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Case: Kuroda v. Jalandoni

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA,petitioner,vs.Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITOTORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS,MELVILLE S. HUSSEY and ROBERT PORT, respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey forrespondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of

the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now chargedbefore a military Commission convened by the Chief of Staff of the Armed forces of the Philippines with havingunlawfully disregarded and failed "to discharge his duties as such command, permitting them to commit brutalatrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces inviolation of the laws and customs of war" comes before this Court seeking to establish the illegality ofExecutive Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents Melville S. Husseyand Robert Port from participating in the prosecution of petitioner's case before the Military Commission and topermanently prohibit respondents from proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of ourconstitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an

adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners ischarged of 'crimes' not based on law, national and intemational." Hence petitioner argues "That in view off thefact that this commission has been empanelled by virtue of an unconstitutional law an illegal order thiscommission is without jurisdiction to try herein petitioner."

Second. That the participation in the prosecution of the case against petitioner before the Commission inbehalf of the United State of America of attomeys Melville Hussey and Robert Port who are not attomeysauthorized by the Supreme Court to practice law in the Philippines is a diminution of our personality as anindependent state and their appointment as prosecutor are a violation of our Constitution for the reason that theyare not qualified to practice law in the Philippines.

Third. That Attomeys Hussey and Port have no personality as prosecution the United State not being a partyin interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation goveming thetrial of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947 ThisCourt holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that

The Philippines renounces war as an instrument of national policy and adopts the generally acceptedprinciples of intemational law as part of the of the nation.

In accordance with the generally accepted principle of intemational law of the present day including the HagueConvention the Geneva Convention and significant precedents of intemational jurisprudence established by the


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United Nation all those person military or civilian who have been guilty of planning preparing or waging a war ofaggression and of the commission of crimes and offenses consequential and incidental thereto in violation of thelaws and customs of war, of humanity and civilization are held accountable therefor. Consequently in thepromulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted inconformity with the generally accepted and policies of intemational law which are part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in chief ofall our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1when we said

War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident ofwar may remain pending which should be disposed of as in time of war. An importance incident to aconduct of war is the adoption of measure by the military command not only to repel and defeat theenemies but to seize and subject to disciplinary measure those enemies who in their attempt to thwart orimpede our military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.)Indeed the power to create a military commission for the trial and punishment of war criminals is anaspect of waging war. And in the language of a writer a military commission has jurisdiction so long as atechnical state of war continues. This includes the period of an armistice or military occupation up to theeffective of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of War

Criminals by Military Tribunals, America Bar Association Joumal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspectof war namely the trial and punishment of war criminal through the issuance and enforcement of Executive OrderNo. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed inviolation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to thefirst and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague andGeneva conventions form, part of and are wholly based on the generally accepted principals of intemational law.In facts these rules and principles were accepted by the two belligerent nation the United State and Japan whowere signatories to the two Convention, Such rule and principles therefore form part of the law of our nationeven if the Philippines was not a signatory to the conventions embodying them for our Constitution has been

deliberately general and extensive in its scope and is not confined to the recognition of rule and principle ofintemational law as continued inn treaties to which our govemment may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under thesovereignty of United States and thus we were equally bound together with the United States and with Japan tothe right and obligation contained in the treaties between the belligerent countries. These rights and obligationwere not erased by our assumption of full sovereignty. If at all our emergency as a free state entitles us toenforce the right on our own of trying and punishing those who committed crimes against crimes against ourpeople. In this connection it is well to remember what we have said in the case ofLaurel vs. Misa(76 Phil., 372):

. . . The change of our form govemment from Commonwealth to Republic does not affect theprosecution of those charged with the crime of treason committed during then Commonwealth becauseit is an offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our govemment while we were aCommonwealth are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attomeys namely Melville S. Hussey and Robert Port inthe prosecution of his case on the ground that said attomey's are not qualified to practice law in Philippines inaccordance with our Rules of court and the appointment of said attomeys as prosecutors is violative of ournational sovereignty.

In the first place respondent Military Commission is a special military tribunal govemed by a special law and notby the Rules of court which govem ordinary civil court. It has already been shown that Executive Order No. 68


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which provides for the organization of such military commission is a valid and constitutional law. There is nothingin said executive order which requires that counsel appearing before said commission must be attomeysqualified to practice law in the Philippines in accordance with the Rules of Court. In facts it is common in militarytribunals that counsel for the parties are usually military personnel who are neither attomeys nor even possessedof legal training.

Secondly the appointment of the two American attomeys is not violative of our nation sovereignty. It is only fairand proper that United States, which has submitted the vindication of crimes against her govemment and herpeople to a tribunal of our nation should be allowed representation in the trial of those very crimes. If there hasbeen any relinquishment of sovereignty it has not been by our govemment but by the United State Govemmentwhich has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comityis to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the personality ofattomeys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people havebeen equally if not more greatly aggrieved by the crimes with which petitioner stands charged before the MilitaryCommission. It can be considered a privilege for our Republic that a leader nation should submit the vindicationof the honor of its citizens and its govemment to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes chargedwhich fall under the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court willnot interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J ., dissenting:

A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for Violation of the

laws and customs of land warfare.

Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice lawwere appointed prosecutor representing the American CIC in the trial of the case.

The commission was empanelled under the authority of Executive Order No. 68 of the President of thePhilippines the validity of which is challenged by petitioner on constitutional grounds. Petitioner has alsochallenged the personality of Attomeys Hussey and Port to appear as prosecutors before the commission.

The charges against petitioner has been filed since June 26, 1948 in the name of the people of the Philippinesas accusers.

We will consideration briefly the challenge against the appearance of Attomeys Hussey and Port. It appearing

that they are aliens and have not been authorized by the Supreme Court to practice law there could not be anyquestion that said person cannot appear as prosecutors in petitioner case as with such appearance they wouldbe practicing law against the law.

Said violation vanishes however into insignificance at the side of the momentous question involved in thechallenge against the validity of Executive Order No. 68. Said order is challenged on several constitutionalground. To get a clear idea of the question raised it is necessary to read the whole context of said order which isreproduced as follows:

EXECUTIVE ORDER NO. 68.


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ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES ANDREGULATION GOVEMING THE TRIAL OF ACCUSED WAR CRIMINAL.

I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the Constitution andlaws of the Philippines do hereby establish a National War Crimes Office charged with the responsibility

of accomplishing the speedy trial of all Japanese accused of war crimes committed in the Philippinesand prescribe the rules and regulation such trial.

The National War crimes office is established within the office of the Judge Advocate General of theArmy of the Philippines and shall function under the direction supervision and control of the JudgeAdvocate General. It shall proceed to collect from all available sources evidence of war crimescommitted in the Philippines from the commencement of hostilities by Japan in December 1941,maintain a record thereof and bring about the prompt trial maintain a record thereof and bring about theprompt trial of the accused.

The National War Crimes Office shall maintain direct liaison with the Legal Section GeneralHeadquarters, Supreme Commander for the Allied power and shall exchange with the said Officeinformation and evidence of war crimes.

The following rules and regulation shall govem the trial off person accused as war criminals:

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. person accused as war criminal shall be tried by military commission to be convened byor under the authority of the Philippines.

II. JURISDICTION

(a) Over Person. Thee military commission appointed hereunder shall have jurisdiction over allpersons charged with war crimes who are in the custody of the convening authority at the time of thetrial.

