G.R. No. L-5 Cham vs. Tan Keh

7/25/2019 G.R. No. L-5 Cham vs. Tan Keh

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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 ofManila. After the Lieration of the Manila and the American occupation, Judge Arsenio !i"on refused to continue hearings on the case,

sa#ing that a proclamation issued # $eneral !ouglas MacArthur had invalidated and nullified all %udicial proceedings and %udgments of

the courts of the &hilippines and, without an enaling law, lower courts have no %urisdiction to ta'e cogni"ance of and continue %udicial

proceedings pending in the courts of the defunct (epulic of the &hilippines )the &hilippine government under the Japanese*.

+he court resolved three issues:

. -hether or not %udicial proceedings and decisions made during the Japanese occupation were valid and remained valid even after

the American occupation

/. -hether or not the 0ctoer /1, 233 proclamation MacArthur issued in which he declared that 4all laws, regulations and processes

of an# other government in the &hilippines than that of the said Commonwealth are null and void and without legal effect in areas of the

&hilippines free of enem# occupation and control5 invalidated all %udgments and %udicial acts and proceedings of the courts

1. And whether or not if the# were not invalidated # MacArthur6s proclamation, those courts could continue hearing the cases pending

efore them.

(atio: &olitical and international law recogni"es that all acts and proceedings of a de facto government are good and valid. +he

&hilippine 78ecutive Commission and the (epulic of the &hilippines under the Japanese occupation ma# e considered de facto

governments, supported # the militar# force and deriving their authorit# from the laws of war.

Municipal laws and private laws, however, usuall# remain in force unless suspended or changed # the con9ueror. Civil oedience is

e8pected even during war, for 4the e8istence of a state of insurrection and war did not loosen the onds of societ#, or do awa# with civil

government or the regular administration of the laws. And if the# were not valid, then it would not have een necessar# for MacArthur to

come out with a proclamation arogating them.

+he second 9uestion, the court said, hinges on the interpretation of the phrase 4processes of an# other government5 and whether or not

he intended it to annul all other %udgments and %udicial proceedings of courts during the Japanese militar# occupation.

IF, according to international law, nonpolitical %udgments and %udicial proceedings of de facto governments are valid and remain valid

even after the occupied territor# has een lierated, then it could not have een MacArthur6s intention to refer to %udicial processes,

which would e in violation of international law.

A well'nown rule of statutor# construction is: 4A statute ought never to e construed to violate the law of nations if an# other possileconstruction remains.5

Another is that 4where great inconvenience will result from a particular construction, or great mischief done, such construction is to e

avoided, or the court ought to presume that such construction was not intended # the ma'ers of the law, unless re9uired # clear and

une9uivocal words.5

Annulling %udgments of courts made during the Japanese occupation would clog the doc'ets and violate international law, therefore


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what MacArthur said should not e construed to mean that %udicial proceedings are included in the phrase 4processes of an# other

governments.5

In the case of ;< vs (eiter, the court said that if such laws and institutions are continued in use # the occupant, the# ecome his and

derive their force from him. +he laws and courts of the &hilippines did not ecome, # eing continued as re9uired # the law ofnations, laws and courts of Japan.

It is a legal ma8im that, e8cepting of a political nature, 4law once estalished continues until changed # some competent legislative

power. I+ I< =0+ C>A=$7! M7(7L? @? C>A=$7 0F


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P. A. Revilla for respondent Valdez Tan Keh.Respondent Judge Dizon in his on !ehalf.

4ER')$ J.:

+his petition for "anda"usin which petitioner pra#s that the respondent %udge of the lower court e ordered to

continue the proceedings in civil case =o. 1B/ of said court, which were initiated under the regime of the socalled(epulic of the &hilippines estalished during the Japanese militar# occupation of these Islands.

+he respondent %udge refused to ta'e cogni"ance of and continue the proceedings in said case on the ground thatthe proclamation issued on 0ctoer /1, 233, # $eneral !ouglas MacArthur had the effect of invalidating andnullif#ing all %udicial proceedings and %udgements of the court of the &hilippines under the &hilippine 78ecutiveCommission and the (epulic of the &hilippines estalished during the Japanese militar# occupation, and that,furthermore, the lower courts have no %urisdiction to ta'e cogni"ance of and continue %udicial proceedings pending inthe courts of the defunct (epulic of the &hilippines in the asence of an enaling law granting such authorit#. Andthe same respondent, in his answer and memorandum filed in this Court, contends that the government estalishedin the &hilippines during the Japanese occupation were no de factogovernments.

0n Januar# /, 23/, the Imperial Japanese Forces occupied the Cit# of Manila, and on the ne8t da# theirCommander in Chief proclaimed Dthe Militar# Administration under law over the districts occupied # the Arm#.D Insaid proclamation, it was also provided that Dso far as the Militar# Administration permits, all the laws now in force inthe Commonwealth, as well as e8ecutive and %udicial institutions, shall continue to e effective for the time eing asin the past,D and Dall pulic officials shall remain in their present posts and carr# on faithfull# their duties as efore.D

A civil government or central administration organi"ation under the name of D&hilippine 78ecutive Commission wasorgani"ed # 0rder =o. issued on Januar# /1, 23/, # the Commander in Chief of the Japanese Forces in the&hilippines, and Jorge @. argas, who was appointed Chairman thereof, was instructed to proceed to the immediatecoordination of the e8isting central administrative organs and %udicial courts, ased upon what had e8isted therefore,with approval of the said Commander in Chief, who was to e8ercise %urisdiction over %udicial courts.

