine


Islands, was ceded to the United States, the latter agreeing to pay Spain the sum of $20,000,000. Under the first paragraph of the eighth article, Spain relinquished to the United States "all buildings, wharves, barracks, forts, structures, public highways, and other immovable property which, in conformity with law, belonged to the public domain, and as such belonged to the crown of Spain." As the $80,000 were not included therein, it is said that the right to recover this amount did not, therefore, pass to the present sovereign. This, in our opinion, does not follow as a necessary consequence, as the right to recover does not rest upon the proposition that the $80,000 must be "other immovable property" mentioned in article 8 of the treaty, but upon contractual obligations incurred before the Philippine Islands were ceded to the United States. We will not inquire what effect his cession had upon the law of June 20, 1849, the royal decree of April 27, 1875, and the instructions promulgated on the latter date. In Vilas vs. Manila (220 U. S., 345), the court said:

That there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious. That all laws theretofore in force which are in conflict with the political character, constitution, or institutions of the substituted sovereign, lose their force, is also plain. (Alvarez y Sanchez vs. United States, 216 U. S., 167.) But it is equally settled in the same public law that the great body of municipal law which regulates private and domestic rights continues in force until abrogated or changed by the new ruler.

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

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

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

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

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

Chancelor Kent says:

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


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

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

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

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

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

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

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

The impracticability of pursuing a different course, however, is not the true ground upon which the right of the Government to maintain the action rests. The true ground is that the money being given


to a charity became, in a measure, public property, only applicable, it is true, to the specific purposes to which it was intended to be devoted, but within those limits consecrated to the public use, and became part of the public resources for promoting the happiness and welfare of the Philippine Government. (Mormon Church vs. U. S., supra.) To deny the Government's right to maintain this action would be contrary to sound public policy, as tending to discourage the prompt exercise of similar acts of humanity and Christian benevolence in like instances in the future.

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

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

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

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

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

Counsel for the defendant treat the question of prescription as if the action was one between individuals or corporations wherein the plaintiff is seeking to recover an ordinary loan. Upon this


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

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

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

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

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

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

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

In the instant case the Philippine Government is not a mere nominal party because it, in bringing and prosecuting this action, is exercising its sovereign functions or powers and is seeking to carry out a trust developed upon it when the Philippine Islands were ceded to the United States. The United States having in 1852, purchased as trustee for the Chickasaw Indians under treaty with that tribe, certain bonds of the State of Tennessee, the right of action of the Government on the coupons of such bonds could not be barred by the statute of limitations of Tennessee, either while it held them in trust for the Indians, or since it became the owner of such coupons. (U. S.vs. Nashville, etc., R. Co., supra.) So where lands are held in trust by the state and the beneficiaries have no right to sue, a statute does not run against the State's right of action for trespass on the trust lands. (Greene


Tp. vs.Campbell, 16 Ohio St., 11; see also Atty.-Gen. vs. Midland R. Co., 3 Ont., 511 [following Reg. vs. Williams, 39 U. C. Q. B., 397].)

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

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

For the foregoing reasons the judgment appealed from is affirmed, with costs against the appellant. So ordered.

Torres, Johnson and Araullo, JJ., concur.Moreland, J., did not sign.

35 Phil. 728 – Political Law – Parens Patriae

In June 1863 a devastating earthquake occurred in the Philippines. The Spanish Government then provided $400,000.00 as aid for the victims and it was received by the Philippine Treasury. Out of the said amount, $80,000.00 was left untouched; it was then invested in the Monte de Piedad Bank which in turn invested the amount in jewelries. But when the Philippine government later tried to withdraw the said amount, the bank cannot provide for the amount. The government then filed a complaint. The bank argued that the Philippine government is not an affected party hence has no right to institute a complaint. The bank argues that the government was not the intended beneficiary of the said amount.

ISSUE: Whether or not the Philippine government is competent to file a complaint against the respondent bank.

HELD: Yes. The Philippine government is competent to institute action against Monte de Piedad, this is in accordance with the doctrine of Parens Patriae. The government being the protector of the rights of the people has the inherent supreme power to enforce such laws that will promote the public interest. No other party has been entrusted with such right hence as “parents” of the people the government has the right to take back the money intended for the people.