(b) Over Offenses. The military commission established hereunder shall have jurisdiction over alloffenses including but not limited to the following:

(1) The planning preparation initiation or waging of a war of aggression or a war in violation ofintemational treaties agreement or assurance or participation in a common plan or conspiracy for theaccomplishment of any of the foregoing.

(2) Violation of the laws or customs of war. Such violation shall include but not be limited to murder ill-treatment or deportation to slave labor or for other purpose of civilian population of or in occupiedterritory; murder or ill-treatment of prisoners of war or intemees or person on the seas or elsewhere;improper treatment of hostage; plunder of public or private property wanton destruction of cities towns orvillage; or devastation not justified by military necessity.

(3) Murder extermination enslavement deportation and other inhuman acts committed against civilianpopulation before or during the war or persecution on political racial or religion ground in executive of orin connection with any crime defined herein whether or not in violation of the local laws.

III. MEMBERSHIP OF COMMISSIONS

(a) Appointment. The members of each military commission shall be appointed by the President ofthe Philippines or under authority delegated by him. Altemates may be appointed by the conveningauthority. Such shall attend all session of the commission, and in case of illness or other incapacity of


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any principal member, an altemate shall take the place of that member. Any vacancy among themembers or altemates, occurring after a trial has begun, may be filled by the convening authority but thesubstance of all proceeding had evidence taken in that case shall be made known to the said newmember or altemate. This facts shall be announced by the president of the commission in open court.

(b)Number of Members. Each commission shall consist of not less than three (3) members.

(c) Qualifications. The convening authority shall appoint to the commission persons whom hedetermines to be competent to perform the duties involved and not disqualified by personal interest orprejudice, provided that no person shall be appointed to hear a case in which he personally investigatedor wherein his presence as a witness is required. One specially qualified member whose ruling is final inso far as concems the commission on an objection to the admissibility of evidence offered during thetrial.

(d) Voting. Except as to the admissibility of evidence all rulings and finding of the Commission shallbe by majority vote except that conviction and sentence shall be by the affirmative vote of not less thanconviction and sentence shall be by the affirmative vote of not less than two-thirds (2\3) of the memberpresent.

(e)Presiding Member. In the event that the convening authority does not name one of the member asthe presiding member, the senior officer among the member of the Commission present shall preside.

IV. PROSECUTORS(a) Appointment. The convening authority shall designate one or more person to conduct theprosecution before each commission.

(b)Duties. The duties of the prosecutor are:

(1) To prepare and present charges and specifications for reference to a commission.

(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referredfor trial.

V. POWER AND PROCEDURE OF COMMISSION

(a)Conduct of the Trial. A Commission shall:

(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges,excluding irrelevant issues or evidence and preventing any unnecessary delay or interference.

(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishmenttherefor.

(3) Hold public session when otherwise decided by the commission.

(4) Hold each session at such time and place as it shall determine, or as may be directed by theconvening authority.

(b)Rights of the Accused. The accused shall be entitled:

(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as toapprise the accused of each offense charged.

(2) To be represented, prior to and during trial, by counsel appointed by the convening authority orcounsel of his own choice, or to conduct his own defense.

(3) To testify in his own behalf and have his counsel present relevant evidence at the trial insupport of his defense, and cross-examine each adverse witness who personally appearsbefore the commission.

(4) To have the substance of the charges and specifications, the proceedings and anydocumentary evidence translated, when he is unable otherwise to understand them.


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(c) Witnesses. The Commission shall have power:

(1) To summon witnesses and require their attendance and testimony; to administer oaths oraffirmations to witnesses and other persons and to question witnesses.

(2) To require the production of documents and other evidentiary material.

(3) To delegate the Prosecutors appointed by the convening authority the powers and duties set

forth in (1) and (2) above.(4) To have evidence taken by a special commissioner appointed by the commission.

(d) Evidence.

(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving ordisproving the charge, or such as in the commission's opinion would have probative value inthe mind of a reasonable man. The commission shall apply the rules of evidence and pleadingset forth herein with the greatest liberality to achieve expeditious procedure. In particular, andwithout limiting in any way the scope of the foregoing general rules, the following evidencemay be admitted:

(a) Any document, irrespective of its classification, which appears to the commission tohave been signed or issued by any officer, department, agency or member of the armedforces of any Govemment without proof of the signature or of the issuance of the

document.(b) Any report which appears to the commission to have been signed or issued by the

Intemational Red Cross or a member of any medical service personnel, or by anyinvestigator or intelligence officer, or by any other person whom commission considersas possessing knowledge of the matters contained in the report.

(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including swom statements, appearing to thecommission to contain information relating to the charge.

(e) A copy of any document or other secondary evidence of the contents, if the original isnot immediately available.

(2) The commission shall take judicial notice of facts of common knowledge, official govemmentdocuments of any nation, and the proceedings, records and findings of military or other

agencies of any of the United Nation.(3) A commission may require the prosecution and the defense to make a preliminary offer of

proof whereupon the commission may rule in advance on the admissibility of such evidence.

(4) The official position of the accused shall not absolve him from responsibility nor be consideredin mitigation of punishment. Further action pursuant to an order of the accused's superior, or ofhis Govemment, shall not constitute a defense, but may be considered in mitigation ofpunishment if the commission determines that justice so requires.

(5) All purposed confessions or statements of the accused shall bee admissible in evidencewithout any showing that they were voluntarily made. If it is shown that such confession orstatement was procured by mean which the commission believe to have been of such acharacter that may have caused the accused to make a false statement the commission maystrike out or disregard any such portion thereof as was so procured.

(e) Trial Procedure. The proceedings of each trial shall be conducted substantially as follows unlessmodified by the commission to suit the particular circumstances:

(1) Each charge and specification shall be read or its substance stated in open court.

(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."

(3) The prosecution shall make its opening statement."(4) The presiding member may at this or anyother time require the prosecutor to state what evidence he proposes to submit to thecommission and the commission thereupon may rule upon the admissibility of such evidence.

(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the closeof the case for the prosecution, the commission may, on motion of the defense for a finding ofnot guilty, consider and rule whether he evidence before the commission may defer action on


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any such motion and permit or require the prosecution to reopen its case and produce anyfurther available evidence.

(5) The defense may make an opening statement prior to presenting its case. The presidingmember may, at this any other time require the defense to state what evidence it proposes tosubmit to the commission where upon the commission may rule upon the admissibility of suchevidence.

(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, theprosecution and defense may introduce such evidence in rebuttal as the commission may ruleas being admissible.

(7) The defense and thereafter the prosecution shall address the commission.

(8) The commission thereafter shall consider the case in closed session and unless otherwisedirected by the convening authority, announce in open court its judgment and sentence if any.The commission may state the reason on which judgment is based.

(f) Record of Proceedings. Each commission shall make a separate record of its proceeding in thetrial of each case brought before it. The record shall be prepared by the prosecutor under the direction ofthe commission and submitted to the defense counsel. The commission shall be responsible for itsaccuracy. Such record, certified by the presiding member of the commission or his successor, shall bedelivered to the convening authority as soon as possible after the trial.

(g) Sentence. The commission may sentence an accused, upon conviction to death by hanging orshooting, imprisonment for life or for any less term, fine or such other punishment as the commissionshall determine to be proper.