+he Chairman of the 78ecutive Commission, as head of the central administrative organi"ation, issued 78ecutive0rders =os. and 3, dated Januar# 1B and Feruar# E, 23/, respectivel#, in which the


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&hilippines under the &hilippine 78ecutive Commission and the (epulic of the &hilippines were good and valid andremained so even after the lieration or reoccupation of the &hilippines # the ;nited ague Conventions of H22 on the same su%ect ofsaid


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officers are 'ept in their posts if the# accept the authorit# of the elligerent occupant or are re9uired to continue intheir positions under the supervision of the militar# or civil authorities appointed, # the Commander in Chief of theoccupant. +hese principles and practice have the sanction of all pulicists who have considered the su%ect, andhave een asserted # the ague Conventions, &resident McKinle#, in his e8ecutive order to the


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the militar# forces of occupation and therefore a de factogovernment of the second 'ind. It was not different fromthe government estalished # the @ritish in Castine, Maine, or # the ;nited allec'sa#s, D+he government estalished over an enem#s territor# during the militar# occupation ma# e8ercise all thepowers given # the laws of war to the con9ueror over the con9uered, and is su%ect to all restrictions which thatcode imposes. It is of little conse9uence whether such government e called a militar# or civil government. Itscharacter is the same and the source of its authorit# the same. In either case it is a government imposed # the

laws of war, and so far it concerns the inhaitants of such territor# or the rest of the world, those laws alonedetermine the legalit# or illegalit# of its acts.D )ol. /, p. 3.* +he fact that the &hilippine 78ecutive Commission wasa civil and not a militar# government and was run # Filipinos and not # Japanese nationals, is of no conse9uence.In HB, when =apoleon occupied the greater part of &russia, he retained the e8isting administration under thegeneral direction of a french official )Langfre# >istor# of =apoleon, , I, /E* and, in the same wa#, the !u'e of-illington, on invading France, authori"ed the local authorities to continue the e8ercise of their functions, apparentl#without appointing an 7nglish superior. )-ellington !espatches, I, 1BG.*. +he $ermans, on the other hand, whenthe# invaded France in HGB, appointed their own officials, at least in Alsace and Lorraine, in ever# department ofadministration and of ever# ran'. )Calvo, pars. /H21 >all, International Law, Gth ed., p. EBE, note /.*

+he socalled (epulic of the &hilippines, apparentl# estalished and organi"ed as a sovereign state independentfrom an# other government # the Filipino people, was, in truth and realit#, a government estalished # theelligerent occupant or the Japanese forces of occupation. It was of the same character as the &hilippine 78ecutiveCommission, and the ultimate source of its authorit# was the same the Japanese militar# authorit# andgovernment. As $eneral MacArthur stated in his proclamation of 0ctoer /1, 233, a portion of which has eenalread# 9uoted, Dunder enem# duress, a socalled government st#led as the (epulic of the &hilippines wasestalished on 0ctoer 3, 231, ased upon neither the free e8pression of the peoples will nor the sanction of the$overnment of the ;nited


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administrative acts so done, to the e8tent that the# ta'e effect during the continuance of his control, and the variousacts done during the same time # private persons under the sanction of municipal law, remain good. -ere itotherwise, the whole social life of a communit# would e paral#"ed # an invasion and as etween the state andthe individuals the evil would e scarcel# less, it would e hard for e8ample that pa#ment of ta8es made underduress should e ignored, and it would e contrar# to the general interest that the sentences passed upon criminalsshould e annulled # the disappearance of the intrusive government .D )>all, International Law, Gth ed., p. EH.*

And when the occupation and the aandonment have een each an incident of the same war as in the presentcase, postlimin# applies, even though the occupant has acted as con9ueror and for the time sustituted his ownsovereignt# as the Japanese intended to do apparentl# in granting independence to the &hilippines and estalishingthe socalled (epulic of the &hilippines. )+a#lor, International Law, p. E.*

+hat not onl# %udicial ut also legislative acts of de factogovernments, which are not of a political comple8ion, areand remain valid after reoccupation of a territor# occupied # a elligerent occupant, is confirmed # the&roclamation issued # $eneral !ouglas MacArthur on 0ctoer /1, 233, which declares null and void all laws,regulations and processes of the governments estalished in the &hilippines during the Japanese occupation, for itwould not have een necessar# for said proclamation to arogate them if the# were invalid a! initio.

/. +he second 9uestion hinges upon the interpretation of the phrase Dprocesses of an# other governmentD as used

in the aove9uoted proclamation of $eneral !ouglas MacArthur of 0ctoer /1, 233 that is, whether it was theintention of the Commander in Chief of the American Forces to annul and void there# all %udgments and %udicialproceedings of the courts estalished in the &hilippines during the Japanese militar# occupation.

+he phrase Dprocesses of an# other governmentD is road and ma# refer not onl# to the %udicial processes, ut alsoto administrative or legislative, as well as constitutional, processes of the (epulic of the &hilippines or othergovernmental agencies estalished in the Islands during the Japanese occupation. +a'ing into consideration the factthat, as aove indicated, according to the well'nown principles of international law all %udgements and %udicialproceedings, which are not of a political comple8ion, of the de factogovernments during the Japanese militar#occupation were good and valid efore and remained so after the occupied territor# had come again into the powerof the titular sovereign, it should e presumed that it was not, and could not have een, the intention of $eneral!ouglas MacArthur, in using the phrase Dprocesses of an# other governmentD in said proclamation, to refer to

%udicial processes, in violation of said principles of international law. +he onl# reasonale construction of the said

phrase is that it refers to governmental processes other than %udicial processes of court proceedings, for accordingto a well'nown rule of statutor# construction, set forth in /E (. C. L., p. B/H, Da statute ought never to e construedto violate the law of nations if an# other possile construction remains.D