Government of the Philippine Islands vs Monte de Piedad

G.R. No. 9959

35 PH 728, 751-753

December 13, 1916

Petitioner: Government of the Philippine Islands, represented by Executive Treasurer

Respondent: El Monte de Piedad Y Caja de Ajorras de Manila

FACTS: On June 3, 1863, a devastating earthquake in the Philippines took place. The Spanish

dominions provided $400,000 aid as received by the National Treasury as relief of the victims of the

earthquake. The government used the money as such but $80,000 was left untouched and was thus

invested to Monte de Piedad bank, which was in turn invested as jewelries, equivalent to the same

amount.

In June 1983, the Department of Finance called upon the same bank to return the $80,000 deposited

from before. The Monte de Piedad declined to comply with this order on the ground that the Governor-

General of the Philippine Islands and not the Department of Finance had the right to order the

reimbursement because the Philippine government is not the affected party. On account of various

petitions of the persons, the Philippine Islands brought a suit against Monte de Piedad for a recovery of

the $80,000 together with interest, for the benefit of those persons and their heirs. Respondent refuse

to provide the money, hence, this appeal.

ISSUE: Whether or not the Philippine government is authorized to file a reimbursement of the money

of the people deposited in respondent bank.


HELD: The Court held that the Philippine government is competent to file a complaint/reimbursement

against respondent bank in accordance to the Doctrine of Parens Patriae. The government is the

sole protector of the rights of the people thus, it holds an inherent supreme power to enforce laws

which promote public interest. The government has the right to "take back" the money intended fro

people. The government has the right to enforce all charities of public nature, by virtue of its general

superintending authority over the public interests, where no other person is entrusted with it.

Appellate court decision was affirmed. Petition was thereby GRANTED. The Court ordered that

respondent bank return the amount to the rightful heirs with interest in gold or coin in Philippine peso.

Constitutional Law 1: State Functions / Concept of State (Textbook: Cruz, Professor: Atty. Usita)


CONCEPT OF STATEState is a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience.

States vary in shapes and sizes, cultures, forms of government, natural resources, language, etc. However, all states possess four elements: a) people, b) territory, c) government, and d) sovereignty. The absence of any of these elements will not make a state a state.

People are the inhabitants of the state. It is the entire body of those citizens of the state who are vested with political power for political purposes. There is no specific number of people required in order that a state be considered as one. However, it is important that the number must be numerous enough to be self-sufficient and to defend themselves and small enough to be administered. To date, the smallest state in terms of population is Vatican City with 826 citizens, who are mostly clerics and some Swiss guards. On the other hand, China is the largest state with 1.3 billion population. The Philippines is also fast growing state with 97,976,603 population.http://www.infoplease.com/ipa/A0004379.html

Territory is a fixed area or surface of the earth where the inhabitants of a state live and where they maintain a government of their own. There are three components of territory: a) the land mass otherwise known as the terrestrial domain, b) the internal and external waters, which make up the maritime and fluvial domain; and c) the air space above the land and waters, which is called the aerial domain.

For the sake of practicality, a territory must neither be too big as to be difficult to administer and defend nor too small as to be unable to provide for the needs of the population. The smallest state is Vatican City. It spreads across 0.17 square miles or .43 square kilometer. It would actually fit in Rizal Park in Manila. The biggest state is Russia with its total land area of 6,592.735 square miles.

A state may increase or decrease its territory by the acquisition of further territory through either (a) discovery and occupation; or (b) conquest; or (c) accretion; or (d) prescription; or (e) cession through gift, exchange, or purchase. It may decrease through its loss. The increase or decrease does not affect the personality of the state. What is important is there still exists a portion of its territory as an abode for its people.

Government is the institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. (Bernas, 2007). Simply, it refers to the agency through which the will of the state is formulated, expressed and implemented.

Government is different from administration although these two terms are often used interchangeably. Government refers to the institution while administration is the body of men running the government.

There is no particular form prescribed to the State, provided only that the government is able to


represent the State in its dealings with other states. The mandate of the government is to always protect the welfare of the people.

Sovereignty is referred to as the supreme, absolute and uncontrollable power by which any state is governed. It has two manifestations: a) internal, which is the power of the State to rule within its territory; and b) external, which is the freedom of the State to carry out its activities without subjection to or control by other States. This is often called as independence.

concept of the state

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