(h) Approval of Sentence. No. sentence of a military commission shall be carried into effect untilapproved by the chief off Staff: Provided, That no sentence of death or life imprisonment shall be carriedinto execution until confirmed by the President of the Philippines. For the purpose of his review the Chiefof Staff shall create a Board of Review to be composed of not more than three officers none of whomshall be on duty with or assigned to the Judge Advocate General's Office. The Chief of Staff shall haveauthority to approve, mitigate remit in whole or in part, commute, suspend, reduce or otherwise alter thesentence imposed, or (without prejudice to the accused) remand the case for rehearing before a newmilitary commission; but he shall not have authority to increase the severity of the sentence. Except as

herein otherwise provided the judgment and sentence of a commission shall final and not subject toreview by any other tribunal.

VI. RULE-MAKING POWER

Supplementary Rule and Forms. Each commission shall adopt rules and forms to govem itsprocedure, not inconsistent with the provision of this Order, or such rules and forms as may beprescribed by the convening authority]or by the President of the Philippines.

VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of theappropriations for the Army of the Philippines for use by the National War Crimes Office in theaccomplishment of its mission as hereinabove set forth, and shall be expended in accordance with therecommendation of the Judge Advocate General as approved by the President. The buildings, fixtures,

installations, messing, and billeting equipment and other property herefore used by then Legal Section,Manila Branch, of the General Headquarters, Supreme Commander for the Allied Power, which will betumed over by the United States Army to the Philippines Govemment through the Foreign LiquidationCommission and the Surplus Property Commission are hereby specification reserved for use off theNational W ar Crimes Office.

Executive Order No. 64, dated August 16, 1945, is hereby repealed.

Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and forty-seven, and of the Independence of the Philippines, the second.


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MANUEL ROXASPresident of the Philippines

By the President:

EMILIO ABELLO

Chief of the Executive Office

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressionalenactment.

The first question that is trust at our face spearheading a group of other no less important question, is whether ornot the President of the Philippines may exercise the legislative power expressly vested in Congress by theConstitution. .

The Constitution provides:

The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a Senateand House of Representatives. (Section 1, Article VI.)

While there is no express provision in the fundamental law prohibiting the exercise of legislative power byagencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as tothe constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to theveto power of the President of the President of the Philippines, to the specific provision which allow the presidentof the Philippines to suspend the privileges of the writ of habeas corpus and to place any part of the Philippinesunder martial law, and to the rule-making power expressly vested by the Constitution in the Supreme Court.

There cannot be any question that the member of the Constitutional Convention were believers in the tripartitesystem of govemment as originally enunciated by Aristotle, further elaborated by Montequieu and accepted and

practiced by modem democracies, especially the United State of America, whose Constitution, after which ourshas been pattemed, has allocated the three power of govemment legislative, executive, judicial to distinctand separate department of govemment.

Because the power vested by our Constitution to the several department of the govemment are in the nature ofgrants, not recognition of pre-existing power, no department of govemment may exercise any power or authoritynot expressly granted by the Constitution or by law by virtue express authority of the Constitution.

Executive Order No. 68 establishes a National War Crimes Office and the power to establish govemment officeis essentially legislative.

The order provides that person accused as war criminals shall be tried by military commissions. Whether such aprovision is substantive or adjective, it is clearly legislative in nature. It confers upon military commissions

jurisdiction to try all persons charge with war crimes. The power to define and allocate jurisdiction for theprosecution of person accused of any crime is exclusively vested by the Constitution in Congress.

It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject constitutes ausurpation of the rule-making power vested by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure. If the President of the Philippines cannotexercise the rule -making power vested by the Constitution in the Supreme Court, he cannot, with more reason,delegate that power to military commission.


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It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by the saidExecutive Order No. 68. This constitutes another usurpation of legislative power as the power to voteappropriations belongs to Congress.

Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines usurpedpower expressly vested by the Constitution in Congress and in the Supreme Court.

Challenged to show the constitutional or legal authority under which the President issued Executive Order No.68, respondent could not give any definite answer. They attempted, however, to suggest that the President ofthe Philippines issued Executive Order No. 68 under the emergency power granted to him by Commonwealth

Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which aretranscribed below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TOPROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF THEPHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war in many parts of the world has created a national emergency whichmakes it necessary to invest the President of the Philippines with extraordinary power in order tosafeguard the integrity of the Philippines and to insure the tranquility of its inhabitants, by suppressingespionage, lawlessness, and all subversive to the people adequate shelter and clothing and sufficientfood supply, and by providing means for the speedy evacuation of the civilian population theestablishment of an air protective service and the organization of volunteer guard units, and to adoptsuch other measures as he may deem necessary for the interest of the public. To carry out this policythe President is authorized to promulgate rules and regulations which shall have the force and effect offlaw until the date of adjoumment of the next regulation which shall have the force and effect of law untilthe date of adjoumment of the next regular session of the First Congress of the Philippines, unlesssooner amended or repealed by the Congress of Philippines. Such rules and regulation may embracethe following objects: (1) to suppress espionage and other subversive activities; (2) to require all able-

bodied citizens (a) when not engaged in any lawful occupation, to engage in farming or other productiveactivities or (b) to perform such services as may bee necessary in the public interest; (3) to take overfarm lands in order to prevent or shortage of crops and hunger and destitution; (4) to take over industrialestablishment in order to insure adequate production, controlling wages and profits therein; (5) toprohibit lockouts and strikes whenever necessary to prevent the unwarranted suspension of work inproductive enterprises or in the interest of national security; (6) to regulate the normal hours of work forwage-eaming and salaried employees in industrial or business undertakings of all kinds; (7) to insure aneven distribution of labor among the productive enterprises; (8) to commandership and other means oftransportation in order to maintain, as much as possible, adequate and continued transportationfacilities; (9) to requisition and take over any public service or enterprise for use or operation by theGovemment;(10) to regulate rents and the prices of articles or commodities of prime necessity, bothimported and locally produced or manufactured; and (11) to prevent, locally or generally, scarcity,monopolization, hoarding injurious speculations, and private control affecting the supply, distribution and

movement of foods, clothing, fuel, fertilizer, chemical, building, material, implements, machinery, andequipment required in agriculture and industry, with power to requisition these commodities subject tothe payment of just compensation. (As amended by Com. Act No. 620.)

SEC. 2. For the purpose of administering this Act and carrying out its objective, the President maydesignate any officer, without additional compensation, or any department, bureau, office, orinstrumentality of the National Govemment.

SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of thisAct or any of the rules or regulations promulgated by the President under the authority of section one of


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this Act shall be punished by imprisonment of not more than ten years or by a fine of not more than tenthousand pesos, or by both. If such violation is committed by a firm or corporation, the manager,managing director, or person charge with the management of the business of such firm, or corporationshall be criminally responsible therefor.

SEC. 4. The President shall report to the national Assembly within the first ten days from the date of the

opening of its next regular session whatever action has been taken by him under the authority hereingranted.

SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts asmay be necessary from the sum appropriated under section five Commonwealth Act Numbered fourhundred and ninety-eight.

SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to beunconstitutional and void, such declaration shall not invalidate the remainder of this Act.

SEC. 7. This Act shall take upon its approval.

Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WARINVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATERULE AND REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State and other countries of Europe and Asia,which involves the Philippines, makes it necessary to invest the President with extraordinary powers inorder to meet the resulting emergency.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is hereby

authorized, during the existence of the emergency, to promulgate such rules and regulation as he maydeem necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, amongother things, empowered (a) to transfer the seat of the Govemment or any of its subdivisions, branches,department, offices, agencies or instrumentalities; (b) to reorganize the Govemment of theCommonwealth including the determination of the order of precedence of the heads of the ExecutiveDepartment; (c) to create new subdivision, branches, departments, offices, agency or instrumentalitiesof govemment and to abolish any of those already existing; (d) to continue in force laws andappropriation which would lapse or otherwise became inoperative, and to modify or suspend theoperation or application of those of an administrative character; (e) to imposed new taxes or to increase,reduce, suspend, or abolish those in existence; (f) to raise funds through the issuance of bonds orotherwise, and to authorize the expensive of the proceeds thereof; (g) to authorize the National,provincial, city or municipal govemments to incur in overdrafts for purposes that he may approve; (h) todeclare the suspension of the collection of credits or the payment of debts; and ( i) to exercise such other

power as he may deem necessary to enable the Govemment to fulfill its responsibilities and to maintainand enforce its authority.

SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated by himunder the power herein granted.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgatedhereunder shall be in force and effect until the Congress of the Philippines shall otherwise provide.

Approved December 16, 1941.


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The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said Acts hadelapsed upon the liberation of the Philippines form the Japanese forces or, at the latest, when the surrender ofJapan was signed in Tokyo on September 2, 1945.

When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in their

consideration and passage, not only as one of the members of said legislative body as chairman of theCommittee on Third Reading population Known as the "Little Senate." We are, therefore in a position to statethat said measures were enacted by the second national Assembly for the purpose of facing the emergency ofimpending war and of the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941.We approved said extraordinary measures, by which under the exceptional circumstances then prevailinglegislative power were delegated to the President of the Philippines, by virtue of the following provisions of theConstitution:

In time of war or other national emergency, the Congress may by law authorize the President, for alimited period and subject to such restrictions as it may prescribe to promulgate rules and regulations tocarry out declared national policy. (Article VI, section 26.)

It has never been the purpose of the National Assembly to extend the delegation beyond the emergency created

by the war as to extend it farther would be violative of the express provision of the Constitution. We are of theopinion that there is no doubt on this question.; but if there could still be any the same should be resolved infavor of the presumption that the National Assembly did not intend to violate the fundamental law.

The absurdity of the contention that the emergency Acts continued in effect even after the surrender of Japancan not be gainsaid. Only a few months after liberation and even before the surrender of Japan, or since themiddle of 1945, the Congress started to function normally. In the hypothesis that the contention can prevail,then, since 1945, that is, four years ago, even after the Commonwealth was already replaced by the Republic ofthe Philippines with the proclamation of our Independence, two district, separate and independence legislativeorgans, Congress and the President of the Philippines would have been and would continue enacting laws,the former to enact laws of every nature including those of emergency character, and the latter to enact laws, inthe form of executive orders, under the so-called emergency powers. The situation would be pregnant withdangers to peace and order to the rights and liberties of the people and to Philippines democracy.

Should there be any disagreement between Congress and the President of the Philippines, a possibility that noone can dispute the President of the Philippines may take advantage of he long recess of Congress (two-thirdsof every year ) to repeal and overrule legislative enactments of Congress, and may set up a veritable system ofdictatorship, absolutely repugnant to the letter and spirit of the Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees ofthe due process and equal protection of the law. It is especially so, because it permit the admission of manykinds evidence by which no innocent person can afford to get acquittal and by which it is impossible to determinewhether an accused is guilty or not beyond all reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation goveming the trialof twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of the United State Armed

Forces in Westem Pacific, for the purpose of trying among other, General Yamashita and Homma. What we saidin our concurring and dissenting opinion to the decision promulgated on December 19, 1945, in the Yamashitacase, L-129, and in our concurring and dissenting opinion to the resolution of January 23, 1946 in disposing theHomma case, L-244, are perfectly applicable to the offensive rules of evidence in Executive Order No. 68. Saidrules of evidence are repugnant to conscience as under them no justice can expected.

For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declareExecutive Order No. 68 null and void and to grant petition.


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Case: Yamashita v. Styer


Manila

EN BANC

G.R. No. L-129 December 19, 1945

TOMOYUKI YAMASHITA,petitioner,vs.WILHELM D. STYER, Commanding General, United States Army Forces, Westem Pacific,respondent.

Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner.Maj. Robert M. Kerr for respondent.Delgado, Dizon, Flores and Rodrigo appeared as amici curiae.

MORAN, C .J .:

Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese Imperial Army inthe Philippines, and now charged before an American Military Commission with the most monstrous crimes evercommitted against the American and Filipino peoples, comes to this Court with a petition forhabeas corpus andprohibition against Lt. Gen. Wilhelm D. Styer, Commanding General of the United States Army Forces, WestemPacific. It is alleged therein that petitioner after his surrender became a prisoner of war of the United States of

America but was later removed from such status and placed in confinement as an accused war criminal chargedbefore an American Military Commission constituted by respondent Lieutenant General Styer; and he now asksthat he be reinstated to his former status as prisoner of war, and that the Military Commission be prohibited fromfurther trying him, upon the following grounds:

(1) That the Military Commission was not duly constituted, and, therefore, it is without jurisdiction;

(2) That the Philippines cannot be considered as an occupied territory, and the Military Commission cannotexercise jurisdiction therein;

(3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing trial againstpetitioner, contrary to the provisions of the Geneva Convention of July 27, 1892, and therefore, the MilitaryCommission has no jurisdiction to try the petitioner;

(4) That there is against the petitioner no charge of an offense against the laws of war; and

(5) That the rules of procedure and evidence under which the Military Commission purports to be acting deniedthe petitioner a fair trial.

We believe and so hold that the petition forhabeas corpus is untenable. It seeks no discharge of petitioner fromconfinement but merely his restoration to his former status as a prisoner of war, to be intemed, not confined. Therelative difference as to the degree of confinement in such cases is a matter of military measure, disciplinary incharacter, beyond the jurisdiction of civil courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military Commission is notmade party respondent in this case, and although it may be acting, as alleged, without jurisdiction, no order maybe issued in these case proceedings requiring it to refrain from trying the petitioner.


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Furthermore, this Court has no jurisdiction to entertain the petition even if the commission be joined asrespondent. As we have said in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an attempt of our civil courts toexercise jurisdiction over the United States Army before such period (state of war) expires, would be consideredas a violation of this country's faith, which this Court should not be the last to keep and uphold." (Emphasissupplied) We have said this in a case where Filipino citizens were under confinement, and we can say no less ina case where the person confined is an enemy charged with the most heinous atrocities committed against the

American and Filipino peoples.

True that the rule was made applicable in time of war, and there is a conflict of opinion as to whether war hasalready terminated. War is not ended simply because hostilities have ceased. After cessation of armedhostilities, incident of war may remain pending which should be disposed of as in time of war. "An importantincident to a conduct of a war is the adoption of measure by the military command not only to repel and defeatthe enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart orimpede our military effort to have violated the law of the war." ( Ex parte Quirin, 317 US., 1; 63 Sup. Ct., 2.)Indeed, the power to create a Military Commission for the trial and punishment of war criminals is an aspect ofwaging war. And, in the language of a writer, a Military Commission "has jurisdiction so long as a technical stateof war continues. This includes the period of an armistice, or military occupation, up to the effective date of atreaty agreement." (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Joumal,June, 1944.)

Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), and this applicable in time of waras well as the time of peace that this Court has no power to review upon habeas corpus the proceedings of amilitary or naval tribunal, an that, in such case, "the single inquiry, the test, is jurisdiction. That being established,thehabeas corpus must be denied and the petitioner discharged." (In reGrimley, 137 U.S., 147; 11 Sup. Ct., 54;34 La. ed., 636.) Following this rule in the instant case, we find that the Military Commission has been validlyconstituted and it has jurisdiction both over the person of the petitioner and over the offenses with which he ischarged.

The Commission has been validly constituted by Lieutenant General Styer duly issued by General DouglasMacArthur, Commander in Chief, United States Army Force Pacific, in accordance in authority vested in him andwith radio communication from the Joint Chiefs of Staff, as shown by Exhibits C, E, G, and H, attached bypetition. Under paragraph 356 of the Rules of the Land Welfare a Military Commission for the trial and

punishment of the war criminals must be designated by the belligerent. And the belligerent's representative inthe present case is none other than the Commander in Chief of the United States Army in the Pacific. Accordingto the Regulations Goveming the Trial of the War Criminals in the Pacific, attached as Exhibit F to the petition,the "trial of persons, units and organizations accused as a war criminals will be the Military Commissions to beconvened by or under the authority of the Commander in Chief, United States Army Forces, Pacific." Articles ofWar Nos. 12 and 15 recognized the "Military Commission" appointed by military command as an appropriatetribunal for the trial and punishment of offenses against the law of the war not ordinarily tried by court martial.(Ex parte Quirin, supra.) And this has always been the United States military practice at since the Mexican Warof 1847 when General Winfield Scott took the position that, under the laws of war, a military commander has animplied power to appoint and convene a Military Commission. This is upon the theory that since the power tocreate a Military Commission is an aspect of waging war, Military Commanders have that power unlessexpressly withdrawn from them.

The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner and over theoffenses with which he is charged. It has jurisdiction over the person of the petitioner by reason of his havingfallen into the hands of the United States Army Forces. Under paragraph 347 of the Rules of the Land Warfare,"the commanders ordering the commission of such acts, or under whose authority they are committed by theirtroops, may be punished by the belligerent into whose hands they may fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the United States said:

From the very beginning of its history this Court has recognized and applied the law of war as includingthat part of the law of nations which prescribes, for the conduct of war, the status rights and duties andof enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15,Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have


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jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in additionto making rules for the govemment of our Armed Forces, has thus exercised its authority to define andpunish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdictionof military commissions to try persons and offenses which, according to the rules and precepts of thelaw of nations, and more particularly the law of war, are cognizable by such tribunals. (Ex parte Quirin,317 U.S. 1, 27-28; 63 Sup. Ct., 2.)

Petitioner is charged before the Military Commission sitting at Manila with having permitted members of hiscommand "to commit brutal atrocities and other high crimes against the people of the United States and of itsallies and dependencies, particularly the Philippines," crimes and atrocities which in the bills of particulars, aredescribed as massacre and extermination of thousand and thousands of unarmed noncombatant civilians bycruel and brutal means, including bayoneting of children and raping of young girls, as well as devastation anddestruction of public, or private, and religious property for no other motive than pillage and hatred. These areoffenses against the laws of the war as described in paragraph 347 of the Rules of Land Warfare.

It is maintained, however, that, according to the Regulations Goveming the Trial of War Criminals in the Pacific."the Military Commission . . . shall have jurisdiction over all of Japan and other areas occupied by the armedforces commanded by the Commander in Chief, United States Army Forces, Pacific" (emphasis supplied), andthe Philippines is not an occupied territory. The American Forces have occupied the Philippines for the purposeof liberating the Filipino people from the shackles of Japanese tyranny, and the creation of a MilitaryCommission for the trial and punishment of Japanese war criminals is an incident of such war of liberation.

It is maintained that Spain, the "protecting power" of Japan, has not been given notice before trial was begunagainst petitioner, contrary to the provisions of the Geneva Convention of July 27, 1929. But there is nothing in

that Convention showing that notice is a prerequisite to the jurisdiction of Military Commissions appointed byvictorious belligerent. Upon the other hand, the unconditional surrender of Japan and her acceptance of theterms of the Potsdam Ultimatum are a clear waiver of such a notice. It may be stated, furthermore, that Spainhas severed her diplomatic relation of Japan because of atrocities committed by the Japanese troops againstSpaniards in the Philippines. Apparently, therefore, Spain has ceased to be the protecting power of Japan.

And, lastly, it is alleged that the rules of procedure and evidence being followed by the Military Commission inthe admission of allegedly immaterial or hearsay evidence, cannot divest the commission of its jurisdiction andcannot be reviewed in a petition for the habeas corpus. (25 Am. Jur., 218; Collins vs. McDonald, 258 U. S. 416;66 Law. ed., 692; 42 Sup. Ct., 326).

For all foregoing, petition is hereby dismissed without costs.


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Case: Kookooritchkin v. Solicitor General 81 Phil 435


ManilaEN BANC

G.R. No. L-1812 August 27, 1948

EREMES KOOKOORITCHKIN,petitioner,vs.THE SOLICITOR GENERAL,oppositor.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor for appellant.L. D. Lockwood and Manuel O. Chan for appellee.

PERFECTO, J .:

In August, 1941, appellee filed with the lower court a petition for naturalization, accompanied with supportingaffidavits of two citizens, copy of a declaration of intention swom in July, 1940, and proper notice of the hearing.

The petition was finally set for hearing on December 18, 1941, but it was held on that date because the provincewas invaded by the Japanese forces on December 14, and the case remained pending until the records weredestroyed during the military operations for liberation in March, 1945. The case was declared reconstituted onMay 10, 1947, and the evidence was presented on August 28 and September 30, 1947. On the same dayresolution was issued granting the petition.

Although appellant was represented at the hearing and cross-examined the witnesses for the petitioner, he didnot file an opposition or presented any evidence.

The lower court made the findings of fact in the following paragraphs of its resolution:

Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions ofCommonwealth Act 473, as amended by Act 535.

The records shows that in August, 1941, he filed his petition for naturalization supported by the affidavitsof ex-Judge Jaime M. Reyes and Dr. Salvador Mariano, both residents of Camarines Sur. In thepreceding year, in July, 1940 to be precise, he filed his declaration of intention to become a citizen ofthis country. Notice of the hearing was published as required by law.

It was established at the hearing that the petitioner is a native-bom Russian, having first seen the light ofday on November 4, 1897 in the old City of St. Petersburg, Russia. He grew up as a citizen of thedefunct Imperial Russian Govemment under the Czars. World War I found him in the military service ofthis Govemment. In 1915 he volunteered for the Imperial Russian navy and was sent to the Navy

Aviation School. He fought with the Allies in the Baltic Sea, was later transferred to the eastem front inPoland, and much later was sent as a navy flier to Asia Minor. In the latter part of the war, but before theRussian capitulation, he was transferred to the British Air Force under which he served for fourteen

months. When the revolution broke out in Russia in 1917, he joined the White Russian Army atVladivostok and fought against the Bolsheviks until 1922 when the White Russian Army wasoverwhelmed by the Bolsheviks. As he refused to join the Bolshevik regime, he fled by sea fromVladivostok to Shanghai and from this Chinese port he found his way to Manila, arriving at this port as amember of a group of White Russians under Admiral Stark in March, 1923. He stayed in Manila forabout seven months, then moved to Olongapo, Zambales, where he resided for about a year, and fromthis place he went to Iriga, Camarines Sur, where he established his permanent residence since May,1925. He has remained a resident of this municipality, except for a brief period from 1942 to July, 1945,when by reason of his underground activities he roamed mountains of Caramoan as a guerrilla officer.