It is true that the commanding general of a elligerent arm# of occupation, as an agent of his government, ma# notunlawfull# suspend e8isting laws and promulgate new ones in the occupied territor#, if and when the e8igencies ofthe militar# occupation demand such action. @ut even assuming that, under the law of nations, the legislative powerof a commander in chief of militar# forces who lierates or reoccupies his own territor# which has een occupied #an enem#, during the militar# and efore the restoration of the civil regime, is as road as that of the commander inchief of the militar# forces of invasion and occupation )although the e8igencies of militar# reoccupation are evidentl#less than those of occupation*, it is to e presumed that $eneral !ouglas MacArthur, who was acting as an agent ora representative of the $overnment and the &resident of the ;nited


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afterwards e annulled, and criminals would not e deterred from committing crimes or offenses in the e8pectanc#that the# ma# escaped the penalt# if %udgments rendered against them ma# e afterwards set aside.

+hat the proclamation has not invalidated all the %udgements and proceedings of the courts of %ustice during theJapanese regime, is impliedl# confirmed # 78ecutive 0rder =o. 1G, which has the force of law, issued # the&resident of the &hilippines on March B, 23E, # virtue of the emergenc# legislative power vested in him # the

Constitution and the laws of the Commonwealth of the &hilippines. ague Conventions -estla'e, International Law, /d ed., &artII, p. .* Article 31, section III, of the >ague (egulations or Conventions which we have alread# 9uoted indiscussing the first 9uestion, imposes upon the occupant the oligation to estalish courts and Article /1 )h*,section II, of the same Conventions, which prohiits the elligerent occupant Dto declare . . . suspended . . . in aCourt of Law the rights and action of the nationals of the hostile part#,D forids him to ma'e an# declarationpreventing the inhaitants from using their courts to assert or enforce their civil rights. )!ecision of the Court of

Appeals of 7ngland in the case of &orter vs.Fruedenurg, L.(. 2E, K.@., HEG.* If a elligerent occupant isre9uired to estalish courts of %ustice in the territor# occupied, and foridden to prevent the nationals thereof fromasserting or enforcing therein their civil rights, # necessar# implication, the militar# commander of the forces oflieration or the restored government is restrained from nullif#ing or setting aside the %udgments rendered # saidcourts in their litigation during the period of occupation. 0therwise, the purpose of these precepts of the >agueConventions would e thwarted, for to declare them null and void would e tantamount to suspending in said courtsthe right and action of the nationals of the territor# during the militar# occupation thereof # the enem#. It goes

without sa#ing that a law that en%oins a person to do something will not at the same time empower another to undothe same. Although the 9uestion whether the &resident or commanding officer of the ;nited


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duties of militar# officers in command of the several states then latel# in reellion. In the course of its decision thecourt said D-e have loo'ed carefull# through the acts of March /, HG and Jul# 2, HG. +he# give ver# largegovernmental powers to the militar# commanders designated, within the


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Instance of Manila presided over # him Dhas no authorit# to ta'e cogni"ance of, and continue said proceedings )ofthis case* to final %udgment until and unless the $overnment of the Commonwealth of the &hilippines . . . shall haveprovided for the transfer of the %urisdiction of the courts of the now defunct (epulic of the &hilippines, and thecases commenced and the left pending therein,D is Dthat said courts were a government alien to the Commonwealth$overnment. +he laws the# enforced were, true enough, laws of the Commonwealth prior to Japanese occupation,ut the# had ecome the laws and the courts had ecome the institutions of Japan # adoption

);.igh $erman &owers occup#ing Alsace and Lorraine,D upon theground that the e8ercise of their powers in the name of French people and government was at least an impliedrecognition of the (epulic, the courts refused to oe# and suspended their sitting. $erman# originall# ordered theuse of the name of D>igh $erman &owers occup#ing Alsace and Lorraine,D ut later offered to allow use of the nameof the 7mperor or a compromise. )-heaton, International Law, -ar, Gth 7nglish ed. 233, p. /33.*

Furthermore, it is a legal ma8im, that e8cepting that of a political nature, DLaw once estalished continues untilchanged # the some competent legislative power. It is not change merel# # change of sovereignt#.D )Joseph >.@eale, Cases on Conflict of Laws, III,


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%urisdiction of the provost courts created # the militar# government of occupation in the &hilippines during the


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countries of the world )+he >aana, GE ;.ague Conventions of H22, respecting laws and customs of war on land, e8pressl# declares that:

A(+ICL7 LII. +erritor# is considered occupied when it is actuall# placed under the authorit# of the hostilearm#.

+he occupation applies onl# to e territor# where such authorit# is estalished, and in a position to assertitself.

A(+ICL7 LIII. +he authorit# of the legitimate power having actuall# passed into the hands of the occupant,the later shall ta'e all steps in his power to reestalish and insure, as far as possile, pulic order andsafet#, while respecting, unless asolutel# prevented, the laws in force in the countr#. )1/ ague Convention have een adopted # the nations giving adherence to them, among

which is ;nited


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sense that its citi"ens were ound to render the government oedience in civil matters, and did not ecomeresponsile, as wrongdoers, for such acts of oedience )+horington vs.


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is an integral part of the fundamental law of the land, in accordance with the provisions of the Constitution of the;nited ung -u, in thecradle of the most ancient civili"ation, compiled the Code of the $reat Ming. +he laws of Manu were written in theverdic India. Moses received at ere is a law that we must appl#. 7 0C+0@7( &(0CLAMA+I0=

In 0ctoer, 233, the American Armed Forces of Lieration landed successfull# in Le#te.

-hen victor# in islands was accomplished, after the most ama"ing and spectacular war operations, $eneral of theArm# !ouglas MacArthur as a commander in Chief of the American Arm#, decided to reestalish, in ehalf of the;nited e might have thought of recogni"ing thevalidit# of some of said acts, ut, certainl#, there were acts which he should declare null and void, whether againstthe policies of the American $overnment, whether inconsistent with militar# strateg# and operations, whetherdetrimental to the interests of the American or Filipino peoples, whether for an# other strong or valid reasons.

@ut, which to recogni"e, and which notP >e was not in a position to gather enough information for a safe asis todistinguished and classif# which acts must e nullified, and which must validated. At the same time he had to ta'eimmediate action. More pressing militar# matters were re9uiring his immediate attention. >e followed the safecourse: to nullif# all the legislative, e8ecutive, and %udicial acts and processes under the Japanese regime. After all,when the Commonwealth $overnment is alread# functioning, with proper information, he will e in a position todeclare # law, through its Congress, which acts and processes must e revived and validated in the pulic interest.


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$7=7(AL >7A!N;A(+7(I7F

&(0CLAMA+I0=

To the People of the Philippines:

->7(7A7(7A


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H3.


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territor#.

In view of these decisions it is not to e 9uestioned that the Constitution did not prohiit the creation # themilitar# authorit# of court for the trial of civil causes during the civil war in con9uered portions of theinsurgent e was commissioned tocarr# on the war in Louisina. >e was, therefore, invested with all the powers of ma'ing war, so far as the#were denied to him # the Commander in Chief, and among these powers, as we have seen, was ofestalishing courts in con9uered territor#. It must e presumed that he acted under the orders of his superiorofficer, the &resident, and that his acts, in the prosecution of the war, were the acts of his commander inchief. )Mechanics etc. @an' vs.;nion @an', H2 ;. e did it as the official representative of the supreme authorit# ofthe ;nited e sa#s: D&rocess of law is two fold, namel#, # the Kings writ, or #


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proceeding and warrant, either in deed or in law, without writ.D )&eople vs.=evins =. ?. >ill, E3, 2, GBill, E


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also a writ. @lair vs.Ma8ass


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find different meanings of the plain words emplo#ed in the document.

As we have alread# seen, the annulled processes are precisel# %udicial processes, procedures and proceedings,including the one which is under our consideration.

+>7 0C+0@7( &(0CLAMA+I0= 7


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attendants were assemled to from the hito1!ashira )pillarmen* to gird the grave. +he# were uried alive incircle up to the nec' around the thom and Dfor several da#s the# died not, ut wept and wailed da# night. Atlast the# died not, ut wept and wailed da# night. At last the# did not rotted. !ogs and cows gathered andate them.D )$owen, an 0utline of >istor# of Japan, p. EB.*

+he practice shows that the Japanese are the spiritual descendants of the


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lierties and fundamental rights of the citi"ens who happen to e unfortunate enough to fall under the dragnet of thehated ke"pei. 7ven the highest government officials were not safe from arrest and imprisonment in the dreadedmilitar# dungeons, where torture or horrile death were alwa#s awaiting the defenseless victim of the Japaneserutalit#.

Ma# an# one e surprised if $eneral MacArthur decided to annul all the %udicial processesP

+he evident polic# of the author of the 0ctoer &roclamation can e seen if we ta'e into consideration the followingprovisions of the Japanese Constitution:

A(+. EG. +he Judicature shall e e8ercised # the Courts of Law according to law, in the name of the7mperor.

A(+. . =o suit at law, which relates to rights alleged to have een infringed # the illegal measures of thee8ecutive authorit# .. shall e ta'en cogni"ance of # a Court of Law.

I=+7(=A+I0=AL LA-

=ood# dared challenge the validit# of the 0ctoer &roclamation.

=ood# dared challenge the authorit# of the militar# Commander in Chief who issued it.

Certainl# not ecause of the awe aroused # the looming figure of $eneral of the Arm# !ouglas MacArthur, theAllied


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In a certain matters it is clear we have made sustantial progress, ut in other points, he )M. (evon*maintains, we have retrograded for e8ample, in the middle ages the oath was not alwa#s respected asfaithfull# as in ancient (ome and nearer our own times, in the seventeenth centur#, $rotius proclaims theun9uestioned right of the elligerents to massacre the women and the children of the enem# and in ourmore modern age the due declaration of war which (oman alwa#s conformed to has not een invarial#oserved. )Coleman &hilippson, +he International Law and Custom of Ancient $reece and (ome, ol. I, p.

/B2.*

=ow let us see if an# principle of international law ma# effect the enforcement of the 0ctoer &roclamation.

In this stud# we should e cautioned not to allow ourselves to e deluded # generalities and vagueness which areli'el# to lead us easil# to error, in view of the asence of codification and statutor# provisions.

0ur Constitution provides:

+he &hilippines renounces war as an instrument of national polic#, and adopts the generall# acceptedprinciples of international law as part of the law of the =ation. )


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not appear at all in the 0ctoer &roclamation.

It is stated more than once, and reiterated with dogmatic emphasis, that under the principles of international law the%udicial processes under an arm# occupation cannot e invalidated.

@ut we waited in vain for the specific principle of international law, onl# one of those alluded to, to e pointed out to

us.

If the law e8ist, it can e pointed out. If the principle e8ists, it can stated specificall#. +he word is eing used ver#often in plural, principles, ut we need onl# one to e convinced.