After liberation he retumed to Iriga where again he resides up to the present time.


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The applicant is married to a Filipino by the name of Concepcion Segovia, with whom he has one sonnamed Ronald Kookooritchkin. He is at present studying in Saint Agnes Academy, at Legaspi, Albay, aschool duly recognized b y the Govemment.

The applicant is shop superintendent of A. L. Ammen Transportation Company, with about eightyFilipino employees working under him. He receives an annual salary of P13,200 with free quarters and

house allowance. He also owns stocks and bonds of this and other companies.

The applicant speaks and writes English and the Bicol dialect. Socially he intermingles with the Filipinos,attending parties, dances and other social functions with his wife. He has a good moral character andbelieves in the principles underlying the Philippine Constitution. He has never been accused of anycrime. On the other hand, he has always conducted himself in a proper and irreproachable mannerduring his entire period of residence in Camarines Sur, in his relations with the constituted authorities aswell as with the community.

Although he could have lived in ease by maintaining good relations with the enemy by reason of hisbeing Russian-bom during the years preceding the declaration of war by Russia against Japan, theapplicant of his own volition chose to cast his lot with the guerrilla movement and fought the enemy inseveral encounters in the Province of Camarines Sur. He belonged to the guerrilla outfit of ColonelPadua with rank of major. Upon the arrival of the forces of liberation he was attached to the American

Army from April to June, 1945.

Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the presentCommunist Govemment of Russia. He is, therefore, a stateless refugee in this country, belonging to noState, much less to the present Govemment of the land of his birth to which he is uncompromisinglyopposed. He is not against organized govemment or affiliated with any association which upholds andteaches doctrine opposing all organized govemments. He does not believe in the necessity or proprietyof violence, personal assault or assassination for the success or predominance of his ideas. Neither ishe a polygamist or a believer in the practice of polygamy. He is not suffering from any mental alienationor incurable contagious disease.

Appellant assigns four errors in the appealed resolution. We will consider them separately.

I

Appellant claims that the lower court erred in not finding that the declaration of intention to become a Filipinocitizen filed by appellee is invalid and insufficient as a basis for the petition of naturalization. The question callsfor the application of the following provision of section 5 of the Revised Naturalization Law:

No declaration shall be valid until entry for permanent residence has been established and a certificateshowing the date, place and manner of his arrival has been issued.

Appellant alleges that no documentary or testimonial evidence was introduced to establish the fact that appelleehad lawfully been admitted into the Philippines for permanent residence.

In the reconstituted declaration (page 11, record on appeal) the following can be read:

I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the attachedcertificate of arrival or landing certificate of residence.

The records of the Bureau of Justice, where the declarations of intention to become a Filipino citizen were filed,had been lost or destroyed during the battle for the liberation of Manila, and the certificate alluded to has notbeen reconstituted.


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Appellant's contention that attachment of the certificate of arrival is essential to the validity of a declaration findsno support in the wordings of the law, as the above-quoted section 5 of Commonwealth Act no. 473 uses thewords "has been issued.

Appellee suggests that we would not consider the question here raised by appellant, the latter having failed toraise it in lower court and points out that there is testimonial evidence showing appellee's arrival March, 1923,

and that he was lawfully admitted for permanent residence, and the testimony of petitioner has not been refuted.Appellee's alleges that the office of the President has certified that it is a matter of record that petitioner was oneof the Russian refugees who entered the Philippines under the command of Admiral Stark, the facts regardingarrival of the latter fleet being a matter of common knowledge, widely publicized in the newspapers at the time,of which this Court may properly take judicial notice under section 5 of Rule 123. When the fleet entered thePhilippine waters, it was met by a Govemor General Wood who, later, took the matter up with the authorities inWashington in lengthy correspondence, and the 1,200 persons manning the fleet were allowed to land and toremain in the Philippines or proceed to other countries, except about 800 who were allowed to go to the UnitedStates and given free transportation on the naval transport "Merritt." The ships of the fleet were sold in thePhilippines.

The undisputed fact that the petitioner has been continuously residing in the Philippines for about 25 years,without having been molested by the authorities, who are presumed to have been regularly performing their

duties and would have arrested petitioner if his residence is illegal, as rightly contended by appellee, can betaken as evidence that he is enjoying permanent residence legally. That a certificate of arrival has been issued isa fact that should be accepted upon the petitioner's undisputed statement in his declaration of July, 1940, thatthe certificate cannot be supposed that the receiving official would have accepted the declaration without thecertificate mentioned therein as attached thereto.

We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law, failure to reconstitutethe certificate of arrival notwithstanding. What an unreconstituted document intended to prove may be shown byother competent evidence.

II

The second assignment of error touches upon two questions, that the lower court erred (1) in not finding thatappellee has not established a legal residence in the Philippines, and (2) in not finding that he cannot speak andwrite any of the principal Philippine languages.

The first question has already been disposed of in the above discussion. Perusal of the testimonies on recordleads to the conclusion that petitioner has shown legal residence in the Philippines for a continuous period of notless than ten years as required by section 2 of Commonwealth Act No. 473.

As to the next question, appellant alleges that in the oral test at the hearing, it was demonstrated that petitionerhas only a smattering of Bicol, the Filipino language that petitioner alleges to know, and he cannot speak it as hewas not able to translate from English to Bicol questions asked by the court and the provincial fiscal, although, inthe continuation of the hearing on September 30, 1947, "surprisingly enough, he succeeded answering correctlyin Bicol the questions propounded by his counsel, however, he fumbled and failed to give the translation of such

a common word as 'love' which the fiscal asked of him.

The lower court made the finding of fact that applicant speaks and writes English and Bicol and there seems tobe no question about the competency of the judge who made the pronouncement, because he has shown by theappealed resolution and by his questions propounded to appellee, that he has command of both English andBicol.

The law has not set a specific standard of the principal Philippine languages. A great number of standards canbe set. There are experts in English who say that Shakespeare has used in his works 15,000 different Englishwords, and the King's Bible about 10,000, while about 5,000 are used by the better educated persons and about3,000 by the average individual. While there may be persons ambitious enough to have a command of the about600,000 words recorded in the Webster's Intemational Dictionary, there are authorities who would reduce basic


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English to a few hundred words. Perhaps less than one hundred well selected words will be enough for theordinary purposes of daily life.

There is a reason to believe that the lower court's pronouncement is well taken considering the fact that, after hewas liberated in 1942 from the Japanese in the Naga prison, petitioner joined the guerrilla in the Bicol region,took part in encounters and skirmishes against the Japanese, and remained with the guerrilla until the

Americans liberated the Bicol provinces. If appellee with his smattering of Bicol was able to get along with hisBicol comrades in the hazardous life of the resistance movement, we believe that his knowledge of the languagesatisfies the requirement of the law.

But appellant contends that there is no piece of positive evidence to support petitioner's allegation that he canwrite too in the Bicol language. There, is, however, on record circumstantial evidence from which it can beconcluded that petitioner ought to know also how to write Bicol. We know that Bicol, as all the importantPhilippine languages, uses the same alphabet used in English, and it is much easier to write Bicol than English,because it is phonetic. Vowels and consonants have in them single and not interchangeable phonetic values,while English words deviate very often from the basic sounds of the alphabet. The ability to write cannot bedenied to a person like petitioner, who has undergone the exacting technical training to be able to renderservices as flier in the Russian Naval Squadron in the Baltic Sea and in the British Air Forces during the firstWorld War. The difference between the Cyrillic alphabet, as now used by Russians, and our Roman alphabet,

cannot weigh much to deny petitioner the ability to use the latter. A person who has shown the command ofEnglish which can be seen in his testimony on record can easily make use of an alphabet of twenty or moreletters universally used in this country where he has been residing continuously for 25 years.