+he imagined principles are so shrouded in a thic' ma"e of strained analogies and reasoning, that we confess ourinailit# even to have a fleeting glimpse at them through their thic' and invulnerale wrappers.

At ever# turn international law, the latant words, are haunting us with the deafening ra# of a trumpet, ut after thetransient sound has fled awa#, asored # the resilienc# of the vast atmosphere, the announced principles, whichare the ver# soul of international law, would disappear too with the lighting speed of a vanishing dream.

-7AK=77 MAJ0(I+? &0


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@ut we have seen alread# how the ma%orit# e8cepted from said legal truism the %udicial processes of Dpoliticalcomple8ion.D

And now it is stated that in annulling the processes of the governments under Japanese occupation, $eneralMacArthur referred to Dprocesses other than %udicial processes.D

+hat is, the legislative and e8ecutive processes.

@ut, did not the ma%orit# maintain that all acts and proceedings of legislative and e8ecutive departments of a defactogovernments are good and validP !id it not maintain that the# are so as a Dlegal truism in political andinternational lawPD

=ow if the reasoning of the ma%orit# to the effect that $eneral MacArthur could not refer to %udicial processesecause the# are good and valid in accordance with international law, wh# should the same reasoning not appl# tolegislative and e8ecutive processesP

-h# does the ma%orit# maintain that, notwithstanding the fact that, according that said legal truism, legislative ande8ecutive official acts of de factogovernments are good and valid, $eneral MacArthur referred to the latter in his

annulling proclamation, ut not to %udicial processesP

If the argument is good so as to e8clude %udicial processes from the effect of the 0ctoer &roclamation, we can seeno logic in considering it ad with respect to legislative and e8ecutive processes.

If the argument is ad with respect to legislative and e8ecutive processes, there is no logic in holding that it is notgood with respect to %udicial processes.

+herefore, if the argument of the ma%orit# opinion is good, the inevitale conclusion is that $eneral MacArthur didnot declare null and void an# processes, at all, whether legislative processes, e8ecutive processes, or %udicialprocesses, and that the word DprocessesD used # him in the 0ctoer &roclamation is a mere surplusage or anornamental literar# appendi8.

+he asurdit# of the conclusion unmas's the utter futilit# of the position of the ma%orit#, which is ut a mere legalpretense that cannot stand the least anal#sis or the test of logic.

A great legal luminar# admonished that we must have courage to unmas's pretense if we are to reach a peace thatwill aide e#ond the fleeting hour.

It is admitted that the commanding general of a elligerent arm# of occupation as an agent of his government, Dma#not unlawfull# suspend e8isting laws and promulgate new ones in the occupied territor# if and when e8igencies ofthe militar# occupation demand such action,D ut it is douted whether the commanding general of the arm# of therestored legitimate government can e8ercise the same road legislative powers.

-e eg to disagree with a theor# so unreasonale and suversive.

-e cannot accept that the commanding general of an arm# of occupation, of a reellious arm#, of an invading arm#,or of a usurping arm#, should en%o# greater legal authorit# during the illegal, and in the case of the Japanese,ini9uitous and estial occupation, than the official representative of the legitimate government, once restored in theterritor# wrested from the rutal invaders and aggressors. -e cannot agree with such legal travest#.

@road and unlimited powers are granted and recogni"ed in the commanding general of an arm# of invasion, ut theshadow of the vanishing alleged principle of international law is eing randished to gag, manacle, and ma'ecompletel# powerless the commander of an arm# of lieration to wipe out the official acts of the government forusurpation, although said acts might impair the militar# operation or neutrali"e the pulic policies of the restoredlegitimate government.

-e are not unmindful of the interest of the persons who might e adversel# affected # the annulment of the %udicialprocesses of the governments under the Japanese regime, ut we cannot help smiling when we hear that chaos willreign or that the world will sin'.

It is possile that some criminals will e let loose unpunished, ut nood# has ever een alarmed that the &resident,in the e8ercise of his constitutional powers of pardon and amnest#, had in the past released man# criminals fromimprisonment. And let us not forget that due to human limitations, in all countries, under all governments, in peaceor in war, there were, there are, and there will alwa#s e unpunished criminals, and that situation never causeddespair to an# one.


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-e can conceive of inconveniences and hardships, ut the# are necessar# contriutions to great and nolepurposes. ;ntold sacrifices were alwa#s offered to attain high ideals and in ehalf of worth# causes.

-e cannot refrain from feeling a paternal emotion for those who are tremling with all sincerit# ecause of the eliefthat the avoidance of %udicial proceedings of the governments under the Japanese regime Dwould paral#"e thesocial life of the countr#.D +o alla# such fear we must remind them that the countr# that produced man# great hereos

and mart#rs that contriuted some of highest morals figures that humanit# has ever produced in all histor# whichinhaited # a race which was ale to traverse in immemorial times the vast e8panses of the Indian 0cean and the&acific with inade9uate means of navigation, and to inhait in man# islands so distantl# located, from Madagascarto the eastern &acific which made possile the wonderful resistance of @ataan and Corregidor, can not have asocial life so frail as to e easil# paral#"ed # the annulment of some %udicial proceedings. +he Japanesevandalisms during the last three #ears of nightmares and estial oppression, during the long period of our nationalslaver#, and the wholesale massacres and destructions in Manila and man# other cities and municipalities andpopulated areas, were not ale to paral#"e the social life of our people. Let us not loss faith so easil# in the inherentvitalit# of the social life of the people and countr# of (i"al and Maini.