III

Appellant contends that the lower court erred in finding appellee stateless and not a Russian citizen and in notfinding that he has failed to establish that he is not disqualified for Philippine citizenship under section 4 (h) ofthe Revised Naturalization Law.

It is contended that petitioner failed to show that under the laws of Russia, appellee has lost his Russiancitizenship and failed to show that Russia grants to Filipinos the right to become a naturalized citizens orsubjects thereof. The controversy centers on the question as to whether petitioner is a Russian citizen or isstateless.

Petitioner testified categorically that he is not a Russian citizen and that he has no citizenship. His testimonysupports the lower court's pronouncement that petitioner is a stateless refugee in this country.

Appellant points out that petitioner stated in his petition for naturalization that he is citizen or subject of theEmpire of Russia, but the Empire of Russia has ceased to exist since the Czars were overthrown in 1917 by theBolshevists, and the petitioner disclaims allegiance or connection with the Soviet Govemment established afterthe overthrow of the Czarist Govemment.

We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's testimony, besidesbeing uncontradicted, is supported by the well-known fact that the ruthlessness of modem dictatorship has

scattered throughout the world a large number of stateless refugees or displaced persons, without country andwithout flag. The tyrannical intolerance of said dictatorships toward all opposition induced them to resort tobeastly oppression, concentration camps and blood purges, and it is only natural that the not-so-fortunate oneswho were able to escape to foreign countries should feel the loss of all bonds of attachment to the hells whichwere formerly their fatherland's. Petitioner belongs to that group of stateless refugees.

Knowing, as all cultured persons all over the world ought to know, the history, nature and character of the Sovietdictatorship, presently the greatest menace to humanity and civilization, it would be technically fastidious torequire further evidence of petitioner's claim that he is stateless than his testimony that he owes no allegiance tothe Russian Communist Govemment and, is because he has been at war with it, he fled from Russia topermanently reside in the Philippines. After finding in this country economic security in a remunerative job,establishing a family by marrying a Filipina with whom he has a son, and enjoying for 25 years the freedoms and


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blessings of our democratic way of life, and after showing his resolution to retain the happiness he found in ourpolitical system to the extent of refusing to claim Russian citizenship even to secure his release from theJapanese and of casting his lot with that of our people by joining the fortunes and misfortunes of our guerrillas, itwould be beyond comprehension to support that the petitioner could feel any bond of attachment to the Sovietdictatorship.

IV

The fourth and last assignment of error need not be discussed, it being only a sequel of the other assignmentsand has necessarily been disposed of in their discussion.

The appealed resolution is affirmed.


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Case: Mijares v. Ranada


ManilaSECOND DIVISION

G.R. No. 139325 April 12, 2005PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR. MARIANIDIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on behalf of the Class Plaintiffsin Class Action No. MDL 840, United States District Court of Hawaii, petitioners,vs.HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of Branch 137, RegionalTrial Court, Makati City, and the ESTATE OF FERDINAND E. MARCOS, through its court appointedlegal representatives in Class Action MDL 840, United States District Court of Hawaii, namely:Imelda R. Marcos and Ferdinand Marcos, Jr.,respondents.

D E C I S I O N

TINGA, J.:

Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its bittercrop. While the restoration of freedom and the fundamental structures and processes of democracy havebeen much lauded, according to a significant number, the changes, however, have not sufficiently healedthe colossal damage wrought under the oppressive conditions of the martial law period. The cries of

justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in the heartsof the fair-minded, yet the dispensation of the appropriate relief due them cannot be extended through thesame caprice or whim that characterized the ill-wind of martial rule. The damage done was not merelypersonal but institutional, and the proper rebuke to the iniquitous past has to involve the award ofreparations due within the confines of the restored rule of law.

The petitioners in this case are prominent victims of human rights violations1

who, deprived of theopportunity to directly confront the man who once held absolute rule over this country, have chosen to dobattle instead with the earthly representative, his estate. The clash has been for now interrupted by a trial

court ruling, seemingly comported to legal logic, that required the petitioners to pay a whopping filing feeof over Four Hundred Seventy-Two Million Pesos (P472,000,000.00) in order that they be able to enforcea judgment awarded them by a foreign court. There is an understandable temptation to cast the strugglewithin the simplistic confines of a morality tale, and to employ short-cuts to arrive at what might seem thedesirable solution. But easy, reflexive resort to the equity principle all too often leads to a result that maybe morally correct, but legally wrong.

Nonetheless, the application of the legal principles involved in this case will comfort those who maintainthat our substantive and procedural laws, for all their perceived ambiguity and susceptibility to myriadinterpretations, are inherently fair and just. The relief sought by the petitioners is expressly mandated byour laws and conforms to established legal principles. The granting of this petition for certiorari iswarranted in order to correct the legally infirm and unabashedly unjust ruling of the respondent judge.

The essential facts bear little elaboration. On 9 May 1991, a complaint was filed with the United StatesDistrict Court (US District Court), District of Hawaii, against the Estate of former Philippine PresidentFerdinand E. Marcos (Marcos Estate). The action was brought forth by ten Filipino citizens

2who each

alleged having suffered human rights abuses such as arbitrary detention, torture and rape in the hands ofpolice or military forces during the Marcos regime.

3The Alien Tort Act was invoked as basis for the US

District Court's jurisdiction over the complaint, as it involved a suit by aliens for tortious violations ofintemational law.

4These plaintiffs brought the action on their own behalf and on behalf of a class of

similarly situated individuals, particularly consisting of all current civilian citizens of the Philippines, theirheirs and beneficiaries, who between 1972 and 1987 were tortured, summarily executed or haddisappeared while in the custody of military or paramilitary groups. Plaintiffs alleged that the class
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consisted of approximately ten thousand (10,000) members; hence, joinder of all these persons wasimpracticable.

The institution of a class action suit was warranted under Rule 23(a) and (b)(1)(B) of the US FederalRules of Civil Procedure, the provisions of which were invoked by the plaintiffs. Subsequently, the USDistrict Court certified the case as a class action and created three (3) sub-classes of torture, summary

execution and disappearance victims.

5

Trial ensued, and subsequently a jury rendered a verdict and anaward of compensatory and exemplary damages in favor of the plaintiff class. Then, on 3 February 1995,the US District Court, presided by Judge Manuel L. Real, rendered a Final Judgment (Final Judgment)awarding the plaintiff class a total of One Billion Nine Hundred Sixty Four Million Five Thousand EightHundred Fifty Nine Dollars and Ninety Cents ($1,964,005,859.90). The Final Judgmentwas eventuallyaffirmed by the US Court of Appeals for the Ninth Circuit, in a decision rendered on 17 December 1996. 6

On 20 May 1997, the present petitioners filed Complaint with the Regional Trial Court, City of Makati(Makati RTC) for the enforcement of the Final Judgment. They alleged that they are members of theplaintiff class in whose favor the US District Court awarded damages.7 They argued that since the MarcosEstate failed to file a petition for certiorari with the US Supreme Court after the Ninth Circuit Court of

Appeals had affirmed the Final Judgment, the decision of the US District Court had become final andexecutory, and hence should be recognized and enforced in the Philippines, pursuant to Section 50, Rule

39 of the Rules of Court then in force.