It is insinuated that ecause of the thought that the representative of the restored sovereign power ma# set aside all%udicial processes of the arm# of occupation, in the case to courts of a future invasions, litigants will not summit their

cases to courts whose %udgement ma# afterwards e annulled, and criminals would not e deterred from committingoffenses in the e8pectanc# that the# ma# escape penalt# upon lieration of the countr#. -e hope that &rovidencewill never allow the &hilippines to fall again under the arms of an invading arm#, ut if such misfortune will happen,let the 0ctoer &roclamation serve as a notice to the ruthless invaders that the official acts of the government ofoccupation will not merit an# recognition from the legitimate government, especiall# if the# should not conductthemselves, as e8emplified # the Japanese, in accordance with the rules of action of a civili"ed state.

0ne conclusive evidence of the untenaleness of the ma%orit# position is the fact that it had to resort to 78ecutive0rder =o. 1G, issued on March B, 23E, providing Dthat all cases that have heretofore een appealed to the Courtof Appeals shall e transmitted to the


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$07(=M7=+

+he ma%orit# opinion is accumulating authorities to show the man# duties imposed # international law on themilitar# occupant of an invaded countr#.

And from said duties it is deduced that the legitimate government, once restored in his own territor#, is ound to

respect all the official acts of the government estalished # the usurping arm#, e8cept %udicial processes politicalcomple8ion.

+he reasoning calls for immediate opposition. It is asolutel# contrar# to all principles of logic.

@etween the duties imposed in the militar# occupant and the legal prerogatives of the legitimate government thereare no logical relationship or connection that might ind the ones with the others.

+he militar# occupants is dut# ound to protect the civil rights of the inhaitants, ut wh# should the legitimategovernment necessaril# validate the measures adopted # the said occupant in the performance of this dut#, if thelegitimate government elieves his dut# to annul them for weight# reasonsP

+he militar# occupant is dut# ound to estalish courts of %ustice. -h# should the legitimate government validate theacts of said courts, if it is convinced that said courts were asolutel# powerless, as was the case during theJapanese occupation, to stop the horrile auses of the militar# police, to give relief to the victims of "oning and Fort


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-e are afraid to such procedure is not precisel# the most appropriate to 'eep pulic confidence in the effectivenessof the administration of %ustice.

+hat is wh# we must insists that in the 0ctoer &roclamation should e read what $eneral MacArthur has written init, that is, that, esides laws and regulations, he declared and proclaimed null and void DALL &(0C7A7 =0 J;(I

=ow we come to the third and last 9uestion propounded in the ma%orit# opinion.

+he %urisdiction of the Commonwealth triunals is defined, prescried, and apportioned # legislative act.

It is provided so in our Constitution. )


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Court, or pending # appeal efore the


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Act =o. HE, enacted on 7 ;=I+7!


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H, up to the date of the adoption of the


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full force of a law.

+he fact that in the past, the legitimate governments, once restored in their own territor#, condescended in man#cases to recogni"e and to give effect to %udgments rendered # courts under the governments set up # an invadingmilitar# occupant or # a reel arm#, does not elevate such condescension to the categor# of a principle, when-heaton declares that no international wrong is done if the acts of the invader are reversed.

Man# irrelevant authorities were cited to us as to the duties imposed # the international law on militar# occupants,ut no authorit# has een cited to the effect that the representative of the restored legitimate government is a oundto recogni"e and accept as valid the acts and processes of said occupants. 0n the contrar#, -heaton sa#s that ifthe occupants acts are reversed Dno international wrong would e committed.D

Following the authorit# of -heaton, undisputed # the ma%orit#, $eneral MacArthur thought, as the wisest course, ofdeclaring D=;LL A=! 0I! A=! -I+>0;+ 7FF7C+,D # official proclamation, DALL &(0C7


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and processesD of the Japanese sponsored governments, during enem# occupation, Dare null and void and withouteffectD, he meant e8actl# what he said.

3. +hat where $eneral MacArthur said Dall processesD we must read and understand precisel# and e8actl# DallprocessesD, and not Dsome processesD. DAllD and DsomeD have incompatile meanings and are not interchangeale.

E. +hat the word DprocessesD includes %udicial procedures, proceedings, processes, and cases. +herefore, DallprocessesD must include Dall %udicial processes.D.

. +hat we have no right to attriute $eneral MacArthur an intention different from what he has plainl#, clearl#,unmista'al# e8pressed in unamiguous words with familiar meaning generall# understood # the common man.

G. +hat the %udicial proceedings here in 9uestion are included among those adversel# affected # the 0ctoer&roclamation.

H. +hat the Commonwealth triunals have no %urisdiction to ta'e cogni"ance of nor to continue the %udicialproceedings under the Japanese regime.

2. +hat to e8ercise said %urisdiction an enaling act of the Congress is necessar#.

B. +hat respondent Judge !i"on did not commit the error complained of in the petition, and that the petition has nomerits at all.

-e refuse to follow the course of action ta'en # the ma%orit# in the present case. It is a course ased on amista'en conception of the principles of international law and their interpretation and application, and on apinchec'. It is a course ased on misconstruction or misunderstanding of the 0ctoer &roclamation, in utterdisregard of the most elemental principles of legal here meneutics. It is a course that leads to nowhere, e8cept tothe rin' of disaster, ecause it is following the dangerous path of ignoring or disoe#ing the law.

Let us not allow ourselves to e deceived. +he issue confronting us is not of passing importance. It is an issue of

awesome magnitude and transcendenc#. It goes to and reaches the ver# ottom. It is simple. Lac'ing incomple8ities. @ut it ma# sha'e the ver# foundation of societ#, the cornerstone of the state, the primar# pillar of thenation. It ma# dr# the ver# foundation of social life, the source of vitali"ing sap that nurtures the od# politic. +heissue is etween the validit# of one or more Japanese regime processes and the sanctit# of the law.

+hat is the 9uestion, reduced to its ultimate terms. it is a simple dilemma that is facing us. It is the alpha and theomega of the whole issue. 7ither the processes, or the law. -e have to select etween two, which to uphold. It is adilemma that does not admit of middle terms, or of middle wa#s where we can loiter with happ# unconcern . -e arein the cross road: which wa# shall we followP +he processes and the law are placed in the opposite ends of thealance.


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dissent.

+he proceeding involved in the case at ar were commenced # a complaint filed # the instant petitioner, asplaintiff, on =ovemer H, 233, in civil case =o. 1B/ of the socalled Court of First Instance of Manila, thecomplaint earing this heading and title: D+he (epulic of the &hilippines In the Court of First Instance of ManilaD)Anne8 of 78hiit A of petition for "anda"us*. +he farthest that said proceedings had gone efore the record was

urned or destro#ed during the attle for Manila, was the filing # counsel for plaintiff therein of their opposition to amotion for dismissal filed # opposing counsel.

It is, therefore, plain that the case had not een heard on the merits when the record was urned or destro#ed.

+he respondent %udge, in his order dated June , 23E, disposing of the petition dated Ma# /E, 23E filed #petitioner, as a plaintiff in said case, and of the petition filed # respondent 7useio alde" +an Keh, as defendanttherein, on Ma# 1, 2B3E, held: Dfirst, that # virtue of the proclamation of $eneral MacArthur 9uoted aove, alllaws, regulations and processes of an# other government in the &hilippines than that of the Commonwealth ecamenull and void and without legal effect in Manila on Feruar# 1, 23E or, at the lates, on Feruar# /G of the same#ear second that the proceedings and processes had in the present case having een efore a court of the(epulic of the &hilippines and in accordance with the laws and regulations of said (epulic, the same are now void

and without legal effect third, that this Court as one of the different courts of general %urisdiction of theCommonwealth of the &hilippines, has no authorit# to ta'e cogni"ance of and continue said proceedings to final%udgement, until and unless the $overnment of the Commonwealth of the &hilippines, in the manner and formprovided # law, shall have provided for the transfer of the %urisdiction of the courts of the now defunct (epulic ofthe &hilippines, and the causes commenced and left pending therein, to the courts created and organi"ed # virtueof the provisions of Act =o. 3BBG, as revived # 78ecutive 0rder =o. 1, or for the validation of all proceedings hadin said courts.D

&etitioner pra#s that this Court declare that the respondent %udge should not have ordered the suspension of theproceedings in civil case =o. 1B/ and should continue and dispose of all the incidents in said case till its completetermination. In m# opinion, the petition should denied.

In stating the reasons for this dissent, we ma# divide the arguments under the following propositions:

. +he proceedings in said civil case =o. 1B/ are null and void under $eneral of the Arm# MacArthursproclamation of 0ctoer /1, 233 )3 0ff. $a"., 3G, 3H*

/. )a* +he government st#led as, first, the D&hilippine 78ecutive Commission Dand later as the (epulic of the&hilippinesD, estalished here # the Commander in Chief of the Imperial Japanese Forces or # his order was nota de1facto government the socalled Court of First Instance of Manila was not a de factocourt, and the %udge whopresided it was not a de facto%udge )!* the rules of International Law regarding the estalishment of adefacto$overnment in territor# elonging to a elligerent ut occupied or controlled # an opposing elligerent areinapplicale to the governments thus estalished here # Japan

1. +he courts of those governments were entirel# different from our Commonwealth courts efore and after the

Japanese occupation

3. +he 9uestion oils down to whether the Commonwealth $overnment, as now restored, is to e ound # the actsof either or oth of those Japanesesponsored governments

E. 7ven consideration of polic# of practical convenience militate against petitioners contention.

I

+he proceedings in said civil case =o. 1B/ are null and void under $eneral of the Arm# MacArthursproclamation of 0ctoer /1, 233 )3 0ff. $a"., 3G, 3H*.

In this proclamation, after reciting certain now historic facts, among which was that the socalled government st#ledas the D(epulic of the &hilippinesD was estalished on 0ctoer 3, 231 Dunder enem# duress, . . . ased uponneither the free e8pression of the peoples will nor the sanction of the $overnment of the ;nited


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888 888 888

I do en%oin upon all lo#al citi"ens of the &hilippines full respect for and oedience to the Constitution of theCommonwealth of the &hilippines and the laws, regulations and other acts of their dul# constitutedgovernment whose seat is now firml# reestalished on &hilippine soil.

+he evident meaning and effect of the 1rd paragraph aove 9uoted is, I thin', that as the different areas of the&hilippines were progressivel# lierated, the declaration of nullit# therein contained shall attach to the laws,regulations and processes thus condemned in so far as said areas were concerned. Mar' that the proclamation didnot provide that such laws, regulations and processes shall e or are annulled, ut that the# arenull and void.