8

On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising, among others, the non-paymentof the correct filing fees. It alleged that petitioners had only paid Four Hundred Ten Pesos (P410.00) asdocket and filing fees, notwithstanding the fact that they sought to enforce a monetary amount ofdamages in the amount of over Two and a Quarter Billion US Dollars (US$2.25 Billion). The MarcosEstate cited Supreme Court Circular No. 7, pertaining to the proper computation and payment of docketfees. In response, the petitioners claimed that an action for the enforcement of a foreign judgment is notcapable of pecuniary estimation; hence, a filing fee of only Four Hundred Ten Pesos (P410.00) wasproper, pursuant to Section 7(c) of Rule 141.9

On 9 September 1998, respondent Judge Santiago Javier Ranada10 of the Makati RTC issued the subjectOrder dismissing the complaint without prejudice. Respondent judge opined that contrary to the

petitioners' submission, the subject matter of the complaint was indeed capable of pecuniary estimation,as it involved a judgment rendered by a foreign court ordering the payment of definite sums of money,allowing for easy determination of the value of the foreign judgment. On that score, Section 7(a) of Rule141 of the Rules of Civil Procedure would find application, and the RTC estimated the proper amount offiling fees was approximately Four Hundred Seventy Two Million Pesos, which obviously had not beenpaid.

Not surprisingly, petitioners filed a Motion for Reconsideration, which Judge Ranada denied in an Orderdated 28 July 1999. From this denial, petitioners filed a Petition for Certiorariunder Rule 65 assailing thetwin orders of respondent judge.11 They prayed for the annulment of the questioned orders, and an orderdirecting the reinstatement of Civil Case No. 97-1052 and the conduct of appropriate proceedingsthereon.

Petitioners submit that their action is incapable of pecuniary estimation as the subject matter of the suit isthe enforcement of a foreign judgment, and not an action for the collection of a sum of money or recoveryof damages. They also point out that to require the class plaintiffs to pay Four Hundred Seventy TwoMillion Pesos (P472,000,000.00) in filing fees would negate and render inutile the liberal constructionordained by the Rules of Court, as required by Section 6, Rule 1 of the Rules of Civil Procedure,particularly the inexpensive disposition of every action.

Petitioners invoke Section 11, Article III of the Bill of Rights of the Constitution, which provides that "Freeaccess to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any
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person by reason of poverty," a mandate which is essentially defeated by the required exorbitant filingfee. The adjudicated amount of the filing fee, as arrived at by the RTC, was characterized as indisputablyunfair, inequitable, and unjust.

The Commission on Human Rights (CHR) was permitted to intervene in this case.12

It urged that thepetition be granted and a judgment rendered, ordering the enforcement and execution of the District

Court judgment in accordance with Section 48, Rule 39 of the 1997 Rules of Civil Procedure. For theCHR, the Makati RTC erred in interpreting the action for the execution of a foreign judgment as a newcase, in violation of the principle that once a case has been decided between the same parties in onecountry on the same issue with finality, it can no longer be relitigated again in another country.

13The CHR

likewise invokes the principle of comity, and of vested rights.

The Court's disposition on the issue of filing fees will prove a useful jurisprudential guidepost for courtsconfronted with actions enforcing foreign judgments, particularly those lodged against an estate. There isno basis for the issuance a limited pro hac vice ruling based on the special circumstances of thepetitioners as victims of martial law, or on the emotionally-charged allegation of human rights abuses.

An examination of Rule 141 of the Rules of Court readily evinces that the respondent judge ignored theclear letter of the law when he concluded that the filing fee be computed based on the total sum claimed

or the stated value of the property in litigation.

In dismissing the complaint, the respondent judge relied on Section 7(a), Rule 141 as basis for thecomputation of the filing fee of over P472 Million. The provision states:

SEC. 7. Clerk of Regional Trial Court.-

(a) For filing an action or a permissive counterclaim or money claim against an estatenot based on judgment, or for filing with leave of court a third-party, fourth-party, etc.,complaint, or a complaint in intervention, and for all clerical services in the same time, ifthe total sum claimed, exclusive of interest, or the started value of the property inlitigation, is:

1. Less than P 100,00.00 P 500.00

2. P 100,000.00 or more but less than P 150,000.00 P 800.00

3. P 150,000.00 or more but less than P 200,000.00 P 1,000.00



6. P 300,000.00 or more but not more than P 400,000.00 P 2,000.00

7. P 350,000.00 or more but not more than P400,000.00 P 2,250.00

8. For each P 1,000.00 in excess of P 400,000.00 P 10.00

(Emphasis supplied)

Obviously, the above-quoted provision covers, on one hand, ordinary actions, permissive counterclaims,third-party, etc. complaints and complaints-in-interventions, and on the other, money claims againstestates which are not based on judgment. Thus, the relevant question for purposes of the present
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petition is whether the action filed with the lower court is a "money claim against an estate not based onjudgment."

Petitioners' complaint may have been lodged against an estate, but it is clearly based on a judgment, theFinal Judgment of the US District Court. The provision does not make any distinction between a local

judgment and a foreign judgment, and where the law does not distinguish, we shall not distinguish.

A reading of Section 7 in its entirety reveals several instances wherein the filing fee is computed on thebasis of the amount of the relief sought, or on the value of the property in litigation. The filing fee forrequests for extrajudicial foreclosure of mortgage is based on the amount of indebtedness or themortgagee's claim.

14In special proceedings involving properties such as for the allowance of wills, the

filing fee is again based on the value of the property.15

The aforecited rules evidently have no applicationto petitioners' complaint.

Petitioners rely on Section 7(b), particularly the proviso on actions where the value of the subject mattercannot be estimated. The provision reads in full:

SEC. 7. Clerk of Regional Trial Court.-

(b) For filing

1. Actions where the value of the subject mattercannot be estimated --- P 600.00

2. Special civil actions exceptjudicial foreclosure whichshall be govemed byparagraph (a) above --- P 600.00

3. All other actions not

involving property --- P 600.00

In a real action, the assessed value of the property, or if there is none, the estimated value, thereof shallbe alleged by the claimant and shall be the basis in computing the fees.

It is worth noting that the provision also provides that in real actions, the assessed value or estimatedvalue of the property shall be alleged by the claimant and shall be the basis in computing the fees. Yetagain, this provision does not apply in the case at bar. A real action is one where the plaintiff seeks therecovery of real property or an action affecting title to or recovery of possession of real property.

16Neither

the complaint nor the award of damages adjudicated by the US District Court involves any real property ofthe Marcos Estate.

Thus, respondent judge was in clear and serious error when he concluded that the filing fees should becomputed on the basis of the schematic table of Section 7(a), as the action involved pertains to a claimagainst an estate based on judgment. What provision, if any, then should apply in determining the filing

fees for an action to enforce a foreign judgment?

To resolve this question, a proper understanding is required on the nature and effects of a foreignjudgment in this jurisdiction.

The rules of comity, utility and convenience of nations have established a usage among civilized states bywhich final judgments of foreign courts of competent jurisdiction are reciprocally respected and renderedefficacious under certain conditions that may vary in different countries.

17This principle was prominently

affirmed in the leading American case ofHilton v. Guyot18

and expressly recognize

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