Annulment implies some degree of the effectiveness in the act annulled previous to the annulment, ut a declarationof nullit# denotes that the act is null and void a! initio the nullit# precedes the declaration. +he proclamationspea's in the present tense, not in the future. If so, the fact that the declaration of nullit# as to the condemned laws,regulations, and processes in areas not #et free from enem# occupation and control upon the date of theproclamation, would attach thereto at a later date, is no argument for giving them validit# or effectiveness inthe interregnu". @# the ver# terms of the proclamation itself, that nullit# had to date ac' from the inception of suchlaws, regulations and processes and to dispel an# shadow of dout which ma# still remain, we need onl# considerthe concluding paragraph of the proclamation wherein the Commander in Chief of the arm# lieration solemnl#

en%oined upon all lo#al citi"ens of the &hilippines full respect for and oedience to the Constitution of theCommonwealth of the &hilippines and the laws, regulations and other acts of their dul# constituted government. +hisis allinclusive it comprises not onl# the lo#al citi"ens in the lierated areas ut also those in areas still underenem# occupation and control. It will e noticed that the complaint in said civil case =o. 1B/ was filed twent#si8da#s after the aove9uoted proclamations of $eneral of the Arm# MacArthur. If the parties to said case were toconsider the proceedings therein up to the date of the lieration of Manila valid and inding, the# would hardl# ecompl#ing with the severe in%unction to render full respect for and oedience to our Constitution and the laws,regulations and other acts of our dul# constituted government from ,cto!er 23+ 4566, onwards. Indeed, to m# mind,in choosing etween these two courses of action, the# would e dangerousl# standing on the dividing line etweenlo#alt# and dislo#alt# to this countr# and its government.

+he proceeding in 9uestion, having een had efore the lieration of Manila, were un9uestional# DprocessesD ofthe Japanesesponsored government in the &hilippines within the meaning of the aforesaid proclamation of $eneral

of the Arm# MacArthur and, conse9uentl#, fall within the condemnation of the proclamation. @eing processes of aranch of a government which had een estalished in the hostilit# to the Commonwealth $overnment, as well asthe ;nited


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with theirs. As &resident (oosevelt said in his aove 9uoted message, D0ur s#mphat# goes out to those remainlo#al to the ;nited


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Japanesesponsored government which has een so severel# condemned # oth the heads of the ;nited


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+he individual


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As necessar# conse9uence of this, those rules of International Law were no longer applicale to the &hilippines andto the ;nited


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factocourt, its %udge had to e a de facto%udge, which he could not e, as presentl# demonstrated.

As said # &resident 0smeQa, in repl#ing to the speech of $eneral of the Arm# MacArthur when the latter turnedover to him the full powers and responsiilities of the Commonwealth $overnment, on Feruar# /G, 23E:

888 888 888

+he time has come when the world should 'now that when our forces surrendered in @ataan andCorregidor, resistance to the enem# was ta'en up # the people itself resistance which was inarticulateand disorgani"ed in its inception ut which grew from the da# to da# and from island until it ro'e out into anopen warfare against the enem#.

+he fight against the enem# was trul# a peoples war ecause it counted with the wholehearted support ofthe masses. From the humle peasant to the arrio school teacher, from the volunteer guard to the womensau8illiar# service units, from the lo#al local official to the arrio fol' each and ever# one of thosecontriuted his share in the great crusade for lieration.

+he guerrillas 'new that without the support of the civilian population, the# could not survive. -hole town

and villages dared enem# reprisal to oppose the hated invader openl# or give assistance to the undergroundmovement. . . . )3 0ff. $a"., HH, H2.*

;nder these facts, ta'en together with the $eneral of the Arm# MacArthurs accurate statement that the D(epulic ofthe &hilippinesD had een estalished under enem# duress, it must e presumed to sa# the least that the

%udge who presided over the proceedings in 9uestion during the Japanese occupation, firstl#, accepted hisappointment under duress and secondl#, acted # virtue of that appointment under the same duress. In suchcircumstances he could not have acted in the !ona fide elief that the new DcourtsD created # or under the orders ofthe Japanese Militar# Commander in chief had een legall# createdamong them the DCourt of first Instance ofManila,D that the Chairman of the D&hilippine 78ecutive CommissionD or the &resident of the D(epulic of the&hilippinesD, whoever appointed him, and conferred upon him a valid title to his office and a legitimate %urisdiction toact as such %udge. $ood faith is essential for the e8istence of a de facto%udge )+a#'o vs.Capistrano, E1 &hil., H,

HG/*. +he ver# idea of enem# duress would necessaril# impl# that ut for the duress e8erted upon him # the enem#he would have refused to accept the appointment and to act thereunder. And wh#P @ecause he must e presumedto 'now that the office to which he was thus appointed had een created # the enem# in open defiance of theCommonwealth Constitution and the laws and regulation promulgated # our Commonwealth $overnment, and thathis acceptance of said office and his acting therein, if willfull# done, would have een no less than an open hostilit#to the ver# sovereignt# of the ;nited


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the decrees of the D&hilippine 78ecutive CommissionD and the laws of the socalled Legislature under the (epulic,which was not composed of the elected representatives of the people. +he Justices and Judges of theCommonwealth courts had to e appointed # the &resident of the Commonwealth with confirmation # theCommission on Appointments, pursuant to the Commonwealth Constitution. +he Chief Justice of the


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ma# e true, ut other facts are %ust as stuorn and pitiless. 0ne of them is that said courts were of agovernment alien to the Commonwealth $overnment. +he laws the# enforced were, true enough, laws ofthe Commonwealth prior to Japanese occupation, ut the# had ecome the laws and the Courts hadecome the institutionsof Japan # adoption );.


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from the %udicial s#stem that said invader allowed to have. +hose who voluntaril# went to the courts in those tragicda#s elong to the small minorit#.

As to the pulic order wh#S an# pulic order which then e8isted was not due to the courts or other departments ofthe puppet government. It was maintained at the point of the a#onet # the Japanese arm#, and in their own uni9uefashion.

4ootnote+

(esolution on motion for reconsideration, see p. 1G, post.

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G.R. No. L-5 Cham vs. Tan Keh

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